Disclosure-3rd party O'Connor records-subpoena duces tecum

Moderators: Radar Identified, Reflections, admin, hwybear, Decatur, bend

jsherk
High Authority
High Authority
Posts: 1722
Joined: Thu Jul 26, 2012 1:18 pm

Disclosure-3rd party O'Connor records-subpoena duces tecum

by: jsherk on
Sat Dec 24, 2016 9:54 pm

The 2015 R v Jackson ( http://canlii.ca/t/gmblf ) ONCA ruling does a really good job of breaking down the disclosure that must be provided by the prosecution (1st party Stinchombe) versus what it does not have to disclose (3rd party O'Connor).

So one of the last trials I was at, I tried to make the argument that some items I had requested were obviously relevant and therefore fell under the 1st party disclosure requirement even though they were 3rd party records (see paragraphs [116] & [124] of R v Jackson). The JP disagreed that they were obviously relevant, and stated they were 3rd party records and did not need to be disclosed by the prosecution. I then said "Okay, I need a subponea duces tecum for O'Connor 3rd party record production" (see paragraphs [84] & [130] of R v Jackson). The JP basically said that he did not know what I was talking about, and whatever that was needed to be brought in the proper form.

So my questions is, How do you get a subponea duces tecum so you can serve it on the 3rd party?
+++ This is not legal advice, only my opinion +++




jsherk
High Authority
High Authority
Posts: 1722
Joined: Thu Jul 26, 2012 1:18 pm

by: jsherk on
Sun Dec 25, 2016 9:05 am

No, the JP said they did not believe it met the requirement of "obviously relevant" for 1st party stinchcombe disclosure, and said it was 3rd party and the the prosecution did not have to disclose it.

The JP did NOT comment as the whether it was "likely relevant" or not, which is the requirement for 3rd party disclosure. Since we were dealing with 1st party disclosure, the JP had no obligation to comment on whether they thought it was "likely relevant" or not with regards to 3rd party disclosure, and even said something along those lines to me of: "if you bring the proper form before me then I can consider it, but I am not doing that today".

You have to read the whole R V Jackson case to see that there is a difference between "obviously relevant" and "likely relevant".
+++ This is not legal advice, only my opinion +++


Zatota
Sr. Member
Sr. Member
Posts: 278
Joined: Tue Aug 16, 2016 10:09 am
Location: Thornhill

Posting Awards

by: Zatota on
Mon Dec 26, 2016 12:29 pm

Sadly, this situation adds fuel to the fodder for those who believe Ontario JPs do not receive sufficient legal training for their jobs. While I am not one of those people (I do believe JPs are sufficiently trained for what they do), would it not make sense that a JP at least know what a subpoena duces tecum for O'Connor production is? Maybe the JP does not have to be familiar with the subpoena process, but he or she should at least know what it is!




Post Reply
  • Similar Topics

Return to “General Talk”

Who is online

Users browsing this forum: No registered users and 13 guests