COURT FILE No.: Toronto Region, Metro North Court DATE: 2009 02 24 Citation: R. v. Gubins, 2009 ONCJ 80 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN AND MELISSA GUBINS Before Justice Leslie Pringle Heard on November 19, 2008; January 14, 2009 Reasons for Judgment released on February 24, 2009 Mr. J. Tupper... for the Crown Mr. G. Zoppi... for the accused Melissa Gubins [1] JUSTICE L. PRINGLE: This is a motion for disclosure brought at trial. Ms. Gubins is charged with driving over 80 in the early morning hours of November 28, 2006: specifically it s alleged that after she was stopped for speeding on the Don Valley Parkway, her truncated readings on the Intoxilyzer 5000C at the police station were 120 mg. of alcohol in 100 ml. of her blood. If found guilty of this offence, Ms. Gubins could go to jail, but at minimum if convicted she will receive a substantial fine and be prohibited from driving anywhere in Canada for at least one year. [2] I have ruled that recent amendments to the Criminal Code in sections 258(1)(c) and 258(d.01) apply to her case, significantly changing the evidentiary rules at her trial from those previously applied. In order to advance a defence that she didn t drink enough to blow over, these amendments now require her to show, (amongst other things), that the Intoxilyzer 5000C instrument that measured her blood alcohol content was malfunctioning or improperly operated. In a very real sense then, the Intoxilyzer 5000C is the main witness against her at trial. [3] Accordingly, the defence has requested the following disclosure relating to the instrument: 1. maintenance records for the instrument;
2 2. calibration logs for the alcohol standard solution used in the instrument; 3. recorded test information for 24 prior subject tests and 25 subsequent subjects tests. [4] All of the requested items are in the hands of the Toronto Police Service. I am told that they are available and easily produced. However the Crown takes the position that they are irrelevant to the case before me, and need not be disclosed. The Crown further submits that they are third party records and that the defendant needs to bring a third party records application for production. [5] I do not believe these items are third party records, as I will explain below. Further, I do not find that the Crown has met the burden of showing the records are clearly irrelevant to Ms. Gubins case. Accordingly, I am ordering that the Crown disclose the maintenance and calibration records, as well as the 24 subject test records performed prior to Ms. Gubins tests. These are my reasons. 1. General Principles of Disclosure [6] The test for disclosure as set out in R. v. Stinchcombe (1991), 68 C.C.C. (3d) 1 (S.C.C.) is that the Crown is required to disclose all relevant information, whether it is inculpatory or exculpatory, and whether or not the Crown intends to introduce it as evidence. This broad duty of disclosure is subject only to a limited discretion to withhold what is clearly irrelevant, privileged, or beyond the Crown s control. [7] The Crown s discretion to withhold information is reviewable by the trial judge. Justice Sopinka stated in Stinchcombe at page 12: Counsel for the defence can initiate a review when an issue arises with respect to the exercise of the Crown s discretion. On a review the Crown must justify its refusal to disclose. As much as disclosure of all relevant information is the general rule, the Crown must bring itself within an exception to that rule. (my emphasis) [8] Justice Sopinka further explained what constitutes relevant information : The trial judge on a review should be guided by the general principle that information ought not to be withheld if there is a reasonable possibility that the withholding of information will impair the right of the accused to make full answer and defence, unless the non-disclosure is justified by the law of privilege. (my emphasis) [9] In R. v. Egger (1993), 82 C.C.C. (3d) 193 (S.C.C.) at p.204, he went on to state:
3 One measure of the relevance of information in the Crown s hands is its usefulness to the defence: if it is of some use, it is relevant and should be disclosed: Stinchcombe, supra, at p.16. This requires a determination by the reviewing judge that production of the information can reasonably be used by the accused either in meeting the case for the Crown, advancing a defence or otherwise in making a decision which may affect the conduct of the defence such as for example whether to call evidence. (my emphasis) [10] In R. v. Chaplin (1995), 96 C.C.C. (3d) 225 (S.C.C.) at para. 25, Justice Sopinka re-iterated that where the material exists and has been identified, the Crown must justify non-disclosure by: demonstrating either that the information sought is beyond its control, or that it is clearly irrelevant or privileged. The trial judge must afford the Crown an opportunity to call evidence to justify such allegation of non disclosure. (my emphasis) [11] Eight years later the Supreme Court of Canada affirmed these principles in strong terms. In R. v. Taillefer; R. v. Duguay (2003), 179 C.C.C. (3d) 353 at para 60, Justice Lebel spoke for the court in saying: As the courts