DATE: 20040421

DOCKET: C38700

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and – VASEEKARAN MANICKAVASAGAR (Appellant)

BEFORE: ROSENBERG, BORINS and FELDMAN JJ.A.

COUNSEL: R. Craig Bottomley For the appellant

Lorna Bolton For the respondent

HEARD: April 16, 2004

RELEASED ORALLY: April 16, 2004

On appeal from conviction by Justice John MacDonald of the Superior Court of Justice on February 26, 2002 and sentence imposed on June 10, 2002.

E N D O R S E M E N T

[1] The appellant submits that the trial judge erred in finding that the appellant’s rights under s. 8 of the Charter were not violated when the police officer opened the door to the car. It may be that the trial judge was in error in relying on the provisions of the Highway Traffic Act, R.S.O. 1990, c. H.8, to find a power to search the vehicle. His reliance on the common law power under R. v. Waterfield, [1963] 3 All E.R. 659 (C.C.A.) was also somewhat problematic in this case, although in some circumstances application of the Waterfield test could provide lawful grounds for the type of search undertaken in this case.

[2] However, even if there was a breach of s. 8 of the Charter, like the trial judge we would not exclude the evidence under s. 24(2) of the Charter. The breach, if any, in this case is very narrow and consists of opening an unlocked door to a vehicle parked in a residential area with its engine running. At the time, the appellant was behind the wheel and apparently asleep. Once the door was opened, the officer clearly had grounds to proceed further, because of the smell of alcohol, and require the appellant to leave the vehicle. At that point the two handguns were discovered, one lying on the seat and the other in his jacket.

[3] Counsel for the appellant fairly concedes that had the officer simply waited a little longer, perhaps knocked harder or yelled, if the appellant still did not respond, the officer would then have been entitled to open the door to check on the safety of the appellant. Alternatively, had the appellant awoken and lowered his window, at that point the officer would have smelled the alcohol, had the necessary grounds to require the appellant to leave the vehicle and the evidence would have been discovered.

[4] In those circumstances, admission of the evidence would not bring the administration of justice into disrepute. The admission of the evidence would not affect the fairness of the trial and the breach was not serious. The appellant had a diminished expectation of privacy. He was in an unlocked vehicle at 8:00 a.m. in a residential area. The charges were very serious and the evidence was necessary to substantiate those charges.

[5] Accordingly, the appeal from conviction is dismissed.

[6] As to sentence, the appellant was in possession of two loaded semi-automatic handguns, one of which had hollow-point ammunition. He had a prior record for a firearms offence and an offence of violence. In our view, the sentence was fit.

[7] Accordingly, while leave to appeal sentence is granted, the appeal is dismissed.

Signed:_____ “Rosenberg J.A.”

_____ “S. Borins J.A.”

_____ “K. Feldman J.A.”