2011 QCCA 1677, 2011 QCCA 1677

Unofficial English Translation Poitras c. R. 2011 QCCA 1677 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10- 003851-076 (500-01-004765-050) (500-01-005446-064) DATE: September 19, 2011 CORAM: THE HONOURABLE FRANÇOIS PELLETIER, J.A. ALLAN R. HILTON, J.A. GUY GAGNON, J.A. DANIELLE POITRAS APPELLANT - Accused v.

HER MAJESTY THE QUEEN RESPONDENT - Prosecutrix JUDGMENT [ 1 ] THE COURT ; – Ruling on the appeal from a judgment rendered on April 30, 2007, by the Court of Quebec, Criminal and Penal Division, District of Montreal (the Honourable Judge Michel Bellehumeur); [ 2 ] For the reasons of Pelletier J.A., with which Hilton and Gagnon JJ.A. agree; [ 3 ] ALLOWS the appeal; [ 4 ] SETS ASIDE the trial judgment; [ 5 ] ORDERS a new trial; and [ 6 ] DECLARES the appellant’s motion to adduce fresh evidence to be moot. FRANÇOIS PELLETIER, J.A. ALLAN R. HILTON, J.A. GUY GAGNON, J.A.

Mtres Érick Vanchestein and Ronald Prégent Shadley Battista For the appellant Mtre Hélène Boucher Director of Criminal and Penal Prosecutions For the respondent Date of hearing: May 31, 2011

REASONS OF PELLETIER J.A. [ 7 ] The matter in issue concerns the conviction of the appellant Ms. Poitras on charges of fraud, forgery and uttering forged documents. [ 8 ] In February of 2007, Ms. Poitras admitted to having unlawfully imitated the signature of Guy Pilote to transfer three vehicles to a business corporation called Construction P. Di Iorio. She therefore pleaded guilty to the fraud charges set out in numbers 85, 92 and 97 of the indictment. An order staying the proceedings determined the fate of the other charges related to the transfer of these same vehicles.

That aspect of the case is now closed. [ 9 ] The trial on the 84 other charges began in March of that same year. The charges concern 28 cheques drawn on accounts belonging to Les Entreprises Conformetech, a business corporation operating in the construction industry and whose share capital was held by Mr. Pilote, Ms. Poitras and a man named Mr. Lavigne in the amounts of 50% for the first, 40% for the second and 10% for the third. Ms. Poitras admitted that she had signed Mr.

Pilote’s name by imitating his signature, but maintained that she had been authorized to do so. [ 10 ] On April 30, 2007, at the end of the hearing and having deliberated, Bellehumeur, J.C.Q. rendered his verdict. Here is how he described the central issue in the case: [ translation ] [71] With the accused’s admission that she signed the 28 cheques under consideration by imitating Guy Pilote’s signature, the issue is one of fact, namely: did Guy Pilote give the accused, Danielle Poitras, specific or general authorization to sign in his place the cheques at issue? [ 11 ] After repeating the formula from R. v.

W. (D.) , [1] he stated that he did not believe the appellant’s testimony. Moreover, he fully believed Mr. Pilote’s version, namely that he did not authorize Ms.

Poitras to sign his name, except in the case of four specifically identified cheques, which, of course, are not among those on which the charges are based. [ 12 ] The judge concluded: [ translation ] [112] In reading what case law teaches us and in reviewing all the duly accepted evidence, the Court has concluded that the Crown discharged its burden by demonstrating all the constituent elements of the offences beyond a reasonable doubt. [113] On 28 occasions, Ms. Poitras made false cheques by imitating Mr.

Pilote’s signature and used such false cheques 28 times to defraud Conformetech of 28 sums of money ranging from $800.00 to $21,069.53. [114] The accused is therefore convicted of the first 84 charges in the indictment. [115] As for charges 86, 87, 88, 89, 90, 91, 93, 94, 95 and 96, the Court grants a conditional stay, as suggested by the Crown. [116] The accused had already pleaded guilty to charges 85, 92 and 97. [ 13 ] Shortly thereafter, Ms.

Poitras brought an appeal and used primarily the theory argued at trial. [ 14 ] But then in June, when the parties were awaiting the sentencing stage, the new counsel for Ms. Poitras, Mtre Vanchestein, learned that criminal charges had also been brought against Mr. Pilote. They had been brought in the preceding month of April, after the conclusion of the hearing, while the decision of Bellehumeur J. was still under reserve. [ 15 ] Mtre Vanchestein promptly requested disclosure of any evidence disclosed to Mr. Pilote in the matter of the charges against him.

