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SCC rules Crown not obliged to routinely disclose breathalyzer maintenance records to the defence

Friday, October 26, 2018 @ 5:53 PM | By Cristin Schmitz

In a far-reaching 8-1 decision, the Supreme Court of Canada has ruled that breathalyzer maintenance records are third-party (not first-party) records and therefore the Alberta Crown didn’t have to disclose them to people charged with drinking and driving, unless the accused convinced a court that the records were “likely relevant” to their defence.

On Oct. 26, Justice Malcolm Rowe writing for the majority (with Justice Suzanne Côté in lone dissent) dismissed companion appeals brought by two Albertans — one of whom now faces a new trial on charges of impaired driving and driving “over 80,” while the other’s conviction for drinking and driving stands: R. v. Gubbins 2018 SCC 44.

Justice Malcolm Rowe

Justice Malcolm Rowe

Justice Rowe held that the third-party records regime was applicable, and “on the evidence in both cases, the defence failed to show that the maintenance records meet the requisite threshold for third-party disclosure.”

In a separate procedural appeal from Quebec that also arose in the context of a defence bid for disclosure of records in aid of a challenge to breathalyzer results, the top court held 9-0 that a writ of certiorari in criminal proceedings is available to the parties only when the provincial court judge makes a jurisdictional error: R. v. Awashish 2018 SCC 45.

However, criminal lawyers’ attention was focused initially on Gubbins, in which the majority held that breathalyzer maintenance records are not first-party records that the prosecution is obliged to disclose routinely under the Stinchcombe Crown disclosure regime, [1991] 3 S.C.R. 326. Rather breathalyzer maintenance records are third-party records (which were held in these cases by the RCMP and a third-party contracting company), which can only be obtained pursuant to a court application by the defence which demonstrates their “likely relevance” to a material issue in the case, under the third-party records disclosure regime set out in R. v. O’Connor [1995] 4 S.C.R. 411.

In that regard, Justice Rowe clarified for the courts below, which had rendered many conflicting decisions, that his court’s previous ruling in R. v. St-Onge Lamoureux 2012 SCC 57, did not conclusively determine that all maintenance records are “obviously relevant” to determining whether the breathalyzer instrument was properly functioning and operated — and thus must be routinely disclosable to the defence under the first-party regime.

According to the respondent Alberta Crown, conflicting decisions on that point by summary conviction appeal courts and trial courts in Alberta led to hundreds of impaired driving or “over 80” cases being tossed out as Charter violations of an accused’s right to full disclosure.

Gubbins has “kind of alleviated that problem,” remarked Jason Russell of Alberta’s Ministry of the Attorney General, who represented the Crown in both Alberta cases.

He told The Lawyer’s Daily that maintenance records used to be considered third-party records in Alberta.

“And then, with the advent of St-Onge, some courts went on to say ‘they are now first-party disclosure.’ And then that created problems from a practical point of view with litigation, because on many files, in Alberta at least, we could never satisfy [the requirements of] disclosure, no matter what was provided. [Defence counsel] always found something else to ask for, and then they would say, ‘Oh well you’re breaching my right to disclosure’ ... and in some cases they were getting stays for non-disclosure for not providing … maintenance records — which according to our experts, aren’t relevant documents, [that is] they cannot be used to assess whether the instrument was working [properly] at the time of the accused’s tests.”

Kyla Lee

Kyla Lee, Acumen Law

Kyla Lee of Vancouver’s Acumen Law, who specializes in impaired driving cases, called Gubbins “very bad news for defence counsel and their clients.”

“I think this case has huge meaning beyond the initial implications,” she added. “This case has a potentially chilling effect on constitutional challenges to the provisions of Bill C-46 related to disclosure” that come into force in December,” she elaborated. “The factual foundation laid in this case, particularly the comments of the court about approved instrument malfunction aborting the test, and the impact of the Alcohol Test Committee opinion, virtually foreclose the possibility of a successful challenge,” she opined.

