Court File and Parties

COURT FILE NO.: CR-22-018

DATE: 20220912

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Brazier

BEFORE: Justice C. Boswell

COUNSEL: Indy Kandola and Susan Safar for the Crown Anthony G. Bryant and Stephanie Marcade for Mr. Brazier

HEARD: September 12, 2022

ENDORSEMENT on CrowN’s O’connor Application

[1] Mr. Brazier’s trial on drug trafficking and manslaughter charges was scheduled to commence today before me, sitting without a jury.

[2] Mr. Brazier is alleged to have sold drugs, including heroin and fentanyl, to a young man named James Glover on March 23, 2020. Mr. Glover died of a drug overdose later that same day, purportedly after ingesting the drugs sold to him by Mr. Brazier.

[3] Mr. Glover had just been released from an in-patient addictions program at the Waypoint Centre for Mental Health in Penetanguishene on the date of his death. He was released early due to the onset of the COVID-19 pandemic. While at Waypoint, he befriended a woman named Michelle McTamney. Ms. McTamney spent the day with him on March 23, 2020 up until about 6:30 p.m. He died sometime later that evening.

[4] Ms. McTamney is a significant Crown witness because, amongst other things, she was with Mr. Glover when he purportedly purchased drugs from Mr. Brazier on at least one and possibly two occasions during the day on March 23.

[5] On August 2, 2022, Crown counsel received a letter from Ms. McTamney’s family physician, Dr. Ashfique Adlul. Dr. Adlul indicated that Ms. McTamney was not medically stable enough to testify in any trial that involves any form of trauma. Dr. Adlul authored a further letter to the Crown on September 1, 2022. He provided a significant amount of background information about Ms. McTamney’s struggles with addiction and mental health. He indicated that testifying at this trial will pose a serious risk to her mental health and to her life.

[6] In response to Dr. Adlul’s letters, the Crown has initiated an application to adduce a transcript of Ms. McTamney’s testimony at the preliminary hearing of this matter as her substantive evidence at trial. They will argue that she is unavailable, due to her health condition, to testify at trial and that it is therefore necessary to adduce her evidence through her preliminary hearing transcript. They will further argue that there are sufficient indicia of reliability associated with her preliminary hearing testimony to justify its admission.

[7] In an effort to develop a fulsome evidentiary record in support of its application, Crown counsel have subpoenaed medical records of Dr. Adlul in relation to Ms. McTamney. The parties are agreed that because Ms. McTamney has a privacy interest in those records, their disclosure to the Crown, and to defence counsel, is governed by the process established by the Supreme Court in R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411.

[8] In O’Connor, the Supreme Court directed that where records in which a person may have a reasonable expectation of privacy are sought from third parties, a two-stage application is required. At the first stage, the party seeking the records must establish that they are likely relevant to the proceedings. In other words, that there is a reasonable possibility that the records contain information logically probative of an issue at trial or the competence of a witness to testify.

[9] If the threshold at stage one is met, the application proceeds to the second stage. At stage two, the applications judge will review the records in issue to determine if disclosure is warranted, having regard to the competing interests at stake. Generally, those competing interests are the accused person’s right to make full answer and defence and the privacy interests of a third party in the records in issue. In this case, it is the public’s interest in the search for truth that must be balanced against Ms. McTamney’s privacy interest in the content of the medical records sought.

[10] The O’Connor regime was reconsidered and refined somewhat in R. v. McNeil, 2009 SCC 3. In McNeil, Justice Charron instructed that even where the applications judge determines that third party records ought to be produced, he or she must still consider any existing privacy interest in the records and determine whether any conditions ought to be placed on their disclosure, including redactions, where appropriate. As Justice Charron put it, a production order should be “tailored to meet the exigencies of the case but do no more”. (McNeil, para. 44).

[11] The threshold at the first stage of an O’Connor application is not an onerous one. It is meant to weed out requests that are unlikely to be relevant or that are otherwise speculative, fanciful, disruptive or unmeritorious. The “likely relevant” threshold is “designed to prevent fishing expeditions, but nothing more.” See R. v. Gubbins, 2018 SCC 44, at para. 28.

[12] When