Court headnote

R. v. Gubbins
Collection
Supreme Court Judgments
Date
2018-10-26
Neutral citation
2018 SCC 44
Report
[2018] 3 SCR 35
Case number
37395, 37403
Judges
Wagner, Richard; Abella, Rosalie Silberman; Moldaver, Michael J.; Karakatsanis, Andromache; Gascon, Clément; Côté, Suzanne; Brown, Russell; Rowe, Malcolm; Martin, Sheilah
On appeal from
Alberta
Notes
Case in Brief
SCC Case Information: 37395, 37403
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Gubbins, 2018 SCC 44, [2018] 3 S.C.R. 35
Appeal Heard: February 6, 2018 Judgment Rendered: October 26, 2018 Dockets: 37395, 37403
Between:
Kevin Patrick Gubbins
Appellant
and
Her Majesty The Queen
Respondent
- and -
Attorney General of Ontario
Intervener
And Between:
Darren John Chip Vallentgoed
Appellant
and
Her Majesty The Queen
Respondent
- and -
Attorney General of Ontario and
Director of Criminal and Penal Prosecutions
Interveners
Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin JJ.
Reasons for Judgment: (paras. 1 to 60)
Rowe J. (Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Brown and Martin JJ. concurring)
Dissenting Reasons: (paras. 61 to 90)
Côté J.
R. v. Gubbins, 2018 SCC 44, [2018] 3 S.C.R. 35
Kevin Patrick Gubbins Appellant
v.
Her Majesty The Queen Respondent
and
Attorney General of Ontario Intervener
‑ and ‑
Darren John Chip Vallentgoed Appellant
v.
Her Majesty The Queen Respondent
and
Attorney General of Ontario and
Director of Criminal and Penal Prosecutions Interveners
Indexed as: R. v. Gubbins
2018 SCC 44
File Nos.: 37395, 37403.
2018: February 6; 2018: October 26.
Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin JJ.
on appeal from the court of appeal for alberta
Criminal law — Evidence — Disclosure — Breathalyzer maintenance records — Scope of Crown’s disclosure obligations — Crown refusing disclosure of maintenance records for breathalyzer devices to accused charged with impaired driving and driving with blood alcohol level over limit — Whether maintenance records subject to first party disclosure rules or third party disclosure rules — Criminal Code, R.S.C. 1985, c. C‑46, s. 258(1) (c).
V and G 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 V and G 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 V but otherwise refused to provide the requested disclosure. V applied for an order compelling disclosure and G applied for a stay of proceedings on the basis that his rights under s. 7 of the Canadian Charter of Rights and Freedoms had been breached. V’s application was dismissed and he was subsequently convicted of both charges, but G was granted a stay of proceedings. The Court of Queen’s Bench jointly heard appeals by V and by the Crown in G’s case. It held that maintenance records are first party records and should have been disclosed by the Crown, and upheld G’s stay of proceedings and ordered a new trial for V. 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 V’s conviction, and set aside G’s stay of proceedings and remitted his case for a new trial.
Held (Côté J. dissenting): The appeals should be dismissed.
Per Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Brown, Rowe and Martin JJ.: The breathalyzer maintenance records are subject to the rules applicable to the disclosure of third party records. As such, in order to obtain disclosure of the records, V and G were required to show that the records were likely relevant in this case, which they failed to do.
The disclosure of first party records is subject to the Stinchcombe regime. The Crown has a duty to disclose all relevant, non‑privileged information in its possession or control, whether inculpatory or exculpatory. The duty, which is triggered upon request and does not require an application to court, applies only to the prosecuting Crown. However, the Crown has a duty to make reasonable inquiries when put on notice of material in the hands of police or other Crown entities that is potentially relevant. The police have a corresponding duty to disclose the fruits of the investigation, and any other information obviously relevant to an accused’s case. The “fruits of the investigation” refers to all material pertaining to the investigation of the accused, that is, the police’s investigative files, as opposed to operational records or background information. The phrase “obviously relevant” describes information that is not within the investigative file but that relates to the accused’s ability to meet the Crown’s case, raise a defence, or otherwise consider the conduct of the defence.
The disclosure of third party records is subject to the O’Connor regime. To obtain disclosure of such records, an accused must make a court application. The burden is on the accused to show that the record is likely relevant. Information will be likely relevant where there is a reasonable possibility that the information is logically probative to an issue at trial or to the competence of a witness to testify. Where the accused discharges this burden, the judge will examine the record to determine whether, and to what extent, it should be produced to the accused.
To determine which regime is applicable, the following must be considered: (1) whether the information that is sought is in the possession or control of the prosecuting Crown, and (2) whether the nature of the information sought is such that the police or another Crown entity in possession or control of the information ought to have supplied it to the prosecuting Crown. This will be the case if the information can be qualified as being part of the fruits of the investigation or obviously relevant. An affirmative answer to either of these questions will call for the application of the first party disclosure regime. Otherwise, the third party disclosure regime applies.
The requested breathalyzer maintenance records in the instant case are not part of first party disclosure. They were not in the possession or control of the Crown, as they were held both by the RCMP and by other third parties. They are not part of the fruits of the investigation; rather, they are created as operational records that are not specific to any particular investigation. Furthermore, the maintenance records are not obviously relevant. The Court’s decision in R. v. St‑Onge Lamoureux, 2012 SCC 57, [2012] 3 S.C.R. 187, did not conclusively determine that all maintenance records are obviously relevant. The majority expressly declined to determine what evidence was relevant to determining the proper functioning and operation of the breathalyzer instrument. Moreover, the Court in St‑Onge Lamoureux did not have the benefit of the Alcohol Test Committee’s current position that records relating to periodic maintenance or inspections cannot address the working status of an approved instrument at the time of a breath test procedure. Further, the language of the presumption of accuracy set out in s. 258(1) (c) of the Criminal Code , which contemplates receiving evidence that the approved instrument was malfunctioning or was operating improperly, makes no reference to maintenance. Parliament therefore did not expressly contemplate that the presumption of accuracy will be rebutted based on evidence as to the maintenance of the approved instrument. In addition, the expert evidence in this case supports the view that the maintenance records are not obviously relevant to the reliability of the approved instruments or to determine whether the instrument malfunctioned. The breathalyzer machines are designed to produce a fail reading where they malfunction. Maintenance records cannot indicate whether any particular result is a false positive. The existence of maintenance records and the fact that the instrument underwent maintenance from time to time is not sufficient to justify the disclosure requested by the accused.
Applying the O’Connor standard for third party disclosure, the maintenance records have not been shown to be likely relevant in this case. The Court in St‑Onge Lamoureux contemplated that rebutting the statutory presumption of accuracy in s. 258(1) (c) would likely require expert evidence. In the instant case, expert evidence was only presented by the Crown. In the absence of any evidence by the accused rebutting the statutory presumption, the expert evidence of the Crown is persuasive that the maintenance records are not relevant. The conclusion that the maintenance records are subject to third party disclosure rules does not put the constitutionality of s. 258(1) (c) in jeopardy. A defence is not illusory simply because accused persons will rarely succeed in raising a reasonable doubt by using it. The time‑of‑test records along with testimony from the technician or the officer involved are evidence that the accused may use to rebut the presumption of accuracy. 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.
Per Côté J. (dissenting): The appeals should be allowed. Maintenance records should be subject to first party disclosure rules. 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. This opportunity is guaranteed by the Criminal Code and underlies the majority’s reasons in St‑Onge Lamoureux.
The Court’s reasoning in St‑Onge Lamoureux was dependent in large part on two assumptions: (1) that one means available to an accused to raise a doubt as to the functioning of an instrument was by raising deficiencies in its maintenance; and (2) that the evidentiary basis for such a defence would be readily available to that accused. The Court should not depart from these assumptions on the basis of the Alcohol Test Committee’s current position on the relevance of maintenance records. The Committee continues to endorse the standards and procedures that were before the Court when it decided St‑Onge Lamoureux. Caution should be exercised when considering the extent to which the Committee’s updated recommendations are determinative of the relevance of maintenance records, a question of law that is to be decided by the courts. The fact that only one expert opinion is before the Court, while the position of experts that may disagree on the relevance of maintenance records is notably absent from the record, is further cause for caution.
In St‑Onge Lamoureux, it was assumed on the basis of a fulsome evidentiary record that maintenance records were relevant to rebutting the presumption at issue and the impugned scheme’s constitutionality was confirmed on this basis. No new evidentiary basis calls those assumptions into question. The Court assumed that the accused would be provided with an evidentiary basis to raise a reasonable doubt as to the instrument’s functioning on the basis of its maintenance. Deciding that maintenance records are not available under first party disclosure will upset the delicate balance struck in St‑Onge Lamoureux and put the constitutionality of s. 258(1) (c) back into question.
