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Milligan's Criminal Law Advisor | Breathalyzer instruments

Milligan's Criminal Law Advisor | Breathalyzer instruments

Breathalyzer maintenance records subject to "third party" disclosure rules

Milligan’s Criminal Law Advisor

By Jeffrey Milligan

The Alberta Court of Appeal, in two related appeals that were heard and decided together, recently dealt with whether the Crown is obliged to disclose maintenance records for breathalyzer instruments.

The majority judgment, written by Slatter J.A., held that maintenance records are “third party” records and counsel must seek their production through the O’Connor regime. The majority also suggested, even more forcefully than the court in Jackson, that the bar that the defence must clear to satisfy a court to order their production will be very, very high.

Approved instruments have many internal controls which are designed to detect errors in the way the instrument is working. If the instrument is not working properly, the internal controls will let the operator know this and might even shut down the instrument. The majority held that it was “highly unlikely” that approved instruments will malfunction without triggering any internal controls designed to detect errors and shut down the instrument.

The Crown called an expert toxicologist, Ms. Kerry Blake, whose evidence was uncontradicted. She deposed that while maintenance records “ . . . should be kept they cannot be used to determine whether an error has or will occur on any given test or at any given time” and went on to conclude: “As a forensic scientist, I can form no conclusions concerning the proper operation of an instrument based on maintenance records”: para. 18. At paras. 18 and 19 of his judgment, Slatter J.A. summed up her evidence as follows: [18] . . . . the only way to detect if any instrument was malfunctioning at any particular time is to examine the records made at the time-of-test. If the instrument did not report a “fail” and the printed results of the test are regular, the instrument was working. The fact that it might have malfunctioned the day before the test, or the day after that test, does not take away from the fact that it was operating properly at the time of this particular test.

[19] It would follow from Ms. Blake’s evidence that the historical maintenance records of a breathalyzer instrument are “clearly irrelevant”. All that the accused needs to make full answer and defence are the time-of-test results. Any malfunction of the instrument during the test will be disclosed on those records, or to put it another way, the chance of there being any malfunctioning that is undetected is so negligible as to be speculative.

Maintenance logs, he decided, were not the “fruits of the investigation” and are only disclosable under the O’Connor regime. (This requires, as a threshold, that the defence establish their “likely relevance”.) As Slatter J.A. pointed out, this is suggested by Deschamps J. in Ste-Onge Lamoreux, at para. 78.

”Time-of-test” records are, by contrast, “first party” disclosure and ought to be disclosed by the Crown as Stinchcombe disclosure. Because, as he put it at para. 75, “ . . . the chances of an undetected malfunction are extremely remote . . . “, Justice Slatter observed that the defence will “rarely” be able to persuade a court that historical maintenance are “likely relevant”. To quote from para. 70 of the majority judgment:

As a matter of evidence in these appeals, and as a matter of logic generally, historical maintenance records will rarely if ever be actually relevant to making full answer and defence in a particular prosecution, and therefore the accused will rarely be able to show “likely relevance” of those records. Merely arguing that there are likely maintenance records, and that the instruments likely underwent maintenance from time to time, is not sufficient to show that there is sufficient probative, relevant evidence in those historical records to justify disclosure.

In a very well reasoned dissent, Madam Justice Rowbotham quoted at length from Ste-Onge Lamoureaux and held, at para. 105, that it “ . . . opened the door to the disclosure of some maintenance records”. She held that some of the maintenance records become “first party” disclosure because the instrument is reliable only if properly maintained. Thus, she held that the Crown is obliged to provide, as Stinchcombe disclosure, the maintenance log of the approved instrument.

R. v. Vallentgoed, 2016 CarswellAlta 2195, 2016 ABCA 358
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