Disclosure of Third Party Records

From Criminal Law Notebook
This page was last substantively updated or reviewed July 2021. (Rev. # 81069)

Production at Common Law (O'Connor) Application

See also: Production of Records for Sexual Offences

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]

Relevance

Relevance in the context of a third party records application is that there is "a reasonable possibility that the information may assist the accused in the exercise of the right to make full answer and defence, including the ability to meet the Crown’s case, raise a defence, or otherwise consider the conduct of the defence".[6]

The term "obviously relevant" does not create a new standard of relevance.[7] Some have used terms such as "admittedly relevant" and "relevant beyond dispute" as meaning the same thing.[8]

Relevance is determined "contextually" by:[9]

  • the specific charges against the accused,
  • the circumstances surrounding the alleged offence,
  • the nature and scope of the investigation,
  • the evidence which the Crown relies upon to seek a conviction, and
  • any defences the accused intends to put forward
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.[10]

History

Following the ruling of R v O'Connor[11] Parliament passed Bill C-46 (An Act to amend the Criminal Code (production of records in sexual offence proceedings))[12] which came into force on May 12, 1997. These provisions were upheld in 1999 in the decision of R v Mills.[13]

  1. ↑ R v O'Connor, 1995 CanLII 51 (SCC), [1995] 4 SCR 411, per L'Heureux‑Dubé J
  2. ↑ O'Connor, ibid.
    R v McNeil, 2009 SCC 3 (CanLII), [2009] 1 SCR 66, per Charron J (8:0), at para 27
  3. ↑ McNeil, ibid.
    R v Oleksiuk, 2013 ONSC 5258 (CanLII), 55 MVR (6th) 107, per James J, at para 26
  4. ↑ R v Levin, 2014 ABCA 142 (CanLII), 572 AR 382, per curiam (3:0), at para 49
    R v Gingras, 1992 CanLII 2826 (AB CA), 71 CCC (3d) 53, per curiam leave denied [1992] SCCA No 348
  5. ↑ Canada v Worden, 2014 SKPC 143 (CanLII), 68 MVR (6th) 141, per Kalmakoff J
  6. ↑ R v Sandhu, 2020 ABQB 459 (CanLII), per Feth J, at para 33
    R v Gubbins, 2018 SCC 44 (CanLII), [2018] 3 SCR 35, per Rowe J
  7. ↑ Sandhu, ibid., at para 33
    Gubbin, ibid., at para 23 ("The phrase “obviously relevant” should not be taken as indicating a new standard or degree of relevance: ... Rather, this phrase simply describes information that is not within the investigative file, but that would nonetheless be required to be disclosed under Stinchcombe because it relates to the accused’s ability to meet the Crown’s case, raise a defence, or otherwise consider the conduct of the defence")
  8. ↑ Sandhu, supra, at para 36
  9. ↑ Sandhu, supra, at para 34
    McNeil, supra, at paras 38 to 39
    R v Vautour, 2019 PESC 42 (CanLII), per Cann J, at para 13
    R v Fischer, 2020 ABQB 67 (CanLII), per Ackerl J, at para 21
  10. ↑ See Production of Records for Sexual Offences
  11. ↑ O'Connor, supra
  12. ↑ see List of Criminal Code Amendments (1984 to 1999)
  13. ↑ R v Mills, 1999 CanLII 637 (SCC), [1999] 3 SCR 668, per McLachlin and Iacobucci JJ

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 of 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, per Charron J (8:0) at 13
  2. ↑ McNeil, ibid.
  3. ↑ McNeil, supra, at para 25
  4. ↑ McNeil, supra
  5. ↑ R v Coopsammy, 2008 ABQB 266 (CanLII), 445 AR 160, per Thomas J

Crown to Duty to Inquire ("McNeil" Obligations)

Production Orders

First Stage

The first stage determines whether materials should be provided to the court for review.

This stage the burden is upon the applicant but the standard should not be treated as particularly "onerous".[1]

  1. ↑ R v O’Connor, 1995 CanLII 51 (SCC), [1995] 4 SCR 411, per L'Heureux‑Dubé J, at paras 22, 24 and 138, 140
    R v Mills, 1999 CanLII 637 (SCC), [1999] 3 SCR 668, per McLachlin and Iacobucci JJ, at paras 45 to 46, 53, 120-138
    R v WB (Batte), 2000 CanLII 5751, 45 CCC (3d) 449, per Doherty JA, at paras 66, 75

Second Stage

In the second O'Connor stage the court assesses the records on the basis of the likely relevance standard.