Holding that only time‑of‑test records produced by the instrument can demonstrate malfunctioning effectively assumes that the machine is infallible. This confines the defence to arguments raising a doubt as to the instrument’s operation, contrary to Parliament’s intent to make malfunctioning and improper operation two distinct grounds for rebutting the presumption of accuracy. Recourse to third party disclosure will, in practice, be illusory. For an accused to have a real opportunity to show that an instrument was malfunctioning, an expert must have an evidentiary basis either to opine as to the possibility that the instrument malfunctioned or to establish the likely relevance of other information to be sought through third party disclosure. Providing nothing by way of first party disclosure forces accused persons and their experts to resort to conjecture and speculation.
Finally, disclosing maintenance records as first party records also serves the interests of justice. Where maintenance records reveal no issues, their disclosure may compel the accused to plead guilty. Where they reveal certain issues and an expert is of the opinion that these issues may prove that the instrument malfunctioned, the maintenance records provide a basis for the accused to raise such a defence or to make subsequent O’Connor requests in a grounded, non‑speculative manner.
Cases Cited
By Rowe J.
Applied: R. v. O’Connor, [1995] 4 S.C.R. 411; considered: R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66; R. v. St‑Onge Lamoureux, 2012 SCC 57, [2012] 3 S.C.R. 187; R. v. Stinchcombe, [1991] 3 S.C.R. 326; referred to: R. v. Kilpatrick, 2013 ABCA 168; R. v. Kilpatrick, 2013 ABQB 5, 42 M.V.R. (6th) 92; R. v. Sutton, 2013 ABPC 308, 576 A.R. 14; R. v. Dixon, [1998] 1 S.C.R. 244; R. v. Quesnelle, 2014 SCC 46, [2014] 2 S.C.R. 390; R. v. Jackson, 2015 ONCA 832, 128 O.R. (3d) 161; R. v. Black, 2011 ABCA 349, 286 C.C.C. (3d) 432; R. v. Chaplin, [1995] 1 S.C.R. 727; World Bank Group v. Wallace, 2016 SCC 15, [2016] 1 S.C.R. 207; R. v. Gubins, 2009 ONCJ 80; R. v. Lo, 2009 ONCJ 307, 86 M.V.R. (5th) 284; R. v. Klug, 2010 ABPC 88, 500 A.R. 293; R. v. Kristianson, 2011 ABPC 309, 24 M.V.R. (6th) 298; R. v. Turnbull, 2012 ABPC 45, 32 M.V.R. (6th) 162; R. v. Hudye, 2013 SKPC 122, 425 Sask. R. 302; R. v. Pankiw, 2013 SKPC 47, 416 Sask. R. 206; R. v. Martens, 2013 ABPC 349; R. v. Carter, 2014 ABPC 291, 603 A.R. 366; R. v. Oleksiuk, 2014 ONCJ 313; R. v. Sinclair, 2015 ABQB 113, 75 M.V.R. (6th) 252; R. v. Timmons (1994), 132 N.S.R. (2d) 360; R. v. Anutooshkin (1994), 92 C.C.C. (3d) 59; R. v. Williams, 2000 BCSC 207, 1 M.V.R. (4th) 288; R. v. Keirsted, 2004 ABQB 491; R. v. Singleton, [2004] O.J. No. 5583 (QL); R. v. Nicolle, 2005 ONCJ 346, 27 M.V.R. (5th) 206; R. v. Coopsammy, 2008 ABQB 266, 68 M.V.R. (5th) 226; R. v. Balfour, 2009 ONCJ 308, 86 M.V.R. (5th) 278; R. v. Ahmed, 2010 ONCJ 130, 253 C.C.C. (3d) 378; Duff v. Alberta (Attorney General), 2010 ABPC 250, 497 A.R. 16; R. v. Worden, 2014 SKPC 143, 68 M.V.R. (6th) 141; R. v. Mills, [1999] 3 S.C.R. 668; R. v. Lam, 2014 ONCJ 247; R. v. Awashish, 2018 SCC 45, [2018] 3 S.C.R. 87.
By Côté J. (dissenting)
R. v. Stinchcombe, [1991] 3 S.C.R. 326; R. v. O’Connor, [1995] 4 S.C.R. 411; R. v. St‑Onge Lamoureux, 2012 SCC 57, [2012] 3 S.C.R. 187; R. v. Drolet, 2010 QCCQ 7719; R. v. Mohan, [1994] 2 S.C.R. 9; R. v. Sutton, 2013 ABPC 308, 59 M.V.R. (6th) 89; R. v. Chaplin, [1995] 1 S.C.R. 727; R. v. Awashish, 2018 SCC 45, [2018] 3 S.C.R. 87.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 7 , 11 (d).
Criminal Code, R.S.C. 1985, c. C‑46, ss. 253(1) , 254(1) , 258(1) , (7) , 278.1 to 278.9 .
Tackling Violent Crime Act, S.C. 2008, c. 6 .
Authors Cited
Canada. Senate. Standing Senate Committee on Legal and Constitutional Affairs. Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, No. 8, 2nd Sess., 39th Parl., February 20, 2008, p. 8:75.
Canadian Society of Forensic Science. “Alcohol Test Committee Position Paper: Documentation Required for Assessing the Accuracy and Reliability of Approved Instrument Breath Alcohol Test Results” (2012), 45 Can. Soc. Forensic Sci. J. 101.
Canadian Society of Forensic Science. “Canadian Society of Forensic Science Alcohol Test Committee Recommended Best Practices for a Breath Alcohol Testing Program” (2014), 47 Can. Soc. Forensic Sci. J. 179.
Canadian Society of Forensic Science. “Recommended Standards and Procedures of the Canadian Society of Forensic Science Alcohol Test Committee” (2009), 42 Can. Soc. Forensic Sci. J. 1.
APPEAL from a judgment of the Alberta Court of Appeal (Berger, Slatter and Rowbotham JJ.A.), 2016 ABCA 358, 344 C.C.C. (3d) 85, 33 C.R. (7th) 359, 3 M.V.R. (7th) 40, 44 Alta. L.R. (6th) 248, [2017] 4 W.W.R. 8, [2016] A.J. No. 1180 (QL), 2016 CarswellAlta 2195 (WL Can.), setting aside a decision of Kenny J., 2015 ABQB 206, 608 A.R. 197, [2015] A.J. No. 360 (QL), 2015 CarswellAlta 584 (WL Can.), which affirmed the stay of proceedings entered by Schaffter Prov. Ct. J., 2014 ABPC 195, 596 A.R. 351, 13 Alta. L.R. (6th) 45, [2014] A.J. No. 989 (QL), 2014 CarswellAlta 1594 (WL Can.), and remitting the matter to trial. Appeal dismissed, Côté J. dissenting.
APPEAL from a judgment of the Alberta Court of Appeal (Berger, Slatter and Rowbotham JJ.A.), 2016 ABCA 358, 344 C.C.C. (3d) 85, 33 C.R. (7th) 359, 3 M.V.R. (7th) 40, 44 Alta. L.R. (6th) 248, [2017] 4 W.W.R. 8, [2016] A.J. No. 1180 (QL), 2016 CarswellAlta 2195 (WL Can.), setting aside a decision of Kenny J., 2015 ABQB 206, 608 A.R. 197, [2015] A.J. No. 360 (QL), 2015 CarswellAlta 584 (WL Can.), which ordered a new trial for the accused, and restoring the accused’s conviction entered by Golden Prov. Ct. J. Appeal dismissed, Côté J. dissenting.
Timothy Foster, Q.C., and Katherin J. Beyak, for the appellant Kevin Patrick Gubbins.
Stephen M. Smith, for the appellant Darren John Chip Vallentgoed.
Robert J. Palser and Jason R. Russell, for the respondent.
Michael Fawcett and Philip Perlmutter, for the intervener the Attorney General of Ontario.
Nicolas Abran and Justin Tremblay, for the intervener the Director of Criminal and Penal Prosecutions.
The judgment of Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Brown, Rowe and Martin JJ. was delivered by
Rowe J. —
I. Overview
[1] These appeals deal with the scope of the Crown’s disclosure obligations with respect to maintenance records of breathalyzer instruments. These instruments are used to determine the blood alcohol content of suspected drunk drivers. It is important that these instruments provide accurate results. These cases deal with what information is relevant to assessing the reliability of these instruments. Are the maintenance records part of first party disclosure, subject to inclusion in the Crown’s standard disclosure package? Or, are these records third party records, which require the defence to demonstrate their likely relevance before an order for disclosure can be made?
