R. v. Pillay, [2004] O.J. No.

2502
Ontario Judgments

Ontario Superior Court of Justice

Wein J.
Heard: January 20, 22 and March 26, 2004.
Judgment: June 1, 2004.
Court File No. CRIMJ(P)6760/03
[2004] O.J. No. 2502 | [2004] O.T.C. 502 | 119 C.R.R. (2d) 346 | 75 W.C.B. (2d) 678 |
2004 CanLII 17544
Between Her Majesty the Queen, and Vimal Pillay

(108 paras.)

Counsel

Steve Sherriff, for the Crown.

Laurence Cohen, Joel Etienne and Felicia Zaidman, for the accused.

RULING NO. 1 - WARRANTLESS SEARCH

Paragraphs

Introduction 1
The Facts 8

First Entry 8
Second Entry 22
Continuing Events 26
Evidence and Timeline 28
Issues 30
Question 1: Was the initial warrantless entry
based on exigent circumstances or was the
entry in breach of s. 8 of the Charter? 31
The Law on Search and Seizure 35
Consent to Search 37
Searches pursuant to the Coroners Act 38
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R. v. Pillay, [2004] O.J. No. 2502

Exigent Circumstances 41
Analysis of Initial Entry 66
Question 2: Was there a breach of s. 8 of the
Charter when the officers who made the initial
entry were joined by others or had the exigent
circumstances expired? 71
Question 3: Was the second entry at 8 p.m.
justified on the basis of either continuing
exigent circumstances or consent? 86
Question 4: Were the seizures of evidence
under the search warrants tainted by any
previous Charter breaches? 95
Question 5: If there were Charter breaches,
should the evidence be excluded pursuant to
s. 24(2) of the Charter? 97

WEIN J.

Introduction

1 What course of action can the police legitimately take in responding to a Crime Stoppers tip
about a dead body in a residence?

2 On August 6, 2002, the police received a Crime Stoppers tip that there was a dead body in
the upper floor of the residence at 96 Jade Crescent and the body had been there for three
days. That is all the information they had. They responded immediately by going to the house.

3 This application raises numerous related issues including:

* whether the police were entitled to enter the private dwelling house without a
warrant in these circumstances, under the common law police duty to protect life,
or under statutory authority;
* whether they were entitled to remain in the residence to continue the investigation;
* what effect the consent to search, obtained before a full search was conducted,
has on the issue of admissibility; and
* whether the evidence the police found would inevitably have been discovered.

4 The accused is now charged with first degree murder. The police attended at his residence,
entered, and conducted visual searches, initially without a warrant. They later obtained search
warrants and seized various articles under the authority of the warrants. The accused seeks to
exclude the physical evidence obtained from his dwelling house between August 6 and August
9, 2002, during the course of the police investigation. It is argued that the accused's right to be
secure against unreasonable search and seizure, guaranteed by s. 8 of the Charter, has been
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R. v. Pillay, [2004] O.J. No. 2502

infringed by reason of the initial entry without warrant and the continuing presence of the police
in the residence.

5 The police treated the information they initially obtained as a situation involving exigent
circumstances, requiring immediate attention, and potentially involving life or injury. Accordingly,
they entered the premises without the express consent of the accused and without a warrant,
and conducted a search to ensure that no one was in need of assistance. They did this because
of the urgency of the situation before investigating elsewhere to verify the tip and before
conducting outside investigations to provide the basis for obtaining a search warrant.

6 No one in the apartment was in need of assistance and no body was found. However, in the
initial search the police found blood on a mattress in a locked room. The police continued their
investigation, to ascertain if anyone needed assistance in another location. Around the time at
which the accused consented to the search of the premises, the police also found bullet holes
and a larger quantity of blood. Based on this evidence, they had grounds to obtain and did
obtain a search warrant. An expanded warrant was obtained shortly thereafter when a witness
came forward and advised the police that there had been a murder at the apartment.

7 The body was eventually discovered in the trunk of the deceased's car in the Jane and Finch
area of Toronto.

The Facts

First Entry

8 On August 6, 2002 at 4:23 p.m., the Peel Regional Police received an anonymous Crime
Stoppers tip. The call indicated that:

i) There was a dead body at 96 Jade Crescent in Brampton on the upper level;
ii) The body was of a male with the initials J.B.; and
iii) The body had been there for three days.

9 The police acted without delay. Three officers in three separate vehicles arrived at the
residence at 4:39 p.m. It is common ground that they did not seek a warrant based on the
information in the tip and that, at that stage, they could not have obtained a warrant based solely
on the information from the tip. No other investigation concerning the residents of 96 Jade
Crescent was done prior to going to the scene.

10 The first three officers who arrived, Sergeant Gill, Sergeant Ceballo, and Constable White,
each testified that they viewed the situation as a potential emergency. They were concerned that
the person described by the anonymous Crime Stoppers caller might not be dead and there
could be an injured person or others in need of assistance. They urgently felt that their duty to
protect life and to save citizens from danger was activated by the information they had. They
viewed the call as being akin to a 911 call to the police to get help. They also recognized that if
the person was in fact dead, they had a duty to the coroner to protect the scene and a duty to
ensure that no one else was in need of assistance. I have no doubt concerning the sincerity of
their beliefs.
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11 Sergeant Gill first spoke to the tenant of the ground floor apartment, Patrick Small. Mr. Small
advised them that there was a separate apartment at the upstairs front of the building, which
was accessible from outside stairs, and a third apartment in the back of the building. Mr. Small
permitted the police to go through his apartment; they found nothing unusual. By this time, the
other officers had checked the back apartment and found no one at home.

12 The officers went up the outside stairs to the upper apartment. Sergeant Gill knocked on Mr.
Pillay's door, but no one answered. The officers noticed the balcony door was open and
Constable White moved onto the balcony. Sergeant Ceballo joined him. I do not place any
significance on the minor differences in the evidence concerning which officer moved onto the
balcony first or whether they moved over at the same time or after the knock on the door. While
Sergeant Gill continued to knock at the front door, Mr. Pillay appeared at the partially opened
balcony door and was told by Sergeant Ceballo to go around and open the front door. Mr. Pillay
did this. It is agreed that while Mr. Pillay acquiesced in the entry of the police into the apartment,
he did not give express consent.