The matter dragged on, however, apparently because of several successive substitutions of the lead prosecutor in the case against Mr. Pilote. [ 16 ] Only in May of 2008, after finally receiving a refusal from the Crown did Mtre Vanchestein apply to the court for disclosure of evidence pursuant to sections 7 and 24 (1) of the Canadian Charter of Rights and Freedoms . [2] His diligence in acting was not called into question. He applied to Bellehumeur J., who was still seized of Ms.

Poitras’ case, which was at the sentencing stage, and argued that this supporting evidence was relevant to a possible reopening of the trial with respect to the verdict and even that it was also relevant with respect to sentencing. [ 17 ] On September 17, 2008, the judge dismissed the application. I believe it is useful to reproduce his reasons in full: [ translation ] [24] In fact, the petitioner applied for disclosure of evidence in a matter in which she is not the offender, nor the suspect, the investigated or the accused, in a judicial district that is different from that of this case.

[25] No connection between the two cases was demonstrated to the Court except that the complainant is one of the nine accused inthe other case. [26] At trial, when the witness Pilote testified, there were no charges laid against him as yet. There was no judicial record and noinvestigation was as yet known to the Crown. Accordingly, the individual Pilote had no criminal record and no case pending aboutwhich the defence could have cross-examined him during his testimony. [27] Moreover, the right to cross-examine Mr. Pilote was scrupulously respected during the trial.

The Defence had ample time tocross-examine the complainant Pilote. [28] We are far removed from any resemblance to the facts of Stinchcombe or any other judgment filed by counsel for the petitioner. [29] We all agree that the fruits of police investigations in the hands of the Crown do not belong to it so that it may use them to obtaina conviction.

Rather, such evidence is public property and must be used to ensure that justice is done. [30] So that the accused may make full answer and defence, including preparation for sentencing submissions, the Crown is obligedto disclose to the accused all information likely to have an effect on his ability to exercise such a right. [31] The Crown’s duty even goes so far as post-judgment collaboration to determine with accuracy the amount of the loss for thedefrauded company, if the figures advanced by the prosecutor are contested, among other things.

Moreover, if in fact the Court has notyet sentenced the accused Poitras, it is because the Crown and the Defence have asked the Court, among other things, for more time toattend to this matter. [32] Moreover, it was not demonstrated to the Court that the documents sought from a third-party case could have any usefulness asto sentencing. [33] The Defence already has all the documents required for its evaluation and preparation for submissions on sentencing. [34] In this case, the Crown discharged its duty.

At the time of the trial, the Defence carried the full duty to disclose evidence.Nothing was filed, no exhibits were used and no figures were advanced by the Crown without the Defence being able to refer to them inthe documents submitted by the Crown. [35] On April 30, 2007, after deliberations that lasted about 40 days, the applicant was found guilty of the first 84 charges in theindictment. [36] Today, the applicant is not complaining that evidence was not disclosed to her in her own case but is seeking documents from acase in which the accused Poitras is not involved in any way. [37] In that case, how can we fault the Crown for refusing to disclose the requested evidence, which does not concern Ms.

Poitras inany way? [38] The Crown has no constitutional obligation to do so. To act otherwise would set a dangerous precedent. [39] It is not because Guy Pilote is himself accused of fraud in an entirely different case that is still pending that Ms. Poitras shouldbe able to obtain disclosure of evidence in that third-party case. [40] According to the analysis of the exhibits submitted, the businesses involved in the two cases are separate.

The accused in each ofthe two cases are different, the person defrauded in the one case is not the person defrauded in the other, the dates of the offencesreferred to in each of the two cases are several years apart and the charges against Mr. Pilote were laid after Ms. Poitras’ trial. [41] The Defence submitted considerable case law but none of it resembles the case submitted by the petitioner. [42] What the Court found to be closest to the case under consideration is a decision of the British Columbia Court of Appeal. It wasdecided in R. v.

Schmidt, (2001) 2001 BCCA 3 , 151 C.C.C. (3d) 74 at paras 22-23, that the prosecution was not obliged todisclose a police file concerning a matter in which the accused was neither the offender nor the suspect, but where the complainant wasthe same in both cases. [43] In our case, the Crown’s refusal to produce documents from a third-party file is even more justified than the case considered bythe British Columbia Court of Appeal. [44] That is why the Court would dismiss the application by the petitioner, Danielle Poitras.

