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When a breathalyzer is prepared for use by a police officer, it performs a series of internal and external diagnostic tests to ensure the accuracy of the results of the tests. After the breath samples are taken, the breathalyzer machine prints the results of the diagnostic tests, which are later provided to the accused person as disclosure in the event that they are charged with a criminal offence based on the results of the test. What is not provided as disclosure is the full record of maintenance of the breathalyzer machine, which includes information about repairs the machine has previously underwent, parts that have been replaced, and hardware or software updates.
In criminal proceedings, the Crown provides two kinds of evidence to an accused person. The first kind is first party records, which the Crown is required to disclose to an accused person, per R v Stinchcombe,  3 S.C.R. 326 (Stinchcombe). The second kind are third party records, which are governed by the rules set out in R v O’Connor,  4 S.C.R. 411 (O’Connor), and can be requested by an accused person through an application to the court where the accused person has to demonstrate the “likely relevance” of the evidence (Gubbins, para 25).
In R v Gubbins, 2018 SCC 44, the Supreme Court of Canada (“SCC”) heard an appeal of two cases from the Alberta Court of Appeal (“ABCA”) concerning two individuals? charged with impaired driving and driving (“over 80”) contrary to the Criminal Code, R.S.C. 1985 c. C-46, s.253(1)(a) and (b). At issue was whether the maintenance records of the breathalyzer machines should be considered as first- or third-party evidence and whether the Crown was required to disclose those records. Ultimately, the majority of the SCC found that the maintenance records are third-party records, but a sharp dissent by Justice C?té highlights where the majority’s logic may create inconsistencies with other provisions in the Criminal Code based on the SCC’s previous decision in R v St-Onge Lamoureux, 2012 SCC 57 (St-Onge Lamoureux) .
Mr. Vallentgoed and Mr. Gubbins were both charged with impaired driving and driving over 80. Both accuseds gave breath samples that were obtained and analyzed using a properly calibrated breathalyzer machine in accordance to the standard procedures. During the course of the criminal proceedings, both Mr. Vallentgoed and Mr. Gubbins requested the full maintenance records of the machines.
In Mr. Vallentgoed’s case, Mr. Vallentgoed requested detailed maintenance records and was provided with a basic maintenance log that showed the machine had been sent for repairs a number of times. He applied for an order for the rest of the maintenance logs, especially regarding the nature of the repairs done to the machine. That request was denied, and Mr. Vallentgoed was subsequently convicted.
In Mr. Gubbin’s case, Mr. Gubbins demanded disclosure of full maintenance records of the breathalyzer, but his request was refused by Crown on the basis that the records were third-party records. Mr. Gubbins applied for a stay of proceedings based on the violation of his Charter?section 7 right by the Crown refusing to provide the additional disclosure. His request was subsequently granted.
Both cases were appealed to the Alberta Court of the Queen’s Bench and were jointly heard. The Court of the Queen’s Bench held that breathalyzer machine maintenance records were not regularly disclosed and are third-party records. Mr. Vallentgoed’s conviction was reinstated and Mr. Gubbin’s stay was set aside and a new trial was ordered.
Both cases were appealed to the ABCA, which also jointly heard the appeals. Justice Slatter, writing for the majority of the Court of Appeal, also adopted the view that the maintenance records are third-party records, but Justice Rowbotham dissented, stating that the records are “clearly relevant” and should form part of the standard disclosure package as a first-party record.
The Majority Decision at the SCC
At the SCC, the question remained as to whether the maintenance records of breathalyzer machines are first-party or third-party records for the purpose of disclosure. The majority decision, delivered by Justice Rowe, ultimately concluded that the records are third-party records, so their disclosure must meet the requirements set out in O’Connor. The majority proposed a test to determine whether the evidence sought is a first-party or third-party record. In order to determine what kind of record is being sought, it is necessary to determine:
- Whether the information that is sought is in the possession or control of the prosecuting Crown; and
- 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 (Gubbins, para 33).
In order to satisfy the second part of the test, whether the nature of the information ought to have been supplied to the prosecuting Crown, the information sought must either be the “fruits of the investigation” or “obviously relevant.” If either the first or second criteria of the test is satisfied, the records requested are first-party records, and the Crown must either disclose them or demonstrate that disclosure would not be in the public interest. If neither part of the test is satisfied, then the records are third-party records, and the defence will be required to bring an application for disclosure and argue for their relevance.
In?Gubbins, the SCC concluded that the disclosure was not in possession of the Crown. Moreover, the maintenance records are not “fruits of an investigation,” because they are held by the RCMP. Alternately, in cases where a machine has been sent somewhere for repairs, the records are held by third parties.
The Court also concluded that the maintenance records are not “obviously relevant.” Documents that are obviously relevant are those that relate to an accused person’s ability to answer the Crown’s case, raise a defence, or otherwise consider the conduct of the defence. In determining that the maintenance records were not obviously relevant, the Court relied on a report by the Alcohol Test Committee of the Canadian Society of Forensic Science, which was presented as evidence by the Crown. The report stated that the proper functioning and operation of the breathalyzer machine can be ascertained by the printed results that are obtained whenever the machine is used to collect a breath sample, which are regularly disclosed to an accused person. Records of periodic maintenance and repairs, the Alcohol Testing Committee claims, “cannot address the working status of an approved instrument at the time of a breath test procedure” (Gubbins, para 45). Because breath machines are designed to show the user when they are not working reliably, any records outside of the printouts given at the time of screening are sufficient to establish that the machine is working properly. Furthermore, the risk of false positives, where a breathalyzer falsely determines that someone is over the legal limit, are low, and that the maintenance records are “highly unlikely” to indicate whether a particular result is a false positive (Gubbins, para 48).