have defined it, the concept of relevance favours the disclosure of evidence. Little information will be exempt from the duty that is imposed on the prosecution to disclose evidence. As this Court said in Dixon, supra, the threshold requirement for disclosure is set quite low. The duty to disclose is therefore triggered whenever there is a reasonable possibility of the information being useful to the accused in making full answer and defence (para 21; see also R. v. Chaplin at paras 26-27). While the Crown must err on the side of inclusion, it need not produce what is clearly irrelevant (Stinchcombe, supra, at p.339). (citations omitted, my emphasis) [11] The strength of these principles has not abated. Very recently, in R. v. McNeil, 2009 S.C.C. 3, released January 16, 2009, Justice Charron stated for the Court at para. 44: As we have seen, likely relevance for disclosure purposes has a wide and generous connotation and 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. In considering the ambit of the information that can assist in the trial, regard must be given to the particular issue in the case and to the governing rules of evidence and procedure. This does not mean that only material that would be admissible at trial should be produced. Material that would not, on its own, be admissible may nonetheless be of use to the defence, for example, in cross-examining a witness on matters of credibility or in pursuing other avenues of investigation. (my emphasis) [12] To recap: the threshold for likely relevance is a low one that favours disclosure,
4 and is to be interpreted with a wide and generous application. The burden to justify nondisclosure is on the Crown to show that the requested disclosure is clearly irrelevant. 2. Are these Third Party Records? [13] Since the release of the McNeil decision in the Supreme Court of Canada, the Crown further takes the position that these records are third party records because they are outside the investigative file. Relying on Justice Charron s statement at para. 14 that the Stinchcombe disclosure regime primarily extends to material relating to the accused s own case, the Crown now submits that since the maintenance logs, calibration records and subject tests requested are not part of the fruits of the investigation, the onus should be on Ms. Gubins to show why they should be disclosed. [14] I cannot agree that the requested items are outside the investigative file when they relate to the key Crown witness in the case, (that is the Intoxilyzer 5000C). Indeed, as I will explain below, the Alcohol Test Committee itself regards the maintenance logs and calibration records of the approved instrument as being essential to the integrity of the breath testing program in Canada. So, just as the misconduct records relating to the main police witness against Mr. McNeil were relevant in McNeil, I believe the integrity records relating to the key witness against Ms. Gubins are at least potentially relevant in this case. Therefore, taking that into account along with the fact that the records are in the hands of the Toronto Police and easily produced, I am not prepared to find that they are third party records. [15] Although the subject test records may not fall into precisely the same category, I would disclose the requested records of 24 tests taken prior to before Ms. Gubins tests on the basis that they will reveal information about the number of uses of the alcohol standard solution since it was last changed. As I will explain below, the evidence before me shows that the number of uses may affect the suitability of the solution, and I find that this information is likely relevant regardless of whether it is seen as Stinchcombe or third party disclosure. 3. Case Law on Disclosure of Maintenance Logs, Calibration Records etc. [16] The cases that deal with disclosure relating to the maintenance and operation of the Intoxilyzer 5000C (or similar instruments), are difficult to reconcile. For example, differing fact situations that are case specific may raise different disclosure obligations, or different evidence may be called (if at all) on the issue of relevance. In some cases the records existed and were available to be disclosed under the Stinchcombe standard; in others they never existed or had been destroyed and a stay was requested under the very different legal standard required to justify a stay. As a result, it s difficult to discern any clear guiding principles on this issue. [17] Listed below are the cases I have reviewed:
