The Regional Municipality of York v. McGuigan

[Indexed as: York (Regional Municipality) v. McGuigan]

Ontario Reports Ontario Superior Court of Justice, Healey J. January 18, 2017 136 O.R. (3d) 149 | 2017 ONSC 436

Case Summary

Criminal law — Provincial offences — Discovery — Defendant charged with speeding — Justice of the peace ordering prosecutor to disclose manual that outlined testing procedures for Genesis Handheld Directional traffic radar device — Prosecutor applying successfully for certiorari to quash disclosure order — Remedy of certiorari available as disclosure order affected legal rights of prosecution on final basis — Testing procedures not constituting "fruits of the investigation" and not falling within Stinchcombe first-party disclosure regime.

The defendant was charged with speeding. He applied successfully for an order requiring the prosecutor to disclose a user's manual that outlined the testing for the Genesis Handheld Directional traffic radar device. The prosecutor brought an application for an order of certiorari quashing the disclosure order.

Held, the application should be allowed.

The York Regional Police ("YRP") and the provincial prosecutor were not a single Crown entity for the purpose of disclosure. The YRP was entitled to take a position with respect to the disclosure order, and should have been served with notice of the application. However, the failure to do so should not act as a bar to deciding the application.

The remedy of certiorari was available as the disclosure order affected the legal rights of the prosecutor on a final basis.

The testing procedures were not "fruits of the investigation" and did not fall within the Stinchcombe first-party disclosure regime. Rather, the user's manual was a third-party record. The justice of the peace erred in ordering the prosecutor to disclose it.

R. v. Jackson (2015), 128 O.R. (3d) 161, [2015] O.J. No. 6274, 2015 ONCA 832, 25 C.R. (7th) 243, 87 M.V.R. (6th) 5, 342 O.A.C. 284, 332 C.C.C. (3d) 466, distd

Foote v. North Bay (City), [2006] O.J. No. 4035, 2006 ONCJ 369; R. v. Gagliano, [1996] O.J. No. 5409 (C.J. (Prov. Div.)); R. v. Irwin, [2007] O.J. No. 3840, 2007 ONCJ 440, 59 M.V.R. (5th) 145, 75 W.C.B. (2d) 572; R. v. McNeil, [2009] 1 S.C.R. 66, [2009] S.C.J. No. 3, 2009 SCC 3, 246 O.A.C. 154, 238 C.C.C. (3d) 353, EYB 2009-153175, J.E. 2009-174, 301 D.L.R. (4th) 1, 383 N.R. 1, 62 C.R. (6th) 1; [page150] R. v. O'Connor, [1995] 4 S.C.R. 411, [1995] S.C.J. No. 98, 130 D.L.R. (4th) 235, 191 N.R. 1, [1996] 2 W.W.R. 153, J.E. 96-64, 68 B.C.A.C. 1, 103 C.C.C. (3d) 1, 44 C.R. (4th) 1, 33 C.R.R. (2d) 1, 29 W.C.B. (2d) 152; R. v. Shan, [2016] O.J. No. 2527, 2016 ONCJ 289; R. v. Shannon, [1992] O.J. No. 2652, 64 O.A.C. 81, 42 M.V.R. (2d) 128, 18 W.C.B. (2d) 154 (C.A.); R. v. Stinchcombe, [1991] 3 S.C.R. 326, [1991] S.C.J. No. 83, 130 N.R. 277, [1992] 1 W.W.R. 97, 83 Alta. L.R. (2d) 193, 120 A.R. 161, 68 C.C.C. (3d) 1, 8 C.R. (4th) 277, 18 C.R.R. (2d) 210, J.E. 91-1713, EYB 1991-66887, 14 W.C.B. (2d) 266, consd

Other cases referred to Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, [1994] S.C.J. No. 104, 120 D.L.R. (4th) 12, 175 N.R. 1, J.E. 95-30, 76 O.A.C. 81, 94 C.C.C. (3d) 289, 34 C.R. (4th) 269, 25 C.R.R. (2d) 1, EYB 1994-67668, 51 A.C.W.S. (3d) 1045, 25 W.C.B. (2d) 304; R. v. Black, [2011] A.J. No. 1291, 2011 ABCA 349, 515 A.R. 319, 21 M.V.R. (6th) 169, 54 Alta. L.R. (5th) 12, [2012] 3 W.W.R. 637, 90 C.R. (6th) 362, 286 C.C.C. (3d) 432, 102 W.C.B. (2d) 58 [Leave to appeal to S.C.C. refused [2012] S.C.C.A. No. 49]; R. v. Cunningham, [2010] 1 S.C.R. 331, [2010] S.C.J. No. 10, 2010 SCC 10, 399 N.R. 326, 2010EXP-1163, J.E. 2010-626, EYB 2010-171414, 317 D.L.R. (4th) 1, 73 C.R. (6th) 1, 254 C.C.C. (3d) 1, 283 B.C.A.C. 280, 87 W.C.B. (2d) 70

Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, s. 784(1) Provincial Offences Act, R.S.O. 1990, c. P.33, Part I [as am.]

APPLICATION for an order of certiorari quashing a disclosure order.

C. Bendick, for applicant. Respondent, self-represented. J. Navarrete, for intervenor Ontario Paralegal Association.

HEALEY J.: —

Nature of the Application

[1] The applicant seeks an order of certiorari quashing a disclosure order made by Her Worship Shousterman on September 13, 2016.

[2] The applicant alleges that the justice of the peace erred in making an order requiring the applicant to provide a copy of a portion of a user's manual that outlines the testing procedures for the Genesis Handheld Directional traffic radar device ("GHD"). The GHD was used by a York Regional Police officer prior to charging the respondent with the offence of speeding.

[3] The Ontario Paralegal Association was granted intervenor status in this matter on consent of the parties.

[4] The issues raised by this case are important to both parties. Provincial prosecutors must have clarification as to whether they have an obligation to disclose the testing procedures contained in such manuals, or whether they are [page151] third party records. For the many paralegal agents who litigate speeding offences in Provincial Offences Court, the process for dealing with the disclosure of this material is important.

Issues

[5] The primary issues to be determined are as follows:

(1) Should the court consider the application for certiorari where not all potentially affected parties are before the court, namely, the York Regional Police ("YRP")?

(2) If the justice of the peace made an error of law in ordering the disclosure, is the remedy of certiorari available?

(3) Is the manual containing the testing procedures a third party record and, if so, did the justice of the peace err in ordering that it be disclosed by the applicant?

(4) If the testing procedures are not a third party record, has the applicant already fulfilled its disclosure obligations?

The Facts

[6] The respondent was charged with the offence of "speeding 75 km/h in a 60 km/h zone", having received a certificate of offence under Part I of the Provincial Offences Act, R.S.O. 1990, c. P.33. Such speeding charges are, by far, the most common charge laid by the YRP. Mr. Hans Saamen, director of prosecutions for the Regional Municipality of York, provided an affidavit stating that the region receives over 40,000 speeding charges a year from YRP. Many charges result in a trial request.

[7] Over the years, such charges have invariably led to requests for disclosure of the testing procedures and/or manuals for the speed measuring device. In 2008, to reduce time spent responding to paralegal agents' requests for these documents, the region's prosecution office requested copies of the manuals from YRP, and provided those manuals to the agents who regularly appear in Provincial Offences Court. Mr. Thoma, a paralegal who represents the respondent in the prosecution, was one of the agents who signed for and received the various manuals in 2008, including the manual for the GHD. Mr. Saamen deposed that provision of these manuals was not provided as disclosure for any specific case, but rather so that the paralegal agents would have copies for their use, and so the prosecution office would not have to process ongoing requests for manuals or testing procedures.

[8] There is no evidence that the prosecutor's office ever had a policy or practice of photocopying the pages from the manual [page152] containing the testing procedures as part of its routine disclosure in cases of speeding offences.

[9] The portion of the 2008 GHD manual dealing with testing is approximately three pages in length. It is not particularly technical. It describes how a self-test check can be carried out by simply pressing the TEST button, and describes the tracking history to be carried out by an officer when using the GHD. In 2010, the manufacturer changed the testing portion of the manual by removing the tracking history and adding that the operator self-test must be completed by the officer prior to enforcement and at the conclusion of the officer's tour of duty if enforcement action was taken. The prosecution office received a copy of the updated manual from the YRP. Mr. Saamen is not aware of any further updates to the GHD manual since 2010, and the prosecutor's office does not have a means of knowing if and when the manuals are updated unless advised by the YRP.

