COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Gravesande, 2015 ONCA 774
DATE: 20151113 DOCKET: C58782
Hoy A.C.J.O., Weiler and Pardu JJ.A.
Her Majesty the Queen
Marie Henein, Scott Hutchison and Matthew Gourlay, for the appellant
Luc Boucher and Jim Marshall, for the respondent
Luc Boucher and Jim Marshall, for the respondent
Heard: October 8, 2015
On appeal from the conviction entered by Justice Wayne G. Rabley of the Ontario Court of Justice on February 13, 2014.
 The appellant, an experienced defence lawyer, was convicted of smuggling drugs into the Toronto Jail for a former client in the course of a professional visit.
 A correctional officer, Darryl Beaulieu, found the drugs on the appellant’s former client, Joacquin Rowe. Beaulieu claimed that he searched Rowe before and after the appellant’s visit. He claimed that he did not find any drugs on Rowe during the first search; however, that first search did not comply with the prison’s protocols and, significantly, Beaulieu did not conduct a full strip search. During the second search, drugs were found in a sock hidden in Rowe’s underwear.
 The Crown alleged that the appellant was the one who provided the drugs to Rowe. The appellant denied the charge. Rowe did not testify nor did he provide any information about how he acquired the drugs.
 The Crown’s case against the appellant was circumstantial. Beaulieu and Nicu Sava, another correctional officer on duty on the night of the appellant’s visit, were the Crown’s most significant witnesses. Ultimately, the trial judge accepted the evidence of the Crown, including that of Beaulieu and Sava. Consequently, the trial judge rejected the appellant’s evidence, and convicted him.
 For the reasons that follow, I conclude that the trial judge’s verdict must be set aside. I come to that conclusion for two reasons. First, a review of the trial judge’s reasons demonstrates that he applied a stricter level of scrutiny to the appellant’s evidence than to the prosecution witnesses. Second, the trial judge erred in concluding that certain third-party records requested by the appellant were not likely relevant to an issue in the trial and, on that basis, refusing to review documents that had already been produced.
A. BACKGROUND IN BRIEF
 The appellant had represented Rowe in a trial which ended with Rowe being found guilty. Rowe had asked the appellant to represent him on a retrial for the same charges. According to the appellant, he was visiting Rowe to let him know that the appellant would not be able to represent him.
 The appellant arrived at the Toronto Jail around 7:10 p.m. He passed through security. The two guards on duty at the front desk spent about two minutes with him, but noticed nothing unusual – in particular, no unusual smell despite one of them being within 10 feet of the appellant.
 After passing through security, the appellant proceeded to the second floor where he was met by Beaulieu. At trial, Beaulieu testified that he immediately noticed a “strong smell of cologne and what I thought was marijuana mixed in with that smell”. Sava also testified that he noticed an odour of marijuana when the appellant arrived on the second floor – despite the fact that he was not in the hallway but at a table reserved for guards located at least 10 or 20 feet away.
 After directing the appellant to an interview room, Beaulieu contacted his supervisor, conveyed his suspicion that the appellant was carrying drugs, and asked for instructions. Beaulieu’s supervisor told him to follow the Standing Orders. The Standing Orders required a strip search of the inmate and a search of the interview room, before and after every professional visit. As will be discussed in greater detail later on, the correctional officers on duty did not comply with the Standing Orders.
 Beaulieu retrieved Rowe and took him to a room out of range of surveillance cameras in order to search him. Beaulieu had asked another correctional officer, William Greene, to be present for the search. However, Greene left shortly after the search began. Video surveillance played at trial showed Beaulieu briefly handling Rowe’s orange jumpsuit. Beaulieu gave the jumpsuit back to Rowe within three or four seconds of receiving it. Rowe was in the room for 75 seconds.
 During his examination-in-chief at trial, Sava testified that the interview room had been searched. However, when confronted with evidence to the contrary, he admitted that he had not searched the interview room.