13 The police acknowledge that they would have entered in any event, especially after
encountering the smell that emanated from the apartment. Sergeant Ceballo testified that he
could smell the odour of a dead body or decaying flesh from the open balcony door. He had
experience in India with the smell of decaying human flesh. This confirmed to him that the tip
might be valid, unlike some other Crime Stoppers' tips he had received. Sergeant Gill, from his
position at the front door, testified that as soon as the door was opened, he smelled the odour of
decomposing flesh or blood. In his mind, this was consistent with the Crime Stoppers tip. He
thought the person who the caller thought was dead might be injured or gravely ill. Sergeant Gill
entered through the front door, Sergeant Ceballo and Constable White through the open
balcony door. Constable White also smelled the odour, which he described as a foul smell
coming from the unit, stronger when they got inside, and like a dead animal.

14 Mr. Pillay was joined by another male who came out from the back bedroom. The police
asked or told them to sit down in the front room and remain there with Constable White. While
they were not formally required to remain, it is clear that they would not have been permitted to
move around the apartment. Neither of them asked to leave. Constable White said they were
highly co-operative and made no requests of him. He did not recall any conversation. Sergeant
Gill and Sergeant Ceballo went to check the rest of the apartment. They found nothing unusual,
except that the decaying flesh odour was very strong closest to the third bedroom door, which
was locked.

15 Sergeant Ceballo did not recall any resistance, verbal or otherwise, by either of the
occupants to sitting down and remaining with Constable White. He did recall that when he was
at the door to the locked room, Mr. Pillay made objections to his opening the door to that
bedroom, but Sergeant Ceballo decided to open it in any event. Mr. Pillay's objections
heightened his concerns about what was in that room. Sergeant Ceballo also had concerns for
officer safety, believing there could be someone on the other side of the door, so he had his
firearm out when he opened the door. The odour was even stronger inside the room.

16 Inside that bedroom, there was a foam mattress on the floor with a large stain on it that
appeared to be blood. Sergeant Gill decided to secure the scene before continuing. He only
knew that the two persons were occupants and was advised by the accused that they lived there
and that the landlord, Mr. Singh, lived in Woodbridge, but was in India at the time.
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R. v. Pillay, [2004] O.J. No. 2502

17 After a quick check of the apartment, Sergeant Gill arranged for the two occupants to be
taken to the police station. Although they were not under arrest, they did not indicate that they
did not wish to go to the station. There was no discussion about whether they would co-operate:
they simply acquiesced in the request of the police.

18 In summary, the officers testified that they did not give any thought to obtaining a search
warrant; they felt that these were exigent circumstances, because there could have been
someone alive in the apartment. Because they did not find a body, they did not contact the
Coroner's office. They felt they would be neglecting their duty if they did not to go in and check
the tip. I accept that they were acting in complete good faith.

19 Soon after, at 4:43 p.m., Sergeant Reimenschneider and Detective Whyte arrived. The other
three officers were still in the residence at this time. Sergeant Reimenschneider did not note any
unusual odours when he first entered the premises. He went to make observations of the
bedroom that had been locked. By the time he reached that room, he could smell a strong odour
of decaying flesh from outside the doorway. He saw that there were bloodstains on the pillow,
the mattress, and the comforter and there were droplets of blood on the floor. He surmised that
there could have been a childbirth or stillbirth and the person giving birth might have left the
residence in distress. He also thought that there could have been a deceased person in that
room.

20 Sergeant Reimenschneider spoke with the accused while he was in the apartment. He
described the accused as "not happy, but compliant" with their conducting the search. He did
recall the accused objecting to the opening of the locked bedroom door, although he did not put
this in his notes.

21 Sergeant Reimenschneider did not ask the tenants for consent because he also felt this
situation was akin to a 911 call situation where there was a need to investigate. He agreed,
however, that by the time he arrived, the house was secure.

Second Entry

22 At the police station, Constable Butt interviewed Mr. Pillay. Around 8:00 p.m., Constable Butt
went through the standard consent to search form with Mr. Pillay. He advised Mr. Pillay that he
was not under arrest and was free to leave at any time. He crossed out the word "offence" on
the consent to search form and substituted the words "suspicious death". He advised Mr. Pillay
that there was no offence being investigated at that time, but they were investigating a
suspicious death. He also advised Mr. Pillay that he could consult with a lawyer at any time and
provided a toll free number for duty counsel. He indicated to Mr. Pillay that he could refuse to
consent to the search and could withdraw his consent at anytime and the search would be
stopped. As they went through the form, Mr. Pillay initialled each box.

23 Mr. Pillay agreed to consent to the search as long as his co-tenant, Mr. Salmon, also
consented. When advised that Mr. Salmon had already consented to the search, Mr. Pillay
signed the consent form sometime between 8:00 and 8:10 p.m.

24 Around the same time, Sergeant Reimenschneider and Detective Whyte re-entered Mr.
Pillay's residence with Constable Morrison from the Forensic Unit. They did tests to confirm that
the stain on the mattress was blood and to determine whether there was amniotic fluid present,
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R. v. Pillay, [2004] O.J. No. 2502

which would indicate whether there had been a birth. While testing the blood, Constable
Morrison found more blood inside the blanket that was lying on the mattress. The testing
indicated that the stain was blood, but there did not appear to be any amniotic fluid.

25 At around 8:10 p.m., Detective Whyte noticed a bullet hole in the drywall. Sergeant
Reimenschneider and Detective Whyte followed the trajectory and went to the adjoining room.
They found a hole in one of the shirts hanging in the closet, but did not find a bullet. Immediately
thereafter, the officers left the residence.

Continuing Events

26 At 2:53 a.m. on August 7th, Detective Jarvis returned to the residence with other officers.
While there, the officers lifted the foam mattress and saw a large pool of blood underneath. At
that time, Detective Jarvis formed the belief that they had sufficient grounds to obtain a search
warrant for the residence. At 3:05 a.m., he began working on the first search warrant and
obtained the warrant at 10:25 a.m. that day.

27 At 2:10 p.m. on August 7th, Detective Jarvis spoke to Detective Grozier and was informed
that Detective Grozier had interviewed Christina Stubbings about the events at 96 Jade
Crescent. Ms. Stubbings indicated that she was at the residence on August 4, 2002 and that she
saw Mr. Pillay shoot a man she knew as Buckwheat. Detective Jarvis put this information in a
second Information and shortly thereafter obtained a second search warrant.

Evidence and Timeline

28 The police seized the following evidence from the residence:

* The bloodstained mattress

* The deceased's wallet, which contained the deceased's birth certificate and other
identification found in a suitcase in Mr. Pillay's bedroom
* A set of keys that fit the accused's vehicle, also found in the suitcase in Mr. Pillay's
bedroom
* Plastic wrap
* The damaged clothing
* Jean coveralls obtained from the laundry basket with a bloodstain on them
* Jean coveralls with gunshot residue on them
* A sleeveless sweatshirt with gunshot residue on it
* Duct tape

29 To summarize, the following is a timeline of the events:

August 6, 2002

* 4:24 p.m.: Crime Stoppers tip received.