[10] The trial of Mr. James McGuigan's charge was scheduled to proceed on September 13, 2016. On April 20, 2016, Mr. Thoma requested disclosure from the prosecutor's office, including the testing and operating procedures for the GHD. In response, the prosecutor's office advised that "full manuals on all speed measuring devices can be viewed at the Prosecutor's Office". Notwithstanding being advised that the manuals were available for viewing, Mr. Thoma again requested the "testing and operating procedures" for the GHD used by the officer to record Mr. McGuigan's speed, on two occasions before the trial date.

[11] At the commencement of the trial, Mr. Thoma brought an oral motion for disclosure of the testing procedures. He acknowledged in his submissions that he had prior receipt of the testing procedures and was aware that the manuals could be viewed at the prosecutor's office. In her submissions before Her Worship Shousterman, the prosecutor advised the court that the prosecution unit is no longer providing the testing procedures. One of the reasons provided for that change was the efficiency of using staff to provide such material. She stated:

As I indicated, Your Worship, it's not a document that is generated from our office. It's a police -- it's police property; they're using the device. It's something that is from their end, Your Worship. It has nothing to do with the prosecution office as far as generating it and providing it. As I indicated earlier, we do have the manuals on site to view. Our practice is not to photocopy and disclose them. We used to; that was our old practice. We no longer do that, your Worship.

[12] The prosecution was ordered to provide the pages of the manual containing the testing procedures. [page153]

Analysis

Should the court consider the application for certiorari where not all potentially affected parties are before the court, namely, the YRP?

[13] The first issue raised by the intervenor and respondent is whether the absence of the YRP, which the applicant asserts is the third-party record holder for the testing procedures, should prevent this court from considering this matter.

[14] The YRP was not served with this application, nor did it receive notice of Mr. Thoma's oral submission to Her Worship Shousterman. Mr. Navarette argues that this fact distinguishes this case from the situation in R. v. Jackson (2015), 128 O.R. (3d) 161, [2015] O.J. No. 6274, 2015 ONCA 832, in which the police service was served with an application to quash the disclosure disorder made by the trial judge, but opted not to attend the hearing. Watt J.A. concluded that the police service in question had a right of appeal in part because, as the putative third-party record holder, it was entitled to invoke the extraordinary remedy jurisdiction of the superior court of criminal jurisdiction to quash the order based on either jurisdictional error or error of law on the face of the record: Jackson, at para. 43. Further, as an unsuccessful applicant before the superior court of criminal jurisdiction, the police service was entitled to invoke s. 784(1) of the Criminal Code, R.S.C. 1985, c. C-46 to appeal to the Court of Appeal for Ontario: Jackson, at para. 44. Significantly, Watt J.A. characterized the police services' view that service upon it had been defective as irrelevant to its status as a third-party record holder.

[15] This case is different from Jackson in that the respondent does not believe that the YRP is the third-party record holder with respect to the document in question, and so did not approach the motion before the justice of the peace as a potential O'Connor application (derived from R. v. O'Connor, [1995] 4 S.C.R. 411, [1995] S.C.J. No. 98), as was the case in Jackson. As the party arguing that position, the applicant should have served the YRP with this application as a potentially affected party. The law is clear that the YRP and the provincial prosecutor are not a single Crown entity for the purpose of disclosure: R. v. McNeil, [2009] 1 S.C.R. 66, [2009] S.C.J. No. 3, 2009 SCC 3, at para. 25. The YRP would be entitled to take a position with respect to the disclosure order, which is final so far as it is concerned: Jackson, at para. 30. However, I do not believe that omission should act as a bar to deciding this application. If the YRP is dissatisfied with the decision made by this court, it has [page154] a right of appeal pursuant to s. 784(1) of the Criminal Code. As Watt J.A. ruled in Jackson, its rights and status as a third-party record holder are not changed by the issue of service.

If the justice of the peace made an error of law in ordering the disclosure, is the remedy of certiorari available?

