Craig McLean

The accused was charged with two counts of possession of cocaine for the purpose of trafficking under s. 5(2) of the Controlled Drugs and Substances Act following execution of a search warrant at his apartment.

Police discovered 0.9 grams of crack cocaine in the accused’s bedroom and 5.2 grams of cocaine on the hallway floor, along with a digital scale bearing cocaine residue.

The court held that circumstantial evidence established the accused’s knowledge and possession of the bedroom cocaine but did not prove beyond a reasonable doubt that he possessed the hallway cocaine, as an equally plausible inference was that another occupant discarded it when police entered.

The Crown also failed to prove that the bedroom cocaine was possessed for the purpose of trafficking, as the small quantity and packaging were consistent with personal use by an admitted addict.

The accused was acquitted on both trafficking counts but convicted of the lesser included offence of simple possession relating to the bedroom cocaine.

The Crown appealed acquittals on charges of possession and distribution of child pornography arising from videotaped sexual activity between the respondent and a 14-year-old complainant.

The Court of Appeal held that the trial judge failed to make a necessary factual finding on whether the respondent threatened to show the tapes to the complainant's family and friends, an issue central to whether the Sharpe private-use exception remained available.

If such threats were made, the material would not be intended solely for private use.

The court rejected a categorical rule that loss of exclusive physical possession automatically defeats the exception, holding the question is fact-specific.

A new trial was ordered on the possession and distribution counts only.

The Crown appealed a sentence in which the trial judge imposed a conditional sentence.

The court held the sentencing judge was in the best position to assess the effect of the respondent's serious mental illness on the commission of the offence and that there was evidence supporting that finding.

The court also relied on the respondent's youth, controlled mental illness, family support, and the Crown's position at trial.

Leave to appeal sentence was granted, but the appeal was dismissed.