 The appellant spent about 35 minutes in the interview room with Rowe. Following the meeting, Rowe was searched again and a black sock containing eight cellophane wrapped packages of marijuana, a package of lidocaine, some rolled marijuana cigarettes, and a piece of cellophane with lubricant on it was found in his underwear.
B. PROCEEDINGS BELOW
 The appellant was charged with one count of trafficking.
 Before his trial had begun, the appellant applied for production of certain third-party records that, broadly speaking, related to the frequency, prevalence, and nature of drug smuggling at the Toronto Jail. With the exception of some records not at issue on appeal, the trial judge dismissed the application. The application and the trial judge’s decision are discussed at greater length later on in these reasons.
 At trial, the Crown called a number of employees working at the Toronto Jail, the investigating officer, and an expert witness who testified about the value of the drugs found on Rowe. The appellant testified on his own behalf and also called a character witness.
 Ultimately, the trial judge decided that the appellant had smuggled the drugs found on Rowe. In coming to that decision, the trial judge reached the following conclusions as well:
· The smell of marijuana identified by Beaulieu and Sava arrived with the appellant, and that there was no innocent explanation for it.
· Rowe did not have the drugs on his person when he entered the interview room.
· Rowe did not have the black sock hidden in his jumpsuit before the interview and Beaulieu had searched his underwear to make sure nothing was hidden there.
 The trial judge stated that the appellant was a reasonable witness. However, the trial judge noted some weaknesses in his testimony and stated that the appellant was not compelling enough to leave the trial judge in a state of reasonable doubt. Ultimately, the trial judge accepted the Crown’s evidence, rejected that of the defence, and convicted the appellant.
C. DIFFERENT STANDARDS OF SCRUTINY
 This court has repeatedly stated that it is an error of law for a trial judge to apply a higher or stricter level of scrutiny to the evidence of the defence than to the evidence of the Crown: R. v. Owen (2001), 150 O.A.C. 378, at para. 3; R. v. H.C., 2009 ONCA 56, 241 C.C.C. (3d) 45, at para. 62; R. v. Phan, 2013 ONCA 787, 313 O.A.C. 352 at para. 30. However, as noted by Laskin J.A. in R. v. Aird, 2013 ONCA 447, 307 O.A.C. 183, at para. 39:
The "different standards of scrutiny" argument is a difficult argument to succeed on in an appellate court. It is difficult for two related reasons: credibility findings are the province of the trial judge and attract a very high degree of deference on appeal; and appellate courts invariably view this argument with skepticism, seeing it as a veiled invitation to reassess the trial judge's credibility determinations.
 For an appellant to successfully advance this ground of appeal, she must identify something clear in the trial judge’s reasons or the record indicating that a different standard of scrutiny was applied and something sufficiently significant to displace the deference due to a trial judge’s credibility assessments: R. v. Howe (2005), 192 C.C.C. (3d) 480 at para. 59 (Ont. C.A.); R. v. Rhayel, 2015 ONCA 377, 324 C.C.C. (3d) 362, at para. 98.
 In this case, the appellant succeeds on this ground of appeal. The trial judge’s reasons demonstrate that he rejected the appellant’s testimony for speculative reasons, while failing to apply similar scrutiny to the evidence of the Crown.
(1) Evidence of the appellant
 The trial judge summarized the appellant’s evidence in his reasons convicting the appellant as follows:
[The appellant] testified on his own behalf. [The appellant] was at the time of the trial 61 years of age and had practised as a lawyer for 22 years. He explained that he did not and would never have brought drugs into the Toronto Jail. He testified that every seasoned criminal lawyer knew that inmates were strip searched before and after visits with lawyers. According to Mr. Paul Copeland, [the appellant] is a lawyer who is a man of good reputation in the community as well as within the legal fraternity. Why, the question must be asked, would a lawyer who is in good standing, be so foolish as to take the chance to bring drugs into a jail and give them to a former client?
 The trial judge indicated that he could not “point to an area of [the appellant’s] examination in chief or cross-examination where I would say that his evidence was implausible or unbelievable.” However, he continued “[that] does not mean I found his evidence compelling enough to say I believed him or that it left me in a state of reasonable doubt”.