Analysis [18] In her factum, the appellant proposes seven grounds of appeal, of which one in particular impugns the reasons and theconclusion of the judgment of September 17, 2008. What is unusual at first glance is that the appellant never advanced this ground in hernotice of appeal from the verdict or in her motion for authorization to raise questions of mixed fact and law.

Of course, because theevents took place after the appeal was brought, it would have been necessary for her to institute one or more additional procedures, butshe refrained from doing so. [19] Having made this comment, I shall not dwell any longer on the procedural aspect of the matter, taking into account the fact thatthe Crown is arguing the merits and never complained about the introduction on appeal of the discussion concerning the application fordisclosure of additional evidence. [20] Given the circumstances likely to arise therefrom, I believe it is essential to review this matter before any other.

[21] I should like to point out from the outset that no one is questioning the jurisdiction of the judge to hear the application fordisclosure after the verdict has been rendered but before sentencing.[3] I would add that he would also have had jurisdiction to rule on anapplication to reopen the trial and, if applicable, to set aside the conviction.[4] [22] Ms. Poitras justified her application for disclosure, among other things, by the need to assess the advisability of applying for areopening of the trial. Here is how she presented the situation: [translation] 49.

Fresh evidence that discredits the evidence adduced during the trial or that renders it unreliable necessitates a re-examination of allthe prosecution’s evidence by the trier of facts. The degree of relevance of the fresh evidence is related to the importance of the roleplayed by the discredited evidence in the Crown’s case; • R. v. Trotta, 2007 SCC 49 (transposing the stated principles concerning fresh evidence available after convictions have beenaffirmed on appeal). 50. In this case, the nature and the scope of the charges against Mr.

Pilote are such that the evidence underlying such charges mayseriously affect the credibility of the main witness for the prosecution against the petitioner; 51. Because the trial evidence may be summarized as contradictory versions between Mr. Pilote and the petitioner, it is vital that therequested evidence be disclosed to the petitioner, so that the court may ensure that justice is done; 52.

A stay of proceedings resulting from the impossibility of disclosing to the accused a previous statement made by the complainant,which was affirmed by the Supreme Court in Carosella, shows the importance that our law places on the accused’s fundamental rights tocross-examine a witness for the prosecution, especially when credibility is a vital matter in the trial; • R. v. Carosella, [1997] 1. S.C.R. 80. [23] Concerning relevance, she raised the following arguments: [translation] 39. Whether the court adopts the relevance test developed in Stinchcombe or that set forth in Trotta (C.A.

Ontario) and McNeil, in thiscase, relevance is unequivocal, given the following considerations: • The nature and the seriousness of the charges against Mr. Pilote are highly prejudicial to his credibility; • The petitioner’s conviction is based on Mr. Pilote’s credibility; • The fact that the alleged offences concern the making of false invoices in the construction industry; … 53. Any witness other than the accused may be cross-examined about misconduct that they may have engaged in, even concerningcircumstances foreign to the case in which they testify.

Whether their guilt concerning the actions in question has been determined by acourt of law or not is of little importance. Misconduct on the part of witnesses may be relevant to their credibility or to another matterthat may affect the reliability of his testimony. • R. v. Gonzague, (1983) (ON CA), 4 C.C.C. (3d) 505 (C.A. Ont.), at paras 19-20. • Titus v. R., (SCC), [1983] 1 S.C.R. at 259, 263-264. • R. v. Charbonneau, [1992] J.Q. no. 494 (C.A.Q.), at 10-12: “Access to Blass’ Statement”. 54.

It is possible to cross-examine a witness on matters that need not be proved independently, such as evidence giving rise to criminalcharges; • R. v. Lyttle, 2004 SCC 5 , [2004] 1 S.C.R. 193, at paras 43-48. 55. Cross-examination is critical when credibility is the central issue of the trial; • R. v. Lyttle, 2004 SCC 5 , [2004] 1 S.C.R. 193, at paras 69-70. [24] On appeal, the appellant argued that the judge’s refusal justified our Court’s ordering a new trial.

What are we to make of this? [25] It is appropriate to point out from the outset that, when the judge rendered his judgment, he did not have before him theevidence of which Ms. Poitras was seeking disclosure. He therefore justified his refusal by an analysis of principle and, among otherthings, cited the fact that, at the time of the trial, Mr. Pilote had not yet been charged with anything.

