OHTA.ca

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?

If the JP has said they don't believe they are relevant it isn't likely they will sign a subpoena for them.

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".

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!

You would think that they should know what it is!