[16] The intervenor also questioned whether the correct procedure for the applicant was an application for certiorari, but instead to have a trial followed by a possible appeal. This query may be seen to be answered in Jackson, at para. 37: "The parties -- the accused and the Crown -- must await the end of the trial to appeal the orders." However, the question of whether certiorari is available to the Crown for interlocutory orders of inferior courts was more fully dealt with in R. v. Black, [2011] A.J. No. 1291, 2011 ABCA 349, 515 A.R. 319, leave to appeal to S.C.C. refused [2012] S.C.C.A. No. 49. If the order is one that finally disposes of a legal right, then certiorari will be available to the Crown for both errors of jurisdiction and errors of law on the face of the record: Black, at para. 25. In so concluding, the Alberta Court of Appeal relied on the Supreme Court's decisions in Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, [1994] S.C.J. No. 104, at pp. 17-19; and R. v. Cunningham, [2010] 1 S.C.R. 331, [2010] S.C.J. No. 10, 2010 SCC 10, at para. 57. Both of these decisions confirm that the extraordinary remedy of certiorari is available where there has been a jurisdictional error and/or an error of law on the face of the record. As in Black, the disclosure order made by Her Worship Shousterman is one that affects the legal rights of the prosecution on a final basis, and as such, I conclude that it may seek the discretionary order of certiorari.

Is the manual containing the testing procedures a third party record and, if so, did the justice of the peace err in ordering that it be disclosed by the applicant?

[17] The applicant's position is that the justice of the peace erred in law in characterizing the excerpts from the manuals containing the testing procedures as first party records, when they should have been characterized as third party records governed by the disclosure regime outlined in O'Connor. They are not transformed into first party records simply because they happen to be in the possession of the applicant. The applicant submits that the testing procedures for the GHD is a third party record and therefore not subject to the Stinchcombe first party [page155] disclosure obligations of the Crown (derived from R. v. Stinchcombe, [1991] 3 S.C.R. 326, [1991] S.C.J. No. 83). On that basis, the justice of the peace lacked jurisdiction to order disclosure of this record, as the respondent had not served a subpoena duces tecum upon the YRP, the party with possession and control of the testing procedures. The third party disclosure scheme set out in O'Connor requires, as a first step, that 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: O'Connor, at para. 134.

[18] The respondent and the intervenor submit that the testing procedure for the GHD is subject to Stinchcombe first party disclosure obligations, and therefore is not a third party record governed by the O'Connor production regime. As the Stinchcombe regime of disclosure extends to material in the possession or control of the Crown, and the applicant has admitted to possessing the radar manual containing the relevant portions, they must be disclosed as first party records. Further, as the prosecutor's office has admitted to providing the manual in the past before a change in their own policy, there is no concern regarding issues of privacy or privilege.

[19] Her Worship Shousterman accepted the respondent's submission, ruling that the manual is in the control of the prosecution service, that it was relevant to the ability of the respondent to make full answer and defence, and was not satisfied that the "new policy position of the Region" in refusing to photocopy and disseminate the testing procedures on the basis of resource efficiency was something that should be accepted. Again, there is no evidence from which to conclude that the pages containing the testing procedures had been copied and disseminated on a case-by-case basis in the past.

[20] The applicant relies in particular on the cases of Jackson and R. v. Shan, [2016] O.J. No. 2527, 2016 ONCJ 289, the latter of which raised and examined a question very similar to that which concerns this court, which was disclosure of "operating procedures and any sources of device interference as set out by the manufacturer" relating to a radar device. In Shan, those sections of the user's manual related to the device testing and setup had already been provided to the defence by the prosecution. The court ruled that the records in question were third party records, without specifically stating the basis upon which that conclusion was reached. The court referenced McNeil, at para. 22, as reaffirming the law in Stinchcombe that "the Stinchcombe disclosure regime only extends to material relating [page156] to the accused's case in the possession or control of the prosecuting Crown entity. This material is commonly referred to as the 'fruits of the investigation'". The justice also referenced Jackson, at para. 82, for clarity that the "fruits of the investigation" are "material gathered during the investigation of the offence with which the accused is charged". However, unlike the case before me, a copy of the manual was not housed at the prosecutor's office in Shan.

