Third-Party Records Application
R. v. Gravesande, 2015 ONCA 774 (CanLII)
Test for third-party records and “likely relevance” standard
[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.”
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.