In applying these considerations to the facts, the SCC found that in both cases, the defence failed to provide an expert opinion on how maintenance records might be relevant to the proceedings at trial. Without any such evidence, the SCC was persuaded by the expert evidence that was provided by the Crown demonstrating that the maintenance records were not relevant. As a result, Mr. Vallengoed’s conviction was affirmed and Mr. Gubbins’s stay was revoked and his matter was remitted for a new trial.
In her dissent, Justice C?té argued that maintenance records should be considered first-party records and should be disclosed by the Crown. Justice C?té primarily took issue with the majority’s contention that the maintenance records are not obviously relevant. Based on the decision in St-Onge Lamoureux, which held that there is a rebuttable statutory presumption that approved breathalyzer devices are reliable, increasing the difficulty of obtaining evidence that might rebut that presumption challenges the presumption of innocence. Because maintenance records are subject to the rules surrounding third-party disclosure, the result of the majority’s decision would make the presumption nearly impossible to rebut for an accused person and would threaten the presumption of innocence.
In St-Onge Lamoureux, the constitutionality of the presumption that breathalyzers are reliable was based on two assumptions:
- The assumption 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
- The assumption that the evidentiary basis for such a defence would be readily available to the accused (St-Onge Lamoureux, para 71).
By classifying maintenance records as third-party records, the defence is required to make an application to the court and provide expert evidence about the likely relevance of the maintenance records
Justice C?té also challenged the Alcohol Testing Committee’s evidence. Although the evidence of the Alcohol Testing Committee was not available when St-Onge Lamoureux was published, Justice C?té did not believe that their report was nearly as persuasive as the majority in Gubbins. Justice C?té pointed out that the Alcohol Testing Committee is not a truly independent body of scientific experts, because it is made up of experts who have worked in law enforcement. It is also unclear how the report speaks generally about the issue of maintenance records, and does not address any of the particulars of the cases before the courts.
The?O’Connor framework for disclosure of third-party records does allow for an accused person to request disclosure of the maintenance records of a breathalyzer machine. That said, Justice C?té’s dissent highlights the burden this would place on the accused to obtain records that are kept either by the police or by third parties who could provide the information to the police with ease. By requiring an accused person to rebut a presumption that a breathalyzer machine is reliable and in good working order, and then further requiring that the accused undertake the onerous third-party disclosure procedures, the majority has created a regime where the accused has enormous hurdles to overcome in order to challenge incriminating evidence.
The fact that the Alcohol Testing Committee claimed there is a low likelihood that the full breathalyzer maintenance records will reveal anything relevant about the working status of the machine should suggest that the maintenance records ought to be considered first-party records that are disclosed at the outset of a criminal proceedings. Much of the majority’s argument relied on the difficulty of producing the records, but it does not consider that police can change their procedures about keeping full maintenance records of breathalyzer machines to facilitate the disclosure of these records. Furthermore, the test proposed by the majority introduces a normative component that gives little insight into what kinds of things the police of another Crown entity “ought to have supplied to the prosecuting Crown” (Gubbins, para 33).
While it might be useful to have a flexible test that can accommodate the wide variety of evidence that must be disclosed by the Crown, the majority already provides a high burden for what ought to be disclosed by limiting it to the “fruits of an investigation.” This limit does not apply to background records that are relevant to the investigation, such as maintenance records for a breathalyzer machine.
The majority further limits what might be considered first-party evidence by requiring that the evidence be “obviously relevant,” but conceptualizes the relevance as something that can be exculpatory evidence. If any evidence has the possibility of being exculpatory, for example, if maintenance records can indicate that a machine was malfunctioning, then it would seem that the evidence has to be relevant simply by virtue of its potential to be exculpatory. Even accepting that the evidence might be very unlikely, the fact that such evidence could potentially prevent a wrongful conviction by showing that a machine has not been in good working order should demonstrate that the evidence is obviously relevant.
By requiring that an accused person prove that a breathalyzer machine is not relevant, and then requiring a third-party records application for the very evidence that could rebut such a presumption, the majority introduces an unfair procedural hurdle for people accused of driving with a blood-alcohol content of over 80. The dissenting opinions in both the ABCA and the SCC are apt to highlight the need for complete disclosure of full maintenance records to assist individuals who have been charged. Practically speaking, the relative ease with which such records could be provided to an accused person with changes in police record-keeping policies does not make the disclosure an onerous burden. The fact that the SCC relies on the evidence provided by the Crown and the lack of evidence provided by the defence only highlights the unfairness. This is because in both cases, the accused did not believe that there was a requirement for a third-party records request, and therefore might not have felt that they needed to provide expert evidence about the need for maintenance records and the ways in which those records may highlight problems with the machines. Without such evidence, the decision gives the impression of one-sidedness, despite the obvious implications for individual liberty rights, the right to make a full defence, and the presumption of innocence.