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R. v. Pillay, [2004] O.J. No. 2502

* 4:39 p.m.-4:43 p.m.: Officers arrive at 96 Jade Crescent and conduct outside
investigation. All officers smell odour of decaying flesh. They gain entry to the upper
apartment when Mr. Pillay opens the door.
* 4:43 p.m.: Sergeant Reimenschneider and Detective Whyte arrive and enter.
* 4:43-4:53 p.m.: The officers make a cursory search of the upstairs apartment and find
the foam mattress with the bloodstain on it. Mr. Pillay and Mr. Salmon are transported
to the station, but are not arrested. The officers freeze the scene and leave the
residence.
* 5:05 p.m.: Sergeant Reimenschneider talks to the tenant downstairs. Mr. Small gives
Sergeant Reimenschneider a number for the owner of the residence.
* 5:09 p.m.: Using the number provided to him, Sergeant Reimenschneider speaks with
a woman. She indicates that her brother is the owner of the residence Mr. Pillay lives
in and that he is in India.
* 5:30 p.m.: Detective Whyte tells Constable Butt that some blood was found in one of
the bedrooms at 96 Jade Crescent. Constable Butt is given the task of interviewing
Mr. Pillay. Constable Butt and Constable Bernard introduce themselves to Mr. Pillay.
Mr. Pillay appears to be calm, relaxed, talkative, and curious. The officers briefly tell
Mr. Pillay what is happening. They leave the room.
* Around 6:00 p.m.: Constable Butt and Constable Bernard enter the room again and
speak with Mr. Pillay for about 15 minutes, asking if Mr. Pillay can help them
understand what happened.
* 6:54 p.m.: Sergeant Reimenschneider re-enters Mr. Pillay's residence briefly, to make
sure everything is secure for the Forensic Identification Bureau. He leaves the
residence at 7:02 p.m.
* 7:00 p.m.: Constable Butt speaks with Mr. Salmon for some time.
* 7:53-8:40 p.m.: Sergeant Reimenschneider, Detective Whyte, and Constable
Morrison enter Mr. Pillay's residence. Constable Morrison begins to test the blood. He
finds the blood is human and that it does not contain amniotic fluid.
* Between 8:00 and 8:10 p.m.: Mr. Pillay gives his consent to search.
* 8:05 p.m.: Constable Butt notices that the videotape that is supposed to be recording
the events in Mr. Pillay's interview room is not running.
* 8:06 p.m.: Mr. Salmon gives his consent to the search of the residence.
* 8:10 p.m.: Detective Whyte sees an unusual mark in the wall, which appears to be the
side profile of a bullet. Sergeant Reimenschneider and Detective Whyte enter the
adjoining room and in the closet of that room, they find a shirt with a hole in it.
* 8:12 p.m.: Mr. Pillay is taken to a different interview room so that the conversation
between Mr. Pillay and Constable Butt can be re-recorded.
* 8:40 p.m.: Constable Morrison, Sergeant Reimenschneider, and Detective Whyte
leave the residence.
* 9:00 p.m.: Detective Jarvis was briefed by other officers about the events of that day.

August 7, 2002
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R. v. Pillay, [2004] O.J. No. 2502

* 2:35 a.m.: Detective Jarvis, Detective Sergeant Roselli, and Detective DeFacendis
go to Mr. Pillay's residence. Detective Sergeant Roselli lifts the foam mattress and
the officers see a large pool of blood that is under the mattress.
* 2:52 a.m.: The officers leave the residence.
* 3:05 a.m.: Detective Jarvis starts preparing the search warrant documentation.
* 10:00 a.m.: Detective Jarvis completes the search warrant documentation.
* 10:25 a.m.: Detective Jarvis obtains the first search warrant from a Justice of the
Peace. This warrant gave the officers until 8:59 p.m. that night to search the
residence.
* 11:10 a.m.: Detective Jarvis goes over the warrant with officers in the Forensics
Unit. The officers suggest that this warrant does not give them sufficient time to
complete their duties.
* 1:06 p.m.: Detective Jarvis goes to the residence and speaks to the Forensic
officers there about how long the search warrant should be extended. He then
returns to 21 Division and begins typing the extension warrant.
* 2:10 p.m.: Detective Jarvis learns that Christina Stubbings told Detective Grozier
that while she was inside 96 Jade Crescent, she saw Mr. Pillay shoot a man she
knew as "Buckwheat". This information is put into a second Information and
another search warrant is obtained.

Issues

30 From the issues raised by this factual background, a number of questions arise:

1. Was the initial warrantless entry based on exigent circumstances or was the entry
in breach of s. 8 of the Charter?
2. Even if the original entry and search was reasonable, once it was ascertained that
there was no dead body, was there a breach of s. 8 of the Charter when the
officers remained to do further investigation or had the exigent circumstances
expired?
3. Was the second entry at around 8 p.m. justified on the basis of either continuing
exigent circumstances or consent?
4. Were the seizures of evidence conducted on the basis of the search warrants
tainted by any previous Charter breaches?
5. If there were Charter breaches, should the evidence be excluded pursuant to s.
24(2) of the Charter?

Question 1: Was the initial warrantless entry based on exigent circumstances or was the entry in
breach of s. 8 of the Charter?

31 The Crown argues that the initial entry was justified because the officers had the authority to
enter Mr. Pillay's residence due to exigent circumstances. The police have a duty pursuant to
the common law, and under s. 42 of the Police Services Act, R.S.O. 1990, c. P-15, to protect
and preserve life. Upon receiving the Crime Stoppers tip, they were required to act. The police
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R. v. Pillay, [2004] O.J. No. 2502

could not be certain that the person the tipster believed was dead was actually dead; there was
a possibility the person was alive and in need of medical attention. Thus, the police would have
been derelict in their duty had they not entered the residence.

32 The odour of decaying flesh smelled by all officers confirmed the tip and strengthened their
basis for thinking that there might be a person in need of assistance inside the residence.

33 The Defence takes the position that the police should not have entered or searched the
residence. Initially, the Defence argued that the police should have done other investigations
before even approaching and knocking on Mr. Pillay's door; it was later conceded that the police
appropriately knocked on the door. However, the Defence argued that exigent circumstances for
entry did not exist. The tipster stated that the person was dead and his body had been in the
residence for three days. There was no urgency to this situation because no one was in need of
assistance. Accordingly, it is argued that the police ought not have entered without consent and
their entry was in breach of s. 8 of the Charter. It is argued that in the absence of consent, there
are a number of things the police could have done, including running a computer check on the
premises, speaking to neighbours, and keeping the residence under surveillance. The police
also might have called the coroner.

