Ontario Criminal

Charter of Rights

Search and seizure
Police entering and remaining in wrong apartment was negligent and violated accused’s rights

Trial judge excluded evidence seized from accused’s apartment pursuant to s. 24(2) of Charter and acquitting her of drug offences. Police had mistakenly entered accused’s basement apartment while executing warrant to search neighbouring apartment of suspected drug dealer. Police remained in accused’s apartment and searched after realizing she was drug dealer initially targeted in warrant. Police obtained second warrant to search accused’s apartment during course of search. Trial judge held first warrant invalid for failing to accurately describe premises to be searched. Trial judge held police conduct in remaining in accused’s residence rendered search pursuant to both first and second warrants unlawful. Trial judge held police conduct in entering wrong apartment negligent and crossing into flagrant violation of accused’s rights by remaining in apartment. Crown’s appeal dismissed. First warrant was invalid by failing to adequately describe premises to be searched. Second warrant was invalid as obtained on strength of information illegally obtained by police by staying in residence after realizing warrant did not authorize their presence. Trial judge overstated importance of mistake but was correct subsequent conduct of remaining in apartment without authorizing very serious. Impact on accused’s Charter-protected interests clearly very serious. Society’s interest in justice system distancing itself from flagrant violation of accused’s rights outweighed adjudication of case on merits.

R. v. Ting (Jan. 20, 2016, Ont. C.A., K. Feldman J.A., J.C. MacPherson J.A., and B.W. Miller J.A., CA C58999) 128 W.C.B. (2d) 452.

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