R. v. Madrid, 2010 ONCJ 204

Citation: R. v. Madrid , 2010 ONCJ 204 ONTARIO COURT OF JUSTICE (Central East Region) BETWEEN: HER MAJESTY THE QUEEN and MARIO MADRID Accused ADJOURNMENT APPLICATION RULING No Counsel Mentioned KENKEL J., Delivered Orally 1 . The defence applies without prior notice on the trial date for an adjournment. The Crown is ready to proceed with the trial, their witnesses are here and they ask that the matter proceed as scheduled. 2 . The defence submits that an adjournment of the trial is necessary as there are items of disclosure outstanding. The defence requested 14 items of further disclosure on March 2 nd .

Of the 14 items requested counsel identified three as essential: - The source code for the Intoxilyzer 5000C - The maintenance records for this particular Intoxilyzer

- A sample of the Alcohol standard solution 3 . The accused was charged in April of 2009 and made his first appearance on June 3 rd , 2009, 11 months ago. This trial date was set on September 9 th , 2009. It’s unfortunate that the defence chose to wait until 6 months after the trial date was set to request further disclosure. It’s also unfortunate that nothing was done following the March 2 nd request to follow up or to alert the Crown or the court that the Crown’s response was not sufficient.

Counsel for the defence was on holidays in April, but where requests for further disclosure are left so late it’s reasonable to expect that arrangements would be made for a colleague to follow up regarding a trial starting May 3 rd . 4 . There’s no third party record application before the court regarding the source code for the Intoxilyzer 5000C. That has never been disclosed to my knowledge in any province and I find the defence should reasonably have anticipated the Crown’s response.

Even if the defence could show there was some air of reality to such an application, that is that they had the significant financial resources to undertake a source code review and had located experts who could conduct such a complex review, it’s doubtful that such an attack on the approved instrument and the scheme established by Parliament is permitted in Canada. See: R. v. Moreau 1978 CanLII 6 (SCC) , [1978] S.C.J. No.25 In the United States where source code litigation is common, most states do not approve instruments in the manner set out pursuant to our Criminal Code .

In Ohio where the state Department of Health does approve breath testing instruments, no challenge to the scientific reliability of the approved instrument is permitted. See: State v. Vega 12 Ohio St.3d 185 (1984). 5 . In response to the defence request for maintenance records, I am advised the Crown disclosed the alcohol standard solution log and records from the company that maintains and services the Intoxilyzer in question. The defence now wishes to obtain further information from that company, but I’ve been given few details in that regard.

I’m also advised that the defence has not retained an expert necessary to analyze these records even at this point. The sole charge before the court is an “over 80” charge which counsel accurately described as technical and complex. While the defence submits they intend to retain an expert in the future, they’ve had 11 months since the first appearance to prepare for trial. It’s hard to place any weight on the submission that these records and their analysis is important to the defence when the defence themselves have not attached any importance to any of these records in their trial preparation. 6 .

Given the late request, a sample of the alcohol standard solution is no longer available. If an issue remains on this point it’s not a disclosure issue but perhaps a s.7 issue. 7 . I can find no reason why proceeding with the trial today would be unfair to the defence. We will have the accused arraigned and commence the trial. I would grant leave to the defence to bring a s.7 application without notice regarding the “alcohol standard solution” sample if they feel there are grounds for such an application. That application would be determined at the close of the evidence in the case in any event.

Delivered at Newmarket, May 3, 2010 Hon. Justice Joseph F. Kenkel