34 The Defence also argues the police acted improperly when they went onto the balcony.
They did not ask Mr. Pillay anything: whether anyone needed help, if everything was all right, or
if there was a dead body. Rather, they directed Mr. Pillay to open the door. At that point, Mr.
Pillay was under detention. Mr. Pillay continued to be under detention when he was directed to
sit at the table while the officers searched the residence.

The Law on Search and Seizure

35 Section 8 of the Charter provides "everyone has the right to be secure against unreasonable
search or seizure." Warrantless searches are prima facie unreasonable and contrary to s. 8 of
the Charter.

36 In the case of a warrantless search, the burden of persuasion shifts from the person
asserting a violation of s. 8 of the Charter to the Crown. The Crown must establish, on a balance
of probabilities, that the search was reasonable. To be found reasonable under s. 8, a
warrantless search must be authorized by law, that is, conducted pursuant to a right to search
under either the common law or legislation. In this case, consideration must be given to whether
there was consent, exigent circumstances, or authority of the Police Services Act or Coroners
Act that would justify the warrantless search.

Consent to Search

37 Section 8 of the Charter protects a person's reasonable expectation of privacy. Where

consent to search has been given, there is no expectation of privacy. As a result, where proper
consent is obtained for a search, the consent will validate an otherwise unreasonable search.
The onus of establishing that the accused consented to the search is on the Crown. Mr. Pillay,
while acquiescing in the entry of the police, did not consent to the search at the initial stage, but
did consent later, at about 8 p.m.

Searches pursuant to the Coroners Act

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R. v. Pillay, [2004] O.J. No. 2502

38 The Coroners Act, R.S.O. 1990, c. C-37 provides a statutory basis to conduct an
investigation into the death of a person under certain circumstances. S. 15(1) of the Act states:

Where a coroner is informed that there is in his or her jurisdiction the body of a person
and that there is reason to believe that the person died in any of the circumstances
mentioned in section 10, the coroner shall issue a warrant to take possession of the body
and shall view the body and make such further investigation as is required to enable the
coroner to determine whether or not an inquest is necessary.

Investigative powers are set out in s. 16(1) and (2):

(1) A coroner may,

(a) view or take possession of any dead body, or both; and
(b) enter and inspect any place where a dead body is and any place from which the
coroner has reasonable grounds for believing the body was removed.
Idem
(2) A coroner who believes on reasonable and probable grounds that to do so is
necessary for the purposes of the investigation may,
(a) inspect any place in which the deceased person was, or in which the coroner has
reasonable grounds to believe the deceased person was, prior to his or her death;
...
(c) seize anything that the coroner has reasonable grounds to believe is material to
the purposes of the investigation.

39 These powers may be delegated to a legally qualified medical practitioner or a police officer.

40 It may be that, absent exigency or after finding no body in the premises, the police could
have referred the matter to the coroner, but, in my view, it would have been premature as a first
step and unnecessary once the bullet hole was found as a criminal warrant was then available.
The powers set out in this Act do indicate a legislative intention to permit intrusions by police
and coroners into any location based on information concerning a body.

Exigent Circumstances

41 One of the long-standing common law exceptions to the requirement of obtaining a warrant
is based on necessity or exigent circumstances. In situations of exigency, the police are justified
in making a warrantless entry into premises in order to protect or preserve life. This common law
power parallels the responsibilities of the police set out in section 42 of the Police Services Act.

42 The question of whether or not the Crime Stoppers tip, standing alone, provided exigent
circumstances justifying police entry must be considered in the context of the additional
circumstance that there was the distinct smell of dead or decaying flesh present and clearly
detectable when the police arrived at the apartment. It is conceded that the police had authority,
at a minimum, to knock on the door of the premises, so this is not comparable to cases where
the police enter private property to sniff for the smell of drugs.
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43 Canadian jurisprudence yields a limited number of cases outlining the common law power to
enter premises to protect and preserve life and safety.

44 In R. v. Godoy (1999), 131 C.C.C. (3d) 129, the Supreme Court of Canada confirmed that
the police have the authority to enter premises in certain circumstances or in circumstances or
urgency to protect and preserve life and safety. The Supreme Court reconfirmed the common
law power and duty of the police to protect life whenever it can be inferred that a person, such
as a 911 caller, is or may be in distress. This includes cases where the call is disconnected
before the nature of the emergency can be determined. The court held that public policy
requires that police be given lawful authority to investigate a 911 call. Whether the police may
enter a dwelling house after receiving a 911 call depends on the circumstances of the case.

45 The court referred to the test for evaluating the common law powers and duties of police at
135:

The accepted test for evaluating the common law powers and duties of the police was set
out in Waterfield, supra (followed by this Court in R. v. Stenning, [1970] S.C.R. 631,
[1970] 3 C.C.C. 145, 10 D.L.R. (3d) 224; Knowlton v. The Queen, [1974] S.C.R. 443, 10
C.C.C. (2d) 377, 33 D.L.R. (3d) 755; and Dedman v. The Queen, [1985] 2 S.C.R. 2, 20
C.C.C. (3d) 97, 20 D.L.R. (4th) 321). If police conduct constitutes a prima facie
interference with a person's liberty or property, the court must consider two questions:
first, does the conduct fall within the general scope of any duty imposed by statute or
recognized at common law; and second, does the conduct, albeit within the general
scope of such a duty, involve an unjustifiable use of powers associated with the duty.

46 The duty of the police to enter premises in an emergency was outlined by Chief Justice
Lamer at 139:

In the case at bar, the forced entry into the appellant's home was justifiable considering
the totality of the circumstances. The police were responding to an unknown trouble call.
They had no indication as to the nature of the 911 distress. They did not know whether
the call was in response to a criminal action or not. They had the common law duty
(statutorily codified in s. 42(3) of the [Police Services Act]) to act to protect life and safety.
Therefore, the police had the duty to respond to the 911 call. Having arrived at the
appellant's apartment, their duty extended to ascertaining the reason for the call.
Acceptance of the appellant's bald assertion that there was "no problem" would have
been insufficient to satisfy that duty. The police had the power, derived as a matter of
common law from this duty, to enter the apartment to verify that there was in fact no
emergency. The fact that the appellant tried to shut the door on the police further
contributes to the appropriateness of their response in forcing entry.

47 The duty of the police to enter the premises in an emergency situation was also explored in
R. v. Nicholls (1999), 139 C.C.C. (3d) 253 (Ont. C.A.). In Nicholls, there was an emergency in
an apartment and the police could not establish contact with the accused inside the apartment.
The accused was known to be a psychiatric patient and the police had been informed that he
might be suicidal and a possible danger to himself or others. Justice Finlayson stated at 257:

In the light of the stated nature of the emergency, the police would have been remiss in
their duty not to investigate to the point of forcing entry. An informed caller from outside
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the apartment describing the nature of the emergency is a more reliable justification for a
concern about the health and safety of the occupant of the apartment than is a
disconnected telephone call.

