Peter B. Hambly

Criminal appeals from an order setting aside directed acquittals and directing a new trial on charges including conspiracy to obstruct justice, obstruction of justice, and corruptly accepting money.

A key prosecution witness testified at the preliminary inquiry, later recanted significant portions of her evidence, and then married one appellant before trial, rendering her incompetent for the Crown under the common law spousal incompetency rule preserved by s. 4 of the Canada Evidence Act.

The Court held that the common law rule should not be modified on these facts and that s. 715 of the Criminal Code did not authorize admission of the preliminary inquiry transcript.

However, the majority held that the former testimony was admissible at common law under the principled hearsay exception because necessity and threshold reliability were established, and the resulting unfairness or prejudice did not outweigh its probative value.

The appeals were dismissed and the new trial order was affirmed.

The appellant challenged his conviction for possession of narcotics for the purpose of trafficking on the basis that drugs were discovered during a warrantless search of his girlfriend's apartment.

The Court held that a claim under s. 8 of the Charter requires the accused to establish a personal reasonable expectation of privacy, assessed on the totality of the circumstances.

On the facts, the appellant was merely an occasional visitor, contributed nothing to household expenses, lacked authority to regulate access, and had denied ownership of the seized drugs in the courts below.

Because no personal privacy interest of the appellant was infringed, he could not invoke s. 24(2) to exclude the evidence.

The appeal was dismissed.