[2] Courts have provided inconsistent answers to the foregoing questions. 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. For the reasons that follow, I find that such records are subject to third party (rather than first party) disclosure. On the evidence in both cases, the defence failed to show that the maintenance records meet the requisite threshold for third party disclosure. Accordingly, I would dismiss the appeals.
II. Facts
[3] Both accused in this appeal were charged with impaired driving and with driving “over 80”, contrary to s. 253(1) (a) and (b) of the Criminal Code, R.S.C. 1985, c. C-46 . Mr. Vallentgoed and Mr. Gubbins provided breath samples. Mr. Vallentgoed’s samples showed blood alcohol readings of 130 mg% and 120 mg%. Mr. Gubbins’ samples showed two readings of 120 mg%.
[4] Each of these breath samples was analyzed using an “approved instrument”, as required by s. 254(1) of the Criminal Code . The Crown led expert evidence that described in detail the operation of the instruments, including that they perform internal and external diagnostic tests at the time each breath sample is taken in order to ensure accuracy of the results. When a breath sample is obtained, the procedure is as follows:
(a) Air Blank: The instrument purges any alcohol remaining in it. It then tests the alcohol content of the ambient air. The result of this test should be zero, but if it is different, the instrument sets a baseline that eliminates the effect of any ambient alcohol on the test results. If there is an excessive amount of ambient alcohol, the instrument will stop and the test will be cancelled.
(b) Calibration Check (or Alcohol Standard Test): The instrument is tested against an alcohol vapour of known concentration from a certified sample. The sample generally has a concentration equal to 100 mg% of alcohol in the blood. The instrument must accurately measure the concentration within 10% (i.e., the result must be between 95 mg% and 105 mg%). If the instrument fails to perform within this range, the test will be cancelled.
(c) Air Blank: The instrument performs a second air blank test in order to purge any residual alcohol vapour left from the sample used in the Calibration Check.
(d) Breath Sample, First Test: The accused provides a deep lung breath sample into the instrument, which measures the concentration of alcohol present. The instrument is designed to (slightly) underestimate blood alcohol concentration.
(e) Air Blank: The instrument performs another air blank check to purge any alcohol vapour.
(f) Breath Sample, Second Test: After fifteen minutes, the process (steps (a) through (e) above) is repeated. The readings from the two breath samples are rounded down to the lowest 10 (i.e., a reading of 99 mg% is recorded as 90 mg%). The results of the two samples must be within 20 mg% of each other; the lower of the two results will be used: s. 258(1) (c) of the Criminal Code . If the two results are not within the foregoing range, further breath samples will be taken.
[5] Each step in this sequence generates printed results. A “fail” in any step is indicated in the printouts. For both Mr. Vallentgoed and Mr. Gubbins, the instruments indicated no problems. None of the internal controls were triggered; the results were within the accepted ranges indicated above. The printouts generated at the time of the tests indicated that the instruments functioned properly.
[6] The Crown provided Mr. Vallentgoed with a disclosure package that included documents created during the investigation, as well as other documents certifying that various components used in the testing process had been tested, maintained and certified. The documents included in this package were: (a) the Intoxilyzer 5000C Operational Check Sheet, (b) the Intoxilyzer 5000C Test Record, and (c) the Certificate of Analyses. These records provide details of the test results of the breath samples, as well as the results of the calibration checks. Also included was information about the officers involved, the date and time of the tests, and particulars of the instrument used. The Check Sheet includes the analyst’s handwritten notes of his or her observations of the accused’s condition at the time of testing. The Test Record is the printout from the instrument, signed by the technician who operated it. The Certificate of Analyses is the official record of the test results; it indicates the blood alcohol reading. The Certificate of Analyses also gives notice that it will be used as evidence in court: s. 258(1) (e) and (g) and s. 258(7) of the Criminal Code .
[7] Other documents in the Crown’s disclosure package included: (a) the Intoxilyzer 5000C Simulator Alcohol Solution Log; (b) the Intoxilyzer 5000C Test Record for alcohol solution change; (c) the Certificate of Annual Maintenance; (d) the Certificate of Annual Maintenance for the standard alcohol solution breath simulator; (e) the Intoxylizer 5000C Use and Calibration Check Log; and (f) the Certificate of an Analyst (Alcohol Standard). These documents provide particulars of the alcohol solution (when its use commenced, when it was changed, as well as when it was tested and found to be suitable) and the instrument itself (when it was sent for annual maintenance and the details of each time the instrument was calibrated).
[8] In addition, the Crown indicated that it would provide, on request, the RCMP Operational Manual for the instrument, as well as the Qualified Technician’s designation.
[9] Mr. Gubbins was provided a disclosure package as described above, save that it did not include any documents relating to the maintenance of the instrument in question.
[10] Both Mr. Vallentgoed and Mr. Gubbins requested additional disclosure. Mr. Vallentgoed requested: (1) maintenance records for the breathalyzer instrument for the past two years; (2) maintenance and inspection records for the external simulator; and (3) records showing the cumulative uses of the alcohol standard for a one month period before testing. The Crown produced a basic maintenance log. Upon inspecting the records, Mr. Vallentgoed noted that the machine had been sent for repairs the day after he was charged, two months before that, and again two months before that. Mr. Vallentgoed requested detailed reports of the work performed on these dates. The Crown refused, on the basis that these maintenance reports were third party records and were not relevant. In response, Mr. Vallentgoed applied for disclosure in the Alberta Provincial Court.
[11] Mr. Gubbins demanded disclosure of all maintenance records for the instrument from the time it was imported into Canada and first put into use. The Crown refused to provide the requested disclosure, on the basis that these were third party records held by the contractor that maintained the equipment and they did not meet the required threshold of relevance. Mr. Gubbins brought an application for a stay of proceedings, arguing that his rights under s. 7 of the Canadian Charter of Rights and Freedoms were infringed by the Crown’s refusal to provide the additional disclosure that he had requested.
III. Judicial History
A. Provincial Court of Alberta ― R. v. Vallentgoed, March 11, 2014
[12] In dealing with Mr. Vallentgoed’s disclosure application, Golden Prov. Ct. J. noted there was disagreement in the case law regarding disclosure of maintenance records. The Alberta Court of Appeal in R. v. Kilpatrick, 2013 ABCA 168, dismissed an application for leave to appeal from a decision which held that maintenance records were subject to first party disclosure: 2013 ABQB 5, 42 M.V.R. (6th) 92. Golden Prov. Ct. J. noted that the Court of Appeal decided Kilpatrick without evidence being adduced as to the relevance of the maintenance records. By contrast, the Alberta Provincial Court in R. v. Sutton, 2013 ABPC 308, 576 A.R. 14, had received expert evidence. The judge in Sutton concluded that the maintenance records were not relevant; thus, they did not meet the threshold for first party disclosure. Golden Prov. Ct. J. favoured the approach in Sutton. He concluded that the maintenance records were not relevant. Accordingly, he dismissed the application for disclosure. Mr. Vallentgoed was later convicted.
B. Provincial Court of Alberta ― R. v. Gubbins, 2014 ABPC 195, 596 A.R. 351
[13] Schaffter Prov. Ct. J. dealt with Mr. Gubbins’ application for a stay of proceedings under s. 7 of the Charter based on the Crown’s refusal to provide additional disclosure. Schaffter Prov. Ct. J. took the view that she was bound by Kilpatrick. As well, she noted that in R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66, the Court held that police discipline records were first party records, as they are relevant to assessing the credibility of the officer, despite not being fruits of the investigation. By analogy, the maintenance records are relevant to the reliability of the approved instrument. The requested disclosure was, therefore, first party. Accordingly, the Crown should have disclosed the records sought. Schaffter Prov. Ct. J. concluded that a breach of s. 7 was made out. Given that Mr. Gubbins’ driving license was suspended pending the outcome of the trial, and that this suspension would continue if she ordered an adjournment, Schaffter Prov. Ct. J. was satisfied that Mr. Gubbins would be prejudiced. She entered a stay of proceedings.
C. Court of Queen’s Bench of Alberta ― 2015 ABQB 206, 608 A.R. 197
[14] Mr. Vallentgoed appealed his conviction. The Crown appealed Mr. Gubbins’ stay of proceedings. The appeals were heard jointly before Kenny J., sitting as summary conviction appeal judge. In her view, it was problematic for the Crown to have to tender expert evidence in every case to demonstrate that the maintenance records are irrelevant. These records may or may not meet the threshold for relevancy. In Kenny J.’s view, it is a waste of judicial resources to re-litigate this issue repeatedly, especially given that the Court’s ruling in R. v. St-Onge Lamoureux, 2012 SCC 57, [2012] 3 S.C.R. 187, determined conclusively (in her view) that maintenance records are first party records. She dismissed the Crown’s appeal of Mr. Gubbins’ stay of proceedings and ordered a new trial for Mr. Vallentgoed.
