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Evidence - O'Connor Applications
NOTE
O'Connor 'third party disclosure' applications are common law. More recently the CCC was amended to add a statutory version of similar applications ['application for production' (to an accused of complainant/witness records: CCC s.278.1-278.97]. Cases on these CCC provisions are included here for the time being.
. Gong v. OSC
In Gong v. OSC (Div Court, 2024) the Divisional Court heard a CJA s.21(5) set aside motion of an earlier appeal (dismissed for prematurity) of an interlocutory order of the Capital Markets Tribunal (CMT). While it dismissed the motion on other grounds, the court cited the CMT finding that the 'O'Connor' doctrine (third party evidence disclosure), did not apply where the Capital Markets Tribunal sought to adduce prior criminal disclosure in an OSC proceeding but that evidence was originally generated by the OSC (and then given to Crown):[3] In 2022, the OSC commenced proceedings against Mr. Gong before the Capital Markets Tribunal (“the Tribunal”). The allegations before the Tribunal are similar to the facts admitted by Mr. Gong’s company in the criminal proceedings. There has been no hearing on the merits of the allegations against Mr. Gong.
[4] Mr. Gong brought a pre-hearing motion before the Tribunal arguing that the OSC was required to seek the Attorney General’s consent to use the disclosure from the criminal prosecution in the proceedings before the Tribunal pursuant to the Court of Appeal’s decision in D.P. v. Wagg (2004), 2004 CanLII 39048 (ON CA), 71 O.R. (3d) 229 (CA). The Tribunal dismissed Mr. Gong’s motion. The Tribunal found that the procedure established in D.P. v. Wagg did not apply because the documents the OSC intended to rely on were obtained through the OSC’s own investigation, not from the Crown or police. . Mammarella v. Ontario College of Teachers
In Mammarella v. Ontario College of Teachers (Div Court, 2023) the Divisional Court considered a JR of a tribunal 'rule change' (not of a specific case decision), here of the 'Rules of Procedure of the Discipline and Fitness to Practise Committee' of the Ontario College of Teachers relating to third party evidence disclosure.
In these quotes, the court explains the [O'Connor] purpose of the rule changes:[2] The applicant seeks judicial review of a decision of the Discipline Committee and the Fitness to Practise Committee of the Ontario College of Teachers (“OCT”) to amend Rule 7.03 of the Rules of Procedure of the Discipline and Fitness to Practise Committee. This amendment has the effect of bringing the third party production rule in line with the Supreme Court of Canada decision in R. v. Mills, 1999 CanLII 637 (SCC), [1999] 3 S.C.R. 668, rather than the test outlined in the Supreme Court’s prior decision in R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411.
[3] R. v. O’Connor addressed requested access to a complainant’s medical and other records where the accused was charged with a number of sexual offences. R. v. Mills then addressed the amendments to the Criminal Code that were made on the same issue, after R. v. O’Connor.
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[10] .... The applicant accepts that the OCT can change the rules but submits that this change is different because it imposes a different test for the production of third party records and is unreasonable.
[11] The applicant submits that the rule in R. v. Mills is stricter, limiting access to third party records, and in turn limiting a member’s ability to obtain exculpatory information. The applicant submits that it also should not be applied outside the context of sexual offences yet fails to address the fact that R. v. O’Connor also arose in that context. The applicant relies on the absence of reasons for the Committees’ decision to change the rule. The applicant further challenges the memorandum put forward to the Committees in support of the then proposed change.
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[13] The applicant has not shown that the rule change was unreasonable. On the contrary, it is well within the scope of reasonableness for the third party production rule to be updated to align with a more recent decision of the Supreme Court of Canada and steps taken by other regulators. A regulator has considerable latitude in making rules: Green, at para. 24. The applicant may disagree with the decision. He is of the view that he benefited from the R. v. O’Connor test. But he has not shown that the rule change was not justified, transparent and intelligible. . R. v. R.K.
In R. v. R.K. (Ont CA, 2023) the Court of Appeal considered the requirements of a s.278.3 CCC [O'Connor] third party evidence application:[11] On an application to produce a third party record under s. 278.3 of the Criminal Code, the applicant has the onus to establish that the record is “likely relevant” to an issue at trial or to the competence of a witness to testify, and that production of the record is necessary in the interests of justice: R. v. Mills, 1999 CanLII 637 (SCC), [1999] 3 S.C.R. 668, at paras. 53-54. If the answer to both questions is “yes”, the application judge reviews the record: Criminal Code, ss. 278.5-278.6. If the application judge remains satisfied that the record is likely relevant and that its production is necessary in the interests of justice, the judge may order the record produced to the applicant: Criminal Code, s. 278.7.
