



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Magyar, 2018 ONCA 697

DATE: 20180823

DOCKET: C59620

Watt, Huscroft and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Frank Magyar

Appellant

Chris
    Sewrattan
, for the appellant

Jeremy Streeter, for the respondent

Heard and released orally: August 20, 2018

On appeal from the conviction entered on March 3, 2014
    and the sentence imposed on November 14, 2014 by Justice Thomas J. Carey of the
    Superior Court of Justice, sitting without a jury.

REASONS FOR DECISION

[1]

The
    appellant challenges the conclusion reached by the trial judge on the
Garofoli
application advanced at trial in connection with the
CDSA
warrant
    issued for a warehouse search.

[2]

The
    appellant does not suggest that the trial judge stated the test incorrectly or
    misapplied it. The specific complaints advanced are that:

i.

the affiant failed to disclose relevant information in the ITO;

ii.

the affiant included inappropriate opinion in the ITO;

iii.

the affiant intentionally misled the authorizing judge; and

iv.

the ITO recited insufficient grounds that marijuana would be found in
    the warehouse premises.

[3]

We
    disagree.

[4]

The sole
    issue in controversy was whether marijuana would be found at the warehouse.
    Read as a whole, the ITO provided an ample evidentiary basis for this
    conclusion. The trial judge specifically addressed the claim of omissions in
    the ITO. His conclusion is well supported by the record.

[5]

We see no
    basis upon which to find that the affiant was being untruthful or that he
    provided inappropriate opinion in the ITO, issues that appear to be raised here
    for the first time.

[6]

In the
    result, we see no basis upon which to interfere with the trial judges
    conclusion that there was no breach of s. 8 in connection with the search of
    the warehouse premises. Accordingly, we do not reach the issue of evidentiary
    exclusion under s. 24(2) of the
Charter
. The appeal from conviction is
    dismissed.

[7]

The
    appellant also appealed the sentence imposed upon him at trial. We are not
    satisfied that the sentence imposed reflects an error in principle or is
    otherwise unfit. While leave to appeal sentence is granted, the appeal from
    sentence is dismissed.

David Watt J.A.

Grant Huscroft J.A.

Fairburn J.A.


