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 p...