She predicted the decision “will be regarded as binding precedent on the disclosure issue and limit the court’s ability to find a s. 7 [Charter] breach in the new provisions.”

From a defence perspective, Lee also foresaw “negative impact” from Gubbins on the drug-impaired driving regime in the Criminal Code. “Because certain data from gas and liquid chromatograph results are already not disclosed, the impact of this case will be such that disclosure is likely prohibited in the future,” she suggested.

“With the increase in lab testing for bodily samples for drugs expected now that cannabis has been legalized, this case can essentially close the door on disclosure applications for relevant and necessary data from the laboratory workups due to the historical practice of non-disclosure, and the manner in which expert evidence will be necessary. It creates a Catch-22, whereby an expert cannot comment on why the material is relevant because they cannot see the material to determine its relevance.”

Lee did see a bright spot. “What defence lawyers can take as encouraging from Gubbins is the slight broadening of the Stinchcombe test for disclosure,” she suggested. “Instead of simply limiting the material disclosed by the Crown to what is in their possession and likely relevant to the case, Gubbins opens the door to allege non-disclosure by other Crown entities. What this means is that if material is related to the investigation, and is in the hands of a third-party Crown entity, an accused can rely on the Stinchcombe regime, rather than the O'Connor regime, to compel disclosure, so long as the accused can show that the third party ought to have provided this to the investigating body and that it too meets the test of ‘likely relevance.’ ”

Lee suggested this could mean, for example, that Health Canada, or third-party laboratory, reports from analyses of substances believed to be drugs, or third-party laboratory analyses of bodily samples, “may now be disclosable under the Stinchcombe first-party disclosure regime, notwithstanding that they are in the possession of third parties.”

Justice Rowe’s decision indicates that under St-Onge Lamoureux, the defence will likely need to supply expert evidence to rebut the presumption in s. 258(1)(c) that the breathalyzer readings are accurate.

Suzanne Cote

Justice Suzanne Côté

According to the majority, the accused can use the “time of test” records that are automatically disclosed by the Crown, along with testimony from the technician or officer involved, as evidence to rebut the statutory presumption of accuracy. Moreover, the maintenance records may also be available to the defence where it can show that such records are “likely relevant” to a material issue in the case.

In dissent, Justice Côté argued that the maintenance records are indeed “obviously relevant” to rebutting the statutory presumption of accuracy and that the majority’s holding that they are not subject to first party disclosure by the Crown will upset the “delicate balance” the Supreme Court struck when it upheld the constitutionality of s. 258 of the Code in St-Onge Lamoureux.

Making the maintenance records subject to routine disclosure “ensures that the defence has a minimum evidentiary basis upon which it may attempt to establish that an instrument was malfunctioning,” she explained. “My colleague’s approach, which requires the defence to request maintenance records by way of an O’Connor application, risks making the possibility of raising a doubt as to an approved device’s functioning illusory. This approach is contrary to Parliament’s intent and, in my view, upsets the balance achieved in St-Onge Lamoureux.”

In Awashish, Justice Rowe also held that certiorari review in criminal proceedings is more widely available to third parties than to parties (given that third parties have no right of appeal). That is, third parties can seek certiorari not only to review jurisdictional errors, but also to review errors on the record’s face that relate to a decision of a final and conclusive character vis-à-vis the third party (e.g. a publication ban, or a ruling dismissing a lawyer’s application to withdraw). “Certiorari is an extraordinary remedy that is available only in narrow circumstances,” Justice Rowe emphasized. “Allowing parties to use it to challenge interlocutory rulings, including evidentiary matters, risks gravely slowing the criminal justice system.”

He dismissed the Quebec Crown’s appeal from an order below granting some disclosure to the defence in relation to the breathalyzer.

Photo of Justice Malcolm Rowe by Andrew Balfour Photography
Photo of Justice Suzanne Côté by Philippe Landreville