Background
Richard Isaac sought records from the Toronto Police Service (TPS) and the Ontario Provincial Police (OPP) under s. 683(1)(a) of the Criminal Code. He said the records might assist him in preparing a possible fresh evidence application in his appeal from a conviction for second-degree murder. The motion was heard on June 29, 2026, by Zarnett, Coroza and Copeland JJ.A.
In earlier decisions, the court had ordered certain records produced to it for review (July 23, 2026, 2026 ONCA 537) and then identified which records met the production test, subject to submissions on privilege, document-specific redactions and conditions on produced documents (September 9, 2026, 2026 ONCA 642). TPS, OPP, the Crown and Isaac made further submissions; Paul Worden did not. This decision resolves the remaining privilege and redaction issues and sets out the production order and conditions.
The Court’s Holding
The court accepted TPS’s claim of solicitor-client privilege over emails at pp. 84–94 and 96–98 of the first TPS tranche (“Access to Evidence”). Without revealing their contents, the court described them as communications between TPS personnel and TPS in-house counsel concerning a Crown disclosure response (July 14–24, 2025) and the records sought for Isaac’s production application (April 22–30, 2026). Reviewing the documents itself was an authorized way to verify privilege while preserving it as much as possible, citing Canada (Privacy Commissioner) v. Blood Tribe Department of Health, 2008 SCC 44, [2008] 2 S.C.R. 574, at para. 34. The court found the emails were for obtaining or providing legal advice and that TPS had not waived privilege; those pages will not be produced. It added that Isaac’s concern about disclosure of underlying records concerning Worden’s activities in the Selby-Readman homicide investigation was not engaged by these documents.
On the third tranche of OPP records, the court ordered narrower redactions than TPS requested. The relevant material is PDF p. 2 and PDF p. 27 from heading 4 through PDF p. 30. The court explained that portions were producible because they describe the OPP’s investigative process in reviewing Worden’s conduct in homicide investigations and locker transactions, including the procedure behind the already-disclosed one-page document labelled “Investigation review – Accused ISSAC, Richard” [sic]. It directed redaction of the section on the OPP review of cases involving Worden as a TPS Sex Crimes Unit member between 2005 and 2009, and the section on results of the locker-transactions investigation unrelated to Selby-Readman, because those results were not relevant to this appeal. OPP took no position on relevance redactions and asserted no privilege.
The motion was granted in part. Production to Isaac and the Crown includes: the entire first TPS tranche except the privileged pages; the entire second TPS tranche (“Access to Scene”), the scene log previously disclosed by the Crown; the OPP first-tranche p. 64 “Investigation review” document previously disclosed by the Crown; the specified third-tranche OPP report pages subject to the para. 15 redactions; and p. 4 of the identified fifth-tranche OPP spreadsheet, redacted to disclose only the column headers and the portion relating to Richard Isaac. The court will prepare the redacted versions and provide TPS and OPP each with a copy of their own redacted documents.
Key Takeaways
- Production was ordered only in part, implementing the court’s earlier July and September rulings rather than reopening the production test.
- The court verified solicitor-client privilege by reviewing the disputed emails itself and excluded only the identified privileged pages.
- Relevance redactions were tailored: unrelated Sex Crimes Unit case-review material and unrelated locker-transaction results were withheld, while material explaining the OPP process relevant to Selby-Readman remained producible.
- Because the motion supported a potential fresh evidence application, the court imposed confidentiality conditions tied to s. 27(10) of the Criminal Appeal Rules.
Why It Matters
The decision shows how an appellate court can supervise third-party production for a possible fresh evidence application without publicly revealing disputed documents: judicial review verifies privilege, relevance determines specific redactions, and the order identifies precisely what each police service must produce.
The conditions are equally specific. Parties and counsel may not disclose the documents without a further court order, subject to defined exceptions. Isaac’s counsel may show and discuss the documents with him but may not leave copies with him. Additional appeal counsel and retained experts may receive access for the stated appeal or fresh-evidence purposes and remain bound by the same restrictions. Documents relied on for fresh evidence must be filed under seal under s. 27(10); the appeal panel may make further orders on disclosure, sealing and disposition at the end of the appeal. The full police documents and a copy of the redacted production set will remain on file with the court under seal.