CITATION: R. v. Patel, 2026 ONSC 167

COURT FILE NO.: CR-22-50000248-0000

DATE: 20260108

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

DIPESH PATEL

Counsel:

Michael Wilson, Brady Donohue, for the Crown

Mr. Patel, self-represented

Marissa Etwaroo, David Goodman, and Jeffrey Berman, amicus

Jason Kirsh, Ministry of the Solicitor General

HEARD: December 18, 2025

RULING ON THIRD PARTY RECORDS APPLICATION (STAGE 1)

R. MAXWELL J.

1The Applicant Mr. Patel brings an application for production of records in the possession of the Ministry of the Solicitor General (the “Ministry”). Mr. Patel is currently incarcerated at the Toronto South Detention Centre (“TSDC”), operated by the Ministry. He has been so since December 13, 2019.

2On or about May 6, 2025, Mr. Patel served subpoenas on the Ministry seeking various documents including policies related to transfers to and from the TSDC, the SAFER (Security Assessment for Evaluating Risk) program, and other documents related to his time at TSDC and other institutions within the control of the Ministry.

3On June 5, 2025, the Ministry hand-delivered a letter to Mr. Patel advising that some documents had been delivered to amicus, some documents remained outstanding, and some requested documents would require a third-party records application.

4On November 7, 2025, the parties appeared before me to discuss, among other things, the possibility of resolving the records request on consent and without a formal application. On November 24, 2025, Mr. Kirsh for the Ministry sent a proposed draft undertaking which contemplated amicus undertaking to take and maintain possession of policies and videos. The Applicant would be able to review the policies with amicus but would not maintain possession of them. The Ministry proposed the undertaking to help balance Mr. Patel’s request with the institution’s security concerns about the release of information about their policies to an inmate. Amicus’ position was that they were not in a position to maintain the records if the records are voluminous. The Ministry and amicus counsel had correspondence back and forth about the undertaking, but ultimately, the undertaking was never signed.

5On December 10, 2025, Mr. Patel served his application on the Ministry and the prosecuting Crown attorneys. The matter proceeded to its motion date of December 18, 2025.

Applicable Legal Principles

6The production of third-party records is subject to a two-stage test set out in the Supreme Court of Canada's decision in R. v. O'Connor, 1995 51 (SCC). At the first stage, the onus is on the Applicant to demonstrate that the material sought is likely relevant to an issue in the proceedings or the competence of a witness to testify: R. v. McNeill, 2009 SCC 3, at para. 33. At the second stage, the Court reviews the records and determines whether the records are indeed relevant, and to what extent production to the Applicant is necessary in the interests of justice: McNeill, at para. 42

7At the second stage, the Court must consider the “salutary and deleterious effects” of the determination on the accused’s right to make full answer and defence, and competing rights to privacy and dignity.

8The standard of “likely relevant” is met where there is a “reasonable possibility that the record is relevant to an issue at trial”: O’Connor, at para. 22. It must be logically probative to an issue at trial or the competence of a witness to testify.

9The threshold is not an onerous one. The question is whether the right to make full answer and defence is implicated by the information contained in the records: O’Connor, at paras. 21 and 24.

10However, as the Court made clear in O’Connor, the test for “likely relevance” is higher than a question of whether the information may be useful to the defence and requires more than a mere possibility that there may be a statement or something relevant to an issue to be determined by the Court.

11Further, The Ontario Court of Appeal has instructed that "the applicable standard in the third party/O'Connor production regime is more demanding than "whether the information may be useful" criterion which defines first party/Stinchcombe disclosure. That a more stringent standard applies is consonant with the underlying policy considerations and the gatekeeper function assigned to the Court: R. v. Jackson, 2015 ONCA 832, [2015] O.J. No. 6274, at para. 138.

12Mr. Patel asserts that the policies and procedures related to the transfer and involuntary transfer of inmates are likely relevant to issues which he wishes to raise as part of his anticipated application under s. 7, 11(b) and 11(d) of the Charter and/or at his sentencing hearing.

13He asserts that his transfers from TSDC to the Toronto East Detention Centre (“TEDC”) on December 8, 2022 and on January 24, 2025 were unlawful and impacted his rights under s. 7, 11(b) and 11(d) of the Charter. Specifically, he submits that as a result of the transfers, his case disclosure, case notes, college course work, personal books, hygiene products, personal writings, letters, pictures, personal contact information, and his glasses were lost or thrown out.

