MCLNugget: WDAZ

R v WDAZ, 2018 BCCA 180

 The Issue

Can a complainant adopt her s715.1 statement if her viva voce evidence is inconsistent with her video statement; and what impact do leading questions have on admissibility of such a statement.

The Answer

The test for admissibility of a s715.1 statement was set out by the court:

The video statement is admitted on the basis that young children cannot be expected to clearly remember events that occurred months or years prior to trial and the statement “will almost inevitably reflect a more accurate recollection of events than will testimony given later”: R. v. F.(C.C.), 1997 CanLII 306 (SCC), [1997] 3 S.C.R. 1183 at para. 19. This is especially true when the child retains no memory of the incident and the video is the only way to bring the child’s evidence before the court: F.(C.C.) at para. 21.
To be admissible at trial, the statement must be properly adopted, meaning the child must recall giving the statement and testify that she intended to be honest when she gave the statement: F.(C.C.). The child does not need to remember the specific events discussed in the statement, although the inability to cross-examine the child on this evidence should necessitate a warning to the trier of fact about convicting on this evidence alone: F.(C.C.) at para. 44. [@52-53]

The Fine Print

The Court of Appeal upheld the trial judge’s ruling admitting the statement.

In this case, the use of leading questions within the s. 715.1 statement went to the issue of weight to be given to the evidence at trial and not to the admissibility of the statement. The judge did not err by failing to address the issue of weight at this stage. In my view, he properly exercised his discretion to admit the s. 715.1 statement as evidence at the trial. This decision is reasonable and entitled to deference. [@64]

DM

MCLNugget: George-Nurse ONCA

R v George-Nurse, 2018 ONCA 515

The Issue

Where the Crown’s case is entirely circumstantial in relation to an element of the offence (or the all of them), what if anything can a trier of fact do with the fact that an accused has not testified.

The Answer

Where a case is entirely circumstantial, an inference of guilt must only be drawn if it is the only reasonable inference: see R v Villaroman, 2016 SCC 33. When assessing if there is another reasonable inference, the lack of evidence from the accused permits the court to reject innocent inferences – the “failure to testify negates the alternative inference” [para 32].

Where there is a “strong case to answer” the court is entitled to “consider the appellant’s failure to testify in assessing whether an innocent inference was available: Noble, at para. 103” [@35].

The Fine Print

There was a dissent – the matter is likely headed to the SCC. In dissent Hourigan JA offered the following:

The fact that the appellant did not testify to offer a plausible alternative version of events is of no assistance to the Crown in this case. Appellate courts may refer to an accused’s silence as indicative of an absence of an exculpatory explanation when considering an unreasonable verdict argument on appeal. However, the accused’s failure to testify is generally relevant only in cases where the Crown has adduced a compelling body of evidence: R. v. Noble, 1997 CanLII 388 (SCC), [1997] 1 S.C.R. 874, at para. 103.
In R. v. LePage, 1995 CanLII 123 (SCC), [1995] 1 S.C.R. 654, at paras. 29-30, a majority of the Supreme Court of Canada endorsed the following statement from R. v. Johnson (1993), 1993 CanLII 3376 (ON CA), 12 O.R. (3d) 340 (C.A.): “No adverse inference can be drawn if there is no case to answer. A weak prosecution's case cannot be strengthened by the failure of the accused to testify.” See also R. v. Hay, 2009 ONCA 398 (CanLII), 249 O.A.C. 24, at para. 37[1]; and R. v. Tremble, 2017 ONCA 671 (CanLII), 354 C.C.C. (3d) 27, at para. 98.
Thus, while the jurisprudence makes clear that the accused’s failure to testify may be taken into account in assessing whether there is an innocent inference available, it would make little sense to factor in that failure when reasonable innocent explanations are already apparent by looking at the gaps in the Crown’s case. In the case at bar, the evidence against the appellant that he had counselled the SUV driver to shoot at Mr. Foster was weak. It would have been foolhardy for any competent defence lawyer to advise a client to testify in these circumstances. There was simply no need to call evidence to support an alternative version of events.
In my view, there was a lacuna in the evidence such that no trier of fact acting reasonably could have concluded that there was no reasonable inference other than guilt. [@17-20]

Limited Use Doctrine Defined...again

Judge.jpg

Brett Guillemin crashed his car. A witness heard the crash. Police were called. So too was an ambulance. The ambulance arrived first. They began to treat Guillemin. When the officer arrived on scene she went to stand by the ambulance as the paramedics worked on Guillemin. While at the ambulance the officer noted that Guillemin was “a bit out of it”, his speech was “slightly slurred” and he had a “very blank look” on his face. When he walked to the ambulance the officer noted that he was “moving very slowly” and was “unsteady on his feet”. By the time Guillemin finished with the paramedics the officer formed the opinion he was impaired. An arrest was made.

