



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Meech, 2013 ONCA 338

DATE: 20130524

DOCKET: C54753

Weiler, Blair and Strathy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Christopher Meech

Appellant

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:

[1]

The 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.

[2]

A 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.

[3]

The 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.

[4]

At the conclusion of the appellants submissions seeking a new trial
    because of the trial judges 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.

[5]

The decision to grant or refuse a material witness warrant is an
    exercise of the trial judges discretion that should not be lightly overturned
    by an appellate court:
R. v. Scott,
[1990] 3 S.C.R. 979, at para. 55.
    It is a question of mixed fact and law.

[6]

A 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.


[7]

There were two live issues at trial: the
    validity of the appellants arrest and entrapment.
With respect to the
    validity of the appellants 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.

[8]

With 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.

[9]

The appellants 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.

[10]

We
    do not read the trial judges 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.

[11]

Even
    accepting the appellants 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.

[12]

In
    light of our conclusion, it is unnecessary for us to deal with other ancillary
    arguments raised by the appellant.

[13]

The
    appeal is dismissed.

[14]

While
    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.


