DATE: 20021023 DOCKET: M28739 (C35063)

COURT OF APPEAL FOR ONTARIO

CATZMAN, LASKIN and GOUDGE JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN

Iona Jaffe,

for the respondent

Respondent

• and -

SEAN GRANT

Timothy E. Breen,

for the applicant

Applicant

Heard: September 13, 2002

BY THE COURT:

[1] After a trial before Bellamy J. and a jury, the applicant Sean Grant was convicted of possession of cocaine for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act. He has appealed his conviction on several grounds. One ground – the ground material on this motion – is that the trial judge erred in failing to order the Crown to disclose various items of information in its possession.

[2] The applicant brings this motion before the hearing of his appeal. He seeks an order that the Crown disclose the information in question now, so that on the appeal he can try to demonstrate that he was prejudiced by its non-disclosure at trial. We will first deal with the merits of the motion and then the procedure invoked by the applicant.

[3] To succeed on appeal on the issue of non-disclosure, the applicant must meet the two-part test set out by the Supreme Court of Canada in R. v. Dixon (1998), 122 C.C.C. (3d) 1. First, he must show that his right to disclosure was violated: he must satisfy the court there was a reasonable possibility that the undisclosed material could have been used in meeting the case for the Crown or in advancing his defence, or that it otherwise could have affected the conduct of the defence. Second, the applicant must show there is a reasonable possibility that the non-disclosure affected either the outcome or the fairness of the trial, thus violating his constitutional right to make full answer and defence.

[4] This motion is concerned with the first part of the test in Dixon. Production of the material in question is not needed to assess whether the applicant has met this part of the test. We are satisfied that he has not. The trial judge gave careful and detailed reasons why she ordered the disclosure of some, but not all, of the information sought. We agree with her reasons. As the Crown submits, the request for the remainder of the information is rooted in speculation and improbability. Thus, the motion fails.

[5] Although the Crown did not object to the procedure used by the applicant, we should not be taken as endorsing it. We acknowledge that in most (if not all) cases where non-disclosure is raised as a ground of appeal, an appellant will require the material to address the second part of the Dixon test. We also recognize that the applicant brought this motion for directions in advance of the appeal to avoid any delay in the hearing of the appeal itself, should he have succeeded on the first part of the Dixon test. But the bifurcated procedure invoked by the applicant has its own difficulties.

[6] By bringing the motion in advance of the appeal, the applicant invited a panel different from the panel hearing the appeal to decide on one part of one of perhaps many grounds of appeal. The panel on the motion must thus decide the first part of the Dixon test without the benefit of the full context for the appeal.

[7] Although we stop short of laying down a rigid rule, we think that in most cases where non-disclosure is raised as a ground of appeal, the panel hearing the appeal should, if possible, deal with this issue. In some cases, the panel may be able to dispose of the appeal on other grounds and therefore need not decide the non-disclosure question. In others, the amount of non-disclosed material may be so small that the parties and the court can deal with it without any delay in the hearing of the appeal. In yet other cases, the Crown may be prepared to disclose the material to permit this ground of appeal to be argued without delay. Finally, if either side expects potential delay in the hearing of the appeal, the appellant or the Crown may bring a motion for directions before a judge appointed to case manage the appeal.

[8] This motion is dismissed.

Signed: “M.A. Catzman J.A.”

“John Laskin J.A.”

“S.T. Goudge J.A”