COURT OF APPEAL FOR ONTARIO

DATE: 2001-05-11 DOCKET: C35418

RE: HER MAJESTY THE QUEEN (Respondent) and FLORENT TANGUAY and CLAUDE ROZON (Appellants)

BEFORE: MORDEN, MACPHERSON and SIMMONS JJ.A.

COUNSEL: Guy Ungaro, For the appellants Bradley Reitz, For the respondent

HEARD: April 27, 2001

ENDORSEMENT

Released Orally: April 27, 2001

[1] On the informant issue at trial, the defence submitted that the Crown was obliged to inform them of the identity of Constable Duval’s informant because the innocence at stake exception for the informant privilege was relevant.

[2] The defence asserted that the informant was Conrad Doucet although they submitted before us that they were not certain of this. They testified that Doucet was involved in the drug transaction on September 21, 1999. Constable Duval testified that he did not see Doucet during the transaction. It was open to the defence to call Doucet as a witness or ask the court to call him. They did not follow either course. On this record we do not think that there is any substance to the complaint of non-disclosure of the informant’s identity.

[3] We accept the respondent’s submission respecting the effect of the appellants’ evidence at trial – at least to the extent that it afforded the basis of a finding of guilt against each of them – against Rozon, of being guilty of possession for the purpose of trafficking and against Tanguay, of aiding and abetting in the trafficking of the marijuana in question.

[4] Although the trial judge should not have placed any reliance on the “credibility” of counsel for the Crown, we do not think that this error had any material effect in light of the appellants’ decision not to call Doucet to give evidence.

[5] Respecting the submission of non-disclosure, on the record, including the effect of the appellant’s evidence to which we have referred, we do not think it occasioned any prejudice to the appellants.

[6] In our view, the police, on the basis of what was observed during the transactions in the parking lot in the shopping mall, had reasonable and probable grounds to effect the arrests and the searches.

[7] On the subject of sentence, having regard to the nature of the drug (marijuana) and the quantity (2.575 kilograms), we think that the sentences were excessive in the sense that they fell outside the acceptable range. The appellants, particularly Tanguay, had serious criminal records and, accordingly, were not entitled to leniency. In all of the circumstances, we think that a fit sentence for each appellant would be twenty-seven months.

[8] Accordingly, the appeals from conviction are dismissed. Leave to appeal sentences is granted and each sentence is varied to twenty-seven months.