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.”