Guillemin was convicted of impaired after trial. He appealed. His appeal was dismissed: 2017 BCCA 328.

Guillemin’s principle point on appeal was that “the judge relied on inadmissible evidence of the police officers observations in concluding that the Crown had proven impairment beyond a reasonable doubt. He says that reliance on that evidence violated the ‘limited use doctrine’” [para 14].

In considering the limited use doctrine and its scope, the court discussed R v Visser, 2013 BCCA 393 and R v Milne, 1996 CanLII 508 (ONCA). In relation to the treatment of the doctrine in those cases the court noted:

I have quoted at length from Visser because it seems clear to me that nothing in the judgment detracts from the comments of Moldaver J.A., as he then was, in Milne endorsing the admissibility of observational evidence obtained while an officer is carrying out other authorized activities. The focus is on the limited use that can be made of evidence that could not have been gathered without compelled direct participation of a motorist in response to an impaired driving investigation. [Para 21].

As the court in Visser noted, while this may be a difficult line-drawing exercise at times, it is one that courts can and must do – no bright line rule will suffice, facts will dictate whether evidenced is compelled or merely observed. In the present case the court concluded:

On my review of the record, it is clear that the police officer made the observations on which the judge relied while she waited in the ambulance with the appellant as he was being assessed by the paramedics. At that time she was engaged in another authorized activity; namely, ensuring the appellant’s well-being. She made her observations and formed the opinion the appellant was impaired before asking him whether he had been drinking. This is the view, as I see it, that the judge took. During the argument, for example, to test the facts, the judge asked pointed questions aimed at clarifying when in the chronology the officer made observations as a result of the investigation that she had not otherwise made.
The trial judge correctly understood the scope of the limited use doctrine and the circumstances in which evidence would be inadmissible on the impaired charge. In substance, he made it clear that he concluded that the evidence was admissible because of the timing of when the observations were made. That finding was open to him on the evidence. In my view, the evidence given by the officer in her direct evidence of when she made the important observations is clear. I do not accede to the argument that it was undermined or a material discrepancy relating to it arose in cross-examination. There is nothing to suggest that the judge misapprehended the evidence. Given the way in which the submissions unfolded, I see no error in the fact that he did not refer to the issue again in his reasons for judgment. Rather he proceeded to analyze what he had in substance determined to be admissible evidence to decide whether the Crown had proven its case.
The judge did not err in relying on the evidence of the officer’s observations of impairment. The evidence, on the facts of this case, was admissible to prove impairment. I would not accede to this ground of appeal. [Paras 23-25].

Guillemin is a helpful decision. It illustrates the issues that can revolve around identifying limited use evidence in this context. In doing so, Guillemin clarifies, if there was doubt, that Milne and Visser are ad idem in the approach to this doctrine.

DM

Intentionally Present

Joseph Kennedy and Donald Schaeffer attacked a fellow inmate while in custody. Keith O’Loughlin decided to join in. He was convicted by a jury after trial, and appealed from conviction and sentence: R v O’Loughlin, 2017 ONCA 89.

The case for the Crown at trial was simple: video surveillance of the assault. The video depicted O’Loughlin first watching the assault intently, and then purposefully walking toward the bathroom, where the assault had moved. O’Loughlin was then seen peeling back a hand clutching the doorframe, and then moving his leg in a manner consistent with a knee strike: @paras 4-8.

After brief deliberations, a properly instructed jury convicted O’Loughlin. Trial counsel agreed that the jury could find O’Loughlin guilty as either a joint principal or as an aider: Section 21(1), Criminal Code of Canada. The jury was instructed that their verdict need only be unanimous in finding guilt, not as to the nature of O’Loughlin’s participation:  R v Thatcher [1987] 1 SCR 652.