D. Court of Appeal of Alberta ― 2016 ABCA 358, 344 C.C.C. (3d) 85
(1) Per Slatter J.A. (Berger J.A. Concurring)
[15] Slatter J.A., with Berger J.A. concurring, allowed the appeals. He took the view that the maintenance records are not fruits of the investigation to be disclosed routinely. Rather, they are third party records subject to the procedure set out in R. v. O’Connor, [1995] 4 S.C.R. 411. Maintenance records differ from time-of-test records; the latter show how the device was operating when the breath sample was taken. Time-of-test records are relevant; they can also be the basis for an argument for further disclosure. Based on the expert evidence on behalf of the Crown, Slatter J.A. concluded that a “fail” reading is not evidence of a malfunction in the instrument. Rather, a “fail” indicates that the instrument is functioning properly by alerting the technician that there is a problem. Thus, a “fail” on an earlier or later occasion (than the test of the breath samples of the accused) that leads to maintenance of the instrument tells us nothing about whether the instrument was functioning properly on the occasion when the breath samples of the accused were tested. Rather, what is relevant is whether a “fail” occurred in the test sequence (described above in para. 4) that produced the results for the breath samples of the accused; no “fail” indicates the instrument was functioning properly. In the result, Slatter J.A. reinstated Mr. Vallentgoed’s conviction; he set aside Mr. Gubbins’ stay of proceedings and remitted his case for a new trial.
(2) Per Rowbotham J.A. (Dissenting)
[16] In Rowbotham J.A.’s view, this Court’s decision in St-Onge Lamoureux provided authoritative guidance that maintenance records are relevant and should form part of the standard disclosure package. The maintenance records could be the basis for an application to obtain further, and more detailed, maintenance records. In Mr. Vallentgoed’s case, the trial judge erred by not ordering disclosure of the maintenance records. Rowbotham J.A. would have dismissed the Crown appeal in Mr. Vallentgoed’s case. With respect to Mr. Gubbins, Rowbotham J.A. would have allowed the appeal in part, as Mr. Gubbins had (later) received disclosure of the complete service records that he had sought. Accordingly, she would have lifted the stay and remitted Mr. Gubbins’ case to trial.
IV. Issues
[17] These appeals require the Court to consider which disclosure regime applies to maintenance records of breathalyzer instruments. The Court must then decide whether the requisite threshold for disclosure has been met in these cases.
V. Analysis
A. Stinchcombe and O’Connor: Two Disclosure Regimes
[18] In R. v. Stinchcombe, [1991] 3 S.C.R. 326, this Court held that the Crown has a duty to disclose all relevant, non-privileged information in its possession or control, whether inculpatory or exculpatory. This is referred to as first party disclosure. The Crown’s duty to disclose corresponds to the accused’s constitutional right to the disclosure of all material which meets the Stinchcombe standard: R. v. Dixon, [1998] 1 S.C.R. 244, at para. 22. The purpose of disclosure is to protect the accused’s Charter right to full answer and defence, which will be impaired where there is a “reasonable possibility that the undisclosed information could have been used in meeting the case for the Crown, advancing a defence or otherwise making a decision which could have affected the conduct of the defence”: ibid.
[19] The Crown’s duty to disclose is triggered upon request and does not require an application to court: Stinchcombe, at pp. 342-43. The duty is ongoing; new information must be disclosed when it is received: ibid. The Crown’s duty to disclose is not absolute. The Crown considers relevance and the rules of privilege. Where the Crown refuses to disclose evidence for reasons of privilege or irrelevance, the defence can request a review; in such an instance, the burden is on the Crown to justify its refusal to disclose by showing that the information is “clearly irrelevant” or privileged: Stinchcombe, at pp. 339-40.
[20] The “Crown” for the purposes of Stinchcombe does not refer to all Crown entities, but only to the prosecuting Crown: McNeil, at para. 22; R. v. Quesnelle, 2014 SCC 46, [2014] 2 S.C.R. 390, at para. 11. All other Crown entities, including police, are third parties for the purposes of disclosure. They are not subject to the Stinchcome regime. This is because the law cannot impose an obligation on the Crown to disclose material that it does not have or cannot obtain: McNeil, at para. 22.
[21] In McNeil, this Court clarified that “the Crown cannot explain a failure to disclose relevant material on the basis that the investigating police force failed to disclose it to the Crown”: para. 24. The Crown has a duty to make reasonable inquiries when put on notice of material in the hands of police or other Crown entities that is potentially relevant: McNeil, at para. 49. As well, the police have a corresponding duty to disclose “all material pertaining to its investigation of the accused”: McNeil, at paras. 23 and 52. Such material is often referred to as “the fruits of the investigation”: McNeil, at paras. 14, 22-23. As well, the police may be required to hand over information beyond the fruits of the investigation where such information is “obviously relevant to the accused’s case”: McNeil, at para. 59.
[22] The “fruits of the investigation” refers to the police’s investigative files, as opposed to operational records or background information. This information is generated or acquired during or as a result of the specific investigation into the charges against the accused. Such information is necessarily captured by first party/Stinchcombe disclosure, as it likely includes
relevant, non-privileged information related to the matters the Crown intends to adduce in evidence against an accused, as well as any information in respect of which there is a reasonable possibility that it may assist an accused in the exercise of the right to make full answer and defence. The information may relate to the unfolding of the narrative of material events, to the credibility of witnesses or the reliability of evidence that may form part of the case to meet.
In its normal, natural everyday sense, the phrase “fruits of the investigation” posits a relationship between the subject matter sought and the investigation that leads to the charges against an accused.
(R. v. Jackson, 2015 ONCA 832, 128 O.R. (3d) 161, at paras. 92-93)
[23] In addition to information contained in the investigative file, the police should disclose to the prosecuting Crown any additional information that is obviously relevant to the accused’s case. The phrase “obviously relevant” should not be taken as indicating a new standard or degree of relevance: Jackson, at para. 125, per Watt J.A. Rather, this phrase simply describes information that is not within the investigative file, but that would nonetheless be required to be disclosed under Stinchcombe because it relates to the accused’s ability to meet the Crown’s case, raise a defence, or otherwise consider the conduct of the defence. McNeil requires the police to hand such information to the Crown.
[24] These qualifiers are significant, as they contemplate that not all police records will be subject to first party disclosure. For example, as this Court noted in McNeil, “not every finding of police misconduct by an officer involved in the investigation will be of relevance to an accused’s case”: para. 59. Similarly, as the Alberta Court of Appeal stated in R. v. Black, 2011 ABCA 349, 286 C.C.C. (3d) 432, at paras. 37-38:
All McNeil established is that disclosure of police misconduct records where they are obviously relevant is a matter of first party disclosure. In reaching that conclusion, the Supreme Court likened those types of records to records relating to convictions for perjury for Crown witnesses. Only records of misconduct that are obviously relevant form a part of first party disclosure. If the record of police misconduct is not obviously relevant, an accused person can still gain access to it relying on the O’Connor process for third party disclosure.
For all other records held by a public body, including the police, the Stinchcombe-O’Connor distinction continues to be the rule. The police are required to disclose the investigative file as first party Stinchcombe disclosure and other files or records in the hands of the police are subject to the O’Connor process. This would include files relating to complaints of criminal activity by Crown witnesses and the operational records of the police force or government body from whom records are sought. [Emphasis added.]
From the foregoing, it is evident that there is an important role for third party disclosure where the records are neither part of the investigative file nor obviously relevant, therefore not part of first party disclosure: McNeil, at para. 60.
[25] Third party disclosure is dealt with in O’Connor. To obtain disclosure of such records, an accused must make a court application. First, the burden is on the accused to show that the record is likely relevant. Second, where the accused discharges this burden, the judge will examine the record to determine whether, and to what extent, it should be produced to the accused.
[26] Information will be “likely relevant” where there is “a reasonable possibility that the information is logically probative to an issue at trial or to the competence of a witness to testify”: O’Connor, at para. 22 (emphasis deleted). The “likely relevant” threshold has been described as significant, but not onerous: O’Connor, at para. 24; McNeil, at para. 29. The reason that the relevance threshold is “significant” is to allow the courts to act as gatekeepers, preventing “speculative, fanciful, disruptive, unmeritorious, obstructive, and time consuming” requests for production: O’Connor, at para. 24, quoting R. v. Chaplin, [1995] 1 S.C.R. 727, at para. 32.