He also stressed that the Crown hadrespected its duty of disclosure up to that point. [26] Otherwise, the refusal was based mainly on the reasons at paragraphs 39 and 40, which I shall reproduce again for the sake ofconvenience: [translation]

[39] It is not because Guy Pilote is himself accused of fraud in an entirely different case that is still pending that Ms. Poitras should be able to obtain disclosure of evidence in this third-party case. [40] According to the analysis of the exhibits submitted, the businesses involved in the two cases are separate. The accused in each of the two cases are different, the person defrauded in the one case is not the person defrauded in the other, the dates of the offences referred to in each of the two cases are several years apart and the charges against Mr. Pilote were laid after Ms.

Poitras’ trial. [ 27 ] At the outset, I agree with the judge in recognizing that the application by Ms. Poitras did not fault the Crown for any breach of its duty of disclosure, at least with respect to its duty until the conclusion of the trial. The events referred to in the application for additional disclosure did not take place until after judgment was reserved in Ms. Poitras’ case. [ 28 ] Moreover, with respect, I believe that the judge did not properly assess the general scope of the Crown’s duty, on the one hand, and that he made a premature judgment on the true relevance of the evidence of which Ms.

Poitras sought disclosure, on the other hand. In his defence, however, I would point out that the judge did not have the benefit of the enlightenment provided by the recent Supreme Court ruling in R. v. McNeil . [5] [ 29 ] To determine the scope of the duty to disclose, and, to a certain extent, the procedure to be followed, it was necessary first to identify correctly the nature of the evidence of which the accused sought disclosure. Was it information in the possession of the Crown relating to the investigation against Ms. Poitras?

If this question commands an affirmative answer, Stinchcombe [6] sets out the applicable rule, as Charron J. stated in McNeil : [7] 17 The Crown’s obligation to disclose all relevant information in its possession relating to the investigation against an accused is well established. The duty is triggered upon request and does not require an application to the court.

Stinchcombe made clear that relevant information in the first party production context includes not only information related to those matters the Crown intends to adduce in evidence against the accused, but also any information in respect of which there is a reasonable possibility that it may assist the accused in the exercise of the right to make full answer and defence. [Emphasis added.] [ 30 ] In my view, the targeted information was in the Crown’s possession. It is of little importance whether it was under the direct control of another counsel acting for the prosecution against Mr.

Pilote, in another judicial district. Nothing indicates that this factor renders disclosure more difficult in any way. Even so, the information does not relate directly to the hearing involving Ms. Poitras. That is why it was not found from the outset in the documents and information that the police officers responsible for the Poitras investigation conveyed to the prosecuting Crown for the purposes of the initial disclosure to Ms. Poitras in application of Stinchcombe .

I note in passing that, like Bellehumeur J., the police forces at that time did not have the additional light shed by McNeil concerning the scope of their duty to disclose to the Crown. [ 31 ] Nonetheless, the prosecuting Crown in the Poitras case came into possession of the targeted information only after making an explicit request in response to the requisition from Mtre. Vanchestein on behalf of Ms. Poitras. After review, the Crown decided that all the information so obtained escaped the duty to disclose established by Stinchcombe .

That was the origin of the application for additional disclosure brought before Bellehumeur J. by Mtre. Vanchestein. [ 32 ] In such a case, the Supreme Court in McNeil noted that the duty to disclose is usually determined in the context of an O’Connor application: [8] 25 Even though, in this narrow sense, the police and the Crown may be viewed as one entity for disclosure purposes, the two are unquestionably separate and independent entities, both in fact and in law.

Hence, production of criminal investigation files involving third parties, and that of police disciplinary records, usually falls to be determined in the context of an O’Connor application. This is unsurprising because information about third party accused or police misconduct is not likely to make its way into the Crown’s Stinchcombe disclosure package unless such information is in some way related to the accused’s case. ... [Emphasis added.] [ 33 ] An O’Connor application involves two stages. In the first, the moving party must establish the likely relevance of the requested information.

If this party succeeds in completing the first stage, the judge may consider the information sought and then decide, at the end of the second stage, whether or not to order its disclosure to the accused. [ 34 ] In the case under consideration, the judge did not follow this order. He began by summarily concluding that the information could not be truly relevant because it did not concern Ms.

