COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Jupiter, 2016 ONCA 144

DATE: 20160222

DOCKET: C59226

BEFORE: Doherty, Cronk and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Isan Danjuma Jupiter

Respondent

COUNSEL:

Lisa Mathews, for the appellant

Elizabeth Bingham and Gary Grill, for the respondent

Heard and released orally: February 18, 2016

On appeal from the acquittal entered by Justice Richards, of the Ontario Court of Justice, dated July 23, 2014.

ENDORSEMENT

[1] We see no error in the trial judge’s analysis of the Crown’s claim that the search of the bedroom could be justified as a “safety” search under the controlling jurisprudence. In R. v. MacDonald, 2014 SCC 3, at para. 43, the court explained the confines of a constitutionally permissible safety search:

…it is only when police officers have reasonable grounds to believe that there is an imminent threat to their safety that it will be reasonably necessary to conduct such a search. This limit guarantees that the lawful police power is not excessively broad. In doing so, it ensures that the law itself is reasonable and can be reasonably delineated. [Emphasis added.]

[2] We see no need to refer to the evidence or the findings in any detail. We do note, however, that in this case, the officers had decided to conduct the “safety” search before they arrived at the hotel room and regardless of what happened when they entered the hotel room. That predetermination by the officers, while not conclusive as to the propriety of the safety search, went a long way in support of the trial judge’s conclusion that the safety search could not be justified on the basis of a reasonable apprehension of imminent harm on entry of the apartment.

[3] The Crown has not demonstrated any basis upon which we should interfere with the trial judge’s conclusion that the evidence should be excluded under s. 24(2) of the Charter. The trial judge did not make a finding that the search was made in good faith. The laudable purpose of the broader investigation cannot be equated with a finding that the specific search was conducted in good faith.

[4] The appeal is dismissed.

“Doherty J.A.”

“E.A. Cronk J.A.”

“H.S. LaForme J.A.”