At trial, the principal assailant –Kennedy– testified for the defence. He testified that O’Loughlin was not involved in the attack. Kennedy testified that O’Loughlin intervened to stop him from stomping on the victim’s head, saying, “Joe, that’s enough, that’s enough”. The defence position at trial was that while O’Loughlin was present for the assault, he was not participating: @ para 9. This position was rejected by the jury.

The Ontario Court of Appeal reviewed the video surveillance evidence. They found no basis to interfere with the verdict. The video formed a sufficient basis on which the judge could instruct that O’Loughlin could be found guilty. As such, the appeal was dismissed. The appeal from sentence was allowed, but also dismissed: @paras 18-28.

Comment

In writing for a unanimous court, Watt J. highlighted that O’Loughlin’s presence was not accidental. This was not a case of simply being “in the wrong place at the wrong time.” His presence during the assault was “intentional”, and his involvement was “active”: @para 16. While “mere presence” or “passive acquiescence” is not enough to establish criminal liability as a party (see R v Kirkness, 1990 3 SCR 74; R v Dunlop, [1979] 2 SCR 881), in this case, the takeaway point from the Court of Appeal is clear: presence itself during a crime does matter, and it is not necessarily innocent.   

SS

Can't Sneak that Third Party in the Back Door

Asogian Gunalingum was charged with kidnapping, extortion and assault. Prior to trial he applied to adduce evidence of a “third party suspect” – namely Victorbalaratnam. The court dismissed the application: 2014 ONSC 6512.

The victim, Veerpal Brar was taken from her home around 8 am on November 11, 2011. She was kidnapped from her home by a man dressed in a suit pretending to be a fence contractor. Brar also recalled that a second man, who she knew to be Vajinder Singh, assisted in the kidnapping. Brar was taken to another residence where she was tied to a cot and terrorized by Singh, the “fence contractor” and a third man. She was rescued by the police two days later.

When the police arrived at the location where Brar was being held captive there was a van in the driveway. It was registered to Nicholas Victorbalaratnam (the third party suspect). When the police attended Victorbalaratnam’s home they found him and Gunalingam – both were arrested.

When the police arrested Gunalingam they seized a pair of pants that had evidence linking him to the kidnapping of Brar. Brar noted that Gunalingam (shown to her in a lineup) “looked a little bit, a little bit like the guy who knocked at my door first, rang the bell, little bit. Little bit”. With respect to Victorbalaratnam she stated she did not know who he was.

The charges against Victorbalartnam were ultimately withdrawn. Gunalingam sought to cross-examine Brar and others suggesting that Victorbalaratnam was in fact the fence contractor – in other words, that Victorbalaratnam not Gunalingam is responsible for the crime. The defence notes, however, that it will not be “adducing or advancing a third party suspect as part of the defence’s case following the Crown’s case” [para 13]. Given this approach and the fact that the “third party suspect evidence” will be elicited in the Crown’s case Gunalingm contends no application is necessary.

The court rejected this contention:

I disagree with Mr. Leport that he is not advancing a third party suspect application. While defence counsel are to be afforded reasonable latitude in cross examination, in my view, any questions that are specifically designed to suggest to the jury that Mr. Victorbalaratnam committed the crime must satisfy the test set out in the leading decisions of R. v. McMillan (1975), 7 O.R. (2d) 750, 23 C.C.C. (2d) 160 (Ont. C.A.) and R. v. Grandinetti, 2005 SCC 5, [2005] 1 S.C.R. 27 (S.C.C.). I see no distinction between Mr. Lepore adducing evidence as part of his case or eliciting evidence as part of cross-examination.
[…]
Mr. Lepore is not relying on evidence of Mr. Victorbalaratnam’s motive or disposition to commit the crime. He argues that, since the Crown will lead evidence about Mr. Victorbalaratnam, the jury can draw reasonable inferences from the evidence. The bottom line is that he wants to suggest to the jury that the description of the kidnapper and other pieces of evidence likely point to Mr. Victorbalaratnam as the fence contractor and not the accused.
I do not consider Mr. Lepore’s submissions to be persuasive. In my view, there is no evidence that connects Mr. Victorbalaratnam to the offence. [@15, 18-19].