 The trial judge went on to note what he described as weaknesses in the appellant’s evidence. He identified the following “weaknesses”:
· The appellant was suffering from depression and taking medication for his depression at the time of the visit.
· The appellant could not remember his exact income when cross-examined on the issue. In respect of this issue, the trial judge stated that “a sole practitioner not only runs a law practise, he runs a business. It is hard to believe that he has no idea of what his bottom line was.”
· The trial judge found the appellant’s explanation for the visit, specifically that he went to inform Rowe that he could not represent him, hard to accept. The trial judge stated that “[on] its face, [the appellant’s] income seems to suggest that he might have room for other clients” and that the appellant could have “done the necessary steps to do a pre-trial and then set the matter once again for trial.” The trial judge stated that the appellant would “have had ample time to do the actual preparation given that the trial would likely be a number of months after the homicide case had been
· The trial judge also held against the appellant the fact that he was carrying a slender file. The trial judge stated that “it is curious that [the appellant]
would be working on a factum with respect to a serious fraud and have such a thin file with him. If he had said that he grabbed a piece of the file and put it into a file folder that would have made more sense.”
 With respect, it is difficult to see how any of the issues identified by the trial judge constitute “weaknesses” in the appellant’s testimony. The fact that, at the time of the visit, the appellant was suffering from depression does not make it more likely that he committed a criminal offence or was less credible at trial. The trial judge’s conclusions about a sole practitioner’s knowledge about his business, the appellant’s schedule, or the size of his file are all based on speculation.
 The trial judge described the deficiencies in the appellant’s evidence as “small weaknesses”. He said he would not reject his evidence on the basis of these small issues but indicated “they are a bit troublesome and cause me some concern.” In respect of the size of the file brought to the jail, the trial judge stated that “[again], this is a small issue and the explanation could be true, but it didn’t give me the sense that I was hearing the actual facts when I was listening to [the appellant].” Reading the trial judge’s reasons as a whole, it is inescapable that he took these matters into consideration in evaluating the appellant’s credibility.
 In addition to identifying the weaknesses noted above, the trial judge rejected the proposition that Rowe had the drugs secreted on his person and that Beaulieu did not see them, saying “I agree with the defence proposition there are drugs in the Toronto Jail. In my mind that is not the issue and it is certainly not the relevant issue for me to determine.”
 The trial judge rejected the proposition that Rowe could have gotten the drugs from someone else based on his observations of the drugs which he described as somewhat smaller than eight golf balls. He said he looked closely at the photographs and concluded that there was “no evidence that there are feces on them”. There was no expert evidence that the packages would necessarily have been contaminated, or that such contamination would be visible in pictures. The trial judge’s observations were, once again, based on speculation and went beyond the acceptable scope of judicial notice.
(2) Evidence of Beaulieu and Sava
 As noted, Beaulieu met the appellant on the second floor after he was allowed into the Toronto Jail. Beaulieu testified that he immediately noticed “a strong smell of cologne and what I thought was marijuana mixed in with that smell”. Sava, who was assigned to the same floor, also testified that he noticed a smell of marijuana when the appellant arrived on the second floor.
 However, when the appellant initially arrived at the Toronto Jail, he had to pass through security. There were two officers on duty at the front desk, and the appellant was within 10 feet of one of them. Neither noticed anything unusual, and in particular neither noticed any smell about the appellant.
 Moreover, on cross-examination, Sava admitted that he was not in the hallway, but at a table reserved for guards some distance away. Sava continued maintaining that he could smell marijuana emanating from the interview room where the appellant was sitting waiting for Rowe.
 Beaulieu contacted his supervisor for instructions, because he suspected that the appellant was carrying drugs. Beaulieu’s supervisor instructed him to follow the Standing Orders. The Standing Orders required a strip search of an inmate before and after every professional visit. The Standing Orders also required that the strip search be conducted in the presence of two officers, and required that the inmate “undress completely” and “bend over to allow a visual inspection of the external surface areas of body cavities.”