[12] “Likely relevance” under s. 278.5 means there is a reasonable possibility that the record contains information that is logically probative to an issue at trial or the competence of a witness to testify. Issues at trial includes material issues to the unfolding of events which form the subject-matter of the proceedings, as well as evidence probative to credibility of witnesses and reliability of other evidence, including, for example material with potential impeachment value: R. v. Mills, 1999 CanLII 637 (SCC), [1999] 3 S.C.R. 668, at para. 45; R. v. K.C., 2021 ONCA 401, at paras. 29-32, 47 per Jamal J.A. dissenting in the result, at paras. 103-104 per Fairburn A.C.J.O.; R. v. Batte (2000), 2000 CanLII 5751 (ON CA), 145 C.C.C. (3d) 449 (Ont. C.A.), at paras. 72 and 75.
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[16] The application judge dismissed the application as he concluded that the diary was not “likely relevant”. He held that the existence of the diary entry could be confirmed through witness testimony, without production of the diary itself. Moreover, the diary could not be used by the Crown as (i) establishing likely relevance based on the assertion that the diary may contain a prior inconsistent statement is explicitly prohibited by s. 278.3(4) of the Criminal Code; and; (ii) the diary had no impeachment value as (a) the complainant’s failure to disclose the allegations of sexual abuse when she first spoke to police (when she made allegations of physical abuse against her mother) and the fact that the complainant’s foster mother did not immediately disclose the allegation of sexual abuse to police after reading it in the diary were uncontested facts that could be confirmed through witness testimony and (b) the level of detail about the allegations in the diary as compared to the complainant’s police statement was not relevant for impeachment value, as the level of detail in a diary entry varies from person to person. . Toronto Star Newspapers Limited v. Cavey
In Toronto Star Newspapers Limited v. Cavey (Ont CA, 2023) the Court of Appeal considered an appeal by a newspaper and a journalist who had been denied a "writ of certiorari to quash the subpoena" in relation to a defendant's CCC 278.3 [O'Connor] third-party disclosure application seeking "production of any notes or recordings" from the journalist's interview with a suspected victim:[3] On May 19, 2023 Mr. Cavey sought a subpoena against the Toronto Star via Form 16.1, as required by s. 278.3(5) of the Criminal Code in advance of a stage one hearing pursuant to R. v. Mills, 1999 CanLII 637 (SCC), [1999] 3 S.C.R. 668. In support of that subpoena request, he submitted the affidavit of a student-at-law with exhibits, a notice of application, and a factum – his complete s. 278.3 application record. A judge of the Ontario Court of Justice issued a subpoena on May 24, 2023. That subpoena requires the appellants to deposit copies of any notes, recordings, or other documents generated during the course of Ms. Bocknek’s interview with R.T. in a sealed package at the Ontario Court of Justice in Hamilton; however, the subpoena provides for an exception: the appellants “are not required to provide the things specified to any person or to discuss their contents with any person unless and until ordered by the court to do so.” Further, if, as here, the document is a “record,” then the appellants “are not required to bring it with you until a determination is made in accordance with [ss. 278.1-278.91] as to whether and to what extent it should be produced.”
[4] The Toronto Star and Ms. Bocknek applied to the Superior Court of Justice for a writ of certiorari to quash the subpoena. On July 26, 2023 Goodman J. (“the application judge”) declined to grant that extraordinary remedy. The appellants now appeal that decision to this Court.
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[6] We accept that the appellants, as third parties to Mr. Cavey’s trial, had the right to seek relief before the application judge by way of certiorari, since they had no statutory right to an interlocutory appeal. We also agree that the scope of certiorari available to the appellants is broader than that available to Mr. Cavey or the Crown. Parties to a criminal proceeding can only seek certiorari for errors of jurisdiction, but third parties, such as the appellants in this case, may also seek review for errors of law that are apparent on the face of the record. However, the order being reviewed must have a final and conclusive character vis-à-vis the third party: R. v. Awashish, 2018 SCC 45, [2018] 3 S.C.R. 87, at para. 12; and R. v. Primeau, 1995 CanLII 143 (SCC), [1995] 2 S.C.R. 60, at para. 12.
[7] The appellants assert that the issuance of the subpoena demonstrates errors of law on the face of the record, since the purposes for which Mr. Cavey seeks the records are impermissible under the s. 278 regime, and since the records are subject to journalistic privilege under s. 39.1 of the Canada Evidence Act, 1985, c. C-5. The appellants assert that the application judge should have exercised his discretion to grant certiorari, because these errors were patently obvious and he erred by failing to grapple with them.
