No one suggests that every police record is subject to the
first party disclosure regime of Stinchcombe: see, for example,
McNeil, at para. 59. It follows that the third party disclosure
regime of O’Connor occupies a vital role for disclosure of records
which are neither part of the investigative file nor obviously relevant and thus fall outside the first party disclosure regime:
Gubbins, at para. 24.
 Third party disclosure requires an accused to apply to
a court to obtain that disclosure. The procedure involves two steps.
The first requires that the accused satisfy the judge that the record
sought is “likely relevant”. This burden is met where the accused
demonstrates a reasonable possibility that the information sought
is logically probative of an issue at trial or the competency of witnesses to testify. Information in respect of which there is a reasonable possibility that it may assist the accused in the exercise of the
right to make full answer and defence meets this threshold:
Gubbins, at para. 27; McNeil, at para. 44; O’Connor, at paras. 21-22.
 Where an accused has demonstrated likely relevance, the
documents are produced to the judge for examination and determination of whether, and to what extent, the documents should
be disclosed to the defence. This step involves a determination of
actual (rather than likely) relevance and a consideration of
competing interests: McNeil, at para. 39; Gubbins, at para. 27.
 Under s. 254(1) of the Criminal Code, an “evaluating
officer” is a peace officer qualified under the regulations to conduct
evaluations to determine whether a person’s ability to operate
a conveyance such as a motor vehicle is impaired by a drug or
a combination of alcohol and a drug. Whether the results of the
evaluation cause the evaluating officer to have a reasonably
grounded belief that the accused’s ability to operate a motor vehicle is impaired by a drug or a drug in combination with alcohol
will determine whether a further demand for a sample of bodily
substances will be made: Criminal Code, s. 254(3.4).
 In 2008, Parliament put in place a regime to test for drug
impairment: a 12-point evaluation established by the Regulations
based upon the procedure set out by the IACP. The evaluations
are carried out by police officers accredited by the IACP. These
officers, known as DREs, carry out the functions assigned to an
“evaluating officer” as defined in s. 254(1) of the Criminal Code.
The admissibility of DRE evidence
 Unlike in prosecutions for alcohol-impaired operation of
a conveyance, the Criminal Code contains no provisions governing