R. v. Oleksiuk, 2014 ONCJ 313

Court File No. 12-1078 12-0891 Citation: R. v. Oleksiuk , 2014 ONCJ 313 ONTARIO COURT OF JUSTICE EAST REGION HER MAJESTY THE QUEEN Respondent V. KERSTI OLEKSIUK Applicant -and- HER MAJESTY THE QUEEN Respondent V. ERIC THOMPSON Applicant ********************** REASONS FOR JUDGMENT ON NOTICE OF APPLICATION Decision released June 24 th , 2014 ********************* CHARGES: s.253 (1) (

a) C.C.C. and s.253(1) (

b) C.C.C.

******************* APPEARANCES: Sam Humphrey Counsel for the Crown Darwin A. Yantha Counsel for both Applicants Ms. A. Chaudry and Mr. C. Diana Counsel for the Ontario Provincial Police Reasons for Judgment on Notice of Application R. v. Oleksiuk R. v. Thompson Radley-Walters, G. REASONS FOR JUDGMENT FACTS: 1. This is a motion for disclosure brought by the Applicants, prior to trial. The accused, Kersti Oleksiuk, is charged with operating amotor vehicle while her blood alcohol concentration exceeded 80 mgs. of alcohol in 100 ml. of blood contrary to s. 253 (1) (

b) of the Criminal Code of Canada. Her charge relates to an allegation on August 24th, 2012 in the County of Renfrew. The accused, EricThompson, is similarly charged under s. 253 (1)(

b) of the Criminal Code of Canada as well as Impaired Driving contrary to s. 253 (1) (

a) of the Criminal Code of Canada. The charges against Eric Thompson arise out of allegations on July 13th, 2012 in the County ofRenfrew. Both accused persons are represented by Darwin Yantha and he has joined the applications as they relate to identical mattersinvolving both accused persons. 2. In the Notice of Application for each of the accused persons, the Applicant was seeking disclosure on nineteen specified itemsrelating to the Intoxilyzer Model 8000C that was used to analyse the breath samples of each of the accused persons. I had ruled on this disclosure issue on April 20th, 2009 in the case of R. v.

Steven Boudens. In that decision, I indicated that I had been influenced by thedecision of Madam Justice Pringle, in the decision of R. v. Gubins 2009 ONCJ 80 , [2009] O.J. No. 848. In the case of R. v.Boudens, I made a disclosure order requiring the Pembroke Police Service to provide to the Crown certain information which was thento be disclosed to the accused. That disclosure related to the actual test results for the only Intoxilyzer instrument in the possession of thePembroke Police Service for the last twenty-five times it was used.

To deal with the issue of privacy, I ordered that the Crown shallblack-out any reference to personal identifiers in those previous twenty-five actual test results. I also ordered that the Crown shouldproduce to the accused any and all print-outs on the subject Intoxilyzer relating to calibration checks, diagnostic checks and internalstandard checks performed on that particular Intoxilyzer during the period for the preceding year. This was the policy which wasimplemented in Renfrew County from April 2009 until this application.

The Notice of Application in each case before the courtcontained a letter from the Crown Attorney of the County of Renfrew refusing to disclose certain information to the Applicants on thebasis that the Crown felt that the information sought was clearly irrelevant. Representatives for the Crown have acknowledged in courtthat the Crown’s office is subject to directions from their ultimate authority in terms of their office practice which is the AttorneyGeneral, which is the reason that they have responded the way that they have in this application. 3.

The disclosure applications in question were dated October 30th, 2012 and filed with the court that day. They were returnable November 7th, 2012. The actual applications were heard on November 21st, 2012 and December 12th, 2012. During this period of time, the Supreme Court of Canada handed down a decision on November 2nd, 2012 in the case of R. v. St-Onge Lamoureux, 2012 SCC 57. Ifind that the case of R. v. St-Onge Lamoureux is persuasive with respect to the arguments that are raised in this application.