R. v. Harrington, [2008] O.J. No. 3888 (S.C.J.) R. v. Mellor, [2008] O.J. No. 5457 (C.J.) R. v. Mousseau, [2008] O.J. No. 4428 (C.J.) R. v. Garcia-Stivalet, [2006] O.J. No. 4812 (C.J.) R. v. Nicolle, [2005] O.J. No. 3201 (C.J.) R. v. Campbell, [2005] O.J. No. 3037 (C.J.) R. v. Gillis, [2005] O.J. No. 5986 (C.J.) R. v. Novakovic, [2004] O.J. No. 6042 (C.J.) R. v. Singleton, [2004] O.J. No. 5583 (C.J.) R. v. Vel, [2002] O.J. No. 5925 (C.J.) R. v. Kuster, [2000] O.J. No. 6048 (C.J.) R. v. Timmons, [1994] N.S.J. No. 343 (C.A.) R. v. Coopsammy, [2008] A.J. No. 478 (Q.B.) R. v. Van de Veen, [2003] A.J. No. 1212 (Prov. Ct.) R. v. Lindsay, [1997] A.J. No. 826 (Prov. Ct.) R. v. Williams, [2000] B.C.J. No 306 (S.C.) R. v. Schmidt, [1999] S.J. No. 408(Prov. Ct.) 5 Maintenance logs for Calibration logs for Intox Cobra/Adams data Intox 5000C 5000C Not disclosed Not disclosed Not disclosed Not disclosed Not disclosed Not requested Not disclosed Not disclosed Not disclosed Not disclosed Not disclosed Not requested Not disclosed Prior - disclosed Not requested Crown disclosed, court Not requested Not requested agreed appropriate Not disclosed Not disclosed Not requested Not requested Disclosed Not requested Not disclosed Not disclosed Not requested Disclosed Disclosed Not requested Not requested Not requested Not disclosed (OPP did not possess) Maj: No need to disclose Not requested Not requested Min: Would have disclosed Not disclosed Not disclosed Not disclosed Not requested Not requested Disclosed Not disclosed Not requested Not requested Not disclosed Not disclosed Not requested Disclosed Not requested Not requested [18] None of the cases noted above, with the possible exception of Harrington, are binding upon me. [19] In Harrington, the trial judge found that the lack of evidence as to maintenance and inspections, coupled with the unavailability of the record of the last 50 calibration checks and operational errors, resulted in a reasonable doubt about the accuracy and reliability of the instrument used to test Mr. Harrington. On that basis, she acquitted him.
6 On appeal, the summary conviction appeal court held that the maintenance logs were irrelevant to the issue of evidence to the contrary, and also stated that since they were irrelevant, a failure to disclose them did not irreparably prejudice Mr. Harrington s right to make full and defence. The appeal court held that integrity of the administration of justice did not require a stay in the circumstances, and entered a conviction. [20] In my view, the issues in Harrington are distinguishable from the disclosure issue before me. In Harrington, the appeal court held that the Crown was not required to provide proof of the maintenance records for the Intoxilyzer 5000C at trial. That is a different issue than whether the Crown is required to provide the records by way of disclosure in advance of trial. As Justice Charron noted in McNeil, information that is required to be disclosed is not necessarily required to be admitted at trial. [21] Further, the court in Harrington held that simply because requested records do not exist or have been destroyed, does not mean that a stay of the charges is warranted. I agree. The burden on the defence to show a Charter breach and then to justify a stay by showing irreparable prejudice from unavailable records is a heavy one. It is also a far different onus than the one before me, where the Crown must show that existing and available records are clearly irrelevant. Accordingly, I find that the trial and stay issues in Harrington were distinct from the disclosure issue before me, and Harrington does not bind me to dismiss the defence application in this case. [22] In the absence of binding authority or a convincing consensus regarding these kinds of records, I have come to my own determination based on general principles of disclosure in accordance with the evidence before me. 4. Summary of the Evidence [23] Mr. Ismail Moftah testified for the defence. He has been a forensic toxicologist for thirty years, and his qualifications to give opinion evidence in this area were not disputed by the Crown. [24] Mr. Moftah s evidence for the defence was somewhat general and was couched in terms of what he would like to see, rather than specifically identifying why or how such records would assist the defence if he did see them. He relied heavily on the fact that the Alcohol Test Committee required that these maintenance and calibration records be kept, and he implied that the defendant should be able to satisfy herself that the required maintenance, service and checks had been carried out on the instrument that tested her. [25] The defence relied particularly on the requirements of linearity in the instrument in support of its request for the annual maintenance records. Linearity is the ability of the instrument to be accurate within a certain percentage of the target value at different concentrations of alcohol ranging from 50 to 350 mg. of alcohol in 100 ml. of
7 blood. Although Mr. Moftah did not explain why there would be a concern about linearity in any particular case where the instrument was within the recommended target value at 100 mg. of alcohol in 100 ml. of blood, (as it is required to be at the time of every subject test), the defence submitted that there may be an issue if the Toronto Police Service did not test for linearity at the time of the annual maintenance check. Only the maintenance records would reveal if linearity testing had been done. [26] Dr. Langille testified for the Crown. He is an expert who has been qualified many times by the courts in the area of forensic toxicology. His evidence on linearity did not seem to bear out the concerns posited by the defence. He stated that the Intoxilyzer 5000C model met the requirements of linearity specified by the Alcohol Test Committee, and he explained that any