R. v. Bayer, 2011 MBPC 3

CITATION: R. v. Bayer , 2011 MBPC 3 Date: 2011 01 12 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) C. A. Devine and M. A. Jules, ) for the Crown ) and ) ) ) Reberta Louise Bayer ) S. E. Pinx, Q.C., ) for the (Accused) Applicant ) ) ) Reasons for Decision delivered: ) January 12, 2011 ) UMPHERVILLE, P.J. [ 1 ] The accused is charged with impaired driving and over .08 arising from January 1, 2006.

This is an application for disclosure seeking the production of maintenance records of the BAC Datamaster C breathalyzer machine which was utilized in measuring the content of alcohol in blood of the accused. [ 2 ] In support of the application I have reviewed the Notice of Motion, Motion casebook of the accused, Motion brief for the crown as well as an Affidavit of Crown Attorney Ms. Seesahai. In support of the application, no expert witnesses were called.

Instead both the applicant and the Crown agreed to submit a transcript of proceedings where Arthur Kraut testified for the defense and Patricia Lehman testified for the Crown regarding the same issue but from a different accused. I have also reviewed this transcript. In addition, I heard argument from both counsel respecting this matter. [ 3 ] Crown counsel not only argued against disclosure itself, an adjournment if requested but given the timing of the motion, asked the court to dismiss the motion outright. [ 4 ] On July 2, 2008, Bill C-2 were proclaimed as new Criminal Code amendments.

These amendments require evidence to the contrary must go further than just the testimony of the accused as to alcohol consumption and expert testimony, it must also include evidence that the breathalyzer machine was not working correctly at the time of the tests. [ 5 ] Here, the accused was charged on January 1, 2006. These amendments were proclaimed July 2, 2008. The trial date was scheduled April 19 and 20, 2010. I understand the motion for disclosure was filed approximately one month before set trial. A date of April 7, 2010 was scheduled for the hearing of this motion. [ 6 ] I first turn to R. v.

Dixon to aid in my analysis as to the timing of the motion and the impact of such. Cory J. stated in Dixon, In considering the overall fairness of the trial process, defence counsel’s diligence in pursuing disclosure from the Crown must be taken

into account. A lack of due diligence is a significant factor in determining whether the Crown’s non-disclosure affected the fairness ofthe trial process. In Stinchome, supra, at p.341, defence counsel’s duty was to be duly diligent was described in this way: Counsel for the accused must bring to the attention of the trial judge at the earliest opportunity any failure of the Crown to comply withits duty to disclose of which counsel becomes aware. Observance of this rule will enable the trial judge to remedy any prejudice to theaccused if possible and thus avoid a new trial. See Caccamo v.

The Queen, (SCC), [1976] 1 S.C.R. 786. Failure to do soby counsel for the defence will be an important factor in determining on appeal whether a new trial should be ordered. The fair and efficient functioning of the criminal justice system requires that defence counsel exercise due diligence in actively seekingand pursuing Crown disclosure. The very nature of the disclosure process makes it prone to human error and vulnerable to attack. Asofficers of the court, defence counsel have an obligation to pursue disclosure diligently.

When counsel becomes or ought to becomeaware, from other relevant material produced by the Crown… counsel must not remain passive. They must diligently pursue disclosure.This was aptly stated by the British Columbia Court of Appeal in R. v. Bramwell (1996). (BC CA), 106 C.C.C. (3d)365 (aff’d (SCC), [1996] 3 S.C.R. 1126), at p.374: ….the disclosure process is one which engages both the Crown and the defence. It is not one in which defence counsel has no role toplay except as passive receiver of information. The goal of the disclosure process is to ensure that the accused is not denied a fair trial.

To that end, Crown counsel must disclose everything in a timely manner. Further, where, as here, defence counsel makes a tacticaldecision not to pursue certain documents, the court will generally be unsympathetic to a plea that full disclosure of those documents werenot made. R. v. Dixon, [1998] 2 S.C.R. 244 at para. 37. [7] The issue of disclosure of log books and the maintenance history of the breathalyzer machine was not, by any means, anoverlooked or hidden disclosure issue. This has and continues to be a live issue in the courts since July 2, 2008 following theproclamation of the C-2 amendments.

This motion was brought almost fifty months after the date of the offence, and almost twentymonths after the new amendments, not to mention only one month prior trial. I note Crown counsel proceeded summarily on this matteras well. [8] As was disclosed in the Crown’s affidavit, this matter had been set for trial three times prior the April 2010 dates – March10, 2008, April 7, 2008 and November 27, 2008. All previous trial dates were adjourned at the request of the same, being this, defencecounsel.

Defence counsel first requested disclosure of the log books and maintenance records in an email dated November 20, 2008.Crown counsel advised shortly there after that a court order would be required, in their view, before they would disclose the requestedmaterials. [9] I will not go as far to find that counsel’s actions were tactical in nature, but there is no logical explanation as to why thismotion was filed so incredibly late in the day. I do not find these actions to be reasonable. As a result, I am dismissing the motion. original signed by: UMPHERVILLE, P.J.