4 . In the cases before the court, no evidence has been led at this time with respect to the specific facts of each case. Clearly, by virtue of the charges before the court, it is acknowledged that each of the accused persons was alleged to have been driving a motor vehicle while their individual blood alcohol concentration exceeded 80 mgs. of alcohol in 100 ml. of blood contrary to s. 253 (1) (

b) of the Criminal Code . Each of the accused persons presumably would have blown into an approved instrument, namely, an Intoxilyzer 8000C. 5 . The Crown called as a witness, Dr. Robert Langille. He is a Forensic Toxicologist at the Centre of Forensic Sciences and a member of the Alcohol Test Committee which is a committee of the Canadian Society of Forensic Science. Dr.

Langille testified that the Alcohol Test Committee is the principal adviser to the Minister of Justice on breath testing, impaired driving and is the sole body that evaluates breath testing equipment for the potential inclusion in the approved list. The committee also publishes recommended standards and procedures for breath testing, alcohol breath testing and breath and associated blood testing equipment. Dr. Langille was qualified as an expert to give opinion evidence on the functioning of the Intoxilyzer 8000C. 6 . Dr. Langille testified that the Intoxilyzer 8000C is prepared at a factory in Kentucky.

The instruments are calibrated at that factory and then the specific Canadian software is added to them and they are then shipped to Canada. There is an exact procedure by which the instruments are inspected depending on whether or not the instruments go to the Canadian supplier which is Davtech in Ottawa or if they are sent directly to a police service. Some police services have their own qualified technicians, who have received the manufacture’s training in the repair and operation and calibration of the instruments while others rely on the supplier. 7 . Dr.

Langille testified that the Intoxilyzer 8000C uses an alcohol standard that is produced by only a few manufacturers who have their own quality assurance standards and determine the acceptable warranted date that the alcohol standard is good for. The alcohol standard has an expiration date on the bottle. Dr. Langille testified that the qualified technician is responsible to input the expiration date of the alcohol standard into the Intoxilyzer 8000C. He acknowledged that the possibility existed that the qualified technician could input an inaccurate expiration date for the alcohol standard. Dr.

Langille testified that the Intoxilyzer 8000C goes through a number of internal calibration checks to ensure that the instrument is operating properly. He conceded that the Intoxilyzer 8000C is not an infallible instrument. Dr. Langille also testified that the calibration checks on the Intoxilyzer 8000C are dependent on a number of accessories which include the simulator, the simulator thermometer, and the alcohol standard solution. He conceded that a breakdown in any of those three could affect the reliability of the calibration and therefore the subject test. Dr.

Langille confirmed that the Alcohol Test Committee recommended that each approved instrument and the accessory device be inspected at least once yearly. In addition, that committee also recommended that maintenance logs be kept which would include the results of all inspections, the documentation of all parts replaced as well as any approved modifications to the hardware or software. 8 . Dr. Langille testified that a modification could change the status of an approved instrument from being approved to one of being not approved. Dr.

Langille then gave a specific historical example in the past where a manufacturer made a modification to an approved screening device namely the J3A Alert without advising the appropriate authorities. Dr. Langille testified that manufacturers routinely have to make modifications to certain parts and where it results in the material change, the manufacturer would have to submit the part for re-evaluation by the Alcohol Test Committee. Failure to do so would result in the instrument losing its status as an approved instrument. 9 . I rendered a decision on this application on February 15 th , 2013.