[21] The case of Foote v. North Bay (City), [2006] O.J. No. 4035, 2006 ONCJ 369 likewise involved a question of the Crown's obligation to disclose, in that case, the entire manual for the radar equipment used by the charging officer. As a ground of appeal, the offender asserted that the justice of the peace erred in law in not following the procedure laid out in Stinchcombe. The facts of the case suggest that the manual was in the prosecutor's office; the prosecutor had indicated to the agent that he was welcome to come to her office to peruse it. The court agreed that disclosure of the manual ought to have been made available so that the agent could look at it at his leisure and provide advice to his client. However, if the manual was available publicly then the prosecutor did not have the obligation to provide a photocopy or copy of the manual for inspection. These comments by the court, however, did not result in a successful appeal. The reviewing court noted that the justice of the peace had not been dealing with a motion for disclosure brought in a timely fashion, but rather with a request for a trial adjournment. The judge stated, at para. 37, that "[o]n a proper motion for disclosure brought in a timely way His Worship would no doubt have ordered disclosure if he was advised that the manual was not publicly available without the purchase of the device in question". Accordingly, Foote does not provide assistance to the analysis that must be done by this court. Similarly, another case included in the applicant's authorities, R. v. Irwin, [2007] O.J. No. 3840, 2007 ONCJ 440, 59 M.V.R. (5th) 145, is not of assistance in the analysis because the prosecutor had provided to the agent that portion of the manual dealing with the testing of the speed measuring device, and had made the rest of the manual available to the agent to view at the Ontario Provincial Police detachment in question. The agent was seeking production of the entire manual. The justice of the peace found that the delivery of the testing procedure for the speed measuring device, as well as making the manual available to the defendant at the police detachment, was the minimum requirement as per Stinchcombe, and so did not order that the manual be disclosed. [page157] Further, there was no relevance shown that would justify disclosure of the entire manual. The decision was upheld.

[22] The respondent and the intervenor submit that the issue in this case has already been determined in R. v. Gagliano, [1996] O.J. No. 5409 (C. J. (Prov. Div.)), which dealt with the issue of the disclosure of the testing procedures for a speed device. The prosecutor had possession of the manual, but had declined to produce copies of the testing procedure portion due to copyright infringement. Just as in Irwin, the request for disclosure of the entire manual was found to be too broad. However, the charges against the defendant were stayed on the basis that the defence had been entitled to production of that portion relating to the testing procedure in order to make full answer and defence, on the ground that the testing of the machine is a relevant aspect of the prosecution of speeding offences where a radar device has been used. This case predates McNeil and Jackson, but not O'Connor, and offers no analysis with respect to whether the testing procedures were third party record.

[23] The respondent and intervenor also rely upon R. v. Shannon, [1992] O.J. No. 2652, 64 O.A.C. 81 (C.A.), in which the offence charged was driving a motor vehicle with a radar warning device. The defence obtained an order prohibiting the holding of the trial until disclosure was made by the Crown of a copy of either the operator's handbook or the service manual for the interceptor device used by the arresting officer. On appeal, the order of prohibition was set aside and the matter remitted for trial. Again, this case is not determinative of the issue before me. The appeal was successful because the appellate court determined that the issue of the disclosure should not have been determined on motion, but rather by the trial judge, who would be in the better position to determine whether the technical information about the interceptor device was relevant to the conduct of the defence.

[24] Accordingly, the situation before this court appears to be somewhat novel and necessitates a return to first principles, and the cases of Stinchcombe, McNeil and Jackson to determine which disclosure regime applies in this case.

[25] Stinchcombe outlines the obligation of the Crown to disclose to the defence all material evidence whether favorable to the accused or not, subject to rules of privilege, while retaining a discretion to refuse to disclose information which is irrelevant: at pp. 13-14 and 19. At p. 7, Sopinka J. stated: "I would add that the fruits of the investigation which are in the possession of counsel for the Crown are not the property of the Crown for use in securing a conviction but the property of [page158] the public to be used to ensure that justice is done." As such, this first party production requires disclosure of information in respect of which there is a reasonable possibility that it may be used by the accused in the exercise of the right to make full answer and defence.

[26] In McNeil, Charron J. articulated the disclosure obligation in the context of drug charges. At para. 20, she stated:

Implicit in the Crown's broad duty to disclose the contents of its file under Stinchcombe are not the absence of any residual expectation of privacy, but rather the following two assumptions. The first is that the material in possession of the prosecuting Crown is relevant to the accused's case. Otherwise, the Crown would not have obtained possession of it (O'Connor, at para. 12). The second assumption is that this material will likely comprise the case against the accused. As a result, the accused's interest in obtaining disclosure of all relevant material in the Crown's possession for the purpose of making full answer and defence will, as a general rule, outweigh any residual privacy interest held by third parties in the material. These two assumptions explain why the onus is on the Crown to justify the non-disclosure of any material in its possession.

[27] Charron J. went on to state that the Stinchcombe disclosure regime only extends to material relating to the accused's case in the possession or control of the prosecuting Crown entity. This material is commonly referred to as the "fruits of the investigation": at para. 22.

