COURT OF APPEAL FOR ONTARIO

DATE: 20000823 DOCKET: C29897

RE: HER MAJESTY THE QUEEN (Respondent) –and– CLEVELAND BLAIR (Appellant)

BEFORE: ROSENBERG, MACPHERSON AND SHARPE JJ.A.

COUNSEL: Timothy E. Breen, for the appellant

R.W. Hubbard, for the respondent

HEARD: July 25, 2000

On appeal from the conviction by The Honourable Madam Justice Gloria J. Epstein, dated December 16, 1997.

E N D O R S E M E N T

[1] The appellant, Cleveland Blair, appeals from his convictions for trafficking in a narcotic and possession of the proceeds of crime. The only ground of appeal concerns a ruling by Epstein J. on a pre-trial defence application to compel the Crown to disclose the precise location from which a police officer made observations of purported drug transactions. The trial judge dismissed the application and did not order disclosure of the police observation post.

[2] On February 27, 1996, a team of police officers was detailed to investigate reports of drug trafficking at a restaurant called the Queen’s House Bar located at 1336 Queen Street West. P.C. Preston maintained surveillance on the premises and purported to observe the appellant sell cocaine on two occasions outside the main entrance doorway of the restaurant. The two purchasers were arrested and found in possession of cocaine. P.C. Preston radioed a description of the seller to the other officers. The police entered the restaurant and arrested the appellant.

[3] The central issue at trial was the reliability of Preston’s identification of the appellant as the seller. Preston made his observations from a location in a three-storey building across Queen Street from the restaurant.

[4] At the outset of the trial, before any evidence had been heard, counsel for the appellant requested disclosure of the specific location from where Preston made his observations. Crown counsel resisted disclosure, relying on the public interest privilege recognized in s. 37 of the Canada Evidence Act. His reason for resisting disclosure was, as summarized by the trial judge in her ruling:

In this case the Crown has advised me that disclosure may jeopardize ongoing or future investigations and may endanger the safety of the owners or occupants of the particular space as a result of their willingness to assist the authorities.

[5] The trial judge heard submissions on the pre-trial application. She recognized, correctly, that the protection of persons who co-operate in police investigations is an important public interest. However, she also recognized that it needed to be reconciled with the right of an accused to obtain full disclosure from the Crown of relevant information in order to be able to make a full answer and defence. Ultimately, after weighing the competing rights and interests, the trial judge dismissed the defence application.

[6] In our view, there is no basis on which to interfere with the trial judge’s ruling. We reach this conclusion for several reasons.

[7] First, as mentioned above, the trial judge was aware of, and applied, the correct legal principles.

[8] Second, this was not a case where the accused had no information, or even very little information, about the police observation post. The accused knew the building where Preston was located; it was a modest three-storey building. The accused also knew how far it was from the restaurant and knew the conditions between that building and the restaurant.

[9] Third, as the trial judge noted in her ruling, defence counsel was not able to point to anything specific about either the observation post or its general surroundings to indicate why the information she had already received was inadequate in terms of providing a full answer and defence.

[10] Fourth, and importantly, the trial judge’s ruling was made before the trial commenced. Defence counsel sought, and the trial judge granted, permission to renew the application during the trial:

Counsel: Am I still in a position where I would be allowed, based on information I receive from Officer Preston during cross-examination, to raise my motion for disclosure again at some point if I feel it necessary?

The Court: Yes.

During the trial, the defence did not renew its application. In our view, this is fatal to the contention that the specifics of the location of the observation post were necessary to permit the appellant to challenge the reliability of the identification evidence

[11] For these reasons, the appeal is dismissed.

Signed: “M. Rosenberg J.A.”

“J.C. MacPherson J.A.”

“Robert J. Sharpe J.A.”