Canadian Criminal Procedure and Practice/Disclosure/Third Party Records
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", is a two-stage process. 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. Second, the judge must then determine, after inspection, what portions of the documents are to be produced for the defence.
An O'Connor application consists of a service of a subpoena and notice to the relevant parties.
- R. v. O’Connor,  4 S.C.R. 411
- R. v. O’Connor, 1995 CanLII 51 (SCC),  4 S.C.R. 411
R. v. McNeil, 2009 SCC 3,  1 S.C.R. 66 at para. 27
Third Party Records vs Disclosure
A third party includes Crown entities other than the prosecuting authority and so would be subject to an O'Connor application. 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.
Records of police investigations of third parties and police disciplinary records, usually constitutes third-party records. Unless the misconduct relates to the investigation or could reasonably impact on the case against the accused.
Records will be either in possession the Crown or a third party depending on several factors:
- whether the information is the "fruits of the investigation";
- what the purpose the information was created for;
- whether the information was created or obtained as a result of, or in connection to, the specific investigation or prosecution of the accused;
- whether the information is sufficiently related to the specific investigation or prosecution
- whether there is an intrinsic link, i.e. by a factual and evidential link, to the investigation
- the nature and content of the information
- whether any third parties have a privacy interest in the information
- R. v. McNeil, 2009 SCC 3  1 S.C.R. 66 at 13
- R v McNeil
- R. v. McNeil, at 25
- R. v. McNeil,
- R. v. Coopsammy, 2008 ABQB 266
Production in Statute
Protected Personal Information for Sexual Offences
Records that contain certain personal information are non-disclosable where it relates to a sex related offence. In order to allow any of these records to be disclosed it must be ordered by a judge under s.278.3 where the grounds permit.
Definition of “record”
278.1 For the purposes of sections 278.2 to 278.9, “record” means any form of record that contains personal information for which there is a reasonable expectation of privacy and includes, without limiting the generality of the foregoing, medical, psychiatric, therapeutic, counselling, education, employment, child welfare, adoption and social services records, personal journals and diaries, and records containing personal information the production or disclosure of which is protected by any other Act of Parliament or a provincial legislature, but does not include records made by persons responsible for the investigation or prosecution of the offence.
1997, c. 30, s. 1.
Production of record to accused
278.2 (1) No record relating to a complainant or a witness shall be produced to an accused in any proceedings in respect of
- (a) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 170, 171, 172, 173, 210, 211, 212, 213, 271, 272 or 273,
- (b) an offence under section 144, 145, 149, 156, 245 or 246 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
- (c) an offence under section 146, 151, 153, 155, 157, 166 or 167 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988,
or in any proceedings in respect of two or more offences that include an offence referred to in any of paragraphs (a) to (c), except in accordance with sections 278.3 to 278.91.
Application of provisions
(2) Section 278.1, this section and sections 278.3 to 278.91 apply where a record is in the possession or control of any person, including the prosecutor in the proceedings, unless, in the case of a record in the possession or control of the prosecutor, the complainant or witness to whom the record relates has expressly waived the application of those sections.
Duty of prosecutor to give notice
(3) In the case of a record in respect of which this section applies that is in the possession or control of the prosecutor, the prosecutor shall notify the accused that the record is in the prosecutor’s possession but, in doing so, the prosecutor shall not disclose the record’s contents.
1997, c. 30, s. 1; 1998, c. 9, s. 3.
Application for production
278.3 (1) An accused who seeks production of a record referred to in subsection 278.2(1) must make an application to the judge before whom the accused is to be, or is being, tried.
(4) Any one or more of the following assertions by the accused are not sufficient on their own to establish that the record is likely relevant to an issue at trial or to the competence of a witness to testify:
- (a) that the record exists;
- (b) that the record relates to medical or psychiatric treatment, therapy or counselling that the complainant or witness has received or is receiving;
- (c) that the record relates to the incident that is the subject-matter of the proceedings;
- (d) that the record may disclose a prior inconsistent statement of the complainant or witness;
- (e) that the record may relate to the credibility of the complainant or witness;
- (f) that the record may relate to the reliability of the testimony of the complainant or witness merely because the complainant or witness has received or is receiving psychiatric treatment, therapy or counselling;
- (g) that the record may reveal allegations of sexual abuse of the complainant by a person other than the accused;
- (h) that the record relates to the sexual activity of the complainant with any person, including the accused;
- (i) that the record relates to the presence or absence of a recent complaint;
- (j) that the record relates to the complainant’s sexual reputation; or
- (k) that the record was made close in time to a complaint or to the activity that forms the subject-matter of the charge against the accused.
Service of application and subpoena
(5) The accused shall serve the application on the prosecutor, on the person who has possession or control of the record, on the complainant or witness, as the case may be, and on any other person to whom, to the knowledge of the accused, the record relates, at least seven days before the hearing referred to in subsection 278.4(1) or any shorter interval that the judge may allow in the interests of justice. The accused shall also serve a subpoena issued under Part XXII in Form 16.1 on the person who has possession or control of the record at the same time as the application is served.
1997, c. 30, s. 1.
Disclosing Specific 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.
Peace Officer Misconduct ("McNeil Disclosure")
Certain types of police misconduct records have been recommended as being treated as primary disclosure, including:
- 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].
- Any outstanding charges under the Canadian Criminal Code or the Controlled Drugs and Substances Act.
- Any conviction or finding of guilt under any other federal or provincial statute.
- Any finding of guilt for misconduct after a hearing under the Police Services Act or its predecessor Act.
- Any current charge of misconduct under the Police Services Act for which a Notice of Hearing has been issued.
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.
The Crown are to exercise a gate-keeper function with respect to the disclosure of these materials to the defence.