14To that end, he requests the institutional Service Manual for Policies and Procedures on transfers and involuntary transfers (Mr. Patel accepts that the Ministry has already provided him with two other manuals listed in his Notice of Application: the manual on “unrepresented inmates” and the manual on “inmates’ personal electronic devices” [category 10]

15Having regard for Mr. Patel’s anticipated Charter application in which he intends to claim the TSDC’s decision to transfer him to the TEDC infringed on his Charter rights, in that the decision impacted his ability to access his disclosure and make full answer and defence, I am satisfied that the policies and procedures related to transfers and involuntary transfers meets the test for “likely relevant” and should be produced to the Court for review.

16The Ministry requests that any production of the records be subject to redactions and other conditions. To that end, the Ministry should submit for the Court’s review the policies related to transfers and involuntary transfers in unredacted form to the Court, as well as any proposed redacted version of the policies and/or procedures, and any proposed conditions for release (including the proposed undertaking to amicus counsel which the Court has not seen).

The SAFER (Security Assessment for Evaluating Riskˀ) Program Policies/Records

17Mr. Patel argues that the policies and procedures related to the SAFER program are relevant to the Charter application he seeks to advance. Specifically, he submits that the SAFER program led to restrictions being placed on his unit (A4B) which had a negative impact on his well-being while at the TSDC and further, that the institution applied the program differentially against him to frustrate him and impede his ability to work on his defence.

18To that end, he seeks Information about the SAFER program, including how inmates are “scored”, an explanation of each security classification (minimum, medium, maximum) and the protocol/criteria for protective custody security classification. [category 6]

19In its written response, the Ministry states that it intends to provide a redacted version of the SAFER program policies and procedures which are relevant to the Applicant.

20I am satisfied that the SAFER policies and procedures meet the “likely relevant” standard and should be disclosed to the Court for review. Therefore, the Ministry shall produce the policies and procedures related to the SAFER program which are relevant to an inmate in Mr. Patel's position, and which address the specific areas raised by Mr. Patel in his application concerning scoring and classification of inmates.

21Mr. Patel also requested, “the same information about SAFER given to the appellant in Ontario (Solicitor General) (Re), 2025 41579 (ON IPC) [category 7]. The Ministry advised that this proceeding related to a request for records which existed from January 1, 2021 to July 28, 2022.

22I am not satisfied that this request meets the standard of “likely relevant”. Mr. Patel has not set out why records concerning the SAFER program dating two and half years before the program was implemented in his unit (which was January 13, 2025) has any relevance to an issue to be determined by the Court. The request set out in category 7 in Mr. Patel’s application is dismissed.

TSDC Security Video

23Mr. Patel seeks production of all security video footage of unit A4B at TSDC between January 13, 2025 and the present day [category 8]. The Ministry is only in possession of video footage starting from August 24, 2025 and after. In oral submissions, Mr. Patel took the position that he is only seeking the video footage if he is not provided with the policies and procedures he has requested.

24I am not satisfied that the request for production of all security video from unit A4B at TSDC meets the threshold of “likely relevant”. Mr. Patel has not articulated why the video footage is relevant. As Mr. Kirsh for the Ministry points out, there is no video footage of the dates of the two alleged unlawful transfers. Further Mr. Patel has not articulated why the video footage, spanning over 11 months, is likely relevant to his anticipated argument that the institutional practices related to the SAFER program compromised his ability to make full answer and defence and breached his Charter rights. General suggestions that the video footage will inform and or provide contacts that cells were unlocked, but prisoners were prevented from leaving their cells call, or to confirm that Mr. Patel was placed in protective custody for extended periods of time is not, in my view, sufficient to establish that the video footage is likely relevant.

25Therefore, the request for production set out as category 8 in Mr. Patel’s application is dismissed.

26Mr. Patel further argues that the TSDC caused prejudice to his ability to prepare his defence through its control over his movement within the institution which caused him disruption and delay in preparing his defence as a self-represented litigant.

27To that end, he seeks information about specific instances related to movement and transfer of inmates and information related to lockdowns: Specifically:

On February 24, 2022, two inmates on A4B unit cell #1 and cell #4 were re-tested for COVID-19; Mr. Patel seeks any notes from the nurse who took the test from the inmates, notes from the unit officer or notes in the logbook referring to the COVID-19 testing. Mr. Patel belief is that these two inmates tested “inconclusive” for COVID-19 but were not removed from the unit while he was removed from the unit because he was told he tested positive for COVID-19. [category 1]

28I am not satisfied that Mr. Patel has articulated why the records related to COVID-19 testing of two inmates is likely relevant to an issue to be determined by this Court. In particular, Mr. Patel indicated in his application that both the names of the inmates as well as the test results should be redacted. As such, it is unclear why the balance of the records would have any relevance if the results of the testing are not produced. Therefore, the request for production of the medical and/or other records related to the COVID-19 testing of two inmates on unit A4B is dismissed.