Poitras: [ translation ] [36] Today, the applicant is not complaining that evidence was not disclosed to her in her own case but is seeking documents from a case in which the accused Poitras is not involved in any way. [37] In that case, how can we fault the Crown for refusing to disclose the requested evidence, which does not concern Ms. Poitras in any way? [ 35 ] I believe that an error in principle was committed here. Ms. Poitras is not involved in the case against Mr. Pilote but that does not mean that the information that it contains is not necessarily of any relevance.

In McNeil , Charron J. specified the parameters of likely

relevance to be the subject of the analysis at the first stage of an O’Connor application:[9] 33 “Likely relevant” under the common law O’Connor regime means that there is “a reasonable possibility that the information islogically probative to an issue at trial or the competence of a witness to testify” (O’Connor, at para. 22 (emphasis deleted)).

An “issue attrial” here includes not only material issues concerning the unfolding of the events which form the subject matter of the proceedings, butalso “evidence relating to the credibility of witnesses and to the reliability of other evidence in the case” (O’Connor, at para. 22).... [Emphasis added.] [36] In this case, Mr. Pilote’s credibility and the reliability of his testimony are clearly central to the charges against Ms. Poitras. Infact, Mr. Pilote is the only prosecution witness, and the Crown’s evidence is based entirely on his version.

The application for disclosureof additional evidence, however, refers to charges that apparently call his integrity into question. The actions for which he is faulted aresaid to be akin to fraud and forgery, and they were allegedly committed in the operation of a construction business. In this respect, Ms.Poitras at first glance sees similarities with the charges brought against her and of which M. Pilote claims he is the victim. [37] According to the Supreme Court, the burden on the shoulders of the author of an O’Connor application is “significant withoutbeing onerous”.

The Court described it as follows:[10] 29 It is important to repeat here, as this Court emphasized in O’Connor, that while the likely relevance threshold is “a significantburden, it should not be interpreted as an onerous burden upon the accused” (at para. 24). On the one hand, the likely relevance thresholdis “significant” because the court must play a meaningful role in screening applications “to prevent the defence from engaging in‘speculative, fanciful, disruptive, unmeritorious, obstructive and time-consuming’ requests for production” (O’Connor, at para. 24,quoting from R. v.

Chaplin, (SCC), [1995] 1 S.C.R. 727, at para. 32). The importance of preventing unnecessaryapplications for production from consuming scarce judicial resources cannot be overstated; however, the undue protraction of criminalproceedings remains a pressing concern, more than a decade after O’Connor.

On the other hand, the relevance threshold should not, andindeed cannot, be an onerous test to meet because accused persons cannot be required, as a condition to accessing information that mayassist in making full answer and defence, “to demonstrate the specific use to which they might put information which they have not evenseen” (O’Connor, at para. 25, quoting from R. v. Durette, (SCC), [1994] 1 S.C.R. 469, at p. 499). [Emphasis added.] [38] Had she known about the charges before the conclusion of the trial, in my view Ms. Poitras could have legitimately cross-examined Mr. Pilote about them.

The words of Martin J. in R. v. Gonzague, with which I am in complete agreement, aptly summarize thestate of the law on this matter:[11] 19 …Clearly, the fact that a person is charged with an offence cannot degrade his character or impair his credibility, but an ordinarywitness unlike an accused may be cross-examined with respect to misconduct on unrelated matters which has not resulted in a conviction:see R. v. Davison, DeRosie and McArthur (1975), (ON CA), 20 C.C.C. (2d) 424 at 443-44.

Consequently, counsel wasentitled to cross-examine the witness, Charbonneau, on the facts underlying the 15 charges of fraud in order to impeach his credibility. [Emphasis added.] [39] The case under consideration presents some analogies with the scenarios suggested by Charron J. when she discusses therelevance of police misconduct:[12] 54 When the police misconduct in question concerns the same incident that forms the subject-matter of the charge against the accused,the police duty to disclose information concerning police disciplinary action taken in respect of that misconduct is rather self-evident.

Tostate an obvious example, if a police officer is charged under the applicable provincial legislation for excessive use of force in relation tothe accused’s arrest, this information must be disclosed to the Crown. Where the misconduct of a police witness is not directly related tothe investigation against the accused, it may nonetheless be relevant to the accused’s case, in which case it should also be disclosed. Forexample, no one would question that the criminal record for perjury of a civilian material witness would be of relevance to the accusedand should form part of the first party disclosure package.

