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

  1. 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.
  2. Second, the judge must then determine, after inspection, what portions of the documents are to be produced for the defence.[2]

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

Production of Records for Sexual Offences
Where the records sought to be produced are in relation to a prosecution of a sexual offence, the O'Connor regimes does not apply, instead the hearing is governed by s. 278.1 to 278.91 of the Code.[6]

History
Following the ruling of R v O'Connor[7] Parliament passed Bill C-46 (An Act to amend the Criminal Code (production of records in sexual offence proceedings))[8] which came into force on May 12, 1997. These provisions were upheld in 1999 in the decision of R v Mills.[9]

  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)
  6. See [[Production of Sexual History Records]
  7. O'Connor, supra
  8. see List of Criminal Code Amendments (1984 to 1999)
  9. R v Mills, [1999] 3 SCR 668, 1999 CanLII 637 (SCC)

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 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 Orders

Production of Sexual History Records

Procedure

The records keeper must be served with the O'Connor application before it can proceed. [1]

The recommended procedure for obtaining third-party records is:[2]

  • The applicant should 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 sought are likely to be relevant on the appeal. Notice of the application must be given to the Crown, the person who is the subject of the records and any other person with a privacy interest in the records. If production is unopposed there is no need for a hearing;
  • If the record holder or some other interested person advances a well-founded claim that the records are privileged, this will usually bar the production application in all but the rarest cases where the applicant’s innocence is at stake;
  • If privilege is not at issue, 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 Elkins, 2017 BCSC 245 at para 31 and 32
  2. R v Meer, 2015 ABCA 163 (CanLII) at para 12 - this process was recommended in the appeal process

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

Police Records ("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]

Where there are records in possession of the police but the investigators were not aware of them during the course of the investigation, these records will not be subject to McNeil obligations and must be obtained by way of an O'Connor application. [6]

  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
  6. R v Elkin, 2017 BCSC 245 at para 31

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.)

Publication Prohibition

Publication prohibited
276.3 (1) No person shall publish in any document, or broadcast or transmit in any way, any of the following:

(a) the contents of an application made under section 276.1;
(b) any evidence taken, the information given and the representations made at an application under section 276.1 or at a hearing under section 276.2;
(c) the decision of a judge or justice under subsection 276.1(4), unless the judge or justice, after taking into account the complain­ant’s right of privacy and the interests of justice, orders that the decision may be published, broadcast or transmitted; and
(d) the determination made and the reasons provided under section 276.2, unless
(i) that determination is that evidence is admissible, or
(ii) the judge or justice, after taking into account the complainant’s right of privacy and the interests of justice, orders that the determination and reasons may be published, broadcast or transmitted.

Offence
(2) Every person who contravenes subsection (1) is guilty of an offence punishable on summary conviction.
1992, c. 38, s. 2; 2005, c. 32, s. 13.


Publication prohibited
278.9 (1) No person shall publish in any document, or broadcast or transmit in any way, any of the following:

(a) the contents of an application made under section 278.3;
(b) any evidence taken, information given or submissions made at a hearing under subsection 278.4(1) or 278.6(2); or
(c) the determination of the judge pursuant to subsection 278.5(1) or 278.7(1) and the reasons provided pursuant to section 278.8, unless the judge, after taking into account the interests of justice and the right to privacy of the person to whom the record relates, orders that the determination may be published.

Offence
(2) Every person who contravenes subsection (1) is guilty of an offence punishable on summary conviction.
1997, c. 30, s. 1; 2005, c. 32, s. 14.