R. v. Patterson, 2014 NSPC 37

Provincial Court of Nova Scotia Citation: R. v. Patterson , 2014 NSPC 37 Date: 2014-06-17 Docket: 2662814 Registry: Pictou Between: Her Majesty the Queen v. Stephen Mitchell Patterson Decision on application for additional disclosure Judge: The Honourable Judge Del W. Atwood Heard: 16 June 2014, in Pictou, Nova Scotia Decision: 17 June 2014 Charge Subsection 5(2) of the Controlled Drugs and Substances Act Counsel: James C. Martin and Jill Hartlen for the Public Prosecution Service of Canada George E. Kalinowski for Stephen Mitchell Patterson By the Court: [ 1 ] Stephen Mitchell Patterson is charged with a single count of possession of a

schedule II substance for the purpose of trafficking, contrary to subsection 5(2) of the Controlled Drugs and Substances Act, case number 2662814. Although the charge is indictable, the alleged quantity falls under

schedule VII and so the charge is within the absolute jurisdiction of this court, pursuant to sub- para. 553 (c)(x.1) of the Criminal Code . Mr. Patterson pleaded not guilty and the case will be tried before me. Defence counsel has brought pre-trial application before the court seeking compulsory disclosure from the prosecution of internal police notes and memoranda pertaining to a confidential source. [ 2 ]

Section 7 of the Charter states: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. [1] [ 3 ] This constitutional protection includes the right to make full answer and defence. [2] The leading cases make clear that the right of an accused to make full answer and defence is accompanied by a correlative duty, borne by the prosecution, to disclose to a person accused of a crime all relevant information in its possession reasonably capable of affecting the ability of the accused to make full answer and defence. [3] [ 4 ] The right to disclosure is not absolute, and the law recognizes the existence of a lawful discretion vested in the prosecution to delay or withhold disclosure, or to determine the most effective manner of its production. [4] The exercise by the prosecution of a discretion to refuse disclosure is reviewable by a court of competent jurisdiction.

As this is the trial court, this court is a court of competent jurisdiction for the purposes of adjudicating an appropriate and just remedy under subsection 24(1) of the Charter . [5] In doing so, the court must recognize that much leeway must be accorded the prosecution in its exercise of discretion with respect to the manner and timing of disclosure. [6] It is only in cases of the absolute withholding of disclosure that the court ought to engage in a review of that discretion. [ 5 ] When a person claims that a Charter right has been violated, he or she must prove that a violation occurred; the standard of proof is upon a balance of probabilities. [7] A Charter application must be based upon evidence; [8] an application unsupported by facts is merely a hypothetical case, and a hypothetical case would be entitled to a hypothetical judgment only. [ 6 ] What are the facts known to this court?

Based on exhibit 1 (Mr. Patterson’s affidavit, and the attached exhibits) and exhibit 2 (the redacted ITO disclosed by the prosecution to defence counsel), and based on submissions made to the court yesterday by counsel, I find the following facts: 1. Mr. Patterson is charged with an indictable s. 5 CDSA offence; 2. A warranted search was carried out by police on 12 October 2013 which resulted in the seizure of evidence; 3. The ITO upon which the issuing justice granted the warrant included reference to information obtained from a confidential source; 4.

There exist source handler’s notes and source debriefing reports pertaining to the investigation of Mr. Patterson which detail police interaction with the confidential source;

5. Mr. Patterson has received disclosure from the prosecution which does not include the source handler’s notes or the source debriefing reports; 6. Defence counsel wrote to the prosecution on a timely basis seeking disclosure of those notes and reports; 7. The prosecution service declined to provide the requested additional disclosure, but expressed a willingness to reconsider its exercise of discretion should defence counsel specify satisfactorily the relevance of the notes and reports; 8.

Defence counsel thereupon applied to this court for an order compelling disclosure of the notes and reports from the prosecution. [ 7 ] The prosecution declined to call evidence, and invited the court to dismiss the application as unsupported by the evidence. [ 8 ] Indeed, this would seem to be a rather lean set of facts to go on. In my view, the applicant accused has not discharged the burden of proving a Charter violation in this case, and the court dismisses the application for compulsory disclosure.

Allow me to explain further. [ 9 ] The two pivotal cases that lead me to this conclusion are out of the Nova Scotia Supreme Court: R. v. Little [9] and R. v. Way . [10] In Little , the presiding judge ordered the production of source handler notes and source debriefing reports; in Way , the court declined to do so. It might be suggested that these decisions are irreconcilable, or that the later decision in Way recognizes an evolution in the law of discovery.

In my respectful view, neither is the case, as both decisions arrive at consistent outcomes based on the evidence in the respective records. [ 10 ] In Little , the prosecution argued that there existed a blanket confidential-informer privilege which protected from disclosure source handler’s notes and debriefing reports. Amplifying the record was the fact that the applicant had already obtained from the prosecution four sets of hander’s notes pertinent to the charges against Mr. Little.

Finally, the prosecution called evidence at the hearing, specifically, an officer in charge of the confidential-informant program for the policing service that had charged Mr. Little.

With the substantial record of evidence before him, Scaravelli J. found that “it is reasonably likely that information in the undisclosed source handler notes and source debriefing reports may be useful in the defence of the charges which include [ sic ] the possibility of challenging the search warrant.” [11] [ 11 ] Upon such a finding, it is clear that the burden of proof had been discharged by the applicant Little , and production of the material sought was rightly compelled by the court.

I am, indeed, bound by the law set out in Little ; however, the outcome in the case was based on evidence extraneous to this one. I must make my decision upon the evidence put before me. [ 12 ] In Way , Arnold J. presented a thorough and comprehensive review of the law of discovery pertaining to confidential sources. He cited with approval the Little decision, and noted that its reasoning was entirely supportable given the facts in the case. [12] [ 13 ] Arnold J. found the burden of proof not to have been discharged by Mr. Way and declined to compel disclosure.

