Canada: R v Jackson: Ontario Court Of Appeal Hears Moot Appeal Regarding Disclosure Application

In R v Jackson, the Ontario Court of Appeal made an order quashing a disclosure order made in the context of an impaired driving case. After receiving the usual disclosure provided on these cases, the accused applied for an order requiring disclosure of further records related to the history and performance of the device that measured his blood alcohol concentration. The trail judge ordered this disclosure which was subsequently upheld by a judge of the Superior Court of Justice.


Both the Crown and the Ottawa Police Service ("OPS') appealed the disclosure order. The appeal raised two preliminary issues: whether OPS had the right to appeal the decision of the motion judge; and whether the court should exercise its discretion to hear the appeal despite its mootness.

Critically, in this case the records in question were in the possession of the OPS. Moreover, OPS failed to attend the hearing of the application for disclosure, despite being served. Additionally, at the time of the appeal, the requested documents had already been disclosed to the accused.

The decision also addressed substantive issues related to Stinchcombe disclosure obligations and the O'Connor third party production regime.


The respondent accused argued that the Court of Appeal should not entertain an appeal by OPS because of its failure to appear before the trial judge. Despite this, the Court of Appeal held that the OPS had the right to appeal the order that it disclose the requested materials for the following reasons:

[41] First, the original application was styled "O'Connor/Stinchcombe Application" revealing some uncertainty on the part of the respondent about whether the records sought were subject to the first party disclosure regime of Stinchcombe or the third party scheme of O'Connor.

[42] Second, the respondent did not follow the procedure mandated by O'Connor for third party records. The respondent did not serve a subpoena duces tecum on the OPS as the third party record-holder. That the OPS chose to regard service upon it as deficient is neither here nor there to its status as a third party record-holder.

[43] Third, as the putative third party record-holder, the OPS was entitled to invoke the extraordinary remedy jurisdiction of the superior court of criminal jurisdiction to quash the order made by the trial judge based on either jurisdictional error or error of law on the face of the record.

[44] Fourth, as an unsuccessful applicant before the superior court of criminal jurisdiction, the OPS is entitled to invoke s. 784(1) of the Criminal Code to appeal to this court.

The second threshold issue considered by the Court of Appeal was mootness. In this case, the records sought and ordered disclosed by the trial judge had already been provided. The Court of Appeal articulated the test applicable when a party urges mootness and seeks to disentitle the opposing party to a hearing or decision on this basis. The court stated that:

[52] "[t]he court must first determine whether the essential tangible and concrete dispute – the lis inter partes– has disappeared and the issues have become academic. An affirmative response at this first step requires the court to determine next whether it should exercise its discretion to hear and decide the case (references omitted).

[53] To decide whether to exercise its discretion to hear and determine an appeal that is moot, a court should consider the extent to which each of the three distinct rationalia for the mootness doctrine is present:

  1. that a court's competence to resolve legal disputes is rooted in the adversary system that helps guarantee that issues are well and fully argued by parties who have a stake in the outcome;
  2. the concern for judicial economy; and
  3. the need for the court to demonstrate an awareness of its proper law-making function and the limits of that function so as to avoid intrusions into the role of the legislative branch (references omitted).

The Court of Appeal held that for several reasons, the court should exercise its discretion to determine the substantive issues raised on appeal. First, the issues raised were of common occurrence in the prosecution of alcohol driving offences. Second, the ruling was interlocutory and thus, would avoid appellate review until the final adjudication on the adequacy of the Crown's proof. Third, the third party and the intervener have interest in clarifying this issue of what disclosure and production is required regarding these records. Fourth, the Court of Appeal had the benefit of full argument on the issues. Finally, the Court of Appeal found the record to be adequate to make an informed decision on the issues in dispute.

On the substantive issues, the Court of Appeal found that the records requested by the accused were in the possession of the exclusive control of the OPS, who was a third party to these proceedings. As such, the court held that the records sought did not engage the first party disclosure scheme of Stinchcombe, but rather were records in the hands of third parties (OPS) to be disclosed where "likely relevant" and "reasonably available" according to the O'Connor regime. Based on the circumstances of the case, the Court of Appeal held that the respondent failed to meet the "likely relevant" standards as required by the O'Connor production regime. On this basis, the court quashed the disclosure order.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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