In that decision for written reasons given, I ordered the Crown to provide disclosure to each of the accused persons, as follows:

a) Certificate of Analyst for the Alcohol Solution in question.

b) A sample of the Alcohol Solution used in the test in question, if such a sample still exists. Defence counsel are responsible for arranging delivery of the sample;

c) Subject test records for the approved instrument in question, being Intoxilyzer 8000C, and the previous 24 subject tests prior to the tests in question. Personal details of the prior 24 test subjects are to be edited out prior to disclosure;

d) Calibration records for the approved instrument in question for the period of 3 months prior to the tests in question;

e) Maintenance logs and records for the approved instrument in question for a period of one year prior to the tests in question; and

f) Usage logs regarding the Alcohol Solution since the last calibration prior to the tests in question. 10 . The Crown commenced an Application for Certiorari on February 13 th , 2013 seeking by way of a writ of certiorari to quash my

disclosure order of January 23rd, 2012. 11. The Application for Certiorari was heard by the Honourable Mr. Justice M. S. James of the Superior Court of Justice and he handed down his decision on October 9th, 2013. It was reported at 2013 ONSC 5258. In his decision, M. S. James J. issued an order quashing my order of January 23rd, 2013 and remitted the matter back to my court for reconsideration of the issue of whether or not the recordssought by the respondents are third party records. M. S.

James J. further ordered that the Ontario Provincial Police shall be provided theopportunity to call evidence and make submissions on the issue of whether the records sought by the respondents are third party records. 12. The matter was returned to me on February 6th, 2014 and the Ontario Provincial Police called Sgt. Scott Rome to testify. The matter was then remanded to May 6th, 2014 to hear defence submissions. Prior to May 6, 2014, the Honourable Mr. Justice J. M. Johnstonhanded down his decision on an Application for Certiorari in a similar case in Ottawa. That case of R. v.

Jackson was reported at 2014ONSC 1880. ISSUES BEFORE THIS COURT: 13. The issue before this court relates to whether or not the records that are sought by the accused persons are third party records or firstparty records. 14. A second issue before the court is, if this court finds that the records sought by the accused persons are first party records, and hencefall under the test for disclosure as set out in the case of R. v.

Stinchcombe (1991), (SCC), 68 C.C.C. (3d) 1 (SCC), arethe accused persons entitled to disclosure which might assist them in proving that the approved instrument either malfunctioned or wasoperated improperly as is required by

section 258 of the Criminal Code of Canada. If they are, then what specific disclosure is theaccused entitled to? ANALYSIS: 15. Prior to arguing the applications in question, the Applicants orally amended their application to request six items of disclosure ratherthan the nineteen items that they had originally requested. The six items of disclosure requested by the Applicants are as follows:

a) Certificate of Analyst for the Alcohol Solution in question.

b) A sample of the Alcohol Solution used in the test in question, if such a sample still exists. Defence counsel are responsible forarranging delivery of the sample;

c) Subject test records for the approved instrument in question, being Intoxilyzer 8000C, and the previous 24 subject tests prior to thetests in question. Personal details of the prior 24 test subjects are to be edited out prior to disclosure;

d) Calibration records for the approved instrument in question for the period of 3 months prior to the tests in question;

e) Maintenance logs and records for the approved instrument in question for a period of one year prior to the tests in question; and

f) Usage logs regarding the Alcohol Solution since the last calibration prior to the tests in question. I believe it is conceded and it is my finding that all of the items sought by the applicants are in the possession of the police in this case. 16. I have carefully reviewed the decision of J. M. Johnston J. in R. v. Jackson and I agree with his reasons that the disclosure sought bythe accused in that case as well as the disclosure sought by the accused persons in the matter before this court are first party records andnot third party records. I find therefore that the Applicants have no obligation to bring an O’Connor Application seeking third party

records unless the Applicants were seeking disclosure from sources outside of the control of the police such as documents from themanufacturer of the approved instrument. Similarly, I find that if any identifiers are redacted with respect to previous tests by theIntoxilyzer 8000C on previous accused persons that there is no need to bring an O’Connor Application. 17. I think it is of assistance to look at the decision of Madam Justice Pringle in the Gubins decision, supra with respect to first partyrecords. I agree with her analysis as to the Crown’s obligation to disclose.

She states at paragraph six of the Gubins’ decision: “The test for disclosure as set out in R. v. Stinchcombe (1991), (SCC), 68 C.C.C. (3d) 1 (SCC) is that the Crown isrequired to disclose all relevant information, whether it is inculpatory or exculpatory, and whether or not the Crown intends to introduceit as evidence. This broad duty of disclosure is subject only to a limited discretion to withhold what is “clearly irrelevant”, privileged, orbeyond the Crown’s control.” 18.