[27] Nevertheless, the burden on the accused is not onerous. “Likely relevance” is a lower threshold than “true relevance”, and has a “wide and generous connotation” that “includes 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”: McNeil, at para. 44; see also O’Connor, at para. 21. Only after information has been shown to be likely relevant will the courts assess the actual relevance of the record sought. The courts then consider competin

Court headnote

R. v. Gubbins Collection Supreme Court Judgments Date 2018-10-26 Neutral citation 2018 SCC 44 Report [2018] 3 SCR 35 Case number 37395, 37403 Judges Wagner, Richard; Abella, Rosalie Silberman; Moldaver, Michael J.; Karakatsanis, Andromache; Gascon, Clément; Côté, Suzanne; Brown, Russell; Rowe, Malcolm; Martin, Sheilah On appeal from Alberta Notes Case in Brief SCC Case Information: 37395, 37403 Decision Content SUPREME COURT OF CANADA Citation: R. v. Gubbins, 2018 SCC 44, [2018] 3 S.C.R. 35 Appeal Heard: February 6, 2018 Judgment Rendered: October 26, 2018 Dockets: 37395, 37403 Between: Kevin Patrick Gubbins Appellant and Her Majesty The Queen Respondent - and - Attorney General of Ontario Intervener And Between: Darren John Chip Vallentgoed Appellant and Her Majesty The Queen Respondent - and - Attorney General of Ontario and Director of Criminal and Penal Prosecutions Interveners Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin JJ. Reasons for Judgment: (paras. 1 to 60) Rowe J. (Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Brown and Martin JJ. concurring) Dissenting Reasons: (paras. 61 to 90) Côté J. R. v. Gubbins, 2018 SCC 44, [2018] 3 S.C.R. 35 Kevin Patrick Gubbins Appellant v. Her Majesty The Queen Respondent and Attorney General of Ontario Intervener ‑ and ‑ Darren John Chip Vallentgoed Appellant v. Her Majesty The Queen Respondent and Attorney General of Ontario and Director of Criminal and Penal Prosecutions Interveners Indexed as: R. v. Gubbins 2018 SCC 44 File Nos.: 37395, 37403. 2018: February 6; 2018: October 26. Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin JJ. on appeal from the court of appeal for alberta Criminal law — Evidence — Disclosure — Breathalyzer maintenance records — Scope of Crown’s disclosure obligations — Crown refusing disclosure of maintenance records for breathalyzer devices to accused charged with impaired driving and driving with blood alcohol level over limit — Whether maintenance records subject to first party disclosure rules or third party disclosure rules — Criminal Code, R.S.C. 1985, c. C‑46, s. 258(1) (c). V and G 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 V and G 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 V but otherwise refused to provide the requested disclosure. V applied for an order compelling disclosure and G applied for a stay of proceedings on the basis that his rights under s. 7 of the Canadian Charter of Rights and Freedoms had been breached. V’s application was dismissed and he was subsequently convicted of both charges, but G was granted a stay of proceedings. The Court of Queen’s Bench jointly heard appeals by V and by the Crown in G’s case. It held that maintenance records are first party records and should have been disclosed by the Crown, and upheld G’s stay of proceedings and ordered a new trial for V. 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 V’s conviction, and set aside G’s stay of proceedings and remitted his case for a new trial. Held (Côté J. dissenting): The appeals should be dismissed. Per Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Brown, Rowe and Martin JJ.: The breathalyzer maintenance records are subject to the rules applicable to the disclosure of third party records. As such, in order to obtain disclosure of the records, V and G were required to show that the records were likely relevant in this case, which they failed to do. The disclosure of first party records is subject to the Stinchcombe regime. The Crown has a duty to disclose all relevant, non‑privileged information in its possession or control, whether inculpatory or exculpatory. The duty, which is triggered upon request and does not require an application to court, applies only to the prosecuting Crown. However, the Crown has a duty to make reasonable inquiries when put on notice of material in the hands of police or other Crown entities that is potentially relevant. The police have a corresponding duty to disclose the fruits of the investigation, and any other information obviously relevant to an accused’s case. The “fruits of the investigation” refers to all material pertaining to the investigation of the accused, that is, the police’s investigative files, as opposed to operational records or background information. The phrase “obviously relevant” describes information that is not within the investigative file but that relates to the accused’s ability to meet the Crown’s case, raise a defence, or otherwise consider the conduct of the defence. The disclosure of third party records is subject to the O’Connor regime. To obtain disclosure of such records, an accused must make a court application. The burden is on the accused to show that the record is likely relevant. Information will be likely relevant where there is a reasonable possibility that the information is logically probative to an issue at trial or to the competence of a witness to testify. Where the accused discharges this burden, the judge will examine the record to determine whether, and to what extent, it should be produced to the accused. To determine which regime is applicable, the following must be considered: (1) whether the information that is sought is in the possession or control of the prosecuting Crown, and (2) whether the nature of the information sought is such that the police or another Crown entity in possession or control of the information ought to have supplied it to the prosecuting Crown. This will be the case if the information can be qualified as being part of the fruits of the investigation or obviously relevant. An affirmative answer to either of these questions will call for the application of the first party disclosure regime. Otherwise, the third party disclosure regime applies. The requested breathalyzer maintenance records in the instant case are not part of first party disclosure. They were not in the possession or control of the Crown, as they were held both by the RCMP and by other third parties. They are not part of the fruits of the investigation; rather, they are created as operational records that are not specific to any particular investigation. Furthermore, the maintenance records are not obviously relevant. The Court’s decision in R. v. St‑Onge Lamoureux, 2012 SCC 57, [2012] 3 S.C.R. 187, did not conclusively determine that all maintenance records are obviously relevant. The majority expressly declined to determine what evidence was relevant to determining the proper functioning and operation of the breathalyzer instrument. Moreover, the Court in St‑Onge Lamoureux did not have the benefit of the Alcohol Test Committee’s current position that records relating to periodic maintenance or inspections cannot address the working status of an approved instrument at the time of a breath test procedure. Further, the language of the presumption of accuracy set out in s. 258(1) (c) of the Criminal Code , which contemplates receiving evidence that the approved instrument was malfunctioning or was operating improperly, makes no reference to maintenance. Parliament therefore did not expressly contemplate that the presumption of accuracy will be rebutted based on evidence as to the maintenance of the approved instrument. In addition, the expert evidence in this case supports the view that the maintenance records are not obviously relevant to the reliability of the approved instruments or to determine whether the instrument malfunctioned. The breathalyzer machines are designed to produce a fail reading where they malfunction. Maintenance records cannot indicate whether any particular result is a false positive. The existence of maintenance records and the fact that the instrument underwent maintenance from time to time is not sufficient to justify the disclosure requested by the accused. Applying the O’Connor standard for third party disclosure, the maintenance records have not been shown to be likely relevant in this case. The Court in St‑Onge Lamoureux contemplated that rebutting the statutory presumption of accuracy in s. 258(1) (c) would likely require expert evidence. In the instant case, expert evidence was only presented by the Crown. In the absence of any evidence by the accused rebutting the statutory presumption, the expert evidence of the Crown is persuasive that the maintenance records are not relevant. The conclusion that the maintenance records are subject to third party disclosure rules does not put the constitutionality of s. 258(1) (c) in jeopardy. A defence is not illusory simply because accused persons will rarely succeed in raising a reasonable doubt by using it. The time‑of‑test records along with testimony from the technician or the officer involved are evidence that the accused may use to rebut the presumption of accuracy. 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. Per Côté J. (dissenting): The appeals should be allowed. Maintenance records should be subject to first party disclosure rules. 