Court File and Parties

COURT FILE NO.: CR-22-30000392 DATE: 20230213 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Christopher Alexander

BEFORE: E.M. Morgan J.

COUNSEL: Maureen Pecknold, for the Respondent/Crown Josephine Baldassi, for the Applicant/Defense

HEARD: February 10, 2023

Disclosure Application

[1] The Applicant is charged with, inter alia, possession of a controlled substance for the purposes of trafficking and possession of a firearm. The charges arise out of a police investigation that stretched from July 2020 to January 2021.

[2] Counsel for the Applicant intends to bring a number of pre-trial applications related to the investigation and the search warrant and tracking warrant that formed important parts of the investigation. These potentially include a leave to cross, a Garofoli application, and applications under sections 8 and 9 of the Charter. The two warrant applications and their respective authorizations name the Applicant as a subject and target of the investigation. The Applicant has therefore sought to have the investigation upon which these warrants were applied for and based on be disclosed.

[3] At the hearing before me, both counsel agreed that much of the disclosure sought by the Applicant has now been provided by the Crown. What remains contentious is the Applicant’s request for: a) PC Neadles’ notes from prior to December 28, 2020 insofar as they relate to the officer’s handling of and communications with a confidential source; b) an un-redacted copy of the two phone numbers on file for Marcus Nugent (a person of interest in the investigation); c) an un-redacted copy of a motor vehicle collision property damage report in which Marcus Nugent was driving; and d) the name and duty book notes of the police officer who answered a phone call on Mr. Nugent’s phone during the course investigating the motor vehicle investigation on October 13, 2020.

[4] It is beyond controversy that the Crown is under a broad duty to disclose material evidence, whether inculpatory or exculpatory, to protect the Applicant’s right to make full answer and defence. This means that material that the Crown intends to introduce into evidence as well as material that the Crown does not intend to introduce must all be disclosed: R. v. Stinchcombe, [1991] 3 SCR 326. It is likewise understood that “[o]ne measure of the relevance of information in the Crown's hands is its usefulness to the defence: if it is of some use, it is relevant and should be disclosed”: R. v. Chaplin, [1995] 1 SCR 727, at para. 22.

[5] That said, the Crown retains discretion to exclude information which is irrelevant to the subject matter of the case, or which is subject to informer privilege, or for protecting the identity of persons not involved in the matter at hand: Stinchcombe, at para 16. While the Crown’s discretion in this respect is narrowly circumscribed and reviewable in the courts, it is a necessary corollary of the duty not to put at risk uninvolved persons or persons who have provided the prosecution with information: Ibid.

[6] Turning to the Applicant’s specific requests, the Crown sees them as falling into two categories: informer privilege and irrelevance. The request for the notes from PC Neadles that pre-date his involvement in the surveillance and arrest of the Applicant in December 2020 falls squarely into informer privilege. Applicant’s counsel describes PC Neadles’ participation in the investigation as being “a Confidential Source Handler who provides information to the affiant”. The information sought from him is with respect to his meetings and discussions with a confidential informant. He is not said to have any other involvement in the Applicant’s investigation.

[7] The Supreme Court of Canada has instructed that it is not only the identity of a confidential informant which must be protected, but any information that might tend to reveal the identity. This may include even the most seemingly innocuous details: R. v. Leipert, [1997] 1 SCR 281, at paras 18-19, 32. Among other things, the courts have determined that the privilege includes details such as the number of times the informant has provided information to police, information that only the accused would know about the informant, the unique number the police have assigned to the informant, whether the informant is in custody or at large, police files maintained in connection with the informant (even where redacted to protect their identity), police notes and reports made by the “handlers” of information they received from their informant, and information from the informant that falls outside of the specific investigative file at issue: R. v. Burgher, 2014 ONSC 3239.

[8] Once the Crown asserts informant privilege, the onus shifts to the Applicant to demonstrate that the information is necessary to establish innocence or guilt. The standard is one that requires that the Applicant show that the information is not available from any other source and that it is necessary for trial in order to raise a reasonable doubt: R. v. Brassington, [2018] 2 SCR 617, at paras 36-38.

[9] An evidentiary basis is required to meet this onus, without which the Crown’s assertion of privilege cannot be overcome. There is nothing in the evidentiary record before me that would support the request for pre-December 2020 information from PC Neadles.

[10] As for the notes produced by PC Neadles in December 2020 and January 2021, Crown counsel has advised that those notes have now been redisclosed with several redactions removed. The few remaining redactions consist of irrelevant information such as Marcus Nugent’s date of birth, together with details such as investigative techniques and information which may tend to identify a confidential informant for which the Applicant has not satisfied the evidentiary burden on him to have disclosed.

[11] Accordingly, there is nothing further from PC Neadles to be disclosed to the Applicant at this point.

[12] The balance of the information sought by the Applicant is with respect to an unrelated, although coincidentally timed investigation of Marcus Nugent, the Applicant’s suspected partner in the offences charged. Apparently, Mr. Nugent was involved in a motor vehicle accident during the time period when he and the Applicant were under investigation. Since Mr. Nugent fled the scene of the accident, the police did a substantial investigation of it.

[13] The accident does not appear to have involved the Applicant in any way. The only overlap between the investigation of the Applicant and the Nugent car accident is that in double checking the Applicant’s address for the purpose of surveilling him, the police looked in the car accident file to see whether it was the same as Mr. Nugent’s address.

[14] The Crown explains, and it seems eminently plausible, that it was the coincidence of timing and convenience that caused the police to look in Nugent’s accident file to double check the Applicant’s address, and nothing more. The record contains nothing that suggests to me that the Crown’s characterization of this as irrelevant coincidence is in any way inaccurate.

[15] The Applicant specifically seeks two phone numbers on file for Marcus Nugent in the car accident investigation. Mr. Nugent was a subject of that investigation because a male was seen leaving the vehicle and running away from the scene, and the vehicle involved in the accident was registered to Mr. Nugent’s mother. The Applicant also seeks an unredacted copy of the property damage report produced in the car accident investigation. My understanding is that the redactions are the names and contact information for witnesses to the accident. Those individuals have no relation to the investigation of the Applicant or the charges against him. The potential relevance of any of this information is not apparent to me.

[16] Finally, the Applicant seeks the name and duty book of the police officer that arrived on the scene at Mr. Nugent’s car accident and who apparently answered a call that came in to Mr. Nugent’s phone that he had left in the car when he ran away. The Crown responds that the Applicant already has the name of the officer, and that the notes and information about the car accident in his duty book are not relevant to the Applicant’s case. Counsel for the Crown characterizes this request as a “fishing expedition”, and I would have to agree. There is nothing in the evidence or the context of the car accident that would suggest that the officer’s duty book contains relevant information.

[17] Accordingly, the Application is dismissed.

Date: February 13, 2023 Morgan J.