Disclosure of Third Party Records

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Production at Common Law / O'Connor Application

A party may apply for an order requiring a third party, that is, a party other than the crown or its agents, to produce relevant documents for the purpose of using them in court.

The application, often referred to an as "O'Connor Application"[1], is a two-stage process. First the applicant must satisfy the judge that the record is likely relevant to the proceedings against the accused. If so, the judge may order the production solely for the court's inspection. Second, the judge must then determine, after inspection, what portions of the documents are to be produced for the defence.[2]

An O'Connor application consists of a service of a subpoena and notice to the relevant parties.

The O'Connor regime is not limited to situations where the third party has a reasonable expectation of privacy over the records.[3]

The Crown has no duty to discover and disclose records on the basis of a "pure fishing expedition".[4]

Third party records have no presumptive relevance. The do not "become relevant by simply suggesting that they relate to credibility 'at large'". It must be established "on a 'specific' and 'material' issue"."[5]

  1. R v O’Connor, 1995 CanLII 51 (SCC), [1995] 4 SCR 411
  2. O’Connor, ibid.
    R v McNeil, 2009 SCC 3 (CanLII), [2009] 1 SCR 66 at para 27
  3. McNeil
    R v Oleksiuk, 2013 ONSC 5258 (CanLII) at para 26
  4. R v Levin, 2014 ABCA 142 (CanLII), at para 49
    R v Gingras, 1992 CanLII 2826 (AB CA), (1992) 120 AR 300, 71 CCC (3d) 53 (Alta CA) leave denied [1992] SCCA No. 348
  5. Canada v Worden, 2014 SKPC 143 (CanLII)

Third Party Records vs Disclosure

See also: Disclosure#Control

A third party includes Crown entities other than the prosecuting authority and so would be subject to an O'Connor application.[1] This does not apply to materials that the police are under a duty to disclose to the crown as the "fruits of the investigation", in which case it would constitute a first party record.[2]

Records of police investigations of third parties and police disciplinary records, usually constitutes third-party records.[3] Unless the the misconduct relates to the investigation or could reasonably impact on the case against the accused.[4]

Records will be either in possession the Crown or a third party depending on several factors:[5]

  1. whether the information is the "fruits of the investigation";
  2. what the purpose the information was created for;
  3. whether the information was created or obtained as a result of, or in connection to, the specific investigation or prosecution of the accused;
  4. whether the information is sufficiently related to the specific investigation or prosecution
  5. whether there is an intrinsic link, i.e. by a factual and evidential link, to the investigation
  6. the nature and content of the information
  7. whether any third parties have a privacy interest in the information
  1. R v McNeil, 2009 SCC 3 (CanLII), [2009] 1 SCR 66 at 13
  2. McNeil, ibid.
  3. R v McNeil, ibid., at para 25
  4. McNeil, supra
  5. R v Coopsammy, 2008 ABQB 266 (CanLII)

Crown to Duty to Inquire ("McNeil" Obligations)

Production in Statute

Records

Definition of “record”
278.1 For the purposes of sections 278.2 to 278.9, “record” means any form of record that contains personal information for which there is a reasonable expectation of privacy and includes, without limiting the generality of the foregoing, medical, psychiatric, therapeutic, counselling, education, employment, child welfare, adoption and social services records, personal journals and diaries, and records containing personal information the production or disclosure of which is protected by any other Act of Parliament or a provincial legislature, but does not include records made by persons responsible for the investigation or prosecution of the offence.
1997, c. 30, s. 1.


CCC

Absence evidence to the contrary, the jduge may assume that there is a reasonable expectation of privacy attached to records that fall into the enumerated categories.[1]

A loss of possession or control of a record by the privacy holder will not necessarily remove the expectation of privacy.[2]

  1. R v Clifford, [2001] OJ No 4541 (ONCA)(*no link)
  2. R v Shearing, [2002] 3 SCR 33, 2002 SCC 58 (CanLII)

Production Orders

Production of Sexual History Records

Production of record to accused
278.2 (1) Except in accordance with sections 278.3 to 278.91, no record relating to a complainant or a witness shall be produced to an accused in any proceedings in respect of any of the following offences or in any proceedings in respect of two or more offences at least one of which is any of the following offences:

(a) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 170, 171, 172, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 286.1, 286.2 or 286.3; or
(b) any offence under this Act, as it read from time to time before the day on which this paragraph comes into force, if the conduct alleged would be an offence referred to in paragraph (a) if it occurred on or after that day.
(c) [Repealed, 2014, c. 25, s. 17]

Application of provisions
(2) Section 278.1, this section and sections 278.3 to 278.91 apply where a record is in the possession or control of any person, including the prosecutor in the proceedings, unless, in the case of a record in the possession or control of the prosecutor, the complainant or witness to whom the record relates has expressly waived the application of those sections.
Duty of prosecutor to give notice
(3) In the case of a record in respect of which this section applies that is in the possession or control of the prosecutor, the prosecutor shall notify the accused that the record is in the prosecutor’s possession but, in doing so, the prosecutor shall not disclose the record’s contents.
1997, c. 30, s. 1; 1998, c. 9, s. 3; 2014, c. 25, s. 17.