[8] We are not persuaded by the appellants’ submissions. To begin, the application judge recognized that certiorari is a discretionary remedy. In this case, the application judge refused to grant the relief sought because, in his view, the trial judge was well placed to determine the crux of the appellants’ objection: that they were being “forced” to participate in a third-party records hearing that threatened the journalist-source relationship. He further held that the trial judge was in the best position to determine the likely relevance of the records and the intersection of journalistic privilege in the context of the s. 278 application, especially given the full record that will be before the trial judge. Indeed, the appellants have standing under s. 278 to assert their privacy interest in the records and their claim to journalistic privilege. They will have a full opportunity to make submissions on the issues before the trial judge.
[9] This court can only interfere with a discretionary decision not to grant certiorari where an application judge fails to give weight to all relevant considerations, rests on an error in principle, or is plainly wrong: Bessette v. British Columbia (Attorney General), 2019 SCC 31, [2019] 2 S.C.R. 533, at para. 35. The application judge considered all the arguments put forth by the appellants to quash the subpoena, and his reasons not to exercise his discretion reveal no errors in principle. We see no basis to interfere with his exercise of discretion.
[10] Nor do we accept the appellants’ argument that the application judge’s decision can be read as effectively removing the procedural safeguard of certiorari for third parties to challenge the issuance of subpoenas in the context of s. 278 hearings. The application judge recognized that the purpose of a subpoena duces tecum is not the discovery of documents from third parties. His decision reflects a careful consideration of the fact that alternative procedural protections exist which can protect the appellants’ legitimate interests without fragmenting Mr. Cavey’s criminal trial. In the specific circumstances of this case, he saw nothing that would warrant the immediate granting of an extraordinary, prerogative remedy: R. v. Johnson (1991), 1991 CanLII 7174 (ON CA), 3 O.R. (3d) 49 (C.A.), at pp. 53-54. We see nothing in the application judge’s reasons that would suggest third parties are prohibited from applying for certiorari to quash subpoenas in future cases. . R. v. M.C.
In R. v. M.C. (Ont CA, 2023) the Court of Appeal explained a 'application for production' (to an accused of complainant or witness records) [CCC s.278.3 application], a statutory version of the common law 'O'Connor' third party record application:[21] For reasons that will become apparent, it is helpful to review the structure of a s. 278.3 application. Section 278.3 applications are conducted in two stages. During stage 1 an applicant must establish: (1) that their application conforms to s. 278.3(2)-(6); (2) that the record is “likely relevant”; and (3) that its production is “necessary in the interests of justice”: s. 278.5. Precondition (3) requires the trial judge to inquire, as best as can be done in the absence of having seen the record, into the “extent to which the record is necessary for the accused to make full answer and defence” (s. 278.5(2)(a)), and “the probative value of the record” (278.5(2)(b)). The trial judge is also required to consider any opposing interests that may justify non-disclosure, such as privacy and equality interests and the preservation of the integrity of the trial process: R. v. Mills, 1999 CanLII 637 (SCC), [1999] 3 S.C.R. 668 at paras. 139-141. If the applicant does not meet these three requirements, the application fails. If the applicant meets these requirements, the trial judge must order the production of the record for review “in the absence of the parties” to determine whether the record should be produced to the applicant: s. 278.6(1).
[22] Stage 2, which is only undertaken if the applicant meets their stage 1 burden, involves the review of the records by the trial judge to determine whether to produce records to the applicant: Mills, para. 14. Section 278.7(1) sets out the pre‑requisites to production of the records to an applicant. One of those pre‑requisites, again, is “likely relevance”. Since the judge will have reviewed the documents before making this second “likely relevance” determination, they will know the actual contents of the records. Therefore the “likely relevance” inquiry no longer focuses on what the documents are likely to contain (as it will at stage 1) but focuses instead on whether the known contents could relate to “likely” issues.
[23] Before ordering production to the applicant, the application judge must also be satisfied that production is “necessary in the interests of justice”. Once again, this inquiry is undertaken by applying the same considerations described above in para. 21 of these reasons, although at this juncture the determination of whether production is “necessary in the interests of justice” will be made with the benefit of having seen what the records actually contain: Mills, para. 54. At paras 24-65 the court goes on to apply the 's.278 test' to the case facts.
. R. v. Dent
In R. v. Dent (Ont CA, 2023) the Court of Appeal considered an appeal based in part of the trial judge's denial of an O'Connor (third-party disclosure) application by the defendant:H. DID THE TRIAL JUDGE ERR IN DENYING MS. DENT’S O’CONNOR APPLICATION?
