R. v. Gallant, 2011 NBCA 15

COURT OF APPEAL OF NEW BRUNSWICK 86-10-CA HER MAJESTY THE QUEEN APPELLANT SA MAJESTÉ LA REINE APPELANTE - and - - et - STÉPHANE GALLANT RESPONDENT STÉPHANE GALLANT INTIMÉ R. v. Gallant, 2011 NBCA 15 R. c.

Gallant, 2011 NBCA 15 CORAM: The Honourable Justice Larlee The Honourable Justice Deschênes The Honourable Justice Richard CORAM : L’honorable juge Larlee L’honorable juge Deschênes L’honorable juge Richard Appeal from a decision of the Court of Queen`s Bench: June 7, 2010 Appel d’une décision de la Cour du Banc de la Reine : Le 7 juin 2010 History of Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : Inédite Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : S.O.

Appeal heard and judgment rendered: January 24, 2011 Appel entendu et jugement rendu : Le 24 janvier 2011 Reasons delivered: February 24, 2011 Motifs déposés : Le 24 février 2011

Counsel at hearing: For the appellant: David M. Schermbrucker For the respondent: Leslie F. Matchim Avocats à l'audience : Pour l’appelante : David M. Schermbrucker Pour l’intimé : Leslie F. Matchim THE COURT The appeal is dismissed. LA COUR L’appel est rejeté. The following is the judgment delivered by THE COURT [1] Stéphane Gallant was charged with the indictable offence of conspiracy to traffic in cocaine (s. 465(1)(

c) of the Criminal Code ). Central to the prosecution’s case were private communications intercepted pursuant to a wiretap authorization.

As part of the disclosure process, the prosecution provided the defence with 87 “source debriefing reports,” which summarized information the police received from confidential informers and upon which the affiant relied in the preparation of an affidavit in support of the wiretap authorization. [2] In the course of the pre-trial process, defence counsel requested the disclosure of “source handler notes,” which consist of the rough notes a police “handler” makes while obtaining information from an informer, and upon which the officer then relies to prepare a source debriefing report.

The prosecution opposed the disclosure of these notes. [3] Following a hearing on the disclosure issue on May 3, 2010, a judge of the Court of Queen’s Bench ordered the notes disclosed “save and except any information that would identify or might lead to the identification of an informant.” The prosecution complied with the order and provided 35 source handler notes, appropriately vetted so as not to disclose any information that might identify any informer. No issue was taken with the information that was removed from the notes.

[4] It later became apparent that there might have been additional source handler notes used in preparation of the source debriefing reports. On June 2, 2010, defence counsel sought further disclosure. Specifically, he wanted to know whether any other handler notes ever existed, and, if so, what had happened to them. The judge ordered the prosecutor to answer these inquiries. In so ruling, the judge noted that a defence motion for a stay of proceedings based on allegations of destruction of certain surveillance evidence was already pending before the Court.

After seeking instructions, the prosecutor informed the Court he would not provide answers, giving no real reason other than to reiterate the prosecution’s original position that the handler notes should not be disclosed because they were either irrelevant or privileged. [5] On June 7, 2010, faced with the prosecution’s refusal to comply with the disclosure order, and upon the joint invitation of both prosecution and defence, the judge stayed the proceedings.

In the aftermath of this order, the Attorney General of Canada appealed. [6] The Attorney General’s grounds of appeal challenge the correctness of the judge’s decision, on May 3, 2010, ordering the disclosure of the handler notes. According to the Attorney General, these notes should not have been disclosed because they were irrelevant, or, alternatively, because they were privileged. [7] After hearing counsel for the Attorney General (who was not trial counsel), we dismissed the appeal, indicating that brief reasons for our decision would follow.

Here are those reasons. [8] In our view, the Attorney General cannot, in the context of this appeal, challenge the decision the judge rendered on May 3, 2010. The prosecution opted to comply with the disclosure order relating to the handler notes and it provided these to the defence. It was not on the basis of anything to do with that decision that a stay of proceedings was ordered. The stay of proceedings was issued because the prosecution opted to refuse to provide the information the judge ordered disclosed on June 2, 2010. However, it was the handler notes the Attorney General said were privileged.

The prosecution at no time submitted the information the defence sought on June 2, 2010, as to the whereabouts of any additional notes, was privileged. As counsel for the Attorney General rightfully recognized at the hearing of the appeal, there was nothing in the information the judge ordered disclosed on June 2, 2010, that could be said to be privileged. [9] In our view, once the Attorney General opted to comply with the disclosure order made on May 3, 2010, any

appeal regarding that decision became moot. It was not the basis upon which the stay of proceedings was issued and cannot now be the subject of a challenge under the guise of an appeal against the stay. The stay was ordered because prosecution counsel would not answer rather simple disclosure questions put to him, which, in the context of this matter, and especially considering the pending motion for a stay of proceedings based on the destruction of evidence, were relevant questions, the answers to which would not violate any privilege.

In the circumstances, we conclude the judge did not err in acting on the joint invitation of counsel to stay the proceedings. For these reasons, we dismissed the appeal. ____________________________________ M.E.L. LARLEE, J.A. _____________________________________ ALEXANDRE DESCHÊNES, J.A. ______________________________________ J.C. MARC RICHARD, J.A.