R. v. Gubbins, 2018 SCC 44

Criminal law — Evidence — Disclosure — Breathalyzer maintenance records

On appeal from a judgment of the Court of Appeal for Alberta (Berger, Slatter and Rowbotham JJ.A.), 2016 ABCA 358

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, 8-1 (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.

Reasons for judgment: Rowe J. (Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Brown and Martin JJ. concurring)

Dissenting Reasons: Côté J.

Neutral Citation: 2018 SCC 44

Docket Number: 37395 and 37403

R. v. Awashish, 2018 SCC 45

Criminal law — Interlocutory orders — Review

On appeal from a judgment of the Quebec Court of Appeal (Thibault, Bouchard and Gagnon JJ.A.), 2016 QCCA 1164

The accused was charged with impaired driving and driving “over 80”. She successfully brought an application before the Court of Québec 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 accused appealed. The Court of Appeal allowed the appeal, holding that certiorari is available to an accused where a judge acts without jurisdiction and, in certain circumstances, when a judge makes an error of law on the face of the record. In this case, it was of the view that certiorari should not have been granted as the decision was made in the exercise of the Court of Québec’s jurisdiction.

Held, 9-0: The appeal should be dismissed.

Certiorari in criminal proceedings is available to parties only for a jurisdictional error by a provincial court judge. The availability of extraordinary remedies, notably certiorari, is constrained by the general prohibition against interlocutory appeals in criminal matters. The use of certiorari is tightly limited so as to ensure that it is not used to run afoul of the prohibition. Fragmenting criminal proceedings by permitting interlocutory appeals risks having issues decided without the benefit of a full evidentiary record, which is a significant source of delay and an inefficient use of judicial resources. Permitting parties access to certiorari review for an error of law on the face of the record, in particular in an evidentiary ruling, gives rise to de facto interlocutory appeals and is in direct tension with the approach set out in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, to achieve prompt justice in criminal cases. Furthermore, allowing the use of certiorari to provide for de facto interlocutory appeals in criminal cases would give rise to an unprincipled distinction between trials that proceed before provincial courts and those before superior courts, since certiorari is not available against a superior court.

In the criminal context, jurisdictional errors occur where the court fails to observe a mandatory provision of a statute or where a court acts in breach of the principles of natural justice. In dealing with the accused’s application, the Court of Québec made a legal error, not a jurisdictional one. The Crown was under no obligation to inquire into whether the records exist as the accused did not establish a basis for their existence or relevance. Nevertheless, given that the Court of Québec made no jurisdictional error, certiorari cannot be used to correct the error.

Reasons for judgment: Rowe J. (Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown and Martin JJ. concurring)

Neutral Citation: 2018 SCC 45

Docket Number: 37207