After reviewing the reasons why there was an insufficient evidentiary link the court held that there was therefore no air of reality to the third party suspect assertion.

DM

Recognizing Statutory Experts

Lorraine Parada was driving her car on Highway #2 in the municipal district of Air Ronge, Saskatchewan. Officer De Bruin noticed her driving. She was not driving well. She had crossed over the centre line, more than once. De Bruin pulled her over. As he spoke to her and asked for her licence and other documents he made observations that led him to suspect she was impaired. He made a roadside demand. As he did not have an approved screening device with him, he demanded she perform field sobriety tests [SFST] pursuant to section 254(2)(a) Code. Those tests, as per the Regulations, include the horizontal gaze nystagmus, the walk-and-turn test and the one-leg stand test. Parada failed. She was arrested. She later provided samples of her breath. She was over the legal limit. She was charged. She was convicted at trial. She appealed: 2016 SKCA 102.

On appeal Parada argued, inter alia, that the trial judge erred in allowing the officer to give "opinion" evidence related to the SFSTs without being qualified as an "expert" and requiring 657.3 notice. 

The Court of Appeal dismissed the appeal. The court began by noting that there are three recognized "categories" of experts capable of providing opinion evidence: (i) Mohan qualified experts; (ii) lay witness opinions (see Graat); and (iii) statutory experts. In relation to the statutory experts the court cited Bingley, 2015 ONCA 439. The court noted that in that case the ONCA held that drug recognition officers (evaluating officers as per s254 Code) need not be qualified to give an opinion on impairment. The statutory scheme, including the Code provisions and Regulations, provide the authority to permit DRE officers to give such an opinion.

In the present case section 254(2)(a) does not require that the officer be an "evaluating officer". If DREs need not be qualified under Mohan, the court concluded that officers performing the SFSTs need not be qualified under Mohan to provide evidence (admissible only for grounds at any rate) on the SFST tests.

Parada is another helpful decision settling the law across the country on issues related to the drug impaired driving provisions. As in Bingley, the court recognized the existence of "statutory" experts capable of giving an opinion pursuant to their qualifications under statute. This approach is logical, reasonable and consistent with statutory interpretation. It is one that the Supreme Court will likely accept when Bingley is decided later this year.

DM

Looked like a gun, walked like a gun, quacked like a gun

Dirie and Omar were both convicted of weapons possession offences. The sole issue at trial was identity. An apartment building equipped with a surveillance system captured the crime in progress. The trial judge found, beyond a reasonable doubt, that the two men in the footage were Dirie and Omar. She compared the men in court to the security footage, and gave some weight to the evidence of a police officer who had encountered Dirie on many occasions and who also recognized him in the footage. His posture and the way he spoke out of the side of his mouth were notable features. The trial judge also concluded the objects brandished by Dirie and Omar in the footage were loaded, restricted weapons.

Dirie and Omar appealed their convictions for a number of reasons: R v Dirie, 2016 ONCA 502.

In relation to the footage, both Dirie and Omar argued that the quality was too limited for identification purposes, and that it was an unreasonable finding of fact that the objects held by the individuals in the video were determined by the trial judge to be loaded restricted firearms. Dirie argued that the distinct features which the officer testified about should not have been considered by the trial judge in identifying him. Omar argued that the trial judge ignored the fact that no clothes matching the clothes in the footage were discovered after a search warrant was executed: @ paras 4, 5.

The Court of Appeal, in a brief decision, rejected all of Dirie and Omar’s arguments. The Court found it was clear from the trial judge’s reasons that she was “alive to the risks inherent in identification evidence”, and that she properly instructed herself in accordance with the principles articulated in R v Nikolovski, [1996] 3 SCR 1197. The trial judge determined the video was of sufficient clarity and quality for comparison purposes, she reviewed the footage multiple times, and, in comparing the images to Dirie and Omar, she was entitled to rely on the relevant police evidence at trial: @ para 7.

The trial judge also recognized the significance of the footage to the Crown’s case, and did so by expressly averting to the fact that the search executed did not assist the Crown: @ para 8.

Regarding the trial judge’s finding that the objects in possession of Dirie and Omar were loaded and restricted weapons, the Court of Appeal concluded there was “ample evidence” to support the trial judge’s finding, including “the aggressive brandishing of the objects and a third party’s reaction to seeing the objects, which was captured on video”: @ para 10.

