Court of Appeal for Ontario

Citation: R. v. Windibank, 2015 ONCA 387

Date: 20150528

Docket: C58674

Before: Laskin, MacFarland and Rouleau JJ.A.

Between

Her Majesty the Queen

Appellant

and

Todd Jason Windibank and Amy Lynn Windibank

Respondents

Counsel:

Lisa Csele, for the appellant

Frank Miller, for the respondents

Heard: May 27, 2015

On appeal from the acquittals entered on March 20, 2014 by Justice Joseph Quinn of the Superior Court of Justice, sitting without a jury.

APPEAL BOOK ENDORSEMENT

[1] The police executed a search warrant at the respondent’s home. They found 55.48 grams of cocaine, $11,460 of Canadian currency and $720 of U.S. currency, cell phones, a Smith and Wesson 9 mm handgun, two magazines, ammunitions and a debt list.

[2] The trial judge ruled that the ITO did not provide objectively reasonable grounds justifying the warrant being issued. After a s. 24(2) analysis, the trial judge concluded that the seriousness of the breach together with the impact on the Charter protected interests of the accused were such that the evidence not be admitted.

[3] We agree with the Crown that the trial judge’s phrasing of the objective component of the test in review of the sufficiency of an ITO and how that is to be weighed in the s. 24(2) analysis is problematic. This said, however, even accepting the trial judge’s finding that objective grounds were lacking, this alone, having regard to the trial judge’s finding of good faith does not tip the balance such that, on the Grant factors, the evidence should be excluded. The trial judge erred in his weighing of the first factor. The appeal is allowed, the acquittals set aside and a new trial is ordered.