[28] Black, decided two years after McNeil was released, considered a disclosure order made against both the Crown and the police service to disclose calibration logs/ records for the device used in charging the accused with impaired driving and driving with an illegal blood alcohol level, for the three months preceding and the two months following the date of the alleged offences. The disclosure order was quashed. The Alberta Court of Appeal held that the reviewing judge in the court below had erred in concluding that all relevant information in the hands of the police must be disclosed to accused persons as a matter of first party disclosure even if the information is not part of the fruits of the investigation: Black, at para. 29. In reaching the conclusion that these records should have been sought through an O'Connor application, Ritter J.A., writing for the majority, stated, at para. 39:

In this case, Black sought the calibration logs for the ASD [approved screening device] used by the investigating officer to assist in the formulation of his grounds to demand a breath sample for analysis. The process used by the Edmonton Police Service makes it clear that those logs were not created for the purposes of this investigation. Indeed, they were created before this investigation commenced. In short they are not the fruits of this investigation, nor is it possible to say that they fall into a category where they are as important as a conviction for perjury in attacking a witness's [page159] credibility. Since they are not the fruits of the investigation, and do not become so by virtue of the perjury analogy, these records are properly items of third party disclosure to which the O'Connor regime applies. Black did not advance a proper O'Connor application and no analysis under that regime was conducted by either the reviewing judge or the trial judge.

[29] All of which leads to the review of the law by Watt J.A. in Jackson pertaining to first party or third party disclosure processes. In Jackson, the issue was whether the disclosure/production sought by the respondent in relation to records and data pertaining to the intoxilyzer instrument were first party records governed by Stinchcombe. The records and data sought went beyond the disclosure package initially provided to the respondent, which had included records of the tests and checks done to ensure the instrument was in proper working order. The additional information sought by the respondent was the service records, usage and calibration records, and data relating to the 50 tests preceding and following the breath tests administered to the respondent.

[30] At para. 91 of Jackson, Watt J.A. stated that there are two principal factors that determine which disclosure/production regime will apply when an accused seeks disclosure of something the Crown has not provided. The first relates to the nature of the information sought, and the second concerns who is in possession or control of that information.

[31] For the same reason that Watt J.A. concluded that the records sought in Jackson were not part of the "fruits of the investigation" to be captured by first party disclosure, I find that in this case the testing procedures did not qualify as a consequence of the investigation of Mr. McGuigan. In the words of Watt J.A., "[t]he information was not created, produced or even located during the investigation of the respondent and his alleged offences. The records played no role in the acquisition of any evidence available for proffer in the prosecution of the respondent": Jackson, at para. 95.

[32] With respect to who is in possession or control of the records, I reach a different conclusion than that in Jackson. In Jackson, the evidence was unequivocal that the records sought were not in the possession of the prosecuting Crown: at para. 98. Here, the evidence is equally clear that the prosecutor's office has possession of the very manual containing the testing procedures sought to be disclosed. Nonetheless, as I read Jackson and McNeil, unless the document can properly be characterized as "fruits of the investigation", there is no obligation on the prosecutor's office to provide it as part of routine disclosure in speeding offences. This is so even if there is a reasonable possibility [page160] that the disclosure sought may assist Mr. McGuigan in the exercise of his right to make full answer and defence.

[33] As a result, I find that the justice of the peace erred in ordering that the testing procedures are required to be disclosed as part of the Stinchcombe first party disclosure obligations of the Crown.

[34] The position taken by the respondent is that any ruling that results in agents being required to commence an O'Connor application every time the testing procedure is sought would impair access to justice and clog up the courts with needless third party record applications, especially given the fact that the charge of speeding is the most common charge laid by the YRP. This submission disregards the fact that, in this region and others throughout the province, as is apparent from the case law, the disclosure sought is readily available for review at the prosecutor's office. There is no impediment to an accused making full answer and defence. From a practical point of view, an O'Connor application is not needed in this region. If more significant portions of the manual are sought, then it may be appropriate to bring an O'Connor application so that the court can consider the grounds upon which production is sought from the YRP as a third party, and the relevance of the material to an issue at trial.

[35] Also from a practical point of view, the YRP is not likely to change its practice of providing a copy of the manual to the prosecutor's office, so as not to be inundated with O'Connor applications solely to obtain the portions pertaining to the testing procedures.

[36] As such, it is not necessary to consider the remaining question.

[37] An order shall issue quashing the disclosure order made by the justice of the peace.

Application allowed.

End of Document