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Maintenance records of breathalyzer machines are subject to third-party disclosure regime: SCC

|Written By Elizabeth Raymer
Maintenance records of breathalyzer machines are subject to third-party disclosure regime: SCC
Lisa Jørgensen says the decision 'places a difficult burden on criminal defendants, and shifts the burden [for disclosure] onto defendants, who have much more limited means.'

In a trilogy of impaired driving cases the Supreme Court of Canada decided today, the appeals of two Alberta men who had demanded maintenance records for the breathalyzer instruments used following roadside pull-overs were dismissed, while the Quebec Crown’s appeal of a demand for disclosure was also dismissed.

The majority of the Supreme Court found that the maintenance records of breathalyzer machines were subject to a third-party disclosure regime, in its decisions in companion cases Kevin Patrick Gubbins v. Her Majesty the Queen and Darren John Chip Vallentgoed v. Her Majesty the Queen (combined in the Supreme Court’s decision as R. v. Gubbins).

“These reasons deal with two appeals in which the two trial judges came to different conclusions as to whether breathalyzer maintenance records should be disclosed by the Crown,” Justice Malcolm Rowe wrote, with Chief Justice Richard Wagner and Justices Rosalie Abella, Michael Moldaver, Andromache Karakatsanis, Clément Gascon, Russell Brown and Sheilah Martin concurring.

“On the evidence in both cases, the defence failed to show that the maintenance records meet the requisite threshold for third party disclosure.”

The appellants before the Supreme Court were each charged with impaired driving and with driving "over 80." Their breath samples were obtained and analyzed using approved instruments and standard procedures. At each step of the process, the breathalyzers performed internal and external diagnostic tests to ensure accuracy of the results and generated printed results. The printouts indicated that the instruments functioned properly.

The Crown disclosed a standard package of documents related to the process. Both appellants requested additional disclosure, namely of the maintenance records for the breathalyzers used to obtain their breath samples. The Crown produced a basic maintenance log to Vallentgoed, but not all of the requested material. Vallentgoed’s application for an order compelling disclosure was dismissed and he was subsequently convicted of both charges; Gubbins was granted a stay of proceedings.

The Court of Queen’s Bench jointly heard appeals by Vallentgoed and by the Crown in Gubbins’ case. It held that maintenance records are first-party records and should have been disclosed by the Crown, and upheld Gubbins’ stay of proceedings and ordered a new trial for Vallentgoed. A majority of the Court of Appeal allowed the Crown’s appeals, holding that the maintenance records are third-party records that are not to be disclosed routinely. It reinstated Vallentgoed’s conviction, set aside Gubbins’ stay of proceedings and remitted his case for a new trial.

The requested records “are not in the possession or control of the prosecuting Crown,” Justice Rowe wrote. “They do not form part of the ‘fruits of the investigation’; and the evidence in this case is that the maintenance records are not ‘obviously relevant’ to the cases of the accused Mr. Gubbins and Mr. Vallentgoed. It follows that the standard to be met is that set out in O’Connor; the maintenance records are subject to the third party disclosure regime.”

A key objective in the appeal to the Supreme Court was “to create some rules so that our disclosure obligations could be properly performed and executed,” says Robert Palser of the office of the Attorney General of Alberta in Edmonton, who was a Crown counsel in the companion cases.

“The limits of that disclosure were in dispute,” Palser says, with, in one case, “every record ever generated in the history of the instrument … since importation” into Canada being requested. “This case was not only about that specific issue, but this was an attempt to refine the disclosure obligations from Stinchcombe.”

At issue for the majority was the purpose of the overall disclosure regime, “which is to provide the accused with relevant information while preventing fishing expeditions and other dilatory requests for information,“ Justice Rowe wrote.

In dissenting reasons, Justice Suzanne Côté found that maintenance records should be subject to first party disclosure rules, as they are “obviously relevant to rebutting the statutory presumption of the accuracy of an approved instrument established by s. 258 of the Criminal Code.

“Disclosing maintenance records ensures that the defence has a minimum evidentiary basis upon which it may attempt to establish that an instrument was malfunctioning” Justice Côté wrote. “This opportunity is guaranteed by the Criminal Code and underlies the majority’s reasons in St-Onge Lamoureux.”

The majority disagreed. Deciding that maintenance records are subject to third-party disclosure “does not put the constitutionality of s. 258(1) (c) [of the Criminal Code, which concerns evidence of the analyses of breathalyser machines and how they were functioning] in jeopardy,” wrote Justice Rowe. “As indicated in St-Onge Lamoureux, a defence is not illusory simply because accused persons will rarely succeed in raising a reasonable doubt by using it … “

Criminal defence lawyer Lisa Jørgensen, of Cooper Jørgensen in Toronto, notes that the outcome is consistent with what the Ontario Court of Appeal decided in R. v. Jackson, 2015 ONCA 832.

“Now we have a clear answer from the Supreme Court that the Jackson model is the one to follow,” she says. However, today’s decision “places a difficult burden on criminal defendants, and shifts the burden [for disclosure] onto defendants, who have much more limited means.”

The majority relied on the position of the Alcohol Test Committee of the Canadian Society of Forensic Science on the relevance of maintenance records, she says, which was of concern to Justice Côté, who called “the relevance of maintenance records … a question of law” and cautioned that only one expert opinion in the matter was before the Court.

“Ultimately, says Jørgensen, ”there’s no other way for defence to determine there’s a problem with a [breathalyzer] machine” other than making application of the operating records for it.” As well, she says, “third-party record applications, in practice, are not quick applications.” First, defence counsel must set out what the likely relevance of the decision is, subpoena the third party recordholders, then bring the matter to court and argue in front of a judge, who (if the relevance test is satisfied) will get records from a third party, then decide if they are relevant to the case. It also involves retaining an expert witness for third-party record relevance, she adds.

Better, she says, to have records routinely collected and disseminated to the defence.

The respondent in the third case, Sa Majesté la Reine c. Justine Awashish, successfully brought an application before the Court of Quebec to compel the Crown to inquire into the existence of certain documents relating to breathalyzer maintenance. The Crown then sought certiorari to quash the order, which was granted by the Superior Court. The Court of Appeal allowed the appeal of the accused, holding that certiorari is an extraordinary remedy, available only in narrow circumstances. The Supreme Court dismissed the Quebec Crown’s appeal of that decision today.

“In the Gubbins case, the Supreme Court clarified the scope of disclosure obligations with respect to maintenance records of breathalyzer instruments,” a spokesperson for the Director of Criminal and Penal Prosecutions in Quebec, which was an intervener in Gubbins, wrote in an emailed statement to Legal Feeds.

“In Awashish, a distinct procedural issue arising from a similar context was decided and the Court limited the certiorari to jurisdictional errors. The DPCP acknowledges those decisions and hopes they will allow to ensure efficient administration of justice.”




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