Third-Party Records Application

General Notes

• The term "The Rules" refer to R.R.O. 1990, Reg. 200
• Affidavit of Service in Provincial Offenses Proceedings

FORM 101 AFFIDAVIT OF SERVICE UPON DEFENDANT

Courts of Justice Act

O’Connor Application (Third-Party Records Application)

An O’Connor Application is preceded by way of a Notice of Motion in Provincial Offences Proceedings.

Time for Service

• Rule 7(3) "There shall be at least three days between the giving notice of application or notice of motion and the day for hearing the application or motion"
• Rule 7(4) "A applicant or moving party shall file notice of application or notice of motion at least two days before the day for hearing the application or motion"

Calculation of Time

Rule 4. The following apply to the calculation of a period of time prescribed by the Act, ... these rules or an order of a court:

(1) The time shall be calculated by excluding the first day and including the last day of the period.

(2) Where a period of less than six days is prescribed, a Saturday or holiday shall not be reckoned.

(3) Where the last day of the period of time falls on a Saturday or a holiday, the day next following that is not a Saturday or a holiday shall be deemed to be the last day of the period.

(4) Where the days are expressed to be clear days or where the term “at least” is added, the time shall be calculated by excluding both the first day and the last day of the period.

Methods of Service

• Rule 5. A notice or document given or delivered by mail shall, unless the contrary is shown, be deemed to be given or delivered on the seventh day following the day on which it was mailed. R.R.O. 1990, Reg. 200, r. 5.

• Rule 32. (1) An affidavit of service of an offence notice or summons shall be in Form 101. R.R.O. 1990, Reg. 200, r. 32 (1).

The O’Connor Two-Stage Test

The First Stage:

• The trial judge must determine if the records are “likely relevant” to the proceedings and if they should be produced for the court’s inspection.

The Second Stage

• The trial judge examines the documents to determine whether, and to what extent, production to the accused should be ordered

Definition(s)

• "Likely relevance" a reasonable possibility that the information is logically probative to an issue at trial.
• "issue at trial" includes not only material issues concerning the unfolding of the events which form the subject matter of the proceedings, but also evidence relating to the credibility of witnesses and to the reliability of other evidence in the case

General Procedure for Making an O'Connor Application

• Step One - Set out the facts giving rise to your application
• Step Two - Draft an Affidavit to support the facts.
• Step Three - Determine the Parties to Serve with the Application
  • Notice must be given to the custodian of the records and, if known, to persons who have a privacy interest in the records.
• Step Four - Issue a Summons to the Custodian of the Records and the Records

The Law

Test for third-party records and “likely relevance” standard

R. v. Gravesande, 2015 ONCA 774 (CanLII)

[50] The procedure for production of third party records was set out in R. v. O’Connor, 1995 CanLII 51 (SCC), (1995) 4 S.C.R. 411, at para. 20:

"The accused must bring a written application supported by an affidavit setting out a basis to believe that the records are likely relevant.

Notice must be given to the custodian of the records and, if known, to persons who have a privacy interest in the records.

The accused must ensure that the custodian and the records are subpoenaed to ensure their attendance in court.

The application should be heard well in advance of the trial so that the trial is not disrupted."

[51] If the record holder or some other interested party opposes the application, then the trial judge must determine whether production should be compelled in accordance with the two-stage test established in O’Connor. At the first stage, the trial judge must determine if the records are “likely relevant” to the proceedings and if they should be produced for the court’s inspection. At the second stage, the trial judge examines the documents to determine whether, and to what extent, production to the accused should be ordered: R. v. McNeil, 2009 SCC 3 (CanLII), (2009) 1 S.C.R. 66, at para. 27.

[52] Likely relevance in this context means “a reasonable possibility that the information is logically probative to an issue at trial”: O’Connor, at para. 22. An “issue at trial” includes not only material issues concerning the unfolding of the events which form the subject matter of the proceedings, but also evidence relating to the credibility of witnesses and to the reliability of other evidence in the case: McNeil, at para. 33.

[53] “Likely relevant” is not to be interpreted as an onerous burden on the accused. Considerations of privacy and admissibility are not relevant at this stage: O’Connor, at para. 24. As indicated in O’Connor, at para. 24: “A relevance threshold, at this stage, is simply a requirement to prevent the defence from engaging in ‘speculative, fanciful, disruptive, unmeritorious, obstructive and time‑consuming’ requests for production.”

Documents not in Possession of the Crown

R. v. Arcand, 2004 CanLII 46648 (ON CA)

[19] Second, the ruling by the justice of the peace with respect to the Montgomery Binder cannot be properly characterized as palpably wrong. In fact, on this limited record, in my view her ruling was probably correct. While Mr. Rickey saw the documents prior to sealing them, the record does not support the application judge's finding that Mr. Rickey had reviewed all of them. Mr. Rickey never had possession of the documents over which the City claimed privilege. On this record, it cannot be said that because Mr. Montgomery had reviewed the documents, any privilege had been waived. Mr. Montgomery had been a senior official in the City and it is at least arguable that he was within the scope of the City's privilege: see Stevens v. Canada (Prime Minister), 1998 CanLII 9075 (FCA), (1998) F.C.J. No. 794, (1998) 4 F.C. 89 (C.A.). Since the documents were not in the possession of the Crown, some procedure similar to the O'Connor procedure would have been the proper way for the defence to have sought their production.

[20] The Crown could not disclose what it did not have. The documents were not in the Crown's possession. Mr. Rickey acted reasonably and responsibly to ensure continuity of the documents while at the same time respecting the City's assertion of privilege. The City's own investigation may have led to the charges being laid against the respondent and it appears that the City was co-operating with the Ministry. But, that did not make the City an [page766] arm of the Crown, so that any document in the possession of the City became subject to the Crown's disclosure obligations.

References

• R. v. Arcand, 2004 CanLII 46648 (ON CA)
• R.R.O. 1990, Reg. 200
• R. v. Gravesande, 2015 ONCA 774 (CanLII)
• R. v. O’Connor, 1995 CanLII 51 (SCC), (1995) 4 S.C.R. 411
• R. v. McNeil, 2009 SCC 3 (CanLII), (2009) 1 S.C.R. 66
• Stevens v. Canada (Prime Minister), 1998 CanLII 9075 (FCA), (1998) F.C.J. No. 794, (1998) 4 F.C. 89 (C.A.)