James E. Weppler

Several First Nations accused sought disclosure of 2013 jury rolls in advance of a planned constitutional application alleging underrepresentation of Indigenous jurors in jury pools.

They argued the records were relevant to a forthcoming application under ss. 7, 11(d), and 11(e) of the Canadian Charter of Rights and Freedoms and to a potential s. 11(b) delay claim arising from the litigation of that issue.

The court held that the requested materials were governed by the third‑party disclosure framework from R. v. O'Connor because the records were held by a separate government entity rather than the prosecuting Crown.

Applying the likely relevance threshold, the court concluded the jury rolls could assist in determining whether delays associated with the application should be characterized as institutional delay or delay attributable to the accused.

Disclosure was therefore ordered subject to privacy undertakings.

The accused brought an application under s. 278.3 of the Criminal Code seeking production of third‑party records from a psychologist and a children’s aid society relating to the complainant in a sexual assault prosecution.

The defence argued the records were likely relevant to credibility and reliability because the complainant had stated he sometimes “made things up” or misinterpreted events.

The court applied the framework from R. v. Mills and R. v. O’Connor governing production of confidential records and held that the threshold of likely relevance was met for the psychologist’s records.

Those records were ordered produced to the judge for review for the period April 1, 2009 to July 24, 2013.

Although the evidentiary basis for production of children’s aid society records was not otherwise established, the court ordered production of the records already obtained by police because they had been improperly requested and reviewed during the investigation.

The appellants, two youthful aboriginal offenders, were convicted of offences arising from a home invasion and sentenced to four years' imprisonment.

On appeal, they argued the trial judge failed to properly apply the Gladue principles and erred in treating the sentencing range for home invasions as a mandatory minimum.

The Court of Appeal allowed the appeals, finding the trial judge gave insufficient weight to restorative justice objectives and the recommendations of a sentencing circle.

The court varied Jacko's sentence to two years less a day conditional, given his extraordinary rehabilitative efforts, and varied Manitowabi's sentence to two years less a day in jail followed by probation.