[101] For the following reasons, I would deny Ms. Dent’s appeal of the trial judge’s decision to deny her third-party records application, brought pursuant to R. v. O’Connor¸ 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411. That application was for the production of CAS records of complaints Ms. Oxley had made to the CAS that Mr. Lalonde had sexually abused their child.
[102] At trial, Ms. Dent argued that there was a reasonable possibility that those records were likely relevant as “circumstantial evidence of past conduct [by Ms. Oxley] that is consistent with the defamatory libel made against [Mr. Lalonde]”, and that they would likely be relevant in challenging Ms. Oxley’s credibility and reliability as a witness. She therefore asked the trial judge to inspect them and to produce them to her.
[103] The trial judge found that Ms. Dent had satisfied the “likely relevance” threshold for inspection. He therefore inspected the CAS records, as requested, to determine whether the “salutary effects of a production order”, would outweigh the “deleterious effects” that production would have on competing interests, such as the privacy interests in the documents. I will describe the trial judge’s ruling in some detail, before specifying Ms. Dent’s related grounds of appeal.
[104] After correctly identifying the factors to be considered, the trial judge effectively found that the records would not meaningfully assist Ms. Dent in her defence. With respect to the first purpose for production that Ms. Dent had identified, the trial judge said that he “found nothing in those records which would constitute relevant or probative information to […] establish that Ms. Oxley [was] a suspect”, or that “might show […] some similarity to what is happening in our case”, or that “[Ms. Oxley] is perhaps a likely person who would have authored all of this misinformation” in the seven libelous documents. He emphasized that Ms. Oxley’s CAS allegations had not been found to be “false”, as Ms. Dent suggested, but were found to be “unsubstantiated”. He said he found no indications that Ms. Oxley did not believe the allegations their child had made about being sexually abused by Mr. Lalonde, which the “CAS people” thought had a ring of truth, even though some of those allegations “proved to be not so reliable”. Although the trial judge did not put things quite this way, it is therefore clear that he was of the view that Ms. Oxley’s CAS complaints were not like the “false” claims that were made in the subsequent defamation campaign and that the CAS records could not be expected to provide Ms. Dent with a pathway to prove otherwise.
[105] The trial judge also considered whether the records would otherwise assist Ms. Dent in challenging Ms. Oxley’s credibility as a witness. Based on his inspection of the records he found that there was nothing probative in them “that [Ms. Dent] can use to cross-examine, maybe attack the credibility of [the] witness”. He said there is a “very tenuous” “possibility” that maybe her credibility could be shaken a bit on a “collateral issue” but noted that Ms. Dent could not use the records to challenge her credibility “properly and admissively”.
[106] After effectively concluding that the salutary effects of production would be modest, the trial judge then said that he had identified “very sensitive” and “disturbing” material in the records, “things that they would never say to anybody else”. It is obvious he found the privacy interests in the CAS records to be high. After balancing the salutary and deleterious effects of production he had identified, he chose to deny production.
[107] Ms. Dent’s first argument is that the trial judge erred in refusing production by misinterpreting and misapplying the collateral facts rule. I am not persuaded that he did so. I will begin my explanation by expressing agreement with Ms. Dent on several points.
[108] I agree with Ms. Dent that the collateral facts rule “does not operate to confine the scope of otherwise permissible cross-examination”: R. v. A.C., 2018 ONCA 333, 360 C.C.C. (3d) 540 (Ont. C.A.), at para. 46, Instead, “[t]he rule operates to prevent a party from calling extrinsic contradictory evidence to undermine the credibility of an opposing party’s witness in relation to a collateral issue”: A.C., at para. 46. Put otherwise, the collateral facts rule does not prevent parties from asking collateral questions. It prevents parties from disproving collateral answers.
[109] In O’Connor, at para. 24, the majority cautioned that production is not to be governed by admissibility rules since even inadmissible evidence could nonetheless assist in making full answer and defence. Inadmissible evidence may, for example, still lead to a train of inquiry or the discovery of admissible evidence. For the reasons expressed, I agree with Ms. Dent that in the case of the collateral facts rule, information that cannot be admitted in order to contradict a witness’s answers because of that rule may still prove useful in identifying admissible lines of cross-examination. I therefore agree with her that a trial judge would err if they treated the application of the collateral facts rule as an absolute bar on production.
