R v Morrisseau, 2018 MBCA 34

Citation: R v Morrisseau, 2018 MBCA 34 Date: 20180320 Docket: AR17-30-08910 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Madam Justice Diana M. Cameron Mr. Justice William J. Burnett BETWEEN: HER MAJESTY THE QUEEN ) E. A. Wach ) for the Appellant Respondent ) ) A. M. Turner and- and - ) E. D.

Atkin ) for the RespondentWADE MORRISSEAU ) ) Appeal heard and (Accused) Appellant ) Decision pronounced: ) March 20, 2018 Cameron JA (for the Court): [1] The accused appeals his conviction after trial for the charges of possession of marihuana for the purpose oftrafficking pursuant to section 5(2) of the Controlled Drugs and Substances Act, SC 1996, c 19 (the CDSA), possession of cocaine for thepurpose of trafficking (section 5(2) of the CDSA) and possession of proceeds of crime (section 354(1)(

a) of the Criminal Code (theCode)). He also applies for leave to appeal and, if successful, appeals the sentence of five years’ incarceration imposed for the charge ofpossession of cocaine for the purpose of trafficking. At the conclusion of the hearing, the Court allowed the conviction appeal andordered a new trial, with reasons to follow. These are those reasons. [2] All of the charges resulted from the execution of a search warrant at the accused’s residence.

The information toobtain the search warrant (ITO) was supported by information from one confidential informant, who had, on previous occasions,provided information to the police.

The officer who swore the ITO was also the confidential informant’s handler (the officer). [3] The accused appeals his conviction claiming, among other things, that the trial judge erred in law by denying hismotion for disclosure of the notes made by the officer regarding the information provided to him by the confidential informant (thenotes). [4] After the conviction, but prior to the hearing of this appeal, the Crown provided the notes to the accused andconsented to his fresh evidence motion to have them admitted in this appeal. [5] It was the position of the Crown that, at the time of the motion for disclosure, there was conflicting jurisprudenceregarding the requirement to disclose notes kept by a handler of a confidential informant where that handler is also the affiant of the ITOin question.

On appeal, the Crown stated that, since the time of the trial, the law had changed and that “[g]iven a change in the law, [theCrown] accepts that if the affiant of an ITO is also the handler of the confidential informant relied upon, the officer’s notes should bedisclosed.” See, for example, R v Bennett, 2017 ONCA 780.

The Crown explained that, in the circumstances of this case, it wasprepared to disclose the notes. [6] Given the position of the Crown, the provision of the notes, and their admission in this appeal, a full analysis ofwhether the trial judge erred in law by failing to order disclosure of them is not required for the purpose of this appeal.

However, thedisclosure and admission of the notes does not end the matter. [7] The accused argued that a comparison of the notes and the ITO provided a basis on which he would have made anapplication at his trial to cross-examine the officer pursuant to R v Garofoli, (SCC), [1990] 2 SCR 1421. In support ofhis position, he pointed to information contained in the ITO that he argued was different from, or not found in, the notes. [8] The Crown maintains that, while not identical, the information provided in the notes is the same as that found in theITO.

Therefore, it submits that the accused would not be able to meet the test to cross-examine an affiant of an ITO as enunciated inGarofoli.

[ 9 ] Given this Court’s decision to allow the appeal, I must be circumspect. Nonetheless, in the unique circumstances of this case, it cannot be said that the accused’s argument can be summarily dismissed or has no air of reality. It is for this reason that the appeal was allowed. [ 10 ] Before concluding, I would comment on the accused’s second ground of appeal. The accused argued that the trial judge erred in law by providing insufficient reasons for his decisions:

i) denying his motion for disclosure of the notes; ii) denying his motion to quash the search warrant; iii) determining that he was at the “mid-level” with respect to trafficking in cocaine; and iv) determining that a period of five years’ incarceration was appropriate. [ 11 ] In each of the above instances, the substance of the trial judge’s reasons simply state that he had reviewed the submissions and written materials of the parties, and that he accepted the position of the Crown.

Sparse reasons such as these are not to be encouraged, as there is a very real risk that this Court will find them to be insufficient. [ 12 ] For all of the above reasons, the conviction appeal was allowed and a new trial was ordered. JA JA JA