R. v. Nisbet
The Court held that the factual errors in the information were not sufficient to invalidate the warrant; the trial judge properly applied the Garofoli/ s.8 analysis and was entitled to consider corrected hydro usage figures as part of the amplified record; therefore the conviction stands and the imposed sentence is...
Source-derived case information.
- Citation
- C27440, M20700
- Parties
- Respondent: Her Majesty the Queen; Appellant: Keith Nisbet
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 29 September 1998
- Procedural Posture
- Criminal / Court of Appeal Decision on Conviction and Sentence Appeal
- Outcome
- Appeal dismissed with respect to conviction; leave to appeal sentence granted; sentence affirmed
- Legal Topics
- Search Warrant Validity, S.8 Charter, Garofoli Test, Good Faith of Officer, Conditional Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Her Majesty the Queen
Respondent
Keith Nisbet
Appellant
Procedural Posture
Criminal / Court of Appeal Decision on Conviction and Sentence Appeal
Legal Issues
- 1 Whether factual errors in the information supporting a search warrant rendered the warrant invalid
- 2 Whether the trial judge's misapprehension regarding the officer's good faith affected the s.8 analysis
- 3 Whether the trial judge could consider corrected hydro usage figures as part of the record under the Garofoli test
Ratio Decidendi
The Court held that the factual errors in the information were not sufficient to invalidate the warrant; the trial judge properly applied the Garofoli/ s.8 analysis and was entitled to consider corrected hydro usage figures as part of the amplified record; therefore the conviction stands and the imposed sentence is affirmed.
Court Disposition
Appeal dismissed with respect to conviction; leave to appeal sentence granted; sentence affirmed
Orders
- Conviction appeal dismissed
- Leave to appeal sentence granted
Full Case Text
Judgment text and source record
1 paragraphs
R. v. Nisbet Collection Decisions of the Court of Appeal Date 1998-09-29 Docket numbers C27440, M20700 Judges Osborne, Coulter Arthur Anthony; Doherty, David H.; Laskin, John Ivan Subject Criminal Decision Content DATE: 19980928 DOCKET: C27440/M20700 COURT OF APPEAL FOR ONTARIO RE: HER MAJESTY THE QUEEN (Respondent) v. KEITH NISBET (Applicant/Appellant) BEFORE: OSBORNE, DOHERTY and LASKIN JJ.A. COUNSEL: Leslie Pringle for the appellant Fergus O'Donnell for the respondent HEARD: September 24, 1998 ENDORSEMENT [1] The trial judge applied the proper test in determining whether, in the light of the factual errors in the information sworn to obtain the warrant, the warrant remained valid. [2] The trial judge misapprehended the position of appellant's counsel on the question of the officer's good faith, but in our view that misapprehension was not significant in his analysis of the s. 8 claim. [3] We find no basis upon which to interfere with the trial judge's conclusion that the errors in the information were not such as to render the grounds relied upon in the information incapable of supporting the granting of the warrant. We reject counsel's submission that the trial judge was not entitled to consider the correct information with respect to hydro usage in determining whether on the Garofoli test the search was unreasonable. We think the trial judge was entitled to look at those correct figures as part of the "amplified record" placed before him on the s. 8 application. The conviction appeal is dismissed. [4] We can find no error in the trial judge's determination that a conditional sentence was inappropriate. We would grant leave to appeal sentence, but affirm the sentence imposed by the trial judge.