Production of Records for Sexual Offences

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 (CanLII), per Sewell J, at paras 31 and 32
  2. ↑ R v Meer, 2015 ABCA 163 (CanLII), per Veldhuis JA, 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), per Dawson J

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), 210 Sask R 282, per Maurice J, at para 7
    R v Akinchets, 2011 SKPC 88 (CanLII), 378 Sask R 282, per Kalmakoff J - 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, per Charron J (8:0) ("[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), 293 CCC (3d) 304, per Ottenbreit JA (3:0), at paras 34, 35
  5. ↑ Boyne, supra, at para 35
  6. ↑ R v Elkin, 2017 BCSC 245 (CanLII), per Sewell J, at para 31

Journalist Materials

The court must recognize that there are special considerations when the record-holder is the media.[1]

There is a four-step process to consider:[2]

  1. notice to the press;
  2. satisfying the statutory preconditions;
  3. balancing the competing interests; and,
  4. imposing conditions to reduce the impact on the media

On the third step, considerations should include:[3]

  1. the likelihood and extent of any potential chilling effects;
  2. the scope of the materials sought and whether the order sought is narrowly tailored;
  3. the likely probative value of the materials;
  4. whether there are alternative sources from which the information may reasonably be obtained and, if so, whether the police have made all reasonable efforts to obtain the information from those sources;
  5. the effect of prior partial publication, now assessed on a case-by-case basis; and
  6. more broadly, the vital role that the media plays in the functioning of a democratic society and the fact that the media will generally be an innocent third party
  1. ↑ R v Lim # 4, 2021 ONSC 45 (CanLII), per Molloy J, at para 30
  2. ↑ R v Vice Media, 2018 SCC 54 (CanLII), [2018] 3 SCR 374, per Moldaver J, at para 82
    Lim #4, supra at para 37
  3. ↑ Lim #4, supra at para 37

Calibration Records of Screen Devices and Approved Instruments

See also: Screening Device and Proof of Blood Alcohol Levels

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 breathalyzer 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), 55 MVR (6th) 107, per James J, at paras 29 to 32 summarizing controversy
    R v Sutton, 2013 ABPC 308 (CanLII), 576 AR 14, per Henderson J - found them not to be first party records
  2. ↑ Oleksiuk, ibid., at para 29
  3. ↑ see R v Kilpatrick, 2013 ABQB 5 (CanLII), [2013] AJ No 41, per Graesser J
    R v Black, 2011 ABCA 349 (CanLII), [2011] AJ No 129, 286 CCC (3d) 432, per Ritter JA (2:1) - found ASD records irrelevant to RPGs of officer
  4. ↑ Olekwiuk, supra, at para 30
    R v Gubins, 2009 ONCJ 80 (CanLII), OJ No 848, per Pringle J
    R v Pfaller, 2009 ONCJ 216 (CanLII), per Green J
    R v Robertson, 2009 ONCJ 388 (CanLII), per Grossman J
    R v Jemmett, 2009 ONCJ 741 (CanLII), per Wong J
    R v George, 2009 ONCJ 470 (CanLII), per Morneau J
    R v Dionne, 2009 ONCJ 609 (CanLII), per Robertson J
  5. ↑ Olekwiuk, supra, at para 31
    R v Bensette, 2011 ONCJ 30 (CanLII), [2011] OJ No 403 (C.J.), per Campbell J
    R v Ahmed, 2010 ONCJ 130 (CanLII), [2010] OJ No 1500 (C.J.), per Tuck-Jackson J
    R v Batenchuk, 2010 ONCJ 192 (CanLII), [2010] OJ No 2302 (C.J.), per Maund J
    R v Lenti, 2010 ONCJ 554 (CanLII), [2010] OJ No 5081 (C.J.), per LeDressay J
    R v Carriveau, 2011 ONCJ 837 (CanLII), [2011] OJ No 4318 (C.J.), per Dorval 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 [application to admit complainant’s sexual activity];
(b) any evidence taken, the information given and the representations made at an application under section 276.1 [application to admit complainant’s sexual activity] or at a hearing under section 276.2 [application to admit complainant’s sexual activity - jury exclusion];
(c) the decision of a judge or justice under subsection 276.1(4) [application to admit complainant’s sexual activity - judge to decide to hold hearing], 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 [application to admit complainant’s sexual activity - jury exclusion], 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.

Repealed, 2018, c. 29, s. 22

– CCC

Note up: 276.3(1) and (2)

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 [application to produce for sexual offences];
(b) any evidence taken, information given or submissions made at a hearing under subsection 278.4(1) [in camera hearing for application to produce] or 278.6(2) [review of hearing to produce — who appears]; or
(c) the determination of the judge pursuant to subsection 278.5(1) [judge may order production of record for review] or 278.7(1) [judge may order production of record to accused] and the reasons provided pursuant to section 278.8 [reasons for decision to produce], 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) [publication prohibited on production hearing] is guilty of an offence punishable on summary conviction.
1997, c. 30, s. 1; 2005, c. 32, s. 14.

– CCC

Note up: 278.9(1) and (2)

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