Intoxilyzer 5000C instrument that provided evidence it was calibrated at 100 mg of alcohol would also provide a high degree of linearity at other concentrations of alcohol. While he agreed that linearity may not always be tested at the annual maintenance check by the Toronto Police Service, he did not seem to feel that was necessary. [27] In support of the defence request for the calibration records of the Intoxilyzer 5000C, Mr. Moftah identified one case where his review of these records showed him that the instrument had been taken out of service later in the day after his client s tests had been performed. He testified that the logbook was useful in revealing the potential problem with the instrument and in providing the name of an officer with whom he could follow up to determine the nature and extent of the issue. He didn t indicate how that later problem could have affected his client s subject test earlier in the day. [28] Dr. Langille was not asked to comment specifically on this example. However, he explained the numerous systems checks, internal standard checks, blank tests and calibration checks done each time a subject test is performed by the Intoxilyzer 5000C. He stated that if any of the systems deviated or caused a concern during a subject test, an error condition would be flagged or the instrument would shut out the operator from continuing with the testing. His opinion, expressed in both his affidavit and his evidence, was that historical or subsequent problems with the instrument provided no useful information about the proper working order of the instrument at the time of a subject test. He said that if there was a problem on a different date but not at the time of the subject test, the only inference was that whatever the problem was, it was either transient or had been resolved. In his view, the historical or subsequent data was clearly irrelevant. [29] The final issue that the defence raised for disclosure purposes was related to the alcohol standard solution. In his affidavit, Dr. Langille identified alcohol standard testing prior to a subject test as being a key component of the quality of the system in place in Canadian breath testing procedures. He explained that the test, sometimes referred to as a calibration check, uses a certified alcohol standard that will mimic a breath test of 100 mg. of alcohol in 100 ml. of blood. If the standard is used at the correct temperature and is within its expiry date, and the results fall within the target range, the Intoxilyzer will give reliable results of the subject s tests. However, Dr. Langille conceded that there are differing views about the recommended expiry date for an alcohol standard solution. The
8 Centre for Forensic Science recommends that the standard be changed every seven days regardless of the number of calibration checks; the Alcohol Test Committee recommends that the standard be changed every fifteen days or after fifty calibration checks, whichever occurs first. [30] Dr. Langille was of the opinion that a change of the alcohol standard solution every seven days was appropriate, regardless of the number of calibration checks. Indeed, he noted that some studies suggested that the alcohol standard solution was still suitable after 100 or even 200 calibration checks. However, he agreed that if a court were to accept the Alcohol Test Committee s recommendation of 50 checks, the logical source of this information would be the subject test records, which would reveal the number of calibration checks since the last alcohol standard solution change. 5. Recommendations of the Alcohol Test Committee [31] Mr. Moftah is correct that the Alcohol Test Committee puts great emphasis on the importance of proper maintenance and inspection of approved devices. In Exhibit 1, under the heading Maintenance and Modification, the Recommended Standards and Procedures say: Proper calibration and/or calibration check procedures are the primary means of assuring the accuracy of the Approved Instrument In addition to these calibrations and/or calibration checks, formal maintenance procedures are essential to the integrity of the breath test program. (my emphasis) [32] The Committee recommends that maintenance logs shall be kept for each Approved Instrument, and should include the results of all inspections, documentation of the maintenance history including records of parts replaced and approved modifications to hardware or software. The Training Aid states that a maintenance log serves to provide a history of the instrument itself Logs should be retained permanently for their evidentiary value. (my emphasis) [33] Dr. Langille appeared surprised that the Centre of Forensic Science Training Aid suggested that the logs had evidentiary value, and said that he couldn t fully interpret this reference. 6. Analysis [34] I did not find Mr. Moftah s evidence to very specific about how or why the records would assist the defence, and the defence claim of likely relevance remains somewhat vague. On the other hand, while I found Dr. Langille to be an impressive and precise witness, I am not satisfied that these records are clearly irrelevant to Ms. Gubins case. I say so for three reasons.