48 As a result, the police were acting in the execution of their duty when they entered the
apartment without a warrant.

49 In R. v. David (2002), 61 O.R. (3d) 1 (C.A.), the police entered the accused's apartment
without a warrant after several unsuccessful attempts to contact the accused. Inside the
apartment, the police observed bloodstained clothing. They seized the clothing after obtaining a
warrant. After a voir dire, the trial judge found this evidence admissible. Although the
warrantless entry was not authorized by legislation, the trial judge concluded that the exclusion
of this evidence would bring the administration of justice into disrepute. The trial judge found the
police honestly and reasonably believed that they should enter the accused's apartment to
ascertain whether he was a victim or to question him as a possible suspect. The entry was
reasonable, based on exigent circumstances.

50 The appellate court upheld the trial judge's decision, concluding the trial judge's findings on
exigent circumstances and good faith on the part of the police were available on the evidence.
The court noted that before entering, the police had obtained an opinion from a Justice of the
Peace that they lacked sufficient grounds for obtaining a warrant.

51 It is also clear that the police are entitled to consider their own safety in exigent
circumstances. In R. v. Golub (1997), 117 C.C.C. (3d) 193 (Ont. C.A.), the court considered the
police interest in protecting the safety of those at the scene of arrest. The court stressed that it is
not reasonable to suggest that the police place themselves in potentially dangerous situations in
order to effect an arrest without, at the same time, acknowledging their authority to take
reasonable steps to protect themselves from the dangers they are exposed to. Thus, where an
immediate action is required to secure the safety of those at the scene of an arrest, a search is
justified when it is conducted in a manner that is consistent with the preservation of the safety of
those at the scene.

52 The court went on to note at 211:

If the circumstances of an arrest give rise to a legitimate cause for concern with respect
to the safety of those at the scene, reasonable steps to allay that concern may be taken.
The nature of the apprehended risk, the potential consequences of not taking protective
measures, the availability of alternative measures, and the likelihood of the contemplated
danger actually existing, must all be considered. The officers making this assessment
must, of course, do so on the spot with no time for careful reflection. In my opinion, a
reasonable suspicion, based on the particular circumstances of the arrest, that someone
is on the other side of a closed door with a loaded sub-machine gun, or that someone is
lying injured on the other side of that door, creates a legitimate cause for concern
justifying entry and search of the apartment for persons.

53 The American jurisprudence, with its lengthier experience in constitutional protections

governing search and seizure, provides some case law that more closely approximates the facts
of this case.

54 In Flippo v. West Virginia, 528 U.S. 11 (1999), the Supreme Court of the United States noted
 Page 13 of 21
R. v. Pillay, [2004] O.J. No. 2502

that a warrantless search is prima facie invalid unless it falls within one of the narrow and well-
delineated exceptions to the warrant requirements. If the police believe a person is in need of
immediate aid, they may make a warrantless entry onto premises and may make prompt
warrantless searches of a homicide scene for other possible victims or a killer. However, the
court rejected a general "murder scene exception". Thus, the police cannot enter premises
without a warrant simply because a homicide has recently occurred there.

55 In Wayne v. United States, 318 F.2d 205 (D.C. Cir. 1963), the majority of the court noted
that a warrant is not required to enter a home in exigent circumstances. The need to protect or
preserve life or avoid serious injury constitutes justification for what would otherwise be illegal
absent an exigency or emergency. Although an entry in emergency circumstances would be an
intrusion, when police are confronted with evidence that would lead prudent and reasonable
officials to see a need to act to protect life or property, they are authorized to act on that
information, even if that information is ultimately found erroneous.

56 In Johnson v. State of Florida, 386 So. 2d 302 (N.D. Fla. 1980), the court confirmed that the
police derive from the common law the right to enter and investigate in an emergency, without
an accompanying intent either to seize or arrest. At 304, the court stated that:

The preservation of human life is paramount to the right of privacy protected by search
and seizure laws and constitutional guaranties; it is an overriding justification for what
otherwise may be an illegal entry. It follows that a search warrant is not required to
legalize an entry by police for the purpose of bringing emergency aid to an injured
person. Frequently, the report of a death proves inaccurate and a spark of life remains
sufficient to respond to emergency police aid. As a general rule, we think an emergency
may be said to exist, within the meaning of the "exigency" rule, whenever the police have
credible information that an unnatural death has, or may have, occurred. And the criterion
is the reasonableness of the belief of the police as to the existence of an emergency, not
the existence of an emergency in fact. (Emphasis added)

57 In Wofford v. State of Arkansas, 330 Ark. 8 (Sup. Ct. 1997), the court noted that police can
make a warrantless search in emergency situations. Although police may receive a report of
death, these reports frequently prove to be inaccurate and a spark of life remains'. Therefore,
the officer's entry into a bedroom was found to be related to the objectives of the authorized
intrusion into the residence.

58 The issue in United States v. Holloway, 290 F.3d 1331 (11th Cir. 2002) was whether the
police may conduct a warrantless search of a private residence in response to an emergency
situation reported by an anonymous 911 caller. The court found that when exigent
circumstances demand an immediate response, particularly where there is a danger to human
life, protection of the public becomes paramount and can justify a limited, warrantless intrusion
into the home. Once in the home, officers may seize any evidence found within plain view.
Exigent circumstances are an exception to the prohibition against warrantless searches.

59 Several situations found to constitute an emergency, including the report of a dead body,
were referred to as precedent at 1336-1337:

Following the reasoning of the Supreme Court, numerous federal and state courts have
upheld warrantless emergency entries and searches based on endangerment to life. See,
e.g., United States v. Hughes, 993 F.2d 1313 (7th Cir. 1993) (report of woman and child
 Page 14 of 21
R. v. Pillay, [2004] O.J. No. 2502

in danger in crack house); United States v. Gillenwaters, 890 F.2d 679 (4th Cir. 1989)
(stabbing victim); United States v. Martin, 781 F.2d 671 (9th Cir. 1985) (explosion in
apartment); Mann v. Cannon, 731 F.2d 54 (1st Cir. 1984) (open access to controlled
substances by children); United States v. Riccio, 726 F.2d 638 (10th Cir. 1984) (medical
aid to defendant shot by police); United States v. Jones, 635 F.2d 1357 (8th Cir. 1980)
(report of gunshots); United States v. Barone, 330 F.2d 543 (2d Cir. 1964) (screams in
the night); United States v. Searle, 974 F. Supp. 1433 (M.D. Fla. 1997) (report of
gunshots); United States v. Herndon, 390 F. Supp. 1017 (S.D. Fla. 1975) (report of
gunshots); United States v. Hogue, 283 F. Supp. 846 (N.D. Ga. 1968) (report of dead
body); Johnson v. State, 386 So. 2d 302 (Fla. App. 1980) (report of dead body); State v.
Carlson, 548 N.W.2d 138 (Iowa 1996) (missing person); State v. Butler, 676 S.W.2d 809
(Mo. 1984) (en banc) (gunshot victim); State v. Mackins, 47 N.C. App. 168, 266 S.E.2d
694 (N.C. App. 1980) (gunshots); State v. Max, 263 N.W.2d 685 (S.D. 1978) (gunshots).