 After Beaulieu retrieved Rowe, they proceeded to an interview room out of range of surveillance cameras for the search. Beaulieu had asked Greene to be present for the search. However, at trial, Greene admitted that he was not present for much of the search and did not remember how far the search got. Video surveillance recorded activity in the hallway, outside of the room where the search occurred. Greene did not go in that room. After Rowe entered the room, Beaulieu remained standing in the doorway and briefly handled Rowe’s orange jumpsuit. At this time, Greene wandered down the hallway and does not observe the rest of the search. Beaulieu gives the jumpsuit back to Rowe within three or four seconds and Rowe comes out of the room fully dressed.
 At trial, Beaulieu initially claimed that he had conducted a “strip search” of Rowe. However, he conceded that the search was not in accordance with the standing orders. Beaulieu testified as follows about his usual manner of conducting a strip search:
I just want to make sure that I am satisfied that there is no weapons or contraband on them so I make sure that I have them take off their jumper, I have them take off their shoes, their T-shirt, their socks. I usually leave them in their boxers to keep dignity intact, and I always have them run their thumbs along the rim of their boxers, pull up boxers and run their thumb along, so if they are concealing anything I will be able to see it or it will fall out onto the floor.
Q. And is that what you did that day?
A. I believe so, yes. [Emphasis added.]
 According to the video surveillance played at trial, this part of the search occupied three or four seconds. Rowe spent a total of 75 seconds in the room where the search occurred.
 Sava, during his examination-in-chief, claimed that he searched the interview room before and after the visit. However, and only when confronted with the fact that both the logbook for recording searches and video recording of the room demonstrated the contrary, he admitted that he had not searched the room but just assumed that others had.
 The trial judge noted that there were some issues with the evidence of both Sava and Beaulieu. The trial judge found that Sava “shaped his evidence” to make it seem as if he and his colleagues had followed the required protocols, and that he did so to protect his job. Moreover, the trial judge found that the correctional officers had not acted in accordance with “all of the procedures that they were obligated to follow.”
(3) The trial judge applied uneven scrutiny
 In spite of the problems the trial judge himself identified, and in sharp contrast to his focus on “small weaknesses” in the appellant’s evidence, the trial judge accepted the evidence of both Sava and Beaulieu. Even though he concluded that Sava had been shaping his evidence, the trial judge states that “he was also telling the truth about the events that unfolded when [the appellant] arrived.” As noted, Sava was forced to admit that he had not searched the interview room after he was confronted with evidence to the contrary. The trial judge characterized this retreat as follows: “Once he realized that detail was important, Sava made realistic concessions.”
 In respect of Beaulieu, the trial judge noted that, “it is difficult not to be a little critical of the failure of a correctional officer to follow procedures” and that this error was “further magnified by the fact that the correctional officer’s direct supervisor had instructed him to follow the standard procedures”. However, the trial judge essentially dismissed these concerns, and stated that “in fairness to [Beaulieu] this was a challenging situation that he could not have contemplated in advance” and that “[to] err is human.”
 In addition, and once again in sharp contrast to his approach towards the appellant’s case, the trial judge did not focus on or consider weaknesses in the Crown’s case. For instance, the trial judge accepted Beaulieu’s evidence that he “believed” he had performed the kind of search he would usually have conducted, including making sure that Rowe was not hiding anything in his underwear. Beaulieu did not unequivocally say he conducted a search of Rowe’s underwear. However, in coming to this conclusion, the trial judge never considered the fact that Beaulieu spent a very small amount of time searching Rowe. He did not turn his mind to the fact that Greene, who was required to observe the search, just happened to be absent at the critical time. The trial judge never considered that Beaulieu may have done nothing to search Rowe’s underwear, despite his repeated failures to follow the Standing Orders and his supervisor’s instructions.