At para. 59 of his judgment, he noted the appropriateness of placing a modest evidentiary burden upon an applicant seeking access to source handler’s notes and reports to demonstrate some degree of relevancy. This recognizes the fact that confidential sources will rarely, if ever, wind up testifying at trial; furthermore, it takes into account the proper procedural restrictions outlined in R. v. Garofoli [13] limiting the ability of an accused to cross-examine an affiant as to the contents of an ITO. [ 14 ] At para. 62, Arnold J. quotes from the highly pertinent decision of R. v. Pires; R. v.

Lising [14] in which Charron J. noted the important distinction between the actual trial of an accused—being the main hearing which tests the proof of elements of the offence charged—as compared to a subsidiary in limine motion to exclude evidence.

In the former, the innocence of the accused is at stake, and there exists a broad right to cross-examine and challenge evidence put forward by the prosecution in order to argue for an acquittal; however, in a motion to exclude, the question of proof of the elements of the alleged offence is generally not in issue, and the purpose of the hearing is to determine only whether certain items of controversial evidence will get in front of the trier of fact.

In challenging a warrant to search, a reviewing court is concerned only with determining whether there was a reasonable basis for the authorizing judicial officer to have issued the warrant subject to the challenge. Even if it were to be shown on an admissibility voir dire that an ITO informant left out important bits or included erroneous information, such an omission or fraud would not result necessarily in exclusion, should a sufficient evidentiary basis for the warrant remain in tact.

Arnold J. underscored this point at para. 65 of his judgment. [ 15 ] Without requiring that an applicant meet a modest threshold of relevancy, a real risk would arise of the admissibility hearing becoming much more time consuming than the trial proper, without necessarily having much of a benefit for the accused or the administration of justice. [ 16 ] In this case, the applicant does not suggest that the source handler’s notes or debriefing reports would have an impact upon an innocence-at-stake issue. The applicant does not seek disclosure of this material to defend the trial proper.

There is no hint of material omission or fraud in relation to the ITO, and there is no evidence before me that the redacted ITO contains any factual errors. Finally, the evidence is clear that the prosecution service did not refuse absolutely to disclose the material sought by defence counsel; rather, it invited counsel to provide a relevant basis for the request.

That invitation was declined, and the application before me now was brought instead. [ 17 ] In my view, the application does not breathe life into the claim relevancy—to use the analogy used appositely by Arnold J. at para. 74 of Way —as there is nothing to particularize this case from within the large body of cases in which an ITO is based on confidential-source information.

If the court were to accept the argument of defence counsel, it would lead inevitably to the conclusion that any accused who was the subject of a warranted search based on confidential-source information would be entitled automatically to source notes and reports. Except for showing that police relied upon a confidential source, there would be no burden of proof upon an applicant, and there would be no discretion for a reviewing court to exercise (other than the editing of content to be disclosed, an exercise which could easily snowball).

This model would likely have a chilling effect upon confidential-source-based police operations, particularly in small communities where urban anonymity simply does not exist; [15] it would result in an unwieldy disclosure process, all of which might offer little, if any, benefit to the Charter -protected interests of the accused. Time-consuming hearings routinely

seeking court oversight of the redaction process would likely be the next stage of this model. [ 18 ] Finally, this is not a case in which, unlike Little , the prosecution might be said to have been moved by a wrong principle. The prosecution is not asserting a blanket privilege over the notes and reports sought by the accused, and was prepared to reconsider its exercise of discretion not to provide the requested disclosure.

So it was that the withholding of disclosure was not absolute. [ 19 ] In my view, this was a reasonable exercise of discretion by the prosecution in an area involving a core prosecution function, and I ought not interfere with it. The court should exercise an appropriate degree of restraint in conducting this review of prosecution discretion. The very good reasons for doing so were outlined by L'Heureux-Dubé J. in R. v.

Power : 40 Moreover, should judicial review of prosecutorial discretion be allowed, courts would also be asked to consider the validity of various rationales advanced for each and every decision, involving the analysis of policies, practices and procedure of the Attorney General. The court would then have to "second-guess" the prosecutor's judgment in a variety of cases to determine whether the reasons advanced for the exercise of his or her judgment are a subterfuge. This method of judicial review is not only improper and technically impracticable, but, as Kozinski J. observed in United States v.

Redondo-Lemos , 955 F.2d 1296 (9th Cir. 1992), at p. 1299: Such decisions [to charge, to prosecute and to plea-bargain] are normally made as a result of a careful professional judgment as to the strength of the evidence, the availability of resources, the visibility of the crime and the likely deterrent effect on the particular defendant and others similarly situated. Even were it able to collect, understand and balance all of these factors, a court would find it nearly impossible to lay down guidelines to be followed by prosecutors in future cases.

We would be left with prosecutors not knowing when to prosecute and judges not having time to judge. [Emphasis added.] Such a situation would be conducive to a very inefficient administration of justice. Furthermore, the Crown cannot function as a prosecutor before the court while also serving under its general supervision. The court, in turn, cannot both supervise the exercise of prosecutorial discretion and act as an impartial arbitrator of the case presented to it.

Judicial review of prosecutorial discretion, which would enable courts to evaluate whether or not a prosecutor's discretion was correctly exercised, would destroy the very system of justice it was intended to protect ( United States v. Redondo-Lemos, supra, at p. 1300 ). [ 20 ] I agree completely. The application for disclosure is dismissed. I am very grateful to counsel for the thorough manner in which this issue was argued. JPC.