Court of Appeal for Ontario
Date: 2018-03-27 Docket: C61903 Judges: Doherty, Rouleau and Miller JJ.A.
Between
Her Majesty the Queen Respondent
and
Marcos Martins Appellant
Counsel
Michael Little, for the appellant
Tanit Gilliam, for the respondent
Heard
March 23, 2018
On Appeal
On appeal from the conviction entered on March 11, 2016 by Justice McWatt of the Superior Court of Justice.
Appeal Book Endorsement
[1] We would dismiss this appeal. The evidence was capable of supporting the trial judge's finding that exigent circumstances justified the police entry prior to the execution of the search warrant.
[2] The trial judge was entitled to accept the officer's evidence which, in our view, demonstrated legitimate concerns about both officer/public safety and the preservation of evidence.
[3] The statement in the ITO, as amplified by the officer's evidence in cross-examination to the effect that his prior experience indicated that a Justice of the Peace would not be available at the time of the day, was enough to satisfy the requirement that it be "impracticable" to obtain a warrant by appearing in person. The telewarrant was lawfully issued.
[4] The ITO clearly sought a warrant for the entire commercial space. Any misdescription of the municipal address of that space was, at most, a minor error which may have led to a technical breach of s. 8. It could not justify the exclusion of the evidence and the trial judge was correct in so holding.
[5] The appeal is dismissed.