Comment

This is another recent case from the Court of Appeal (see also R v Benson, 2015 ONCA 827) which highlights the increasing importance of surveillance footage as effective (and, as in this case, sometimes critical) evidence for the Crown to lead in cases where identity may be difficult to prove. The utility of such footage is obvious: not only can it sometimes assist the trier of fact in reaching a possible determination as to identity, but it may also assist in the possible identification of other crucial details, including the possession of weapons.

SS

Some is all you need

Webster was accused of committing offences against is former domestic partner. At the preliminary inquiry the now ex-partner testified via closed circuit television in a sequestration suite designed to allow witnesses to testify outside of the presence of accused.

She testified that she knew Webster, had been engaged to him and that they resided at the address specified in the information before the court.

The complainant was not asked to identify Webster nor from the sequestration suite would she have been able to do so.

At the conclusion of the preliminary hearing the defence argued that the accused should be discharged as the crown had failed to adduce some evidence that the accused before the court was the person who committed the offences.

The preliminary hearing judge discharged the accused. The Crown successfully sought the extraordinary remedies of certiorari and mandamus. Webster appealed to the Court of Appeal seeking to have the discharge reinstated. That appeal was dismissed: 2016 ONCA 189.

In a brief endorsement the Court reminded us that:

It is well settled that the identity of names a complainant identifies as her assailant and the person charged constitutes some evidence of identity. It is all the more so, when the name is accompanied by an address and other biographical details: R. v. Chandra (1975), 29 C.C.C. (2d) 570 (B.C.C.A.), at p. 573; and R. v. B.(D.), [2007] O.J. No. 1893 (C.A.), at para. 1.

The Court agreed with the certiorari judge that preliminary inquiry judge committed a jurisdictional error by failing to consider the whole of the evidence and in particular the identity of names as some evidence of identity.  [at para 6]

LT

Reliable Co-Accused

Jeffrey Woodman was out shoplifting with a group of friends.  They left the scene of their crime in a car. When a police officer approached the vehicle, the car accelerated towards the officer, struck him and sped off.   The officer sustained serious injuries. The principal issue at trial was the identity of the driver at the time the officer was struck. Woodman was convicted by a jury of his peers; the Ontario Court of Appeal dismissed his appeal of both conviction and sentence: 2016 ONCA 63. 

Woodman testified at trial. He admitted to shoplifting with his friends. He admitted to that he got into the driver’s seat and that he was the one who was driving when the car fled from police. However, Woodman maintained that that he was not driving the car when it struck the officer. 

The officer could not identify the driver and of the males in the vehicle only one came forward and offered information about who was driving the vehicle. 

At 3am a few hours after the officer was struck, Stinson provided a video recorded statement to police.  Stinson identified Woodman as the driver of the vehicle. The statement was unsworn. When called upon to testify at trial Stinson claimed to have no recollection of the events because he was under the influence of heroin. 

The trial judge admitted Stinson’s statement to police for the truth of it’s contents. Woodman argued on appeal that this was an error worthy of granting Woodman a new trial. The ONCA disagreed. 

The Court held “the trial judge properly exercised his role as gatekeeper in admitting Mr Stinson’s statement that met the twin threshold requirements of necessity and reliability: R v Youvarajah, 2013 SCC 41 at para 21.”

First, the Court found that the necessity criterion was made out on the basis of Stinson either failure or refusing to adopt his prior statement [para 8].

Second, the trial judge did not err in finding that threshold reliability criterion was met based on the following factors: 

  • The statement was given to police within hours of the incident
  • The statement was video recorded
  • Stinson’s demeanour and credibility at the time the statement was given could be assessed by the trier of fact 
  • Stinson appeared to be coherent, responsive to questions and not under the influence of drugs or alcohol
  • The declarant was available for cross-examination 
  • Several aspects of the statement were corroborated and/or confirmed by other evidentiary sources including the injured officer and video surveillance from the store where the group was shoplifting [para 9]

Woodman argued that the Supreme Court’s relatively recent decision in Youvarajah was determinative of this appeal. In Youvarajah the trial judge declined to admit a recanting co-accused’s statement notwithstanding the fact that the co-accused was available for cross-examination. Woodman emphasized that Stinson had a powerful motive to lie: saving his own hide and thus his statement to police should not have been admitted. 