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. This opportunity is guaranteed by the Criminal Code and underlies the majority’s reasons in St‑Onge Lamoureux. The Court’s reasoning in St‑Onge Lamoureux was dependent in large part on two assumptions: (1) that one means available to an accused to raise a doubt as to the functioning of an instrument was by raising deficiencies in its maintenance; and (2) that the evidentiary basis for such a defence would be readily available to that accused. The Court should not depart from these assumptions on the basis of the Alcohol Test Committee’s current position on the relevance of maintenance records. The Committee continues to endorse the standards and procedures that were before the Court when it decided St‑Onge Lamoureux. Caution should be exercised when considering the extent to which the Committee’s updated recommendations are determinative of the relevance of maintenance records, a question of law that is to be decided by the courts. The fact that only one expert opinion is before the Court, while the position of experts that may disagree on the relevance of maintenance records is notably absent from the record, is further cause for caution. In St‑Onge Lamoureux, it was assumed on the basis of a fulsome evidentiary record that maintenance records were relevant to rebutting the presumption at issue and the impugned scheme’s constitutionality was confirmed on this basis. No new evidentiary basis calls those assumptions into question. The Court assumed that the accused would be provided with an evidentiary basis to raise a reasonable doubt as to the instrument’s functioning on the basis of its maintenance. Deciding that maintenance records are not available under first party disclosure will upset the delicate balance struck in St‑Onge Lamoureux and put the constitutionality of s. 258(1) (c) back into question. Holding that only time‑of‑test records produced by the instrument can demonstrate malfunctioning effectively assumes that the machine is infallible. This confines the defence to arguments raising a doubt as to the instrument’s operation, contrary to Parliament’s intent to make malfunctioning and improper operation two distinct grounds for rebutting the presumption of accuracy. Recourse to third party disclosure will, in practice, be illusory. For an accused to have a real opportunity to show that an instrument was malfunctioning, an expert must have an evidentiary basis either to opine as to the possibility that the instrument malfunctioned or to establish the likely relevance of other information to be sought through third party disclosure. Providing nothing by way of first party disclosure forces accused persons and their experts to resort to conjecture and speculation. Finally, disclosing maintenance records as first party records also serves the interests of justice. Where maintenance records reveal no issues, their disclosure may compel the accused to plead guilty. Where they reveal certain issues and an expert is of the opinion that these issues may prove that the instrument malfunctioned, the maintenance records provide a basis for the accused to raise such a defence or to make subsequent O’Connor requests in a grounded, non‑speculative manner. Cases Cited By Rowe J. Applied: R. v. O’Connor, [1995] 4 S.C.R. 411; considered: R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66; R. v. St‑Onge Lamoureux, 2012 SCC 57, [2012] 3 S.C.R. 187; R. v. Stinchcombe, [1991] 3 S.C.R. 326; referred to: R. v. Kilpatrick, 2013 ABCA 168; R. v. Kilpatrick, 2013 ABQB 5, 42 M.V.R. (6th) 92; R. v. Sutton, 2013 ABPC 308, 576 A.R. 14; R. v. Dixon, [1998] 1 S.C.R. 244; R. v. Quesnelle, 2014 SCC 46, [2014] 2 S.C.R. 390; R. v. Jackson, 2015 ONCA 832, 128 O.R. (3d) 161; R. v. Black, 2011 ABCA 349, 286 C.C.C. (3d) 432; R. v. Chaplin, [1995] 1 S.C.R. 727; World Bank Group v. Wallace, 2016 SCC 15, [2016] 1 S.C.R. 207; R. v. Gubins, 2009 ONCJ 80; R. v. Lo, 2009 ONCJ 307, 86 M.V.R. (5th) 284; R. v. Klug, 2010 ABPC 88, 500 A.R. 293; R. v. Kristianson, 2011 ABPC 309, 24 M.V.R. (6th) 298; R. v. Turnbull, 2012 ABPC 45, 32 M.V.R. (6th) 162; R. v. Hudye, 2013 SKPC 122, 425 Sask. R. 302; R. v. Pankiw, 2013 SKPC 47, 416 Sask. R. 206; R. v. Martens, 2013 ABPC 349; R. v. Carter, 2014 ABPC 291, 603 A.R. 366; R. v. Oleksiuk, 2014 ONCJ 313; R. v. Sinclair, 2015 ABQB 113, 75 M.V.R. (6th) 252; R. v. Timmons (1994), 132 N.S.R. (2d) 360; R. v. Anutooshkin (1994), 92 C.C.C. (3d) 59; R. v. Williams, 2000 BCSC 207, 1 M.V.R. (4th) 288; R. v. Keirsted, 2004 ABQB 491; R. v. Singleton, [2004] O.J. No. 5583 (QL); R. v. Nicolle, 2005 ONCJ 346, 27 M.V.R. (5th) 206; R. v. Coopsammy, 2008 ABQB 266, 68 M.V.R. (5th) 226; R. v. Balfour, 2009 ONCJ 308, 86 M.V.R. (5th) 278; R. v. Ahmed, 2010 ONCJ 130, 253 C.C.C. (3d) 378; Duff v. Alberta (Attorney General), 2010 ABPC 250, 497 A.R. 16; R. v. Worden, 2014 SKPC 143, 68 M.V.R. (6th) 141; R. v. Mills, [1999] 3 S.C.R. 668; R. v. Lam, 2014 ONCJ 247; R. v. Awashish, 2018 SCC 45, [2018] 3 S.C.R. 87. By Côté J. (dissenting) R. v. Stinchcombe, [1991] 3 S.C.R. 326; R. v. O’Connor, [1995] 4 S.C.R. 411; R. v. St‑Onge Lamoureux, 2012 SCC 57, [2012] 3 S.C.R. 187; R. v. Drolet, 2010 QCCQ 7719; R. v. Mohan, [1994] 2 S.C.R. 9; R. v. Sutton, 2013 ABPC 308, 59 M.V.R. (6th) 89; R. v. Chaplin, [1995] 1 S.C.R. 727; R. v. Awashish, 2018 SCC 45, [2018] 3 S.C.R. 87. Statutes and Regulations Cited Canadian Charter of Rights and Freedoms, ss. 7 , 11 (d). Criminal Code, R.S.C. 1985, c. C‑46, ss. 253(1) , 254(1) , 258(1) , (7) , 278.1 to 278.9 . Tackling Violent Crime Act, S.C. 2008, c. 6 . Authors Cited Canada. Senate. Standing Senate Committee on Legal and Constitutional Affairs. Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, No. 8, 2nd Sess., 39th Parl., February 20, 2008, p. 8:75. Canadian Society of Forensic Science. “Alcohol Test Committee Position Paper: Documentation Required for Assessing the Accuracy and Reliability of Approved Instrument Breath Alcohol Test Results” (2012), 45 Can. Soc. Forensic Sci. J. 101. Canadian Society of Forensic Science. “Canadian Society of Forensic Science Alcohol Test Committee Recommended Best Practices for a Breath Alcohol Testing Program” (2014), 47 Can. Soc. Forensic Sci. J. 179. Canadian Society of Forensic Science. “Recommended Standards and Procedures of the Canadian Society of Forensic Science Alcohol Test Committee” (2009), 42 Can. Soc. Forensic Sci. J. 1. APPEAL from a judgment of the Alberta Court of Appeal (Berger, Slatter and Rowbotham JJ.A.), 2016 ABCA 358, 344 C.C.C. (3d) 85, 33 C.R. (7th) 359, 3 M.V.R. (7th) 40, 44 Alta. L.R. (6th) 248, [2017] 4 W.W.R. 8, [2016] A.J. No. 1180 (QL), 2016 CarswellAlta 2195 (WL Can.), setting aside a decision of Kenny J., 2015 ABQB 206, 608 A.R. 197, [2015] A.J. No. 360 (QL), 2015 CarswellAlta 584 (WL Can.), which affirmed the stay of proceedings entered by Schaffter Prov. Ct. J., 2014 ABPC 195, 596 A.R. 351, 13 Alta. L.R. (6th) 45, [2014] A.J. No. 989 (QL), 2014 CarswellAlta 1594 (WL Can.), and remitting the matter to trial. Appeal dismissed, Côté J. dissenting. APPEAL from a judgment of the Alberta Court of Appeal (Berger, Slatter and Rowbotham JJ.A.), 2016 ABCA 358, 344 C.C.C. (3d) 85, 33 C.R. (7th) 359, 3 M.V.R. (7th) 40, 44 Alta. L.R. (6th) 248, [2017] 4 W.W.R. 8, [2016] A.J. No. 1180 (QL), 2016 CarswellAlta 2195 (WL Can.), setting aside a decision of Kenny J., 2015 ABQB 206, 608 A.R. 197, [2015] A.J. No. 360 (QL), 2015 CarswellAlta 584 (WL Can.), which ordered a new trial for the accused, and restoring the accused’s conviction entered by Golden Prov. Ct. J. Appeal dismissed, Côté J. dissenting. Timothy Foster, Q.C., and Katherin J. Beyak, for the appellant Kevin Patrick Gubbins. Stephen M. Smith, for the appellant Darren John Chip Vallentgoed. Robert J. Palser and Jason R. Russell, for the respondent. Michael Fawcett and Philip Perlmutter, for the intervener the Attorney General of Ontario. Nicolas Abran and Justin Tremblay, for the intervener the Director of Criminal and Penal Prosecutions. The judgment of Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Brown, Rowe and Martin JJ. was delivered by Rowe J. — I. Overview [1] These appeals deal with the scope of the Crown’s disclosure obligations with respect to maintenance records of breathalyzer instruments. These instruments are used to determine the blood alcohol content of suspected drunk drivers. It is important that these instruments provide accurate results. These cases deal with what information is relevant to assessing the reliability of these instruments. Are the maintenance records part of first party disclosure, subject to inclusion in the Crown’s standard disclosure package? Or, are these records third party records, which require the defence to demonstrate their likely relevance before an order for disclosure can be made? [2] Courts have provided inconsistent answers to the foregoing questions. 