COURT OF APPEAL FOR ONTARIO

DATE: 20000420

DOCKET: C27082

RE: HER MAJESTY THE QUEEN (Respondent) –and– ROBERT
THOMAS MARTIN (Appellant)

BEFORE: CATZMAN, CARTHY and O’CONNOR JJ.A.

COUNSEL: Joseph L. Bloomenfeld, for the appellant
R.W. Hubbard and Marie Comiskey, for the
respondent

HEARD: April 14, 2000

On appeal from the conviction imposed by Beaulieu J., sitting
with a jury, dated January 22, 1997 and on appeal from the
sentence imposed by Beaulieu J. dated April 11, 1997.

E N D O R S E M E N T

[1] The appellant’s primary ground of appeal against conviction
is that Jarvis J. who heard the Garofoli application, erred by
unfairly limiting the appellant’s right to cross-examine the
police officer who swore the affidavits used to obtain the
wiretap authorizations.

[2] There is no untrammeled right to cross-examine on an
affidavit used to obtain a wiretap authorization. Leave of the
court is required. In order to obtain leave, an accused must
show a reason for believing that the cross-examination will
elicit testimony tending to discredit one of the preconditions
for the issuance of the authorization: R. v. Garofoli (1990), 60
C.C.C. (3d) 161 at 198 (S.C.C.)

[3] The appellant sought leave to cross-examine the affiant, a
police officer, on several areas including entrapment, the
reliability of two confidential informants and the possibility of
material non-disclosure. The appellant did not establish an
evidentiary basis for these lines of cross-examination.
Nevertheless, Jarvis J. permitted cross-examination because of
certain “late developments”, the recent severance of the charges
against the co-accused and the recent completion of the Crown’s
disclosure obligations.

[4] Jarvis J. had earlier refused an application by the
appellant to compel the Crown to disclose the identity of two
confidential informants referred to in the affidavits of the
police officer. The brief portions of the two affidavits that
would directly or indirectly disclose the identity of the
informants were excised from the copies that were made available
to the appellant.

[5] In granting leave to cross-examine, Jarvis J. directed that
no questions that tended to establish the identity of the
informants would be permitted. He also expressed the
understandable concern that the cross-examination not become a
“fishing expedition”.

[6] The appellant cross-examined the police officer at some
length. A good deal of the cross-examination was directed at
trying to show that the information provided by the confidential
informants had not been confirmed by the subsequent police
investigations and that, therefore, the informants were
unreliable. On several occasions during the cross-examination,
the police officer took the position that she could not answer
the question asked without revealing information that had been
vetted from her affidavits in order to protect the identity of
the informants. In general terms, those questions related to the
reliability of the informants. Jarvis J., in most, if not all of
these instances, did not require the police officer to answer the
question.

[7] A right to cross-examine does not include the right to have
the disclosure of information that reveals the identity of an
informant unless it is necessary to establish the innocence of an
accused: R. v. Leipert (1997), 1997 367 (SCC), 112 C.C.C. (3d) 385 (S.C.C.).
The appellant’s counsel fairly concedes that the questions in
issue did not come within the innocence-at-stake exception.

[8] The appellant argues, however, that the officer could have
answered the questions without revealing protected information.

[9] Jarvis J. had a broad discretion to control the cross-
examination so as to protect the identity of the informants.
This discretion should not be interfered with on appeal unless it
can be shown that it was not exercised judicially: Garofoli,
supra.

[10] In making his rulings, Jarvis J. had the advantage of seeing
the unedited affidavits. He was well-positioned to determine if
the questions in issue were likely to elicit answers that
contravened his earlier ruling. While it may be argued that
particular questions could have been answered, it seems clear
that the general direction in which the questions in issue were
headed was into the areas protected by the privilege. It was
necessary to draw a line. We are not persuaded that Jarvis J.
erred in the exercise of his discretion by improperly curtailing
the cross-examination.

[11] We see no merit in the other grounds of appeal against
conviction.

[12] As to sentence, the appellant accepts the sentence of four
years for the two convictions of trafficking in large amounts of
cocaine was within the proper range. The appellant argues,
however, that the sentence should be reduced because of the
disparity between his sentence and the sentences imposed on
others involved in the same trafficking operation. We disagree.
The appellant played a more significant role in the commission of
the offences than the others. In our view, the differences in
the sentences were not sufficient to warrant interference by this
court on the basis of disparity.

[13] Accordingly, the appeals against the convictions and the
sentence are dismissed.