Court File and Parties

CITATION: R. v. Pillay, 2007 ONCA 702

DATE: 20071015

DOCKET: C41984

COURT OF APPEAL FOR ONTARIO

MOLDAVER, FELDMAN and ARMSTRONG JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN Respondent

and

VIMAL PILLAY Appellant

Counsel: Vincenzo Rondinelli for the appellant Shawn Porter for the respondent

Heard and endorsed: October 11, 2007

On appeal from conviction entered by Justice Bonnie J. Wein of the Superior Court of Justice, sitting with a jury, dated June 2, 2004.

APPEAL BOOK ENDORSEMENT

[1] The appellant abandoned his fresh evidence application. The learned trial judge wrote thorough and comprehensive reasons for finding that the police were acting under exigent circumstances when they first entered the appellant’s apartment. The appellant does not challenge her findings of fact and we see no error in her analysis or conclusion.

[2] As for the second entry several hours later, we have some concerns about the right of the police to return and continue their search under the exigent circumstances doctrine. However, even if the second entry was impermissible, we have no doubt that the evidence obtained thereafter was properly admissible under s. 24(2) of the Charter. The trial judge found that the police were acting in good faith throughout and as soon as they found evidence suggesting criminality, they immediately sought out and obtained a search warrant. Moreover, at the time the impugned search was being conducted, the appellant (albeit unbeknownst to the officers) consented to having his apartment searched. As a result, the impugned evidence would inevitably have been discovered. The evidence found was real evidence. It was not conscripted and we agree with the trial judge that its exclusion would have a greater negative effect on the administration of justice than its inclusion. We therefore would not give effect to the appellant’s arguments concerning admissibility.

[3] As for the alleged errors in the trial judge’s charge, we begin by noting that in our view, the charge was fair and balanced and extremely thorough. That, no doubt, explains why defence counsel raised no objections to it.

[4] The issues now raised by the appellant for the first time on appeal are in our view minor and inconsequential. We need not itemize them because individually and cumulatively, they would have had no impact on the outcome

[5] Accordingly, the appeal is dismissed.