 Similarly, the trial judge accepted and placed a great deal of emphasis on Beaulieu and Sava’s evidence that they noticed an odour of marijuana as soon as the appellant arrived. The trial judge never considered the fact that smell evidence can be highly subjective and suspect: R. v. Polashek (1999), 134 C.C.C. (3d) 187 (Ont. C.A.). Nor did he ever turn his mind to the fact that the two guards who had interacted with the appellant moments ago, when he was passing through security, did not notice any such smell.
 Finally, the trial judge concluded that Sava was a credible witness on at least some issue, even though he had been “shaping” his evidence. At the same time, he rejected the appellant’s otherwise credible evidence on the basis of weaknesses which even the trial judge admitted were small and insignificant. In the context of this case, the trial judge’s decision to accept the evidence of Sava while rejecting the evidence of the appellant as not “compelling enough to say that I believed him” is deeply incongruous.
 When read as a whole, the trial judge’s reasons demonstrate a degree of scrutiny of the prosecution evidence that was tolerant and relaxed as compared to the irrelevant, tenuous and speculative observations largely about collateral matters applied to unfairly discount the appellant’s evidence.
 Even if the evidence was capable of supporting a conviction, where the trial judge has applied different standards to the assessment of prosecution and defence evidence the appellant has not received a fair trial, and thus has been the victim of a miscarriage of justice: R. v. T.T., 2009 ONCA 613, 68 C.R. (6th) 1, at para. 74.
 I would allow the appeal and order a new trial on this ground.
D. THIRD-PARTY RECORDS
 The appellant also submits that the trial judge erred in refusing to inspect third party records to assess whether they should be produced to the defence.
(1) Dismissal of third-party records application
 The appellant brought a written application for the production of a number of third-party records in the possession of the Ministry of Community Safety and Correctional Services, the Ministry’s Correctional Investigation and Security Unit, the Toronto Jail, and the Toronto Police Service, for a period roughly five years before the date of the alleged offence, January 20, 2012. The documents requested included the following:
· Prison records for each incident in which a Toronto Jail employee was suspected, investigated or convicted of smuggling contraband into the jail between January 1, 2007 and January 20, 2012.
· Internal correspondence, memoranda, emails and similar communication between the Toronto Jail staff and the Correctional Investigation and Security Unit concerning smuggling activity by inmates, prison staff, custodians and visitors between January 1, 2007 and January 20, 2012.
· Investigation files and reports for any staff working at the Toronto Jail in January 2012 who have been investigated or disciplined for smuggling contraband into jails.
· Statistical documents or reports showing the number of investigations into drug smuggling by Toronto Jail staff for the years 2007 to 2012.
 As noted by the trial judge, the appellant was seeking production of these documents in order to assist him to test the reliability of the Crown’s circumstantial case, and to develop evidence of pervasive drug smuggling at the Toronto Jail.
 The appellant had served a subpoena duces tecum upon the custodian of the records. The records noted above had been assembled and were in two binders in the courtroom.
 In his reasons dismissing the appellant’s application, the trial judge was clearly concerned about the efficient use of judicial resources and ensuring that the court remained focus on the issue before him. He concluded that:
It is important that Courts remain focussed on the issues at hand. The documents sought by the defence in these paragraphs relate to a wider issue and that is the smuggling of drugs into jails and more particularly, the Toronto Jail. The Crown concedes that drugs are smuggled into the Toronto Jail and it is obvious from the extensive case law relative to smuggling contraband into penal institutions that this is an issue of concern in many jurisdictions. In my view, this fact is not relevant as to whether or not Mr. Gravesande smuggled contraband into the Toronto Jail on the day in question. I would therefore dismiss this part of the Application.
(2) Test for third-party records and “likely relevance” standard
 The procedure for production of third party records was set out in R. v. O’Connor,  4 S.C.R. 411, at para. 20:
· The accused must bring a written application supported by an affidavit setting out a basis to believe that the records are likely relevant1.
· Notice must be given to the custodian of the records and, if known, to persons who have a privacy interest in the records.
· The accused must ensure that the custodian and the records are subpoenaed to ensure their attendance in court.
· The application should be heard well in advance of the trial so that the trial is not disrupted.
