Court of Appeal for Ontario

Citation: R. v. Vivar, 2009 ONCA 433

Date: 20090526

Docket: C49825

Before: Rosenberg, Armstrong and Epstein JJ.A.

Between:

Her Majesty The Queen

Respondent

And

Jose Alejandro Vivar

Appellant

Counsel:

Anthony Moustacalis, duty counsel, for the appellant Jose Alejandro Vivar, in person

Frank Au, for the respondent

Heard: May 11, 2009

On appeal from conviction by Justice Hamilton of the Superior Court of Justice dated October 29, 2008.

ENDORSEMENT

[1] Despite Mr. Moustacalis’ very helpful submissions on behalf of the appellant, we are of the view that this appeal must be dismissed. We agree with Crown counsel that some reference in the information to obtain the warrant to the appellant’s acquittal for murder was justified, since it confirmed the confidential informer’s identification of the appellant. However, the further references to the facts underlying the murder allegations were irrelevant and improper.

[2] That said, there is no doubt that there was an ample basis for granting the warrant after excising the impugned references. The issue then is whether the inclusion of those references was so subversive of the search warrant process as to, in effect, amount to an abuse of process and require that the warrant be quashed. See R. v. Morris (1998), 1998 NSCA 229, 134 C.C.C. (3d) 539 (N.S.C.A.) approved in R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992.

[3] In our view, the inclusion of the impugned references was not such flagrant conduct as to amount to an abuse of the search warrant process, particularly given the fact that the affiant did clearly state that the appellant had been acquitted of the charge. Thus, we are not persuaded that there was a breach of s. 8 of the Charter of Rights and Freedoms.

[4] Accordingly, the appeal is dismissed.

Signed: “M. Rosenberg J.A.”

“Robert P. Armstrong J.A.”

“G.J. Epstein J.A.”