60 In finding that there were exigent circumstances, the court stressed that 911 calls are
distinctive in that they concern contemporaneous emergency events, not general criminal
behaviour. Also, the exigencies of the emergency situations often limit the caller's ability to
convey extraneous details.

61 In Rauscher v. State of Texas, 2004 Tex. App. LEXIS 854, concerned neighbours called the
police because they had not seen the accused's wife in a while and there was a foul smelling
odour coming from the accused's apartment. When no one responded to the police knocking at
the door, the police entered the apartment. The police did not find anyone in the apartment, but
saw marijuana plants in plain view.

62 The court noted that an officer may enter a home without a warrant or consent when the
officer reasonably believes that concern over an occupant is genuine and the likelihood of an
injury is founded. The trial court concluded the initial entry was reasonable because there was a
belief that an emergency existed.

63 The court also noted that the report of a homicide or the existence of circumstances in which
an unnatural death could have occurred can constitute an emergency. The court examined the
fact situation in Colburn v. State at 19-20:

In Colburn v. State, for example, an officer received a call to perform a "welfare check" on
a reported homicide. 966 S.W.2d 511, 519 (Tex. Crim. App. 1998). The officer was
informed that Colburn claimed he had just killed a girl in his apartment and had requested
his neighbour call the police. Id. Colburn also told the neighbour the girl was still in the
apartment. Id. The court reasoned that, although there was reason to believe that the
victim was already dead, a reasonable officer under the circumstances might have
thought there was a possibility that the victim might still be alive, but seriously injured. Id.
Thus, the court held that the officer's immediate, warrantless search of the apartment was
justified under the emergency doctrine. Id. Likewise, in this case, even if he believed the
foul odour to be that of a decomposing body, under the circumstances, Becker could
have reasonably believed that appellant's wife might still be alive, but in need of
immediate emergency aid. See Bray, 597 S.W.2d at 765 (adjudging that "officers may
enter a building where a "body" has been reported, for the report of death may be
inaccurate and it may be possible to revive the body.") (citing Corbett, 493 S.W.2d at
946)).
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R. v. Pillay, [2004] O.J. No. 2502

64 Thus, the officer's immediate, warrantless search of the apartment was justified under the
emergency doctrine.

65 Courts have also noted that people report dead bodies to police when there are no dead
bodies. In Wayne v. U.S., supra, at 212:

Fires or dead bodies are reported to police by cranks where no fires or bodies are to be
found. Acting in response to reports of 'dead bodies,' the police may find the 'bodies' to
be common drunks, diabetics in shock, or distressed cardiac patients. But the business of
policemen and firemen is to act, not to speculate or meditate on whether the report is
correct. People could well die in emergencies if police tried to act with the calm
deliberation associated with the judicial process. Even the apparently dead often are
saved by swift police response.

Analysis of Initial Entry

66 Canadian and American jurisprudence points to the same conclusion: that where there is an
emergency situation, a warrantless entry is justified. The American "dead body" cases
emphasize two logical principles. First, as seen in the "spark of life" cases, a person reported to
be dead by a non-medical reporter may actually be alive. Secondly, the police are not required
to and should not be expected to weigh the probabilities to a nicety where human life is
potentially at stake.

67 The anonymous report of a dead body patently requires urgent response. The report in this
case stated the person had been dead for three days, which detracts greatly from the urgency.
However, the police believed that this may have been inaccurate. The person may have
appeared dead or may have been close to death, but could have been saved, or others might
have been in need of help. I accept the evidence of the police that they genuinely had these
concerns. I find that the police were acting entirely in good faith in the exercise of their common
law and Police Services Act responsibilities.

68 Knocking on the door was clearly a logical first response. The delay in answering justified
looking in the open balcony door. The strong smell confirmed the tip. In the particular experience
of one of the officers, the smell was consistent with decaying flesh on a living person. In the
context of the perceived need to investigate for the purpose of seeing if help was required, this
justified the entry regardless of whether Mr. Pillay consented or merely acquiesced. Mr. Pillay
said they could search all of the rooms except the locked bedroom. In any event, the stronger
odour of decomposing flesh coming from the locked room justified opening it to determine
whether there was someone in that room who was injured and in need of emergency aid. The
search of the full apartment was justified on exigent circumstances.

69 Viewed in a detached manner, the report's reference to a three day old body might well have
caused others to see the situation as less than urgent. However, the test should allow for some
realistic leeway where officers are making difficult judgment calls, as here, and where the
situation potentially involves life-and-death.

70 Consequently, I find no breach of s. 8 of the Charter in the initial entry into the apartment.
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R. v. Pillay, [2004] O.J. No. 2502

Question 2: Was there a breach of s. 8 of the Charter when the officers who made the initial
entry were joined by others or had the exigent circumstances expired?

71 When the police discovered the mattress, their suspicions that a dead or seriously injured
person had been in that room were heightened. The Crown argued that this reinforced their duty
to preserve life and that the exigent circumstances continued. The uncertainty remained. The
smell and the blood tended to confirm the tip they had received, but they still did not know
whether there was a death in the room or a serious injury. I accept the explanation given by the
officers that a cogent possibility was that the bloodstain on the mattress might have come from a
childbirth or a stillbirth. They feared there was a mother or child somewhere who was in
postnatal distress. The police knew, or could reasonably assume as one possibility, that there
was someone injured, but that person was not in that room. The police were not required to
presume death, particularly since there was no body in the room.

72 The Crown urges recognition of the fact that the case is unique in that the police did not
resolve the urgency immediately after the entry. The investigation to preserve and protect life
and safety was not over. The police had not found the injured person.

73 With respect to the possibility of obtaining a warrant, the Crown argued that the police did
not have reasonable and probable grounds to obtain a warrant at this point because they did not
know whether an offence had been committed. They only knew someone had been injured in
that room. They did not know how the injury occurred or if the injury had been sustained from a
criminal act.

