F. Miller

The applicant brought an application alleging her s. 8 Charter rights were violated by the covert, warrantless installation of a police camera in the hallway outside her apartment door.

The camera recorded persons entering and leaving her apartment for 60 days.

The court applied the Court of Appeal's decision in R. v. Yu, finding that the applicant had a reasonable expectation of privacy in the common area outside her apartment, and that building management's consent did not vitiate the need for a warrant.

The court declared that the applicant's s. 8 Charter rights were violated.

The offender was convicted of possessing 7,694 animated child pornography images.

At sentencing, the offender challenged the constitutionality of the 6-month mandatory minimum sentence under s. 163.1(4) of the Criminal Code, arguing it violated s. 12 of the Charter.

The court dismissed the Charter challenge, finding the mandatory minimum was not grossly disproportionate for the offender or a reasonably foreseeable hypothetical offender.

The court sentenced the offender to 8 months' imprisonment followed by 18 months' probation, emphasizing denunciation and deterrence.

The appellant appealed convictions for two counts of sexual assault contrary to s. 271 of the Criminal Code.

He argued that the trial judge applied different standards of scrutiny to the evidence of the complainant and the accused, and that the judge misapprehended the evidence.

The appeal court rejected the argument regarding differential scrutiny but found that the trial judge made a material misapprehension of evidence by concluding that the complainant testified she did not consent, when no such testimony was given.

Because lack of consent is an essential element of sexual assault and the trial judge relied on the mistaken belief that direct testimony established that element, the error was both palpable and overriding.

The convictions were set aside and a new trial ordered.

The appellant appealed summary conviction offences for impaired operation and having care or control of a motor vehicle with blood alcohol exceeding the legal limit.

The appellant had been found asleep in the driver’s seat of his parked truck and argued he intended only to sleep and drive later after sobering up, thereby rebutting the statutory presumption of care or control under s. 258(1)(a) of the Criminal Code.

Relying on Supreme Court of Canada authority interpreting the requirement of a realistic risk of danger, the court held that a stated intention to drive later does not automatically rebut the presumption.

Even without a contemporaneous intention to drive, a realistic risk of danger may arise where an intoxicated person remains in a position to set the vehicle in motion.

The court concluded the presumption was not rebutted and upheld the conviction.