The Ontario Court of Appeal distinguished Youvarajah from the circumstances in Woodman explaining that: 

(…) in our view, the circumstances of R. v. Youvarajah are distinguishable from the case at bar. In R. v. Youvarajah, the Court noted the absence of the following indicia of reliability that are present in the case at bar: the statement in issue was an agreed statement of facts prepared by the co-accused’s lawyer rather than the witness’ own spontaneous words, for use at his own separate youth trial as part of a plea agreement; the co-accused testified that he did not understand everything that he read in the statement; the statement was not videotaped so that there was no opportunity to assess the co-accused’s demeanour or credibility; and the co-accused not only recanted his previous statement but admitted at the appellant’s trial the acts in which he had implicated the appellant in his previous statement.  Most important, cross-examination of the co-accused would be effectively precluded by his invocation of solicitor-client privilege. None of these factors features in the present case [para 11].

Finally the Court noted that in addition to having properly exercised his gatekeeping function with respect to the admissibility of the statement, the trial judge also properly instructed the jury on how they were to evaluate the statement [para 13].

Woodman was sentenced to 4years and 8months in prison after having been credited with 1 year and 4 months pre-sentence custody. The Court dismissed his sentence appeal. 

LT

An end to unmeritorious "disclosure" applications?

David Jackson was arrested by the police. They police believed that his blood alcohol concentration was over the legal limit while he was operating a motor vehicle. Subsequent to arrest he provided breath samples into an approved instrument; the results indicated he was "over 80”. He was charged with “over 80”.

Prior to trial his counsel sought disclosure of (i) service records for the approved instrument; (ii) usage and calibration records; and (iii) downloaded data “bracketing the breath tests” of Jackson. The Crown refused to provide these materials citing their position that the records were third party records and were also clearly irrelevant. In response Jackson brought a disclosure motion before the trial judge.

The trial judge held that the records were subject to disclosure under Stinchcombe. The Crown and the police, the Ottawa Police Service, brought a certiorari application seeking to quash that ruling. That application was dismissed. The Crown appealed to the Ontario Court of Appeal: 2015 ONCA 832.

Several issues were dealt with at the Court of Appeal. Arguably two of the most pertinent ones dealt with the nature of the records and the potential relevance thereof.

With respect to the nature of the records, Watt JA offered the following overview of the governing principles:

First Party (Stinchcombe) Disclosure
Under Stinchcombe, the Crown has a broad duty to disclose all relevant, non-privileged information in its possession or control to persons charged with criminal offences. Disclosure of this information allows the person charged to understand the case she or he has to meet and permits him or her to make full answer and defence to the charges: Stinchcombe, at pp. 336-40; R. v. Quesnelle, 2014 SCC 46 (CanLII), [2014] 2 S.C.R. 390, at para. 11. The duty is triggered upon request without recourse to a court: McNeil, at para. 17.
For the purposes of first party or Stinchcombe disclosure, the term “the Crown” refers to the prosecuting Crown only, not to all Crown entities, federal and provincial. All other Crown entities, including the police, are third parties: Quesnelle, at para. 11;McNeil, at para. 22. Apart from the police duty to supply the prosecuting Crown with the fruits of the investigation, records in the hands of third parties, including the police and other Crown entities, are generally not subject to the Stinchcombe disclosure rules: Quesnelle, at para. 11; McNeil, at para. 25.
The assimilation of the police and Crown as a single entity for disclosure purposes is narrowly confined. Apart from the police duty to disclose to the Crown the fruits of the investigation, the two are unquestionably separate and independent entities, not only in fact but also in law. The police investigate. The Crown decides whether, what, whom and how to prosecute: McNeil, at paras. 23, 25. Production of criminal investigation files involving third parties, at least as a general rule, falls to be determined on an O’Connor application. This is so at least in the absence of a nexus between the third party and subject investigation: McNeil, at para. 25.
The Stinchcombe disclosure regime extends only to material relating to the accused’s case in the possession or control of the prosecuting Crown entity. This material is commonly described as the “fruits of the investigation”, that is to say, material gathered during the investigation of the offence with which the accused is charged: McNeil, at para. 23. Relevant information includes not only information related to those matters the Crown intends to adduce in evidence against the accused, but also any information in respect of which there is a reasonable possibility that it may assist the accused in the exercise of the right to make full answer and defence: McNeil, at para. 17; Stinchcombe, at pp. 343-44.
Third Party (O’Connor) Production
A separate disclosure/production scheme exists for records and information in the hands of third parties, strangers to the litigation. This scarcely surprises. After all, third parties are under no obligation and have no duty to assist the parties in litigation or to disclose information to them: O’Connor, at para. 102.
The third party scheme involves two steps or stages. It is initiated by service of a subpoena duces tecum on the third party record-holder, as well as a notice of application and supporting material on the record holder and prosecuting authority: O’Connor, at para. 134. The purpose of the subpoena duces tecum is to have the material requested brought to the trial judge who will determine whether and to what extent the material will be produced. The application sets out the grounds upon which production is sought. The supporting material seeks to establish the relevance of the material to an issue at trial including:
i.               the unfolding of the narrative;
ii.             the credibility of a witness;
iii.           the reliability of other evidence; or
iv.           the competence of a witness to testify: O’Connor, at para. 134; McNeil, at paras. 27, 33.
 For the purposes of this third party production regime, a record-holder need not be a complete stranger to the litigation. Recall that Crown entities, other than the prosecuting Crown, are third parties under this regime: McNeil, at para. 13. And this is so even though some records of the same entity may be subject to the first party disclosure scheme of Stinchcombe: McNeil, at para. 15. [Pars 79-85].

