R. v. Schirmer, 2022 BCCA 214
[54] Based on the principles developed and applied in those cases, modified where necessary to fit the appeal context, I consider the following framework to govern the application before us:
• After conviction and during the appeal process, the Crown is duty-bound to disclose to an appellant any records in its possession or control where there is a reasonable possibility the information may assist the appellant in the prosecution of their appeal.
R. v. Trotta (2004), 2004 CanLII 60014 (ON CA), 23 C.R. (6th) 261 at para. 25 (Ont. C.A.); McNeil at para. 17; R. v. Johnston, 2019 BCCA 107 at paras. 47, 59–60, 66 [Johnston (2019)]; R. v. Moazami, 2020 BCCA 3 at paras. 37, 48; R. v. Orr, 2020 BCCA 319 at para. 23.
• This is a first party disclosure obligation. It subsists throughout the appeal proceedings. New information that falls in its scope must be disclosed when received. The Crown’s duty to disclose first party records is triggered upon request and there is no requirement that the appellant apply to the appeal court for disclosure.
Gubbins at para. 19.
• For the purpose of first party disclosure, the Crown is the prosecuting Crown. All other federal and provincial Crown entities, including police agencies, are third parties.
R. v. Quesnelle, 2014 SCC 46 at para. 11.
• However, police agencies have a corollary disclosure obligation to provide the Crown with the “fruits of the investigation” that led to the convictions at issue in the appeal, as well as any additional information that is “obviously relevant” to the appeal.
McNeil at paras. 14, 23–24; Gubbins at para. 23; R. v. Pascal, 2020 ONCA 287 at para. 106.
• Consequently, when the Crown becomes aware of information in the possession of a police agency or other public entity that is potentially relevant to the appeal, it has a duty to make reasonable inquiries of that agency or entity and to obtain the information, where reasonably feasible, for the purpose of assessing whether it constitutes first party disclosure and must be provided to the appellant.
McNeil at paras. 49–50; Quesnelle at paras. 12, 18; R. v. McKay, 2016 BCCA 391 at para. 50, leave to appeal to SCC refused, 37315 (20 April 2017); Gubbins at para. 21; Moazami at para. 50.
• First party disclosure includes the “fruits of the investigation”, as well as any records beyond the original investigative file that are “obviously relevant” to the appeal. Operational records or background information generally do not fall in scope.
McNeil at paras. 53–54; Gubbins at paras. 22–23; Johnston (2019) at para. 36(e)(ii).
• The Crown is entitled to withhold first party records if the records are clearly irrelevant, privileged or their disclosure is otherwise governed by law. When first party records are withheld, the appellant can apply for production under s. 683(1)(a) of the Criminal Code. The Crown bears the onus of justifying the non-disclosure.
McNeil at para. 18; World Bank Group v. Wallace, 2016 SCC 15 at paras. 114–115; Gubbins at para. 19.
• First party records sought in support of a fresh evidence application that are neither subject to a statutory prohibition on disclosure nor privileged can only be justifiably withheld on the basis of irrelevance. The Crown must show there is no reasonable possibility the records could assist on the application to introduce fresh evidence, and no reasonable possibility the records may be received as fresh evidence in the appeal.
Trotta at paras. 25–28; Johnston (2019) at para. 80.
• Assessing whether records constitute first party records is context-sensitive. In the appeal context, this assessment must be informed by the possible uses of the records in support of an appellant’s grounds of appeal.
McKay at para. 103; Johnston (2019) at paras. 43, 61–65, 80; Moazami at para. 50; Orr at paras. 3, 23–24; R. v. Johnston, 2021 BCCA 34 at para. 340 [Johnston (2021)], leave to appeal to SCC granted, 39635 (2 December 2021).
• If the material requested by an appellant consists of third party records, the onus is reversed. The Crown has no obligation to produce this material and the appellant can only establish an entitlement to production if they show that the records are “likely relevant” to the appeal.
O’Connor; McNeil at para. 28; Johnston (2019) at paras. 42, 132.
• The assessment of “likely relevance” in the appeal context must be informed by the possible uses of the records in support of an appellant’s grounds of appeal.
Johnston (2019) at para. 80; Orr at paras. 3, 23–24; Johnston (2021) at para. 340.
• To meet this test in support of a fresh evidence application, the appellant must show there is a reasonable possibility the records could assist on the application to introduce fresh evidence, and a reasonable possibility the records may be received as fresh evidence in the appeal.
Trotta at paras. 25–28.
• In assessing “likely relevance”, the Court does not determine whether the records would be admissible as fresh evidence; rather, at the production stage, the assessment is focused on the reasonable possibility of admissibility. The latter threshold is necessary to prevent fishing expeditions.
Gubbins at para. 28.
• In recognition of the fact that the appellant will not have seen the records, the burden to show “likely relevance” is not onerous. However, the mere assertion that a third party record is relevant to the credibility or reliability of a witness at the trial will not suffice, even where that witness was not peripheral. Instead, the appellant must point to some case-specific evidence or information that objectively justifies the assertion of “likely relevance”. They must show that the sought-after records realistically carry the potential to assist on the application to introduce fresh evidence, and realistically carry the potential to be received as fresh evidence.
Gubbins at paras. 27–28; R. v. Dunbar, Pollard, Leiding and Kravit, 2003 BCCA 667 at para. 69, citing R. v. Batte (2000), 2000 CanLII 5751 (ON CA), 145 C.C.C. (3d) 449 at para. 75 (Ont. C.A.).
• In an application for the production of third party records, an appellant must serve notice on the record holders, along with a subpoena (unless waived), requiring that the records be brought to court for possible production after a hearing.
O’Connor; McNeil at para. 27; Gubbins at para. 25; Johnston (2019) at para. 149; York (Regional Municipality) v. McGuigan, 2018 ONCA 1062 at para. 73.
• If an appellant meets the test for “likely relevance”, the appeal court will proceed to review the records, assess their actual relevance and weigh relevant competing interests as engaged by the particular circumstances of the case, including assertions of legislated confidentiality or privilege.
Dunbar at paras. 48–70; McNeil at para. 35; World Bank at para. 113.
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