74 The Crown agrees that if the police have grounds to obtain a search warrant, then they must
do so before continuing to search. Where there are grounds for a search warrant, it is clear the
police should stop and obtain a warrant. But there were no grounds here. There was no way to
know whether an offence had been committed. The police could not get a coroner's warrant at
this time, nor could they get a search warrant under the Criminal Code because there was no
body and no known offence.

75 The Crown cannot, and does not seek to rely upon the Coroners Act for legal authority
justifying the search. The Coroners Act assumes that a death has occurred, whereas at this
point in the investigation, the police could not assume there had been a death. They still
believed someone might have been injured. If a body had been found inside Mr. Pillay's
residence and it appeared the death was due to natural causes, the Coroners Act would
override Mr. Pillay's privacy interests.

76 The Crown argued that the only way to address the urgency of this situation was to bring in
the Forensic Identification Bureau expert to test the blood to see if it was human blood and to
test for amniotic fluid. They did this expeditiously.

77 The Crown also submitted that there is no time limit on exigent circumstances. The police
still had a duty to continue a focused search in the house in order to preserve life. If they had left
the residence, it would have been a gross betrayal of their duty to preserve life. They had to
investigate further.

78 While the testing took place, Detective Whyte noticed to see the bullet hole. At that stage,
the Crown concedes there might have been grounds for a warrant. However, things were
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R. v. Pillay, [2004] O.J. No. 2502

moving very quickly. Also, Mr. Pillay had consented at this point, so as it turns out, the police
clearly had the authority to be in the residence.

79 The Defence argued that after the police found the bloodstained mattress, there was no
longer any reason for them to be there. They had not found a body, nor had they found an
injured person. From that point on, there was no justification for the police to be in Mr. Pillay's
residence because of exigent circumstances.

80 In the alternative, the Defence argued that the police now had the anonymous tip, the odour,
and the blood on the mattress. That was enough evidence to obtain a search warrant.

81 The Defence submits there was nothing in the residence that was capable of being
destroyed at this point. The police cannot say that they were preserving evidence at this stage if
they characterize this as an investigation to find the injured person.

82 There was no need to go into the residence to check the amniotic fluid; the Defence
suggested that this was only done to justify the police entering the residence a second time.
Also, the police had Mr. Pillay and his co-tenant at the police station. They did not need to enter
the residence. Rather, they should have questioned the tenants as to what occurred and
whether a pregnant woman had been there.

83 The Defence questioned why the police did not do anything else besides test the blood for
amniotic fluid. They could have called hospitals, questioned neighbours, or canvassed the
neighbourhood.

84 The Defence also suggested that continuing the investigation while concurrently trying to
obtain consent suggests an awareness that they should not have remained in the apartment.

85 In my view, the initial entry cannot properly be dissected into two phases. The second group
of officers entered minutes after the first group and in response to the same initial information.
The officers were not lingering, and, assuming that I am correct in holding that the initial entry
was justified, it is not reasonable to retroactively suggest that the second group of officers
arriving minutes later should not have entered.

Question 3: Was the second entry at 8 p.m. justified on the basis of either continuing exigent
circumstances or consent?

86 The case law makes it clear that an entry based on exigent circumstances, must be
circumscribed in time and scope.

87 In Godoy, supra, the Supreme Court of Canada found the police had the authority to enter a
building in order to protect life and safety, but indicated that the authority ends there. Lamer
C.J.C. explains at 130-131:

The importance of the police duty to protect life warrants and justifies a forced entry into a
dwelling in order to ascertain the health and safety of a 911 caller. However, the intrusion
must be limited to the protection of life and safety. The police have authority to investigate
the 911 call and, in particular, to locate the caller and determine his or her reasons for
making the call and provide such assistance as may be required. The police authority for
being on private property in response to a 911 call ends there. They do not have further
 Page 18 of 21
R. v. Pillay, [2004] O.J. No. 2502

permission to search the premises or otherwise intrude on a resident's privacy or

property. Where the 911 call is an unknown trouble call, a reasonable interference with
liberty would be to locate the 911 caller in the home, although if this can be done without
entering the home with force, such a course of action is mandated. Each case will be
considered in its own context. It was not necessary to decide whether an entry in
response to a 911 call affected the applicability of the plain view doctrine.

88 In Thompson v. Louisiana, 469 U.S. 17 (1984), the Supreme Court of the United States
found that although the officers may have had probable cause for the initial entry, the
subsequent search could only be valid if it fell within a narrow and specifically delineated
exception to the warrant requirements of the fourth amendment. The court cited Mincey v.
Arizona, 437 U.S. 385 (1978) and noted that there is no "murder scene exception". The search
was therefore found to be an intrusion on the accused's privacy.

89 In addition, the court found that the evidence at issue was not found in plain view while the
police assisted the accused in getting to the hospital; the evidence was not found during the
initial entry. The court stated at 22:

Petitioner's attempt to get medical assistance does not evidence a diminished

expectation of privacy on her part. To be sure, this action would have justified the
authorities in seizing evidence under the plain-view doctrine while they were in
petitioner's house to offer her assistance. In addition, the same doctrine may justify
seizure of evidence obtained in the limited "victim-or-suspect" search discussed in
Mincey. However, the evidence at issue here was not discovered in plain view while the
police were assisting petitioner to the hospital, nor was it discovered during the "victim-or-
suspect" search that had been completed by the time the homicide investigators arrived.
Petitioner's call for help can hardly be seen as an invitation to the general public that
would have converted her home into the sort of public place for which no warrant to
search would be necessary. Therefore, the Louisiana Supreme Court's diminished-
expectation-of-privacy argument fails to distinguish this case from Mincey.

90 In Wofford v. State of Arkansas, supra, there was a second set of officers who entered the
home and seized evidence in plain view. The court held the search was valid and relied on La
Fournier v. State of Wisconsin, 91 Wis.2d 61 (Sup. Ct. 1979), where that court found that where
the police enter a home under the emergency exception, but are unable to preserve the
evidence they observed in plain view, they are entitled to enter a second time without a warrant,
even though the emergency has passed, if the search is restricted to securing the evidence in
plain view by the officers who entered under the emergency exception.

91 In Hodge v. State of Arkansas, 332 Ark. 377 (Sup. Ct. 1998), the court found the initial entry
was valid based on exigent circumstances and held that the officers could seize whatever was in
plain view. However, any subsequent search and seizure was limited to that which was in plain
view when police entered in response to the emergency. The court distinguished the case from
Mitchell v. State, 294 Ark. 264 (Sup. Ct. 1988), on the basis of the more serious circumstances.
In Hodge, there was evidence that the family was missing, the accused stated they were dead
and were in the house for several days, and the accused refused entry to an inner room. In
regards to the smell, the officers may have suspected they would encounter a "dead body or
two", but it was not inconceivable that someone was alive.

