I still need to read it all, but that is interesting decision because I am currently working on how to get certain items that are 3rd party and would fall under the O'Connor request anyways.
This is quite a set back for defendants, especially those that are self-representing and know nothing of the court process. They will now not even be able to get the testing pages without doing an O'Connor request which of course they will have no clue how to do!
Even if the prosecution has a copy of the manual in their possession, there is no real way to know if it is the proper manual. The request for manual and certtificate of accuracy should be made as 3rd party request directly to police. I would previously of argued that the manual was Obviously Relevant and therfore fell under 1st party disclosure even though it was 3rd party, but this new decision seems to have made the decision that the manual is fully 3rd party and not obviously relevant.
R. v. Jackson, 2015 ONCA 832 http://canlii.ca/t/gmblf does a really good job of explaining the difference between a 1st Party Stinchcombe request (relevant), a 3rd Party Stinchombe request (obviously relevant) and a 3rd Party O'Connor request (likely relevant). I had recently gone thru this case, so this is what I see in the Jackson case:
R. v. Jackson, 2015 ONCA 832 http://canlii.ca/t/gmblf
1st Party Stinchcombe disclosure & relevant Relevant definition [120] Relevance is not a legal concept. It is a matter of everyday experience and common sense. It is not an inherent characteristic of any item of evidence. Some have it. Others lack it.
[122] Relevance is also contextual. It is assessed in the context of the entire case and the positions of counsel. Relevance demands a determination of whether, as a matter of human experience and logic, the existence of a particular fact, directly or indirectly, makes the existence or non-existence of another fact more probable than it would be otherwise: R. v. Cloutier, [1979] 2 S.C.R. 709, at p. 731.
First party disclosure [82] ... Relevant information includes not only information related to those matters the Crown intends to adduce in evidence against the accused, but also any information in respect of which there is a reasonable possibility that it may assist the accused in the exercise of the right to make full answer and defence: McNeil, at para. 17; Stinchcombe, at pp. 343-44.
3rd Party Stinchombe disclosure & obviously relevant Third party as First party disclosure & Obviously Relevant [116] In first party/Stinchcombe disclosure, "relevant" is characteristic of the material to be provided to an accused as "fruits of the investigation". In addition, although it may not fall fairly within the ordinary sweep of "fruits of the investigation", material that is "obviously relevant" to the defence case may need to be rustled up by the police, provided to the Crown and disclosed to the defence. Like the discipline records in McNeil. See McNeil, at para. 59.
[124] The McNeil court uses the term "obviously relevant" to describe information that would not fall within the compass of "fruits of the investigation", but would be of importance to the defence case. In McNeil, this information was police disciplinary records in the possession of a third party, the police department. Since it was "obviously relevant" to the credibility of the arresting officer and the reliability of his evidence, which was central to the prosecutions case, McNeil imposed an obligation on the police to obtain these records and provide them to the prosecuting Crown. It imposed a correlative duty on the Crown to disclose them to the defence as part of the Crowns Stinchcombe disclosure duty.
Third Party O'Connor disclosure & likely relevant Third party disclosure & Likely Relevant [128] The "likely relevant" threshold is not onerous because an applicant cannot be required, as a condition of accessing information that may assist in making full answer and defence, to demonstrate the specific use to which they might put information that they have not seen: R. v. Durette, [1994] 1 S.C.R. 469, at p. 499; OConnor, at para. 25; McNeil, at para. 29. The trial judge does not balance competing interests to determine whether the "likely relevant" threshold has been met under OConnor: McNeil, at para. 32.
[129] Under the third party/OConnor production regime, "likely relevant" means that there is a reasonable possibility that the information is logically probative to an issue at trial or to the competence of a witness to testify: OConnor, at para. 22; McNeil, at para. 33. An "issue at trial" includes not only material issues concerning the unfolding of the events which form the subject- matter of the proceedings, but also evidence relating to the credibility of witnesses and the reliability of other evidence: OConnor, at para. 22; McNeil, at para. 33.
Certain logs and records as obviously relevant or at least likely relevant [133] Prior to trial, the respondent received the disclosure package typically provided to those charged in similar circumstances. A videotape of the respondent providing breath samples. The police officers notes. The Intoxilyzer 8000C print out for the respondents test. The Certificate of an Analyst attesting to the alcohol standard. The Intoxilyzer instrument log, diagnostic tests and calibration checks. The certificate of the breath technician confirming the test results of 116 and 113 milligrams of alcohol per 100 millilitres of blood.
Third Party O'Connor request - subpoena duces tecum [84] The third party scheme involves two steps or stages. It is initiated by service of a subpoena duces tecum on the third party record-holder, as well as a notice of application and supporting material on the record holder and prosecuting authority: OConnor, at para. 134.
[130] Under OConnor, an applicant who satisfies the "likely relevance" standard is entitled to have the records sought produced to the trial judge for inspection to determine whether, or to what extent, the records will be produced to the applicant: McNeil, at para. 34.