Disclosure of Third Party Records Under the O’Connor Regime

The O’Connor framework addresses the right of an accused to obtain documents that are in the hands of third parties. In view of the privacy interests at stake, an accused bears the burden of demonstrating that the documents sought are “logically probative to an issue at trial or the competence of a witness to testify”: R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411,at para. 22 (emphasis in original).
An O’Connor application is a two-step process. At the first step, an accused must demonstrate that the records sought are likely relevant to an issue at trial, such as the credibility or reliability of a witness. If an accused meets the likely relevance threshold, the documents will be produced to the trial judge, who must then 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).
This process is distinct from the Stinchcombe framework which applies when documents are in the hands of the Crown or the police. Under that framework, the Crown must disclose all documents in its “possession or control” which are relevant to an accused’s case (R. v. McNeil, 2009 SCC 3 (CanLII), [2009] 1 S.C.R. 66, at para. 22; R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326). To withhold disclosure, the Crown must demonstrate that the documents sought are “clearly irrelevant, privileged, or [that their] disclosure is otherwise governed by law” (McNeil, at para. 18; see also Stinchcombe, at p. 336).
Stinchcombe places the burden on the Crown to justify non-disclosure. In contrast, O’Connor requires the accused to justify production. These two regimes share a fundamental purpose: protecting an accused person’s right to make full answer and defence, while at the same time recognizing the need to place limits on disclosure when required.

World Bank Group v. Wallace, [2016] 1 SCR 207, 2016 SCC 15 (CanLII)

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