Madam Justice Pringle then quotes as well the words of Justice Sopinka in that particular decision of Stinchcombe, stating: “The trial judge on a review should be guided by the general principle that information ought not to be withheld if there is a reasonablepossibility 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.” In the case before the court it is recognized that the issue of privileged information is not argued, and I find that the disclosure sought isin the hands of the police and is therefore within the control of the Crown. 19.

I am mindful as well that Madam Justice Pringle, in the Gubins decision also quotes from R. v. Egger, (1993) (SCC), 82 C.C.C. (3d) 193 (SCC) at page 204, also a decision of the Supreme Court of Canada and in that particular case Justice Sopinkastated: “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 andshould be disclosed: Stinchcombe, supra, at p. 16.

This requires a determination by the reviewing judge that the production of theinformation can reasonably be used by the accused either in meeting the case for the Crown, advancing a defence or otherwise in makinga decision which may affect the conduct of the defence such as for example whether to call evidence.” 20. I agree with her conclusion that the threshold for likely relevance is a low one that favours disclosure, and is to be interpreted with awide and generous application. The burden to justify non-disclosure is on the Crown to show that the requested disclosure is “clearlyirrelevant”.

I find, therefore, that the disclosure sought by the Applicants in this case falls under the test for disclosure as set out in thecase of R. v. Stinchcome (1991), (SCC), 68 CCC (3d) 1 (SCC). 21. As indicated previously, the Supreme Court of Canada in the decision of R. v. St-Onge Lamoureux, supra, handed down a decisionconcerning the constitutionality of certain provisions of s. 258 of the Criminal Code of Canada. Madam Justice Deschamps in thatdecision made specific reference to the onus placed upon an accused person to raise a reasonable doubt as to whether or not an approvedinstrument was operating properly.

Justice Deschamps stated in paragraphs 26, 27, 37, 38,41,42,43 and 48 of that decision as follows: “[26] The Committee’s recommendations shed light on the circumstances that might explain how an instrument malfunctioned or wasused improperly. Thus, human error can occur when samples are taken and at various steps in the maintenance of the instruments,which, it should be mentioned, are used Canada-wide.

Hodgson’s report, which the prosecution itself relied on as a source of thestatutory amendments, refers to the importance of proper operation and maintenance: To achieve scientifically sound results in operational use, user agencies must ensure that approved instruments are operatedby qualified personnel using procedures based on good laboratory practice. [p. 83] Moreover, Parliament recognized the importance of following such practices and procedures in s. 258(1)(

c) and s. 258(1)(d.01), since the

accused can rebut the presumptions by showing that the instrument was not properly maintained or operated. [27] However, Parliament did not adopt the Committee’s recommendations, and the prosecution referred to no alternative mechanisms that would enable a court to find that the instruments are generally maintained and operated properly or that the rate of failure attributable to improper maintenance or operation is insignificant.

The trier of fact could therefore entertain a reasonable doubt about the validity of the test results, since he or she will not have shown why they can be relied on in the case of the accused who is on trial. But a judge who entertains such a doubt will nevertheless remain bound by the statutory presumptions and will be required to convict the accused unless the accused rebuts those presumptions in accordance with the requirements of s. 258(1) ( c ). In view of the mechanism for applying the statutory presumptions established in s. 258(1) ( c ), I find that s. 258(1) (

c) and s. 258(1) ( d.01 ) infringe s. 11 (

d) of the Charter . [37] Once the objective has been found to be valid, the Oakes test requires that a rational connection be established between the objective and the means adopted to attain it. It is clear from the words of s. 258(1) (

c) and s. 258(1) ( d.01 ) Cr. C. that evidence relating directly to the instrument itself or to its operation is now required in order to cast doubt on the reliability of breathalyzer test results. A mere inference based on an individual’s rate of absorption or elimination of alcohol, which is what was required for a Carter defence, is no longer enough.