9 [35] First, on the record before me I find there is a basis to find that the maintenance and calibration logs have at least some relevance to the integrity of the Intoxilyzer 5000C because the Alcohol Test Committee itself says they these records are essential to the integrity of the breath test program, and the Centre for Forensic Science also says that they have evidentiary value. Dr. Langille himself recommended to the Ontario Provincial Police that they inspect their instruments upon receipt and also annually, and he agreed that the purpose was to ensure the operability of the instrument and that it was performing its functions as it was supposed to. Therefore, if the records relate to the proper functioning of the instrument and are stated by the Test Committee to be essential to the integrity of the program, and considering that are easily produced and readily available, it would seem that disclosure is entirely in keeping with the wide and generous application of the Crown s disclosure obligations affirmed in McNeil. While a lack of specificity as to why a particular error or problem in the past would affect Ms. Gubins readings may prove fatal at trial, in my view it should not preclude the defence from investigating and considering any potential problems in advance of trial. [36] Second, the recommendation of the Alcohol Test Committee that the alcohol standard solution be changed every fifteen days or after fifty calibration checks creates a live issue about when the alcohol standard solution expires. Since an arrested subject usually provides two breath samples with two accompanying calibration checks, the solution would expire according to the Committee s recommendation after twenty five arrests. In a busy jurisdiction such as Toronto, it is not at all unrealistic to assume that twenty five arrests for over 80 could take place in a matter of days. Since the policy of the Toronto Police Service is to change the solution every seven days, it s possible the standard solution would have expired before Ms. Gubins tests, at least according to the Alcohol Test Committee s recommendation. [37] I realize that even if the solution had expired according to the Alcohol Test Committee s recommendation, that Dr. Langille and others disagree about when the solution becomes unsuitable. This would however, be an issue for trial. As the Ontario Court of Appeal held in R. v. Euler, [2008] O.J. No. 2569, whether the alcohol test solution was suitable in a particular case is a question of fact for the trial judge. In a number of cases, trial courts have acquitted the defendant based on a reasonable doubt about the suitability of the alcohol standard solution: see R. v. Morton, [2003] O.J. No. 279 (S.C.J.); R. v. Terzo, [2004] O.J. No. 5529 (C. J.); and R. v. Lui, [2004] O.J. No. 4043. Therefore, there could at least be a live issue in the case if 50 calibration checks had taken place since the solution was last changed before Ms. Gubins test. Since Dr. Langille agreed the prior subject test records are the logical source of this information, I find they are likely relevant and should be disclosed. Any privacy concerns can be dealt with by redacting personal information such as subject names prior to production. [38] Nothing in the exhibits or Mr. Moftah s evidence suggested any potential relevance arising from subject tests taken after Ms. Gubins tests, and Dr. Langille testified that problems on other occasions that might be disclosed by other test records
10 were clearly irrelevant. Accordingly, I see no basis to disclose the subject tests that were carried out on other persons after Ms. Gubins tests. [39] My final reason for ordering disclosure of these records stems from the amendments themselves, and the new emphasis that Parliament has placed on showing an error or malfunction in the approved instrument in order to establish a defence of evidence to the contrary. In my view, to refuse to provide readily available disclosure about the instrument just at the time that the defence is required to focus on the instrument is completely contrary to the wide and generous approach to disclosure advocated by the Supreme Court of Canada since Stinchcombe. Indeed, since I am advised that this disclosure was routinely provided in many jurisdictions in the past, the Crown s new policy seems to be an unduly restrictive approach to this disclosure just at the time that it is most important to the defence. [40] Therefore, the Crown will disclose the maintenance logs and calibration records for the Intoxilyzer 5000C instrument used to test Ms. Gubins blood alcohol content in this case. After redacting any private or identifying information, the subject test records for the 24 tests done prior to Ms. Gubins will also be disclosed. Released: February 24, 2009 Signed: Justice Leslie Pringle