David A. Berg

This ruling addresses whether the applicants, Melissa Merritt and Christopher Fattore, had a reasonable expectation of privacy (REP) in data stored on a 'loaner phone' provided by police after their original phone was seized.

The court applied the totality of circumstances test, considering the subject matter (data), the applicants' interest in it, their subjective expectation, and its objective reasonableness.

The court found that the applicants did have a reasonable expectation of privacy in the personal data on the loaner phone, primarily because police had previously informed Ms. Merritt that a warrant would be required to access data on their seized family phone, fostering a reasonable belief that the same protection would apply to the replacement device.

The applicants, charged with multiple murders, brought an application to exclude electronic intercepts and tracking warrant evidence, alleging violations of section 8 of the Charter.

The application challenged the necessity of judicial authorization for police email exchanges in an undercover operation, the police's actions in repacking belongings containing listening devices, and the validity of a tracking warrant based on alleged material errors and omissions in the information to obtain.

The court dismissed the application, finding no reasonable expectation of privacy in the email communications, that police actions regarding the trailer were within the scope of implied invitation, and that the tracking warrant was valid.

The accused, an unlicensed massage therapist, was convicted of sexual assault after touching the victim's breasts and vaginal area during a massage at a wellness clinic.

The victim believed the accused was a registered massage therapist based on the clinic's website.

The Crown sought 15 months imprisonment; the defence sought a 9-month conditional sentence.

The court imposed a 6-month custodial sentence followed by 12 months probation, finding that denunciation and specific deterrence were the primary sentencing objectives.

The court rejected a conditional sentence due to the breach of trust, the victim's vulnerability, the non-momentary nature of the assault, and the accused's lack of remorse or acceptance of responsibility.

A young person was charged with seven offences related to the possession of a loaded prohibited firearm and ammunition seized from a hotel room during a police response to a noise complaint.

The central issue was credibility: whether the accused was in possession of the firearm when police entered the room.

The Crown alleged the accused had the gun in his hand and was attempting to conceal it.

The accused testified he never possessed the gun and only heard it being racked.

The court found the accused guilty of unauthorized possession of a prohibited firearm, possession of a loaded prohibited firearm with ammunition, possession of a prohibited firearm knowing it was not registered, and careless storage of firearm and ammunition.

The court acquitted the accused on the charge of possession of a prohibited device for a dangerous purpose due to insufficient evidence of the requisite mens rea.

A young person charged with multiple firearms offences brought a motion to stay the charges based on a violation of his Charter right under section 11(b) to be tried within a reasonable time.

The total delay was 15.7 months from the laying of charges on December 10, 2011 to the scheduled trial commencement on March 25, 2013.

The court applied the analytical framework from R. v. Morin and considered the length of delay, any waiver, reasons for delay, and prejudice to the accused.

The court found that the delay was attributable to the inherent time requirements of the case and was neutral as against both the Crown and the defendant.

The court also found that any prejudice suffered by the defendant due to restrictive bail conditions did not outweigh society's interest in having serious firearms charges tried on the merits.

The motion to stay was dismissed.

The accused sought leave to cross-examine the informant who swore the Information to Obtain (ITO) a search warrant for his residence.

The court dismissed the application.

While confirming that a preliminary inquiry justice has jurisdiction to grant leave to cross-examine an informant under the Garofoli test, the court held that the contextual factors at a preliminary inquiry—particularly the protection of confidential informers and concerns about prolixity—warrant a more restrictive approach than at trial.

The court found that the accused failed to meet the threshold for leave in all proposed areas of cross-examination.

The accused pleaded guilty to two counts of robbery and one count of possession of a weapon dangerous.

On June 7, 2011, he robbed a bank teller and an innocent cyclist outside a bank while armed with a knife.

The Crown sought a penitentiary sentence of approximately three years, while the defence sought time served.

The court imposed a sentence of time served with enhanced credit for pre-trial detention (19.5 months), suspended the passing of sentence, and placed the accused on probation for three years with conditions including psychiatric counselling, medication compliance, and no contact with victims.

The Crown sought detention of the accused on primary, secondary, and tertiary grounds following charges of 35 offences related to firearms and controlled substances.

The accused was found in possession of loaded firearms, significant quantities of cocaine, marijuana, and ecstasy, along with 34 cell phones.

The court found no significant risk of absconding on the primary ground but determined the accused posed a substantial likelihood of committing further offences on the secondary ground and that detention was necessary to maintain confidence in the administration of justice on the tertiary ground.

The accused was ordered detained.