Applying those principles Watt JA held that the records sought were third party records. In so concluding Watt JA noted that “[t]wo principal factors determine the disclosure/production regime that will apply”. First, the nature of the information sought; second, the party in possession of the information.

On the first issue, the court offered the following.

With respect to the nature of the information here, Watt JA held that it fell beyond the boundaries of the fruits of the investigation; indeed some of the records were created in relation to other investigations and others were created by the police service for reasons and at times wholly unconnected to the investigation at hand [paras 92-96].

With respect to who was in possession of the records, Watt JA noted that in this case the records were not in the possession of the Crown but were in the possession of a third party, The Ottawa Police Service [paras 97-98].

On the second issue, the court offered the following.

With respect to relevance, Watt JA noted that Jackson had received the usual disclosure package including the following:

A videotape of the respondent providing breath samples. The police officer’s notes. The Intoxilyzer 8000C print out for the respondent’s test. The Certificate of an Analyst attesting to the alcohol standard. The Intoxilyzer instrument log, diagnostic tests and calibration checks. The certificate of the breath technician confirming the test results of 116 and 113 milligrams of alcohol per 100 millilitres of blood. [Para 133].

With this Watt JA noted that the other records sought did not meet the likely relevance threshold.

First, nothing on the face of the typical disclosure package provided to the respondent indicated any problem with the Intoxilyzer 8000C approved instrument or any error by the technician in its operation. No error in the test print outs. A new instrument, not due for its first annual inspection. No annual inspection or maintenance records. In short, nothing to imbue the claim of instrument malfunction or operator error with an air of reality. A fishing expedition. Season closed.
Second, the expert evidence about potential relevance of the record sought failed to ascend above the speculative. In addition, the suggestion of unspecified relevance is contradicted by the report of the Alcohol Test Committee that belies the assistance of the records sought in determining whether the instrument functioned properly for a particular subject test.
Third, the records sought have no relevance to the unfolding of the narrative of material events in this case. Historical data has nothing to say about what gave rise to this prosecution, nor about the credibility of any party involved in the making of demands or the operation of the instrument.
Fourth, the applicable standard in the third party/O’Connor production regime is more demanding than the “whether the information may be useful” criterion for first party/Stinchcombe disclosure. That a more stringent standard applies is consonant with the underlying policy considerations and the gatekeeper function assigned to the trial judge. [Paras 135-138].

Finally, and notably, Watt JA offered a “post-script”:  

It is critical for the efficient operation of trial courts, especially those in which alcohol-driving offences occupy a prominent place on the docket, that they be able to control their process. This includes the authority to discourage unmeritorious third party records applications that devour limited resources. [Emphasis added]; [para 139].

DM