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. For the reasons that follow, I find that such records are subject to third party (rather than first party) disclosure. On the evidence in both cases, the defence failed to show that the maintenance records meet the requisite threshold for third party disclosure. Accordingly, I would dismiss the appeals. II. Facts [3] Both accused in this appeal were charged with impaired driving and with driving “over 80”, contrary to s. 253(1) (a) and (b) of the Criminal Code, R.S.C. 1985, c. C-46 . Mr. Vallentgoed and Mr. Gubbins provided breath samples. Mr. Vallentgoed’s samples showed blood alcohol readings of 130 mg% and 120 mg%. Mr. Gubbins’ samples showed two readings of 120 mg%. [4] Each of these breath samples was analyzed using an “approved instrument”, as required by s. 254(1) of the Criminal Code . The Crown led expert evidence that described in detail the operation of the instruments, including that they perform internal and external diagnostic tests at the time each breath sample is taken in order to ensure accuracy of the results. When a breath sample is obtained, the procedure is as follows: (a) Air Blank: The instrument purges any alcohol remaining in it. It then tests the alcohol content of the ambient air. The result of this test should be zero, but if it is different, the instrument sets a baseline that eliminates the effect of any ambient alcohol on the test results. If there is an excessive amount of ambient alcohol, the instrument will stop and the test will be cancelled. (b) Calibration Check (or Alcohol Standard Test): The instrument is tested against an alcohol vapour of known concentration from a certified sample. The sample generally has a concentration equal to 100 mg% of alcohol in the blood. The instrument must accurately measure the concentration within 10% (i.e., the result must be between 95 mg% and 105 mg%). If the instrument fails to perform within this range, the test will be cancelled. (c) Air Blank: The instrument performs a second air blank test in order to purge any residual alcohol vapour left from the sample used in the Calibration Check. (d) Breath Sample, First Test: The accused provides a deep lung breath sample into the instrument, which measures the concentration of alcohol present. The instrument is designed to (slightly) underestimate blood alcohol concentration. (e) Air Blank: The instrument performs another air blank check to purge any alcohol vapour. (f) Breath Sample, Second Test: After fifteen minutes, the process (steps (a) through (e) above) is repeated. The readings from the two breath samples are rounded down to the lowest 10 (i.e., a reading of 99 mg% is recorded as 90 mg%). The results of the two samples must be within 20 mg% of each other; the lower of the two results will be used: s. 258(1) (c) of the Criminal Code . If the two results are not within the foregoing range, further breath samples will be taken. [5] Each step in this sequence generates printed results. A “fail” in any step is indicated in the printouts. For both Mr. Vallentgoed and Mr. Gubbins, the instruments indicated no problems. None of the internal controls were triggered; the results were within the accepted ranges indicated above. The printouts generated at the time of the tests indicated that the instruments functioned properly. [6] The Crown provided Mr. Vallentgoed with a disclosure package that included documents created during the investigation, as well as other documents certifying that various components used in the testing process had been tested, maintained and certified. The documents included in this package were: (a) the Intoxilyzer 5000C Operational Check Sheet, (b) the Intoxilyzer 5000C Test Record, and (c) the Certificate of Analyses. These records provide details of the test results of the breath samples, as well as the results of the calibration checks. Also included was information about the officers involved, the date and time of the tests, and particulars of the instrument used. The Check Sheet includes the analyst’s handwritten notes of his or her observations of the accused’s condition at the time of testing. The Test Record is the printout from the instrument, signed by the technician who operated it. The Certificate of Analyses is the official record of the test results; it indicates the blood alcohol reading. The Certificate of Analyses also gives notice that it will be used as evidence in court: s. 258(1) (e) and (g) and s. 258(7) of the Criminal Code . [7] Other documents in the Crown’s disclosure package included: (a) the Intoxilyzer 5000C Simulator Alcohol Solution Log; (b) the Intoxilyzer 5000C Test Record for alcohol solution change; (c) the Certificate of Annual Maintenance; (d) the Certificate of Annual Maintenance for the standard alcohol solution breath simulator; (e) the Intoxylizer 5000C Use and Calibration Check Log; and (f) the Certificate of an Analyst (Alcohol Standard). These documents provide particulars of the alcohol solution (when its use commenced, when it was changed, as well as when it was tested and found to be suitable) and the instrument itself (when it was sent for annual maintenance and the details of each time the instrument was calibrated). [8] In addition, the Crown indicated that it would provide, on request, the RCMP Operational Manual for the instrument, as well as the Qualified Technician’s designation. [9] Mr. Gubbins was provided a disclosure package as described above, save that it did not include any documents relating to the maintenance of the instrument in question. [10] Both Mr. Vallentgoed and Mr. Gubbins requested additional disclosure. Mr. Vallentgoed requested: (1) maintenance records for the breathalyzer instrument for the past two years; (2) maintenance and inspection records for the external simulator; and (3) records showing the cumulative uses of the alcohol standard for a one month period before testing. The Crown produced a basic maintenance log. Upon inspecting the records, Mr. Vallentgoed noted that the machine had been sent for repairs the day after he was charged, two months before that, and again two months before that. Mr. Vallentgoed requested detailed reports of the work performed on these dates. The Crown refused, on the basis that these maintenance reports were third party records and were not relevant. In response, Mr. Vallentgoed applied for disclosure in the Alberta Provincial Court. [11] Mr. Gubbins demanded disclosure of all maintenance records for the instrument from the time it was imported into Canada and first put into use. The Crown refused to provide the requested disclosure, on the basis that these were third party records held by the contractor that maintained the equipment and they did not meet the required threshold of relevance. Mr. Gubbins brought an application for a stay of proceedings, arguing that his rights under s. 7 of the Canadian Charter of Rights and Freedoms were infringed by the Crown’s refusal to provide the additional disclosure that he had requested. III. Judicial History A. Provincial Court of Alberta ― R. v. Vallentgoed, March 11, 2014 [12] In dealing with Mr. Vallentgoed’s disclosure application, Golden Prov. Ct. J. noted there was disagreement in the case law regarding disclosure of maintenance records. The Alberta Court of Appeal in R. v. Kilpatrick, 2013 ABCA 168, dismissed an application for leave to appeal from a decision which held that maintenance records were subject to first party disclosure: 2013 ABQB 5, 42 M.V.R. (6th) 92. Golden Prov. Ct. J. noted that the Court of Appeal decided Kilpatrick without evidence being adduced as to the relevance of the maintenance records. By contrast, the Alberta Provincial Court in R. v. Sutton, 2013 ABPC 308, 576 A.R. 14, had received expert evidence. The judge in Sutton concluded that the maintenance records were not relevant; thus, they did not meet the threshold for first party disclosure. Golden Prov. Ct. J. favoured the approach in Sutton. He concluded that the maintenance records were not relevant. Accordingly, he dismissed the application for disclosure. Mr. Vallentgoed was later convicted. B. Provincial Court of Alberta ― R. v. Gubbins, 2014 ABPC 195, 596 A.R. 351 [13] Schaffter Prov. Ct. J. dealt with Mr. Gubbins’ application for a stay of proceedings under s. 7 of the Charter based on the Crown’s refusal to provide additional disclosure. Schaffter Prov. Ct. J. took the view that she was bound by Kilpatrick. As well, she noted that in R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66, the Court held that police discipline records were first party records, as they are relevant to assessing the credibility of the officer, despite not being fruits of the investigation. By analogy, the maintenance records are relevant to the reliability of the approved instrument. The requested disclosure was, therefore, first party. Accordingly, the Crown should have disclosed the records sought. Schaffter Prov. Ct. J. concluded that a breach of s. 7 was made out. Given that Mr. Gubbins’ driving license was suspended pending the outcome of the trial, and that this suspension would continue if she ordered an adjournment, Schaffter Prov. Ct. J. was satisfied that Mr. Gubbins would be prejudiced. She entered a stay of proceedings. C. Court of Queen’s Bench of Alberta ― 2015 ABQB 206, 608 A.R. 197 [14] Mr. Vallentgoed appealed his conviction. The Crown appealed Mr. Gubbins’ stay of proceedings. The appeals were heard jointly before Kenny J., sitting as summary conviction appeal judge. In her view, it was problematic for the Crown to have to tender expert evidence in every case to demonstrate that the maintenance records are irrelevant. These records may or may not meet the threshold for relevancy. In Kenny J.’s view, it is a waste of judicial resources to re-litigate this issue repeatedly, especially given that the Court’s ruling in R. v. St-Onge Lamoureux, 2012 SCC 57, [2012] 3 S.C.R. 187, determined conclusively (in her view) that maintenance records are first party records. She dismissed the Crown’s appeal of Mr. Gubbins’ stay of proceedings and ordered a new trial for Mr. Vallentgoed. D. Court of Appeal of Alberta ― 2016 ABCA 358, 344 C.C.C. (3d) 85 (1) Per Slatter J.A. (Berger J.A. Concurring) [15] Slatter J.A., with Berger J.A. concurring, allowed the appeals. He took the view that the maintenance records are not fruits of the investigation to be disclosed routinely. Rather, they are third party records subject to the procedure set out in R. v. O’Connor, [1995] 4 S.C.R. 411. Maintenance records differ from time-of-test records; the latter show how the device was operating when the breath sample was taken. Time-of-test records are relevant; they can also be the basis for an argument for further disclosure. Based on the expert evidence on behalf of the Crown, Slatter J.A. concluded that a “fail” reading is not evidence of a malfunction in the instrument. Rather, a “fail” indicates that the instrument is functioning properly