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.

Third Party Records vs Disclosure

 * See also Canadian Criminal Procedure and Practice/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:
 * 1) whether the information is the "fruits of the investigation";
 * 2) what the purpose the information was created for;
 * 3) whether the information was created or obtained as a result of, or in connection to, the specific investigation or prosecution of the accused;
 * 4) whether the information is sufficiently related to the specific investigation or prosecution
 * 5) whether there is an intrinsic link, i.e. by a factual and evidential link, to the investigation
 * 6) the nature and content of the information
 * 7) whether any third parties have a privacy interest in the information

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.

Training 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:
 * 1) 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].
 * 2) Any outstanding charges under the Canadian Criminal Code or the Controlled Drugs and Substances Act.
 * 3) Any conviction or finding of guilt under any other federal or provincial statute.
 * 4) Any finding of guilt for misconduct after a hearing under the Police Services Act or its predecessor Act.
 * 5) 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.