[10] There is no dispute as to the legal test to be applied on this application. As the Supreme Court of Canada explained in O'Connor, at para. 22, "likely relevant" in the context of production means that there is a "reasonable possibility that the information is logically probative to an issue at trial or the competence of a witness to testify" (emphasis omitted).
[11] The Supreme Court of Canada confirmed this meaning of "likely relevant" in McNeil and further explained, at para. 33, that:
An "issue at trial" here 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"…. At this stage of the proceedings, the court cannot insist on a demonstration of the precise manner in which the targeted documents could be used at trial. The imposition of such a stringent threshold burden would put the accused, who has not seen the documents, in an impossible Catch-22 position. [Citation omitted.]
[12] The position taken by the applicants in the appeals is that there was systematic underrepresentation of First Nations persons in the 2008 Kenora District and 2007 Simcoe County jury rolls. As a result, the juries in the trials of the two applicants were not representative and new trials should be ordered.
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[16] In our view, the applicants have demonstrated that these records are likely relevant. They seek the very lists used to prepare the impugned jury rolls. These records may contain annotations, entries or other information that can be used in testing the statements made by CSD deponents and in better understanding the process used to prepare the jury rolls.
[17] The applicants need not establish the probative value of the records; they must only show that there is a reasonable possibility that the documents are "logically probative" to the issues raised respecting the representativeness of the jury rolls.
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