R. v. Moravac, 2010 ONCJ 624

DATE: 2010·12·17 (St. Catharines) Citation: R. v. Moravac , 2010 ONCJ 624 ONTARIO COURT OF JUSTICE COURT FILE NO.: 2111-998-08-F5844 BETWEEN: HER MAJESTY THE QUEEN Respondent — AND — THOMAS MORAVAC Applicant COURT FILE NO.: 2111-998-08-S5617 AND BETWEEN: HER MAJESTY THE QUEEN Respondent — AND — PATRICK HERVIEUX Applicant Before Justice D.A. Harris Heard on January 5, 2010; April 13, 2010; April 29, 2010; October 18, 2010 and November 26, 2010 Reasons for Ruling on Disclosure Motion delivered on December 17, 2010 A. Brown ................................................................ for the Crown/Respondent S.

Price and R. Levita ................... for the accused/Applicant, Thomas Moravac S. Price and R. Levita ................... for the accused/Applicant, Patrick Hervieux HARRIS J.: R E A S O N S F O R R U L I N G [ 1 ] These are applications for disclosure brought by counsel who represents both Mr. Moravac and Mr. Hervieux. Although these are two separate cases, counsel has agreed with Crown counsel to combine the two applications with the same evidence and submissions applying to both of them. [ 2 ] Both Applicants have been charged with an “over 80” offence.

In each case, the Crown will be relying on the analysis of samples of breath using an Intoxilyzer 5000C. [ 3 ] Initially, the original applications were for an order that the following be provided as disclosure:

(1) Certificate of an Analyst for the Alcohol Standard Solution used;

(2) A sample of the Alcohol Standard Solution used for independent analysis;

(3) Alcohol Standard Solution Usage Logs;

(4) Simulator certification records;

(5) All Intoxilyzer 5000C Test Records pertaining to this investigation, including any diagnostic and set of tests conducted in advance of each Applicant’s tests;

(6) Intoxilyzer Test Records for the 25 subject tests prior to and 25 subject tests subsequent to each Applicant’s breath tests;

(7) Intoxilyzer 5000C Service Records;

(8) Intoxilyzer 5000C Usage and Calibration Records; and

(9) Downloaded data to a central computer, which brackets each Applicant’s set of breath tests. [ 4 ] By the end of the hearing, this list had been reduced as certain items were provided and as it became obvious that certain other items were not available for disclosure by the police or the Crown.

All that is left for me to determine is whether the Applicants are entitled to: (1) a sample of the alcohol standard solution; and (2) copies of the Intoxilyzer Test Records for the 50 subjects tested on the same instruments before each Applicant was tested and the Intoxilyzer Test Records for the 50 subjects tested after each Applicant. [ 5 ] I have determined that the Applicants are not entitled to receive a sample of the alcohol standard solution at this time. [ 6 ] They are however entitled to receive copies of the Intoxilyzer Test Records for the 25 subjects tested on the same instruments before each Applicant was tested and the Intoxilyzer Test Records for the 25 subjects tested after each Applicant. [ 7 ] My reasons are as follows. [ 8 ] This was an application for disclosure of these items on the basis that they should have been disclosed further to the decision of the Supreme Court of Canada in R. v.

Stinchcombe (1991), 1991 CanLII 45 (SCC) , 68 C.C.C. (3d) 1. Although Crown counsel never clearly stated that it was his position that this should have been a third party records application brought further to R. v. O’Connor (1995), 1995 CanLII 51 (SCC) , 103 C.C.C. (3d) 1 (S.C.C.), he did argue that I should apply the standard set out in O’Connor . That would only make sense if the records sought were in fact properly categorized as third party records.

Crown counsel did not however object to the failure of counsel for the Applicants to follow the procedure required for a third party records application pursuant to O’Connor . He simply argued that I should apply the standard set out in that case. [ 9 ] Both counsel have provided me with numerous decisions involving similar applications. These are all at the trial court level. Many are from the Ontario Court of Justice. One is from the Superior Court of Justice of Ontario. Others are from various other provincial courts. None of these are binding on me.

I can look to them for their persuasive value but I note that both sides can point to well reasoned decisions supporting each of their positions, both as to which standard I should apply and as to what conclusion I should reach when applying that standard. Some say Stinchcombe and some say O’Connor . Some say that I should allow the application no matter which standard I apply. Others say that I should disallow the application no matter which standard I apply.

Others still would allow the application when applying Stinchcombe but disallow the application if O’Connor applies. [ 10 ] I note also with respect to the decisions that have been provided to me, many of them are dependent on their particular facts which often are not clearly the same as those before me. [ 11 ] Yet again, we face a situation that cries out for appellate direction on an issue flowing from the recent amendments to the drinking/driving provisions of the Criminal Code .

Such direction would go a long way to freeing up precious court time for the holding of trials rather than hearing countless pre-trial motions. Such appellate direction would also lead to disclosure being made uniformly across the province rather than some material being disclosed in some jurisdictions but not in others, as is the situation at present. [ 12 ] I am satisfied that the materials requested here are not third party records. They are records within the possession of the Niagara Regional Police Service.

They were created by an Intoxilyzer 5000C that was operated by a member of the Niagara Regional Police Service. Constable Maryniuk testified that considerable effort would be required for him to retrieve these records because of the way that they have been filed within the Niagara Regional Police records system. Crown counsel conceded however that the time required to retrieve the documents is not an issue before me. I agree. What is important is the fact that these are records created by the Niagara Regional Police Service and held by the Niagara Regional Police Service.

