Third Party Disclosure Applications in Canadian Criminal Law (O’Connor)

A third-party disclosure application, often called a TPDA or an O’Connor application, is the procedural mechanism that allows the defence in a Canadian criminal case to seek production of records held by someone other than the Crown or police. The records are typically held by medical providers, counselling services, schools, social workers, employers, or other third parties. The application is governed by a structured procedure that the Supreme Court of Canada laid out in R v O’Connor in 1995, and (for sexual offence files) by Sections 278.1 through 278.91 of the Criminal Code under what is called the Mills regime.

What is a Third Party Disclosure Application?

Crown disclosure under R v Stinchcombe covers material in the possession or control of the Crown and the investigating police force. That is the first universe of evidence the defence sees. The second universe is everything that is potentially relevant to the file but is held by someone who is not Crown and is not police. Those are third parties.

Common categories of third-party records that come up in BC criminal files include:

• Medical and hospital records for the complainant or other witnesses
• Counselling and therapy records, including sexual assault counselling notes
• School and university records
• Social services and child welfare records
• Employment records
• Mobile phone provider records (text content, call detail)
• Social media account content that Crown has not pulled
• Insurance investigation files

A defence lawyer cannot simply demand these records. The third party owes a duty of confidentiality to the person whose records they are. The court has to authorize production, the third party has to be put on notice, and the person whose records are at stake has the right to be heard. The procedure is what protects the privacy interest while permitting genuinely relevant material to come into the criminal proceeding.

The O’Connor Procedure for Third Party Records

For records that are not subject to the Mills regime (in other words, almost any record other than sexual assault counselling records), the procedure is the O’Connor procedure from R v O’Connor, [1995] 4 SCR 411.

O’Connor sets a two-stage test.

Stage one: likely relevance. Defence applies to the court and must show on the application that the records sought are likely relevant to an issue at trial or to the competence of a witness to testify. The threshold is low (lower than the relevance threshold at trial itself) because at this stage the court has not yet seen the records. The application has to identify the records with reasonable specificity, explain why they are likely relevant, and not be a fishing expedition.

Stage two: judicial review and balancing. If the court is satisfied at stage one, the third party is ordered to produce the records to the court (not to defence). The judge reviews the records and then balances the accused’s right to make full answer and defence under Section 7 of the Charter against the third party’s privacy interest. Only records the judge finds genuinely relevant and where disclosure outweighs the privacy interest are then released to the defence.

The O’Connor balancing factors include the necessity of the record for the accused’s defence, the probative value of the record, the privacy interest in the record, the existence of a confidential relationship between the witness and the record-holder, and the potential prejudice to the integrity of the trial process if the record is or is not produced.

Section 278 Mills Regime for Sexual Offence Records

After the Supreme Court of Canada decided O’Connor in 1995, Parliament responded with a statutory regime specifically for sexual offence files. That regime is now codified in Sections 278.1 to 278.91 of the Criminal Code. It is more restrictive than O’Connor and applies in any prosecution for a sexual offence listed in Section 278.2 (Section 271 sexual assault, Section 272, Section 273, and a long list of related offences).

Under Section 278, defence cannot obtain a complainant’s personal records related to the sexual offence allegation through the ordinary O’Connor procedure. Instead, defence must apply under Section 278.3, satisfy the statutory grounds in Section 278.5 (likely relevant and necessary in the interests of justice), and the application is judged against the additional factors in Section 278.5(2), which include the right of the accused to make full answer and defence, society’s interest in encouraging the reporting of sexual offences, and the privacy and equality rights of the complainant.

The Supreme Court of Canada upheld the Mills regime as Charter-compliant in R v Mills, [1999] 3 SCR 668. The Court held that the regime balanced the rights of the accused with the privacy and equality interests of complainants and that the additional procedural hurdles were justified given the unique nature of sexual offence prosecutions.

In practical terms, the Mills regime means that defence applications for counselling records, therapy records, and similar materials in BC sexual offence prosecutions face a higher threshold and a more structured procedure than other third-party records. Crown is heard. Complainant counsel is heard. The judge controls every step.

What Defence Must Establish on a TPDA

The threshold defence has to meet on a TPDA depends on which regime applies, but the broad architecture is consistent.

Likely relevance to an issue at trial. Defence has to articulate a specific evidentiary issue (the credibility of a witness, the accuracy of a description, the existence of a prior inconsistent statement, mental health factors affecting reliability) and tie the records sought to that issue. Generic curiosity does not meet the threshold.

Specificity in identifying the records. Defence has to name the third party, identify the time period, and describe the records with enough specificity that the third party can locate them. A request for “everything held by Provider X” usually fails.

Necessity (under Mills). If the file is a sexual offence file, defence has to establish necessity in the interests of justice. The application has to show why the records are not just relevant but actually needed for full answer and defence.

Notice to affected parties. The third party gets notice and an opportunity to respond. The person whose records they are gets notice (often through Crown). Both can object.

Sealed review by the judge. Where the application succeeds at the first stage, records go to the judge sealed for review. The accused does not see them until the judge orders specific records released.

Julian Van Der Walle has done TPDA work in BC criminal files at the Vernon Law Courts, the Kelowna Law Courts, and elsewhere across the BC Interior. The work happens early in the file timeline, often before trial dates are set, because the records take time to obtain and review.

Timing: When in the Criminal File a TPDA Happens

Third-party disclosure applications are usually filed after Crown disclosure has been received and reviewed and before trial dates are set. The timing matters for two reasons.

First, the application has to identify likely relevance, which usually requires the defence to know what Crown has and what is missing. That requires reviewing Crown disclosure first.

Second, third parties need time to find and produce the records. Hospitals, schools, counselling services, and other record holders are not set up to respond quickly to court orders. Building in the time to obtain, review, and rule on the records means the application has to be filed early. Filing in the weeks before trial almost always results in adjournments.

Contact Julian Van Der Walle Law

If you are facing a criminal charge in BC where third-party records could materially affect the defence, the time to start the TPDA work is now. Julian represents clients across Vernon, Kelowna, Penticton, Salmon Arm, and the Kootenays. The first consultation is free.