Disclosure such as disciplinary records and other potentially relevant information in the possession of the police or other Crown agency that does not fall within the scope of first party disclosure is governed by the O’Connor third party production rules. The O’Connor procedure provides a general common law mechanism for production of any record beyond the possession or control of the prosecution. It is used for (but is not limited to) cases where records in the control of a third party attract a reasonable expectation of privacy, including accessing those records when it is unclear whether a reasonable expectation of privacy attaches.
The first step in the O’Connor procedure is for the person seeking production to satisfy the court that the documents are likely relevant to the proceedings. If the applicant can demonstrate perceived relevance then the third party record holder may be ordered to produce the documents for the court’s inspection to determine whether production should be ordered, balancing the competing interests in the particular circumstances of the case.
Once it has been ascertained that third party records are relevant to the case, in the sense that they pertain to an issue in the trial, the second stage exercise is straight-forward. In most cases, a useful starting point for balancing the competing interests at the second stage of an O’Connor application will be to assess whether the targeted record are probably relevant in terms of the case against the accused. A finding of probable relevance effectively puts third party records in the same category for disclosure as the fruits of the investigation in the hands of the Crown under the Stinchcombe principles and there can be no principled reason not to disclose them. The accused’s interest in obtaining disclosure to assist to make full answer and defence will generally outweigh any residual third party privacy interests.