92 In many respects, the situation facing the police in Hodge parallels the situation facing the
 Page 19 of 21
R. v. Pillay, [2004] O.J. No. 2502

police in the present case. While the evidence suggested that the death may have already
occurred, the possibility of someone being in urgent need of assistance could not be ruled out.
Further investigation on an urgent basis was definitely required. There was still an emergency
situation. The police needed to check the blood on the mattress, believing the blood might hold
clues that could lead to a person possibly dead, but possibly still alive and in need of help.

93 In the course of the testing of the blood, Detective Whyte found the trajectory of a bullet in
the wall and what looked like a bullet hole in a shirt. Coincidentally, by this time, the police had
consent from Mr. Pillay.

94 In my view, even if it could be said that the search at this stage was beyond the scope
authorized by continuing exigent circumstances, the consent clearly would have vitiated any
technical breaches of the police power.

Question 4: Were the seizures of evidence under the search warrants tainted by any previous
Charter breaches?

95 Once they had sufficient information, the police expeditiously obtained a search warrant. A
second search warrant was obtained when the more detailed information was received from
Christina Stubbings.

96 As I have found no Charter breaches were occasioned in the particular circumstances of this
case, the seizures of evidence were valid. In any event, much of the evidence was in plain view,
and by this stage there had been consent.

Question 5: If there were Charter breaches, should the evidence be excluded pursuant to s.
24(2) of the Charter?

97 Even if I had found that the police were in breach of section 8 of the Charter in entering the
home and in their subsequent investigation, I would not have excluded the evidence in this case.

98 In considering whether or not evidence obtained as a result of the Charter breach ought to
be excluded, the court must consider the tripartite test set out by the Supreme Court of Canada
in R. v. Collins (1987), 33 C.C.C. (3d) 1: trial fairness, seriousness of the breach, and the effect
of exclusion on the administration of justice.

99 Aspects of the evidence bearing on the decision in this case, include the following:

* based on my assessment of their testimony in court, I find that the police were
acting in good faith;
* the evidence would inevitably have been discovered, given the statements
provided by Christina Stubbings to the police very shortly after the 911 phone call;
* the evidence sought to be excluded consists entirely of non-conscriptive, real
evidence;
* the evidence is cogent and the charge extremely serious; and
* consent of the accused to do a thorough search was obtained while the initial
search of the premises was still underway.
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R. v. Pillay, [2004] O.J. No. 2502

100 The Crown has also emphasized that the particular residence in question was in the nature
of a rooming house, a place where persons using crack cocaine came and went without specific
invitation. Even acknowledging that the room in which the mattress and blood was found was a
locked, unrented spare room, and the articles found in the accused's bedroom were not located
until after his consent had been given, in the analysis of either the breach of section 8 of the
Charter or exclusion of the evidence under section 24(2) I would place little or no weight on any
reduced expectation of privacy in this home, as opposed to others.

101 With respect to the first part of the Collins test, the evidence is non-conscriptive.
Accordingly, on the analysis set out in R. v. Stillman (1997), 113 C.C.C. (3d) 321 (S.C.C.), no
issues of trial fairness are raised. The defence conceded as much.

102 With respect to the second part of the test, the seriousness of the breach, the fact that this
was an entry into a private residence is counterbalanced by a number of other factors. These
include the good faith of the police in believing that there was a situation of urgency, confirmed
by the existence of the smell of decaying flesh, the urgency manifest in the 911 call about a
dead body, the fact that other means of investigation would not be responsive to the inherent
urgency of the situation, and the inevitability of the discovery of the items seized in the eventual
search under the warrants that were subsequently issued.

103 That the items would inevitably have been discovered cannot be disputed: very shortly after
the first warrant was issued, the police received information from Christina Stubbings which
would have entitled them to obtain a warrant and search the premises. In fact, in what the
Crown has termed a "textbook example of good police work", the officer in charge of the
investigation did obtain a second warrant as soon as Ms. Stubbings spoke to the police.

104 If there could be said to have been a breach in the circumstances, it resulted at most from
an error in the police assessment of the scope of their search powers in a most difficult area of
the law of search and seizure. In my view they cannot be faulted for erring on the side of
protection of life, in a situation quite reasonably perceived as one of urgency. As the Crown has
argued, it would be contrary to the public interest to require the police to engage in microscopic
evaluation of rights and freedoms balanced against saving lives.

105 In R. v. David, supra, at 27-28, it was said in relation to this point:

As for the trial judge's s. 24(2) Charter analysis, I agree with his conclusion that the
bloodstained clothing would inevitably have been discovered prior to the appellant's
arrest. There is accordingly no merit in the appellant's submission that the blood samples
taken pursuant to the DNA warrant amount to conscriptive evidence, as the ability to
obtain the DNA warrant does not depend on evidence that could only have been obtained
through the warrantless entry. The appellant concedes that the bloodstained clothing was
real evidence that is non-conscriptive. The trial judge recognized the significant privacy
interest in the appellant's residence but found that the seriousness of the breach was
diminished by the good faith of the police and exigent circumstances. He also recognized
that the evidence in issue was not necessarily crucial to the Crown's case, but found it to
be important evidence relevant to a serious charge. In my view, the appellant has failed
to demonstrate a material error in the trial judge's reasoning and I see no basis for
interfering with his conclusion on the s. 24(2) analysis.
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R. v. Pillay, [2004] O.J. No. 2502

106 The final factor to be considered is the effect of the exclusion on the administration of
justice. As was noted by the Supreme Court of Canada in R. v. Law (2002), 160 C.C.C. (3d)
449, the importance of the evidence and the seriousness of the offence must be considered in
assessing the impact that exclusion would have on the reputation of the administration of justice.
As was stated in R. v. Kitaitchik (2002), 166 C.C.C. (3d) 14 (Ont. C.A.) the court should ask
whether the vindication of the specific Charter violation through the exclusion of evidence
extracts too great a toll on the truth seeking goal of the criminal trial.

107 I agree with the Crown that the exclusion of the real evidence of the murder scene in the
circumstances of this case would significantly distort the truth seeking function of the jury, and
that the exclusion of reliable evidence essential to the prosecution of a significant criminal
charge would, in the long term, have an adverse effect on the administration of justice.

108 Therefore, even if I had found that there had been a Charter breach underlying the search
and seizures in this case, for all these reasons I would not have excluded the evidence under
section 24(2) of the Charter.

WEIN J.

End of Document