The accused must now raise a doubt that the instrument was functioning or was operated properly. [38] In my opinion, the requirement that the accused adduce evidence concerning the functioning or operation of the instrument is rationally connected with Parliament’s objective. According to the scientific evidence on which Parliament relied, if the instrument functions properly and all the relevant procedures are followed, the results should be reliable.

It is therefore logical to provide that the results can be challenged only by raising problems that can be objectively identified and that relate to possible deficiencies in the instrument itself or in the procedure followed in operating it. [41] It should also be mentioned that the new provisions do not make it impossible to disprove the test results. Rather, Parliament has recognized that the results will be reliable only if the instruments are operated and maintained properly, and that there might be deficiencies in the maintenance of the instruments or in the test process.

What the new provisions require is that evidence tending to cast doubt on the reliability of the results relate directly to such deficiencies. [42] Since the nature and scope of the evidence that might be considered relevant has not been argued on this appeal, it would not be appropriate to rule on the specific limits of that evidence. I will merely note that, in light of the evidence accepted by the trial judge, there are several pieces of evidence that can be provided to a person who is charged under s. 253(1) (

b) Cr. C. , including the breathalyzer readings, the qualified technician’s certificate and the analyst’s certificate concerning the sample of the alcohol standard. [43] In its recommendations, the CSFS Committee also suggested mechanisms for ensuring that the instruments function properly and for assuring the quality of breath alcohol analyses.

It can be inferred from these recommendations that the instruments may not function optimally if the suggested procedures are not followed. [48] The prosecution gains a clear, albeit limited, advantage from the requirement, since evidence to the contrary is limited to the real issue: whether the test results are reliable. The evidence to be tendered relates directly to an instrument that is under the prosecution’s control.

The prosecution must of course disclose certain information concerning the maintenance and operation of the instrument, but it is free to establish procedures for tracking how such instruments are maintained and operated. Moreover, the prosecution has control over the people who maintain and operate the instruments .” (My Emphasis). 22 . I reviewed the decision of my brother judge, Justice Fraser in the case of R. v. Muzuva [2009] O.J. No. 5164 .

I specifically agree with his conclusions to the effect that if Parliament has chosen to require accused persons wishing to challenge the readings of approved instruments, then they must show that there is an error in the machine. It is only logical therefore that Parliament must have contemplated that accused persons would have access to the evidence required to meet the onus placed upon them by virtue of the amendments to s. 258 . 23 . In the case before the court, Dr.

Langille testified that there had been cases in the past where an approved screening device has been sent away for maintenance and altered by the manufacturer which resulted in the device losing its approved status. This evidence highlights how relevant and necessary the maintenance logs and records are for the approved instruments in question. An accused person armed with that disclosure can make further inquiries to determine whether or not the approved instrument in question has been altered since it was manufactured and if it has still maintained or lost its status as an approved instrument. 24 .

I further agree with Justice Fraser’s conclusion in paragraph 56 where he states: “This Court concurs with the Applicant’s contention that since he is required by virtue of the amended

section 258 to establish operator error, or equipment malfunction resulting in a false over 80 reading, it follows that this can only be achieved through an examination of the operator’s abilities, an examination of whether the strict protocols recommended by the Alcohol Test Committee were in fact followed, and an examination of whether recommended procedures were being followed.” 25 . The Crown has argued that I should distinguish the case of R. v. Jackson , supra, on the basis that the defence in that case called the expert Mr. Kupferschmidt to testify as to: (

i) the need to keep records, (ii) frailties in the operation of the approved instrument and (iii)

functioning of the approved instrument, while no such expert was called by the defence in this case. Johnson J. set out the relevantportions of Mr. Kupferschmidt’s testimony in paragraphs 18 and 19 of that decision. I find that it is not necessary in these cases for theaccused persons to call an expert such as Mr. Kupferschmidt to give the same evidence as Mr. Kupferschmidt. Mr.

