



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Windibank, 2015 ONCA 387

DATE: 20150528

DOCKET: C58674

Laskin, MacFarland and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Todd Jason Windibank and Amy Lynn Windibank

Respondents

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 respondents 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 judges 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 judges finding that objective grounds were lacking, this
    alone, having regard to the trial judges 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.