In the same way, findings of police misconduct by a police officer involved inthe case against the accused that may have a bearing on the case against an accused should be disclosed. [Emphasis added.] [40] It follows that all or a portion of the information in support of the charge against Mr. Pilote would in all likelihood havecontributed to the cross-examination in Ms. Poitras’ trial.

In other words, the application for disclosure would have met the likelyrelevance threshold described in McNeil, because the Crown could not have qualified it as “speculative, fanciful, disruptive,unmeritorious and time-consuming”.[13] That is even clearer in that, according to the teachings of McNeil, such an application fordisclosure of documents in the possession of the prosecuting Crown is not strictly subject to all the requirements of the O’Connorscheme:[14] 59 I agree that it is “neither efficient nor justified” to leave the entire question of access to police misconduct records to be determinedin the context of the O’Connor regime for third party production.

Indeed, as discussed earlier, the disclosure of relevant material,whether it be for or against an accused, is part of the police corollary duty to participate in the disclosure process. Where [page 102] theinformation is obviously relevant to the accused’s case, it should form part of the first party disclosure package to the Crown withoutprompting.

For example, as was the case here, if an officer comes under investigation for serious drug-related misconduct, it becomesincumbent upon the police force, in fulfilment of its corollary duty of disclosure to the Crown, to look into those criminal cases in whichthe officer is involved and to take appropriate action. Of course, not every finding of police misconduct by an officer involved in theinvestigation will be of relevance to an accused’s case.

The officer may have played a peripheral role in the investigation, or themisconduct in question may have no realistic bearing on the credibility or reliability of the officer’s evidence.... [Emphasis added.]

[ 41 ] Here, however, the charges against Mr. Pilote were not laid until the hearing in the Poitras case was closed. The judge underlined that and drew from it an argument to justify dismissing the application: [ translation ] [26] At trial, when the witness Pilote testified, there were no charges laid against him as yet. There was no judicial record and no investigation was as yet known to the Crown.

Accordingly, the individual Pilote had no criminal record and no case pending about which the defence could have cross-examined him during his testimony. … [40] According to the analysis of the exhibits submitted, the businesses involved in the two cases are separate. The accused in each of the two cases are different, the person defrauded in the one case is not the person defrauded in the other, the dates of the offences referred to in each of the two cases are several years apart and the charges against Mr. Pilote were laid after Ms.

Poitras’ trial. [Emphasis added.] [ 42 ] With respect, the later occurrence of the charges and of their discovery in no way changes the scope of the duty to disclose.

We know that the first party’s duty to disclose under the Stinchcombe scheme survives the trial: [15] 17 … Stinchcombe made clear that relevant information in the first party production context includes not only information related to those matters the Crown intends to adduce in evidence against the accused, but also any information in respect of which there is a reasonable possibility that it may assist the accused in the exercise of the right to make full answer and defence (pp. 343-44).

The Crown’s obligation survives the trial ... [Emphasis added.] [ 43 ] In this case, the judge had to assess the extent to which the prosecuting Crown respected the duty to disclose established by Stinchcombe concerning the information obtained from the police forces that worked on the Pilote case.

On this matter, the Supreme Court cited with approval the report of Ferguson J., who described the role of the prosecuting Crown as a gatekeeper for the purposes of determining what must be disclosed to the accused in application of Stinchcombe : [16] 58 The Ferguson Report recommended that upon receiving this information from police, the Crown act as “gate-keeper”, sorting out what parts of this material, if any, should be turned over to the defence in compliance with the Crown’s Stinchcombe obligation of disclosure.... [ 44 ] I therefore conclude that the judge should not have rejected out of hand the application for disclosure brought by Ms.

Poitras because this application met the likely relevance test. According to the teachings of McNeil , he should have ordered the production of the information instead to inspect it himself and to determine its true relevance. Such an exercise would have enabled him to see the extent to which the Crown had respected its duty to disclose to Ms. Poitras the information concerning the Pilote case.

He would then have been able to issue the appropriate orders. [ 45 ] When an appellate court concludes that the right of an accused to the disclosure of relevant information has not been respected, the most common remedy is to order a new trial. Moreover, I note in passing that the Crown did not invite us to consider the possibility of applying the curative provision of subparagraph 686 (1)( b)(iii) of the Code . [ 46 ] In this case, I see no other outcome than to allow the appeal, set aside the conviction and order a new trial. FRANÇOIS PELLETIER J.A.