CCC

Application for production
278.3 (1) An accused who seeks production of a record referred to in subsection 278.2(1) must make an application to the judge before whom the accused is to be, or is being, tried.
...
1997, c. 30, s. 1; 2015, c. 13, s. 6.


CCC

The complainant who is the subject of the records sought has standing to be a party to the application.[1]

  1. e.g. G.P.J., 2001 MBCA 18 (CanLII), at para 47 to 49

Grounds for Productions

278.3
...
Insufficient grounds
(4) Any one or more of the following assertions by the accused are not sufficient on their own to establish that the record is likely relevant to an issue at trial or to the competence of a witness to testify:

(a) that the record exists;
(b) that the record relates to medical or psychiatric treatment, therapy or counselling that the complainant or witness has received or is receiving;
(c) that the record relates to the incident that is the subject-matter of the proceedings;
(d) that the record may disclose a prior inconsistent statement of the complainant or witness;
(e) that the record may relate to the credibility of the complainant or witness;
(f) that the record may relate to the reliability of the testimony of the complainant or witness merely because the complainant or witness has received or is receiving psychiatric treatment, therapy or counselling;
(g) that the record may reveal allegations of sexual abuse of the complainant by a person other than the accused;
(h) that the record relates to the sexual activity of the complainant with any person, including the accused;
(i) that the record relates to the presence or absence of a recent complaint;
(j) that the record relates to the complainant’s sexual reputation; or
(k) that the record was made close in time to a complaint or to the activity that forms the subject-matter of the charge against the accused.

Service of application and subpoena
(5) The accused shall serve the application on the prosecutor, on the person who has possession or control of the record, on the complainant or witness, as the case may be, and on any other person to whom, to the knowledge of the accused, the record relates, at least seven days before the hearing referred to in subsection 278.4(1) or any shorter interval that the judge may allow in the interests of justice. The accused shall also serve a subpoena issued under Part XXII in Form 16.1 on the person who has possession or control of the record at the same time as the application is served.
...
1997, c. 30, s. 1.

CCC

Bare assertions of the items listed in s. 278.3(4) without any evidence is not permitted.[1]However, the accused may rely on s. 278.3(4) "where there is an evidentiary or informational foundations to suggest that they may be related to likely relevance." The accused must only "be able to point to case specific evidence or information to show that the record in issue is likely relevant to an issue at trial or the competence of a witness to testify".[2]

"Likely relevance" requires that the accused "must be able to point to something in the record adduced on the motion that suggests that the records contain information which is not already available to the defence or has potential impeachment value."[3]

Occurrence reports made by police officers in the course of their duties that do not relate to the charges before the court may not necessarily fall into the definition of "records" under s. 278.1.[4]

  1. R v Mills, [1999] 3 SCR 668, 1999 CanLII 637 (SCC), at para 118
  2. Mills, supra, at para 118
  3. R v Batte, 2000 CanLII 5751 (ON CA)
  4. R v Quesnelle, 2013 ONCA 180 (CanLII) at para 19-22

Protected Personal Information for Sexual Offences

Records that contain certain personal information are non-disclosable where it relates to a sex related offence. In order to allow any of these records to be disclosed it must be ordered by a judge under s.278.3 where the grounds permit.

The receipt of third party records through a s. 278.2 application is a separate issue from its admissibility, which in sexual offences must be admissible under s. 276 when it relates to prior sexual history.[1]

  1. e.g. see R v Shearing, [2002] 3 SCR 33, 2002 SCC 58 (CanLII)

Procedure

The recommended procedure for obtaining third-party records is:[1]

  • The applicant must obtain a subpoena duces tecum under section 698(1) and 700(1) of the code and serve it on the third-party record holder, compelling them to attend court with the requested records;
  • The applicant must also file an application, supported by appropriate affidavit evidence , Showing that the records are likely relevant. Notice of the application must be given to the Crown, the person who is is the subject of the records and then the other person with a privacy interest in the records. If the production is not a post there's no need for a hearing;
  • If the record holder or some interested parties events is a well-founded claim that the records are privileged, This will usually bar the production application and all but the rarest of cases where innocence is at stake;
  • The court must determine whether production should be compelled in accordance with the two-stage test in O'Connor. First, whether the judge is satisfied that the record is likely relevant to the matter, in which case he can order production of the record for his inspection. Second, after reviewing the records the court determines whether and to what extent the production should be ordered.
  1. R v Meer, 2015 ABCA 163 (CanLII) at para 12