Kupferschmidttestified that a review of the previous diagnostic tests of the specific approved instrument may be relevant to prove that proper testingprocedures were not followed and that the approved instrument ought to have been removed from service. Mr. Kupfershcmidt testifiedthat the error in his case was only detected by a review of the COBRA data which is the disclosure sought by the accused persons inthese cases. 26.

The Crown has also argued that the court should not order the disclosure of the COBRA data for the previous twenty-four subjecttests records on the same approved instrument because they are not “fruits of the investigation” as defined in the case of R. v. McNeil2009 SCC 3 , [2009] 1 S.C.R. 66. For the reasons noted in the preceding paragraph, I disagree. Implicit in the Crown’sargument is the fact that disclosure of the COBRA data will be difficult, slow and expensive. Sgt.

Rome testified that the Intoxilyzer8000C makes a permanent and exhaustively detailed record of all processes, procedures and results throughout the entire operationalhistory of the instrument. This data is commonly referred to as Computer Online Breath Archiving data or COBRA. COBRA is thetrade name of a software package provided by the Intoxilyzer 8000C manufacturer, CMI Inc., to download and analyze this data. TheOntario Provincial Police owns the software, and any data contained therein with respect to the 245 Intoxilyzer 8000C’s in operation, areowned by the Ontario Provincial Police.

COBRA software collects raw data produced by the instrument during a subject test sequence,including the results of the Diagnostic and Calibration quality assurance checks performed on an instrument independent of a subject test,such as the bi-weekly Alcohol Standard Solution change and subsequent calibration. The Ontario Provincial Police have a SQL serverdedicated to storing and compiling all COBRA data. The Ontario Provincial Police collect the data remotely using an Ethernetconnection. Sgt. Rome is the only one who is able to access and download instruments across the province.

The data is complex, andrequires support from the Computer Technology Support Bureau of the Ontario Provincial Police to ensure efficient operation. Aqualified technician or any other person does not have access to the COBRA software which is password protected. 27. I find that the Crown has the requested disclosure on the COBRA system and it will be the obligation of the required police serviceto provide this disclosure and overcome the logistical problems implicit in the Crown’s argument. 28. For the reasons stated, I am granting these two separate applications.

I am directing the Crown to provide the following disclosureto each of the accused persons:

a) Certificate of Analyst for the Alcohol Solution in question.

b) A sample of the Alcohol Solution used in the test in question, if such a sample still exists. Defence counsel are responsible forarranging delivery of the sample;

c) Subject test records for the approved instrument in question, being Intoxilyzer 8000C, and the previous 24 subject tests prior to thetests in question. Personal details of the prior 24 test subjects are to be edited out prior to disclosure;

d) Calibration records for the approved instrument in question for the period of 3 months prior to the tests in question;

e) Maintenance logs and records for the approved instrument in question for a period of one year prior to the tests in question; and

f) Usage logs regarding the Alcohol Solution since the last calibration prior to the tests in question. 29. With respect to item (

a) the Crown has acknowledged that this item of disclosure is relevant and should be produced. With respectto items (

b) and (f), I find that these items of disclosure could be relevant if either the specific alcohol solution was past its expiry date orif it had been tampered with or stored improperly and therefore it is not clearly irrelevant. With respect to items (

c) and (d), I find thatthese items of disclosure could be relevant to show that the approved instrument malfunctioned in the past and required service oralternatively was not operated properly and therefore it is not clearly irrelevant. With respect to item (e), I find that the item ofdisclosure could be relevant to determine if the approved instrument had been repaired and if any parts on the approved instrument hadbeen replaced or modified and therefore it is not clearly irrelevant. 30. I am requiring the Crown to produce this information to defence no later than July 31, 2014. DATED at Pembroke, this 24th day of June,2014.

_______________________________________ The Honourable Mr. Justice G. Radley-Walters