[110] However, this does not mean that a trial judge must produce information that could lead to permissible lines of collateral cross-examination. The trial judge must still “weigh the salutary and deleterious effects of a production order and determine whether a non-production order would constitute a reasonable limit on the ability of the accused to make full answer and defence”: O’Connor, at para. 30. In my view, when assessing this, a trial judge is entitled to consider that the probative value of the subject information is marginalized because the cross-examination it will facilitate will pertain to a collateral issue, not a centrally important issue in the case, and the utility of production will be limited because, although this collateral information can be used to develop lines of cross-examination, it will not be available to contradict any answers the witness may give.
[111] Although the trial judge’s collateral facts reasoning could have been expressed more clearly, I am not satisfied that he committed the error of concluding that the information could not be produced in the application because of the collateral facts rule. When his decision is read as a whole it can and should be understood as a finding that any cross-examination that may flow from the records would have low probative value, not only because the information could at most provide only a “little bit of ammunition” for challenging credibility, but because that cross-examination would relate not to an important issue in the case, but to a collateral one, and because the information would not then be admissible to contradict any answers Ms. Dent might receive. It is important to bear in mind that the trial judge’s ruling was a largely extemporaneous, oral decision delivered within a day of submissions that must be understood not only in the context of the submissions, but also in light of the presumption that trial judges understand the law. In all of the circumstances, I am not persuaded that the trial judge misunderstood or misapplied the collateral facts rule.
[112] In oral argument Ms. Dent added the submission that the trial judge’s decision not to produce any of the CAS records was unreasonable, particularly given his recognition that he had found some of this information to be capable of providing a “little bit of ammunition” in challenging Ms. Oxley’s credibility. He argues that even a “little bit of ammunition” can make the difference with respect to an unsavoury witness who played a central role in the events. Ms. Dent urges us to inspect the third-party records if we are not persuaded by this submission.
[113] I do not find the trial judge’s decision to be unreasonable. If a trial judge was required to produce any information that bore any degree of probative value, the rule would not invite them to balance probative value against the relevant risks of prejudice in deciding whether to produce the evidence. There is no basis on this record for concluding that the trial judge came to an unreasonable decision in not giving Ms. Dent the tenuously and modestly useful information he identified, given the high privacy interests that were engaged. Ultimately, a trial judge’s assessment of the O’Connor factors and the balance they strike is an evaluation of mixed fact and law that attracts deference: R. v. S.(G.) (2001), 2001 CanLII 8545 (ON CA), 156 C.C.C. (3d) 264 (Ont. C.A.), at para. 13; R. v. C.B., 2022 ONCA 572, at para. 8, leave to appeal refused, 2023 S.C.C.A. No. 40349. I see no basis for interfering.
[114] In my view, it is not necessary to inspect the records to come to this conclusion. It is not for us to routinely re-review the third-party records to determine whether we agree with the trial judge or for the purpose of foreclosing some latent problem in reasoning. We should re-review third-party records only if there is reason to do so. In this case, there are no apparent indications the trial judge may have come to unreasonable determinations. He provided cogent explanations as to why he judged the probative value of the records to be low, and the opposing privacy interests to be high. As the foregoing narrative of the trial judge’s decision demonstrates, the basis for his decision can be readily understood without inspection. In my view, he said enough. . Ibrahim v Ontario College of Pharmacists
An original attempt to persuade a tribunal (in this case the Discipline Committee of the Ontario College of Pharmacists) to compel pre-hearing disclosure of documents from third parties (ie. non-parties to the proceeding) was the subject of a judicial review application in the case of Ibrahim v Ontario College of Pharmacists (Ont Div Ct, 2011). While that case addressed the narrow issue of whether the requested records should be ordered produced within the judicial review application (which motion was dismissed), the tactic attempted by counsel at the original hearing raised the prospect of production rights established within the criminal law context being applied to administrative proceedings. The applicant argued that the Supreme Court of Canada criminal case of R v O'Connor (SCC, 1995) [paras 58-74], which held that disclosure rights under Charter s.7 to make "full answer and defence" could also be located with the common law doctrine of 'abuse of process', a principle that has broad application to all legal processes.
This opened the door to advance such pre-hearing disclosure arguments without recourse to s.7 ('life, liberty and security of the person') of the Charter (which was not applicable in Ibrahim), nor would it be in most administrative proceedings.
Keeping in mind that SPPA s.23(1) authorizes tribunals to prevent "abuses of process" in matters before it [see Ch.10, s.5: "Abuse of Process"], this approach is an interesting one that bears further consideration as to whether it can be taken from the criminal law context in which it arose, and be transferred effectively to everyday administrative proceedings.
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