29Mr. Patel also requests:

Records of who authorized his transfer from unit A4B to medical unit A on February 25, 2022; [category 2]
Records confirming his movement/transfers from February 25, 2022 to March 9, 2022; [category 2]
Records confirmation that unit A4B was on Droplet Protocol Lockdown between February 10, 2022 to March 1, 2022; [category 2]
His COVID-19 test results between February 10, 2022 to March 9, 2022. [category 2]

30Having regard for Mr. Patel’s anticipated Charter argument that the policies and practices in the institution’s, as it relates to his movement within the institution, impacted his ability to access his disclosure and make full answer and defence, I am satisfied that the requested items set out in category 2 in the application meet the standard of “likely relevant” and should be produced to the Court for review. It may be, as Mr. Kirsh noted in his response that some of this information has already been provided to Mr. Patel through disclosure of his medical files within the institution. To the extent that it has not been disclosed, the information requested should be produced to the Court for review.

31Mr. Patel also requests:

Records confirming all dates that unit A4B was on Droplet Protocol Lockdown between January 2022 and December 2024 [category 3]

32For the same reasons set out above regarding production of category 2 records, I am satisfied that this information meets the standard of “likely relevant” and should be produced to the Court for review.

33Mr. Patel further seeks records concerning:

his movement at the TSDC from January 17, 2023 to January 31, 2023 and the inmate who was transferred with him from TEDC to TSDC on January 17, 2023 from Administration & Discharge at TSDC to the unit he was placed in. Mr. Patel asserts that when he and this inmate were transferred back to TSDC, he was kept in Administration and Discharge while the other inmate was returned to unit A4B [category 4]

34Subject to the redaction of the inmate’s name, I am satisfied that this information meets the standard of “likely relevant” and should be produced to the Court for review.

35Mr. Patel further seeks production of:

Logbook records of when two inmates were returned to unit A4B, specifically time and date, when they were transferred from TEDC to TSDC on or about January 24, 2025 [category 5]

36Based on my understanding of what Mr. Patel’s anticipated arguments will be on the Charter application as it relates to his movement within the institution and how that movement may have impacted on his ability to make full answer and defence, I am satisfied that the logbook records meet the standard of “likely relevant” and should be produced to the Court for review, subject to the redaction of inmate names.

37Mr. Patel requests the inmate count on unit A4B from January 13, 2025 to the present day. [category 9]

38Mr. Patel has not articulated in his written materials or in his oral submissions why this information is likely relevant to the issues to be determined on his anticipated Charter application or on the sentencing.

39Therefore, the request for production set out as category 9 in Mr. Patel’s application is dismissed.

Court Orders

40Mr. Patel requests copies of court orders in unrelated matters (re: Jason Dicken; Re: Michael Ivezic). [categories 11 and 12]

41The Ministry is not the record holder for court orders and the request for production is therefore dismissed. With that said, the Ministry is invited to provide Mr. Patel with a courtesy copy of these orders if they are in the Ministry’s possession.

42Mr. Patel seeks production of any policies or procedures on how an inmate can have a subpoena sworn and served. [category 13]

43The Ministry has responded to this request and confirmed it has not identified any responsive record on this point. The Ministry cannot produce what it does not have. This request is dismissed.

Policy/Information re: Books to Inmates

44Mr. Patel requests information as to why the institution does not allow books to be sent to inmates. [category 14]

45While Mr. Patel did not explicitly connect this request to the anticipated arguments on his Charter application, I am prepared to infer that he requests this information to support his argument that withholding books from inmates impedes the ability to make full answer and defence. I am therefore satisfied that the requested information meets the threshold of “likely relevant”. Any policy/procedure or explanation for why inmates are not permitted to have books sent to them should be produce to the Court for review.

Outstanding Records Previously Requested through Subpoenas

46The final category of requested production relates to a broad request that all outstanding records requested on previous subpoenas be provided. [category 15]

47This matter was discussed on the last appearance and the request was refined to request that all the materials provided by scanned in electronic form. Pursuant to the discussions, the Crown has undertaken to provide those materials to Mr. Patel in a scanned electronic form.

__________________

R. Maxwell J.

Released: January 8, 2026