R. v. S.F., 2024 BCCA 413
[55] There is a well‑known distinction between “first party” disclosure of all relevant material in the possession of the prosecuting Crown agency as described in the seminal case of R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326, and court‑ordered production of likely relevant “third party” material as originally articulated in O’Connor. The distinction between these two categories of materials, and the circumstances in which the prosecuting Crown agency may have a duty to assist in “bridging the gap” between the two, was addressed at length in R. v. McNeil, 2009 SCC 3, and once again in R. v. Gubbins, 2018 SCC 44.
[56] The present case involves an application for both first party disclosure and third party production in connection with an appeal from conviction. The legal principles that operate in this particular context have been fully canvassed in a series of recent decisions from this Court, namely R. v. Johnston, 2019 BCCA 107, R. v. Schirmer, 2022 BCCA 214, and R. v. Lowry, 2023 BCCA 399. Without retreading all of the legal ground covered in those decisions, we would identify seven key legal principles emerging from the jurisprudence.
[57] First, the prosecuting Crown agency has a continuing duty to meet its disclosure obligations while a matter is under appeal: Schirmer at para. 54, bullets 1–2. This includes an ongoing duty to “bridge the gap” between first party disclosure and third party production by considering whether material in the possession of third party Crown agencies is “obviously relevant” to the appeal proceedings: Schirmer at para. 54, bullets 5–6. Investigative agencies have an ongoing corollary 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: Schirmer at para. 54, bullet 4.
[58] Second, to determine the applicable relevance threshold, it is necessary to ascertain whether the materials which are the subject of the application are first party records as contemplated in Stinchcombe, or third party records as contemplated in O’Connor and McNeil. As a general rule, first party records are (i) those in the possession or control of the prosecuting Crown agency, and (ii) those held by the police or any other Crown entities that “ought to have been supplied” to the prosecution because they were “fruits of the investigation”, or otherwise “obviously relevant”. Materials that do not fit within either of these categories are properly characterized as “third party” records: Schirmer at para. 54, bullet 6, applying Gubbins at paras. 22–24; McNeil at paras. 53–54; Johnston at para. 36, bullet 5.
[59] Third, where the materials sought by the appellant are properly characterized as first party records, then unless the records are privileged or subject to statutory restrictions on their release, the burden will be on the Crown to show that there is no reasonable possibility that the requested records could assist the appellant in prosecuting the appeal: Schirmer at para. 54, bullet 8.
[60] Fourth, where the materials sought are classified as third party records, the burden is “reversed” such that it falls on the appellant to show a reasonable possibility that the records are likely relevant in that they could assist in the prosecution of the appeal: Schirmer at para. 54, bullet 10; Lowry at paras. 15–16.
[61] Fifth, the concept of relevance is context‑specific. In the appellate context, “the relevance test for disclosure or production of records is generally whether there is a reasonable possibility the records might assist the appellant in prosecuting an appeal”: Johnston at para. 80. In other words, the assessment of relevance in the appellate context “must be informed by the possible uses of the records in support of the appellant’s grounds of appeal”: Schirmer at para. 54, bullet 11 citing Johnston at para. 80. The questions to ask are (i) whether the records that are the subject of the application realistically carry the potential to assist in an application to introduce fresh evidence, and (ii) whether the fresh evidence application stands some realistic chance of success: Lowry at para. 16; Schirmer at para. 54, bullet 12. This relevance threshold, though significant enough to weed out applications that are speculative and unmeritorious, is not an onerous one: Lowry at para. 18; Schirmer at para. 54, bullet 14. The appeal court’s role on such an application is not to determine whether the records would be admissible as fresh evidence, but rather to determine whether the records could realistically assist in a potentially successful fresh evidence application: Lowry at para. 18; Schirmer at para. 54, bullet 13.
[62] Sixth, in an application for first party disclosure, where the records in issue are not privileged or subject to any statutory disclosure restrictions, and the Crown is unable meet the burden of showing that there is no reasonable possibility they could assist the appellant in the prosecution of the appeal, then the analysis comes to an end. The appellant’s application must be granted, and the appeal court will issue an order under s. 683(1)(a) of the Criminal Code: Schirmer at para. 54, bullets 7–9.
[63] Seventh, in an application for third party production, even where the appellant meets the burden of showing a reasonable possibility that the records could assist in the successful prosecution of the appeal, the analysis is not over. The appeal court must go on to consider assertions of privilege, legislated confidentiality, third party privacy interests, and other third party rights that could weigh against the issuance of a production order: Lowry at para. 19; Schirmer at para. 54, bullet 16. The court must consider all of these things before determining whether an order under s. 683(1)(a) should issue for production of third party records.
Aucun commentaire:
Publier un commentaire