by alerting the technician that there is a problem. Thus, a “fail” on an earlier or later occasion (than the test of the breath samples of the accused) that leads to maintenance of the instrument tells us nothing about whether the instrument was functioning properly on the occasion when the breath samples of the accused were tested. Rather, what is relevant is whether a “fail” occurred in the test sequence (described above in para. 4) that produced the results for the breath samples of the accused; no “fail” indicates the instrument was functioning properly. In the result, Slatter J.A. reinstated Mr. Vallentgoed’s conviction; he set aside Mr. Gubbins’ stay of proceedings and remitted his case for a new trial. (2) Per Rowbotham J.A. (Dissenting) [16] In Rowbotham J.A.’s view, this Court’s decision in St-Onge Lamoureux provided authoritative guidance that maintenance records are relevant and should form part of the standard disclosure package. The maintenance records could be the basis for an application to obtain further, and more detailed, maintenance records. In Mr. Vallentgoed’s case, the trial judge erred by not ordering disclosure of the maintenance records. Rowbotham J.A. would have dismissed the Crown appeal in Mr. Vallentgoed’s case. With respect to Mr. Gubbins, Rowbotham J.A. would have allowed the appeal in part, as Mr. Gubbins had (later) received disclosure of the complete service records that he had sought. Accordingly, she would have lifted the stay and remitted Mr. Gubbins’ case to trial. IV. Issues [17] These appeals require the Court to consider which disclosure regime applies to maintenance records of breathalyzer instruments. The Court must then decide whether the requisite threshold for disclosure has been met in these cases. V. Analysis A. Stinchcombe and O’Connor: Two Disclosure Regimes [18] In R. v. Stinchcombe, [1991] 3 S.C.R. 326, this Court held that the Crown has a duty to disclose all relevant, non-privileged information in its possession or control, whether inculpatory or exculpatory. This is referred to as first party disclosure. The Crown’s duty to disclose corresponds to the accused’s constitutional right to the disclosure of all material which meets the Stinchcombe standard: R. v. Dixon, [1998] 1 S.C.R. 244, at para. 22. The purpose of disclosure is to protect the accused’s Charter right to full answer and defence, which will be impaired where there is a “reasonable possibility that the undisclosed information could have been used in meeting the case for the Crown, advancing a defence or otherwise making a decision which could have affected the conduct of the defence”: ibid. [19] The Crown’s duty to disclose is triggered upon request and does not require an application to court: Stinchcombe, at pp. 342-43. The duty is ongoing; new information must be disclosed when it is received: ibid. The Crown’s duty to disclose is not absolute. The Crown considers relevance and the rules of privilege. Where the Crown refuses to disclose evidence for reasons of privilege or irrelevance, the defence can request a review; in such an instance, the burden is on the Crown to justify its refusal to disclose by showing that the information is “clearly irrelevant” or privileged: Stinchcombe, at pp. 339-40. [20] The “Crown” for the purposes of Stinchcombe does not refer to all Crown entities, but only to the prosecuting Crown: McNeil, at para. 22; R. v. Quesnelle, 2014 SCC 46, [2014] 2 S.C.R. 390, at para. 11. All other Crown entities, including police, are third parties for the purposes of disclosure. They are not subject to the Stinchcome regime. This is because the law cannot impose an obligation on the Crown to disclose material that it does not have or cannot obtain: McNeil, at para. 22. [21] In McNeil, this Court clarified that “the Crown cannot explain a failure to disclose relevant material on the basis that the investigating police force failed to disclose it to the Crown”: para. 24. The Crown has a duty to make reasonable inquiries when put on notice of material in the hands of police or other Crown entities that is potentially relevant: McNeil, at para. 49. As well, the police have a corresponding duty to disclose “all material pertaining to its investigation of the accused”: McNeil, at paras. 23 and 52. Such material is often referred to as “the fruits of the investigation”: McNeil, at paras. 14, 22-23. As well, the police may be required to hand over information beyond the fruits of the investigation where such information is “obviously relevant to the accused’s case”: McNeil, at para. 59. [22] The “fruits of the investigation” refers to the police’s investigative files, as opposed to operational records or background information. This information is generated or acquired during or as a result of the specific investigation into the charges against the accused. Such information is necessarily captured by first party/Stinchcombe disclosure, as it likely includes relevant, non-privileged information related to the matters the Crown intends to adduce in evidence against an accused, as well as any information in respect of which there is a reasonable possibility that it may assist an accused in the exercise of the right to make full answer and defence. The information may relate to the unfolding of the narrative of material events, to the credibility of witnesses or the reliability of evidence that may form part of the case to meet. In its normal, natural everyday sense, the phrase “fruits of the investigation” posits a relationship between the subject matter sought and the investigation that leads to the charges against an accused. (R. v. Jackson, 2015 ONCA 832, 128 O.R. (3d) 161, at paras. 92-93) [23] In addition to information contained in the investigative file, the police should disclose to the prosecuting Crown any additional information that is obviously relevant to the accused’s case. The phrase “obviously relevant” should not be taken as indicating a new standard or degree of relevance: Jackson, at para. 125, per Watt J.A. Rather, this phrase simply describes information that is not within the investigative file, but that would nonetheless be required to be disclosed under Stinchcombe because it relates to the accused’s ability to meet the Crown’s case, raise a defence, or otherwise consider the conduct of the defence. McNeil requires the police to hand such information to the Crown. [24] These qualifiers are significant, as they contemplate that not all police records will be subject to first party disclosure. For example, as this Court noted in McNeil, “not every finding of police misconduct by an officer involved in the investigation will be of relevance to an accused’s case”: para. 59. Similarly, as the Alberta Court of Appeal stated in R. v. Black, 2011 ABCA 349, 286 C.C.C. (3d) 432, at paras. 37-38: All McNeil established is that disclosure of police misconduct records where they are obviously relevant is a matter of first party disclosure. In reaching that conclusion, the Supreme Court likened those types of records to records relating to convictions for perjury for Crown witnesses. Only records of misconduct that are obviously relevant form a part of first party disclosure. If the record of police misconduct is not obviously relevant, an accused person can still gain access to it relying on the O’Connor process for third party disclosure. For all other records held by a public body, including the police, the Stinchcombe-O’Connor distinction continues to be the rule. The police are required to disclose the investigative file as first party Stinchcombe disclosure and other files or records in the hands of the police are subject to the O’Connor process. This would include files relating to complaints of criminal activity by Crown witnesses and the operational records of the police force or government body from whom records are sought. [Emphasis added.] From the foregoing, it is evident that there is an important role for third party disclosure where the records are neither part of the investigative file nor obviously relevant, therefore not part of first party disclosure: McNeil, at para. 60. [25] Third party disclosure is dealt with in O’Connor. To obtain disclosure of such records, an accused must make a court application. First, the burden is on the accused to show that the record is likely relevant. Second, where the accused discharges this burden, the judge will examine the record to determine whether, and to what extent, it should be produced to the accused. [26] Information will be “likely relevant” where there is “a reasonable possibility that the information is logically probative to an issue at trial or to the competence of a witness to testify”: O’Connor, at para. 22 (emphasis deleted). The “likely relevant” threshold has been described as significant, but not onerous: O’Connor, at para. 24; McNeil, at para. 29. The reason that the relevance threshold is “significant” is to allow the courts to act as gatekeepers, preventing “speculative, fanciful, disruptive, unmeritorious, obstructive, and time consuming” requests for production: O’Connor, at para. 24, quoting R. v. Chaplin, [1995] 1 S.C.R. 727, at para. 32. [27] Nevertheless, the burden on the accused is not onerous. “Likely relevance” is a lower threshold than “true relevance”, and has a “wide and generous connotation” that “includes 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”: McNeil, at para. 44; see also O’Connor, at para. 21. Only after information has been shown to be likely relevant will the courts assess the actual relevance of the record sought. The courts then consider competin

R. v. Gubbins

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R. v. Gubbins

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