 If the record holder or some other interested party opposes the application, then the trial judge must determine whether production should be compelled in accordance with the two-stage test established in O’Connor. At the first stage, the trial judge must determine if the records are “likely relevant” to the proceedings and if they should be produced for the court’s inspection. At the second stage, the trial judge examines the documents to determine whether, and to what extent, production to the accused should be ordered: R. v. McNeil, 2009 SCC 3,  1 S.C.R. 66, at para. 27.
 Likely relevance in this context means “a reasonable possibility that the information is logically probative to an issue at trial”: O’Connor, at para. 22. An “issue at trial” includes not only material issues concerning the unfolding of the events which form the subject matter of the proceedings, but also evidence relating to the credibility of witnesses and to the reliability of other evidence in the case: McNeil, at para. 33.
 “Likely relevant” is not to be interpreted as an onerous burden on the accused. Considerations of privacy and admissibility are not relevant at this stage: O’Connor, at para. 24. As indicated in O’Connor, at para. 24: “A relevance threshold, at this stage, is simply a requirement to prevent the defence from engaging in ‘speculative, fanciful, disruptive, unmeritorious, obstructive and time-consuming’ requests for production.”
(3) The records requested were likely relevant
 The appellant’s application, in this case, could not be characterized as a fishing expedition or unmeritorious request.
 The application was brought in a timely fashion, and was not a last-minute request. This application was brought well in advance of the trial date. The application was heard on September 11, 2013 and reasons were delivered on October 21, 2013. Evidence on the trial proper did not begin until December 9, 2013.
 The application was amply supported by an affidavit. The affidavit also indicated that the information was unlikely to be available pursuant to the Freedom of Information and Protection of Privacy Act, R.S.O 1990, c. F-31 because of concerns that divulgation could impair jail security. The affidavit filed in support of the application cited a 2003 University of Toronto study indicating that 45% of inmates housed within a provincial institution in Ontario had used drugs in the preceding year. The affidavit also referred to a June 11, 2013 Ombudsman’s report about the code of silence that exists among correctional officers:
The Applicant is unlikely to obtain information by speaking to current or former jail staff. In a June 11, 2013 report entitled “The Code”, Ontario Ombudsman André Marin detailed the “code of silence” that exists among correctional officers in Ontario. It is “essentially an unwritten social incentive for staff to conceal information that might have negative consequences for a co-worker.” Correctional officers who break “the code” are “shunned, threatened, and risk personal harm for “ratting” on their colleagues.” The Ombudsman spoke to one jail superintendent who is “aware of cases where threats of death and physical violence have been made against those who told the truth in the face of the code.” [Footnote omitted.]
 Furthermore, and contrary to the trial judge’s conclusion, the source of the drugs on Rowe’s person was highly relevant to the issues at trial. If, for example, drugs were rampant in the Toronto Jail, this might have affected the assessment of the probability that Rowe was carrying them when he came to the interview room. The information requested might have shed light on methods used by inmates to smuggle drugs, and participation by staff and visitors in these activities. The slender concession by the Crown, that there were drugs in the jail, in all probability did not convey the extent of the problem.
 There is a reasonable possibility that the information was logically relevant to an issue at trial: did the appellant bring drugs to Rowe, knowing that Rowe would be searched before and after the visit or was Rowe carrying those drugs on his person when he came to the interview room. The trial judge could have narrowed the time period to some extent. A criminal trial is not a public inquiry into jail management. A more focused time range, of say two or three years around the date of the offence could well have been sufficient. The trial judge’s failure to conclude that the records were likely relevant was clearly wrong. This error is sufficient to require a new trial.
 In light of these two errors, both of which justify a new trial, it is not necessary to address whether another group of documents sought by the appellant should or should not have been ordered produced for inspection by the trial judge.
 Accordingly, for these reasons, I would allow the appeal, set aside the conviction and order a new trial.
Released: November 13, 2015
“G. Pardu J.A.” “I agree Alexandra Hoy A.C.J.O” “I agree K.M. Weiler J.A.”