Court of Appeal for Ontario
Before: Weiler, Blair and Strathy JJ.A.
Between:
Her Majesty the Queen Respondent
and
Christopher Meech Appellant
Counsel: Anthony Marchetti, for the appellant Jason J. Wakely, for the respondent
Heard: May 21, 2013
On appeal from the conviction entered on January 27, 2011 and the sentence imposed on March 23, 2011 by Justice Tamarin M. Dunnet of the Superior Court of Justice, sitting without a jury.
By the Court:
1The appellant was convicted of possession of cocaine for the purpose of trafficking. He appeals his conviction on the basis that the trial judge erred when she refused to issue a material witness warrant.
2A confidential informant told the police that the appellant was a cocaine dealer who would be bringing a large quantity of cocaine from British Columbia to Toronto. An undercover officer called the appellant at the number the informant provided, confirmed this, and agreed to purchase a kilogram from him after he arrived. When the appellant arrived in Toronto he was arrested. He had four kilograms of cocaine in his knapsack.
3The appellant subpoenaed a person he referred to as "Mr. R." whom he believed was the informant. When Mr. R. did not appear he sought a material witness warrant pursuant to s. 705 of the Criminal Code. The appellant submitted that the Crown made an improper claim of informer privilege in relation to the informant or, in the alternative, that the innocence at stake exception to informer privilege applied. He also contended that he was arbitrarily detained and searched.
4At the conclusion of the appellant's submissions seeking a new trial because of the trial judge's refusal to issue a material witness warrant, we indicated we did not need to call on the Crown and dismissed the appeal with reasons to follow. These are those reasons.
5The decision to grant or refuse a material witness warrant is an exercise of the trial judge's discretion that should not be lightly overturned by an appellate court: R. v. Scott, 1990 CanLII 27 (SCC), [1990] 3 S.C.R. 979, at para. 55. It is a question of mixed fact and law.
6A person who seeks a material witness warrant must first show that the proposed witness is likely to give evidence that is material to the issues at trial.
7There were two live issues at trial: the validity of the appellant's arrest and entrapment. With respect to the validity of the appellant's arrest, the police knew from their telephone conversation with him that he would be arriving by bus from Vancouver to Toronto and that he would be bringing cocaine with him. The police had reasonable and probable grounds to arrest the appellant based on his own evidence. On appeal, the appellant rightly conceded that the evidence of Mr. R. was not relevant to this issue.
8With respect to the issue of entrapment, the appellant was required to show that the proposed witness was the source who tipped the police, that he was a state agent and therefore not protected by informer privilege. The trial judge held that there was no evidence that Mr. "R" was acting as a state agent and that the submission his evidence was material and necessary was tantamount to a fishing expedition.
9The appellant's principal argument on appeal was that the trial judge conflated the requirement for the innocence at stake exception and the material witness concept because, after holding that there was no evidence Mr. R. was acting as a state agent, she commented, "Even if he was the informant, there is no evidentiary basis that the disclosure sought is necessary to raise a reasonable doubt."
10We do not read the trial judge's reasons as conflating the innocence at stake concept and the material witness concept. On the basis of the argument as presented by the defence at trial, she had to deal with both. She did. We do not agree that she applied the more onerous innocence at stake test to determining whether a material witness warrant should issue. Reading her reasons as a whole, she found that the appellant had not met the test of showing Mr. R. was likely to give material evidence on the issue of entrapment. This finding was open to her and we see no basis for interfering.
11Even accepting the appellant's evidence that the proposed witness, Mr. R., asked the appellant to bring cocaine back from Vancouver and that he was the only person who knew about the proposed transaction, the appellant adduced no evidence to indicate that Mr. R. was a state agent. The police had a conversation with the appellant in which they indicated they were seeking to buy a kilo of cocaine. The appellant offered them two. By his response, the applicant confirmed that he was not being encouraged to do something that he was not otherwise engaged in. He was trying to push the caller to take more on his own initiative. He arrived in Toronto with four kilos. He did not explain why he had four kilos. The trial judge correctly held that there was no evidence Mr. R. was a state agent for whom the police were responsible.
12In light of our conclusion, it is unnecessary for us to deal with other ancillary arguments raised by the appellant.
13The appeal is dismissed.
14While the notice of appeal states that the appellant also requested leave to appeal sentence, the issue was not brought up before us and, therefore, the appeal as to sentence is dismissed as abandoned.
Released: May 24, 2013 "K.M. Weiler J.A."
"KMW" "R.A. Blair J.A."
"G.R. Strathy J.A."
