R. v. Abate, 2010 ONCJ 168

COURT FILE No.: Region of Durham DATE: 2010-05-03 Citation: R. v. Abate , 2010 ONCJ 168 ONTARIO COURT OF JUSTICE BETWEEN: Her Majesty the Queen — AND — Christopher Abate Before Justice R. Beninger Heard on September 3, 2009 and April 8, 2010 Reasons for Decision released on May 3, 2010 N. Young .................................................................................................................... for the Crown F.

Fedorsen .............................................................................. for the defendant Christopher Abate Beninger, J.: The defence brought a motion, at the commencement of trial, for a production order for disclosure of specific materials. I heard viva voce evidence on September 3, 2009 and April 8, 2010. After hearing submissions from counsel, I made the following ruling on Apr. 8, 2010: Ruling I am ruling today on the disclosure application by the defence. I will prepare reasons to follow within 30 days.

I am making an order for production as follows: - The Intoxilyzer 5000C service and maintenance records immediately before and immediately after the subject tests - The Intoxilyzer 5000C usage and calibration records, up to and including the subject tests - Downloaded data, being recorded test information, for 20 sequential breath tests before the subject tests, after redacting private

identifying information. My reasons for making the production order are as follows. The Materials at issue When submissions were heard, counsel agreed that only the following materials were at issue:

a) Intoxilyzer 5000C service records

b) Intoxilyzer 5000C usage and calibration records

c) Downloaded data for sequential breath tests before and after the subject breath tests There were other materials originally requested for disclosure by the defence which had already been disclosed by the Crown. There are further materials requested for disclosure by the defence, on which the defence has not abandoned its application, but is not pursuing the application at this time. The Standard for Disclosure The standard for disclosure has been reviewed in prior cases. I refer to, and adopt, the reasons of Mr. Justice De Frietas, in R. v. Emm [2009] OJ No. 4080, at paragraphs 11 through 16. In

summary, in order to justify non-disclosure, “the Crown must show that the material sought is ‘clearly irrelevant’.” Defence Evidence The defence called Dr. Joel Mayer to give evidence on the application. Dr. Mayer was qualified as an expert with respect to the operation of the Intoxilyzer 5000C. He has testified at many similar applications in the Province of Ontario since the Bill C-2 amendments came into effect in 2008. To summarize Dr. Mayer’s evidence on the disclosure issues: - The approved instrument could be modified so that it would no longer be an approved instrument.

The service history of the approved instrument would provide relevant information to determine that issue. Dr. Mayer cited the example of the ALERT J3A screening device as an example of an approved device which was withdrawn from service as an approved device in the 1990’s as a result of modifications. - Historical data, being breath test results before and after the subject breath tests in this case, may be useful as it would show a

variability, or lack of variability of results. A review of those records may, depending on the results, merit further investigation. Those records may be in the form of data downloaded by use of a Cobra Adams software protocol. - The internal self testing standards of the approved instrument do not include all possibilities that may affect the overall performance of the approved instrument. Dr. Mayer cited the radio frequency interference (RFI) detector and acetone interference as two examples of those possibilities. - Dr.

Mayer’s opinion was that the disclosure materials being requested would be useful for quality assurance purposes. The materials would also allow for independent assessment and review of the performance of the approved instrument. In cross-examination, Dr. Mayer acknowledged: - Quality assurance and oversight concerns may be related to the overall alcohol testing program as a whole, more so than the individual subject tests of Mr. Abate in this case - He does not personally have expertise in the service repair of approved instruments.

Accordingly, he would not be able to offer an opinion as to correct repair procedures. - Historical data which did not show a variable pattern would not be conclusive of a problem with the approved instrument. At best, it would trigger further investigation and follow up. Crown Evidence The Crown called Dr. Betty Chow to give evidence on the application. She is employed at the Centre of Forensic Sciences as a forensic toxicologist, and had previously testified on about five production application motions.

To summarize her evidence: - Historical data, such as that sought for disclosure by the defence, would not be helpful in assessing the accuracy of breath tests on a particular subject on a particular date. - She made assumptions, in giving her opinion, that an approved instrument was being used, and that a qualified breath technician was operating the approved instrument properly. - While quality assurance control is a valid scientific concept, it has little effect on the accuracy of a particular breath test. On that issue, it is more useful to look at the quality controls in place at the time of testing.

On cross examination, Ms. Chow acknowledged: - The approved instrument is not infallible. - The accuracy of the breath test results relied on her assumptions of proper operation of an approved instrument by a qualified

operator being correct. - In theory, it is possible, but unlikely, that an RFI signal could disrupt the operation of the approved instrument. - Maintenance records could show problems with the alcohol testing program, as a whole. Reasons for the production order I characterize the evidence of Dr. Mayer as general in nature as to the usefulness of the disclosure materials being sought by the defence. The relevance appears to relate more to quality control of the alcohol testing program as a whole, than the direct impact that the materials would have on the subject tests in this proceeding.

His evidence was qualified on many points, as he noted some of the circumstances he cited were hypothetical or theoretical. He was careful to say that, even if useful information was obtained from the requested disclosure, the information obtained would most likely serve as a starting point for further inquiries, as opposed to providing conclusive evidence. The Crown argues that the chance of the material being sought by the defence yielding useful information is remote. That may be true, but that is not the disclosure standard that I must apply.

With respect to most of the disclosure at issue which is sought by the defence, while the usefulness of the material may be unlikely, I cannot say that it is ‘clearly irrelevant’. As to the specific materials at issue:

a) Intoxilyzer 5000C service records - The service and maintenance records immediately before and immediately after the subject tests are to be disclosed. On the evidence, those records include information which is not included in the Certificate of Annual Maintenance dated September 24, 2007, which the Crown has already disclosed.

b) Intoxilyzer 5000C usage and calibration records - The Intoxilyzer 5000C usage and calibration records, up to and including the subject tests to be disclosed. On the evidence, the records may provide information relevant to the performance of the approved instrument.

c) Downloaded data for sequential breath tests before and after the subject breath tests - 20 sequential breath tests before the subject tests to be disclosed, after redacting private identifying information. The defence submitted, on its expert’s recommendation, that 20 tests were sufficient data for review. On the evidence I heard, I am not satisfied that tests taken after the subject tests in this case are relevant. The relevant issue is whether the approved instrument was operating properly at the time the subject tests were obtained.

I do not see how data which may show problems in the performance of the approved instrument subsequent to the subject tests assists in a determination of the accuracy and reliability of the tests on the date in question. Conclusion I note that there have been many disclosure applications of a similar nature across the Province of Ontario since the Bill C-2 amendments came into effect. Very often, the same expert witnesses testify on the applications. As one would expect, the nature of the expert’s evidence is unlikely to vary a great deal from one application to another.

The hearing of the disclosure application in this case took about two days of court time on a viva voce basis. I question whether the limited court resources that we have to work with in Ontario cannot be more efficiently used. There may be considerable time savings in proceeding on similar motions by way of the Crown and defence filing written materials, and making submissions based on those materials to the Court. It may also be that a common standard of disclosure throughout the Province of Ontario would avoid the expense and delay which results from repetitive disclosure hearings. Released: May 3, 2010 Signed: “Justice R. Beninger”