Disclosing Specific Materials

School records for crown witnesses will require a third party application.[1]

  1. R v Osborne, 2011 ONSC 111 (CanLII)

Training Materials

In advancing a violation of rights by peace officers, the training manuals applicable to the investigation are of limited relevance since they are not indicative of violations.[1]

  1. R v Ferrari, 2001 SKQB 340 (CanLII) at para 7
    R v Akinchets, 2011 SKPC 88 (CanLII) - considered training materials on sobriety testing

Peace Officer Misconduct ("McNeil Disclosure")

Certain types of police misconduct records have been recommended as being treated as primary disclosure.[1]

McNeil disclosure should include types of evidence such as:[2]

  1. Any conviction or finding of guil[t] under the Canadian Criminal Code or under the Controlled Drugs and Substances Act [for which a pardon has not been granted].
  2. Any outstanding charges under the Canadian Criminal Code or the Controlled Drugs and Substances Act.
  3. Any conviction or finding of guilt under any other federal or provincial statute.
  4. Any finding of guilt for misconduct after a hearing under the Police Services Act or its predecessor Act.
  5. Any current charge of misconduct under the Police Services Act for which a Notice of Hearing has been issued.

The "McNeil" obligation only applies to records of misconduct that is "related to the investigation or the finding of misconduct could reasonably impact on the case against the accused."[3]

The police have an obligation to notify the Crown of any relevant misconduct, as well as seek advice from the Crown on whether the misconduct record is relevant.[4]

The Crown are to exercise a gate-keeper function with respect to the disclosure of these materials to the defence.[5]

  1. R v McNeil, 2009 SCC 3 (CanLII), [2009] 1 SCR 66 ("[W]here the disciplinary information is relevant, it should form part of the first party disclosure package, and its discovery should not be left to happenstance".
  2. McNeil, ibid., at para 57 - known as the "Ferguson Five" categories
  3. McNeil, ibid.
  4. R v Boyne, 2012 SKCA 124 (CanLII) at para 34, 35
  5. Boyne, supra at para 35

Calibration Records of Screen Devices and Approved Instruments

See also: Screening Device and Breath Sample Evidence

It is an unsettled issue in law of whether the calibration records of a screening device (ASD) or an approved breathalyzer instrument are "first party" or "third party" records.[1]

The records for each device are to be treated separately.[2] In Alberta, it has been found that breathalizer records are first party records, while ASD records are third party records.[3]

One line of Ontario cases suggest that the Crown has the onus to establish that the records are "clearly irrelevant" before they can refuse to provide defence with them.[4]

The other line of Ontario cases suggest that the Defence has the onus of proving the records are "likely relevant".[5]


  1. R v Oleksiuk, 2013 ONSC 5258 (CanLII) at para 29-32 summarizing controversy
    R v Sutton, 2013 ABPC 308 (CanLII) - found them not to be first party records
  2. Oleksiuk, ibid. at para 29
  3. see R.v. Kilpatrick, 2013 ABQB 5 (CanLII), [2013] A.J. No. 41 (A.C.Q.B.)
    R v Black, 2011 ABCA 349 (CanLII), [2011] A.J. No. 129, 286 CCC (3d) 432 (C.A.) - found ASD records irrelevant to RPGs of officer
  4. Olekwiuk, supra at para 30
    R v Gubins, 2009 ONCJ 80 (CanLII)
    R v Pfaller, 2009 ONCJ 216 (CanLII)
    R v Robertson, 2009 ONCJ 388 (CanLII)
    R v Jemmett, 2009 ONCJ 741 (CanLII)
    R v George, 2009 ONCJ 470 (CanLII)
    R v Dionne, 2009 ONCJ 609 (CanLII)
  5. Olekwiuk, supra at para 31
    R v Bensette, Bensette, 2011 ONCJ 30 (CanLII), [2011] O.J. No. 403 (C.J.)
    R v Ahmed, 2010 ONCJ 130 (CanLII), [2010] O.J. No. 1500 (C.J.)
    R v Batenchuk, 2010 ONCJ 192 (CanLII), [2010] O.J. No. 2302 (C.J.)
    R v Lenti, 2010 ONCJ 554 (CanLII), [2010] O.J. No. 5081 (C.J.)
    R v Carriveau, 2011 ONCJ 837 (CanLII), [2011] O.J. No. 4318 (C.J.)