There is no issue of a privacy interest here. Counsel does not seek the personal information of the various test subjects. That information can be redacted out. Counsel wants information pertaining to the operation of the Intoxilyzer 5000C, which instrument is the source of crucial evidence against each Applicant. Counsel wants that information so that he can challenge the credibility and the reliability of that evidence. I have no hesitation in finding that such evidence does not fall within the third party record regime established in O’Connor .

Rather, the standard set out in Stinchcombe should be applied. [ 13 ] That standard requires the Crown 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 to disclose is only limited to items which are clearly irrelevant, privileged, or beyond the control of the Crown.

[ 14 ] In R. v.

Dixon (1998), 1998 CanLII 805 (SCC) , 122 C.C.C. (3d) 1 at para. 27 , Cory J., speaking for the Court, described the obligation as follows: The Crown has an obligation to disclose all information, whether inculpatory or exculpatory, that could “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” ... [ 15 ] In O'Connor , supra at para. 100 , L’Heureux-Dubé J. described the Stinchcombe obligation this way: It is now clearly established that the Crown is under a general duty to disclose all information, whether inculpatory or exculpatory, except evidence that is beyond the control of the prosecution, clearly irrelevant, privileged or subject to a right of privacy. [ 16 ] In R. v.

McNeil, 2009 SCC 3 (CanLII) , [2009] 1 S.C.R. 66 (S.C.C.) , Charron J. wrote 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 matters of investigation. [ 17 ] So the onus here is on the Crown to show that the information sought is not clearly irrelevant. [ 18 ] With respect to the sample of the alcohol standard solution, the Crown has met that burden. I note that the dispute here was not over production of a sample of the standard solution.

Rather, the dispute was over how it should be provided. The police offered to provide a sample into a container provided by the expert chosen by defence counsel. Defence counsel took the position that he wanted a full sealed container of the solution or alternatively, a sample contained in a container provided by the police. This dispute carried on so long that by the time the application came before me, the expiry date for the alcohol standard solution has come and gone. The solution may still be good but the situation now is that any test results would no longer be valid.

Anyone could contest those results on the basis that the sample was too old to be seen as representative of the whole batch. [ 19 ] I am satisfied that a sample of the alcohol standard solution would now be clearly irrelevant and I dismiss the application for production of it. [ 20 ] I find however that the Crown has failed to establish that information gleaned from a review of copies of the Intoxilyzer Test Records for the subjects tested on the same instruments before each Applicant was tested and the Intoxilyzer Test Records for the subjects tested after each Applicant would be clearly irrelevant. [ 21 ] Mr.

Kupferschmidt testified on behalf of the Applicants. [ 22 ] Mr. Kupferschmidt testified that the reliability of a particular Intoxilyzer 5000C can only be tested by looking at how well it has performed over time. That requires a review of what has been called historical records, although he would refer to them as quality assurance and quality control records. [ 23 ] With respect to the number of subject test records he would need to see, Mr.

Kupferschmidt testified at pp. 38-39 of the transcript for January 5, 2010, that: … the number 25 was not something that I came up with, it was something that your office presented. The number that I would rely on is a minimum of 50, and that’s because the software itself is capable of, of giving us 50 calibration checks, 50 operational error checks, 50 diagnostics and 100 subject tests, or 50 subjects. The importance of that is to see how the instrument is functioning over time. And it really goes, it really is tied together with the item that is interlocked, the Intoxilyzer 5000C usage and calibration records.

Those two are really sort of the same thing, but one is just subject tests, the other one is the usage and calibration records. And they really are part and parcel of the same set of information if the data is gathered properly. But I know that it is separated out in most police jurisdictions. Again, it’s a log of, of performance, and performance tells us something about how reliable, and precise, accurate, and specific the instrument is. You can’t determine performance from the instrument in its entirety by looking at a single printout, there’s just not enough information there.

Just because it does an air blank test, and just because it does a cal check, and just because it does a subject test, and another air blank test, and so on and so forth, does not tell me anything about its ability to be accurate, about its ability to be specific, about its ability to be precise, and about its ability to be reliable. And that’s the purpose for that data. [ 24 ] During his cross-examination he stated that if he looked at 25 tests and nothing was wrong, he would not ask for the next 25.

If, however, he found something in that 25 he probably would ask for more. [ 25 ] He repeated that a review of 25, 50 or 100 test record cards may provide relevant information in conjunction with the other materials disclosed to him. [ 26 ] Mr. Hinman testified for the Crown.

He stated that these other test records would not be of any help to a defendant because the instrument was so reliable that if anything had gone wrong during the testing of the breath samples provided by the Applicants, then the instrument itself would have recognized that fact and recorded that information on the test record cards produced with respect to that Applicant. [ 27 ] Although it is not evidence in the case before me, similar evidence appears to have been given by other experts called by the Crown in some of the other cases provided to me. [ 28 ] Be that as it may, there is the evidence of Mr.

Kupferschmidt to the contrary.

[ 29 ] Counsel for the Applicants and Crown counsel agreed that both Mr. Kupferschmidt and Mr. Hinman were experts qualified to give opinion evidence. I saw nothing in the evidence placed before me to suggest that Mr. Hinman was more qualified than Mr. Kupferschmidt. There is therefore no reason for me to accept Mr. Hinman’s opinion over that of Mr. Kupferschmidt on that basis. [ 30 ] On the other hand, I note that Mr. Hinman’s opinion with respect to the ability of the Intoxilyzer 5000C to detect any and all problems within itself has not been adopted in the recent amendments to the Criminal Code .

On the contrary, as Green J. observed in R. v. Pfaller, [2009] O.J. No. 1999 (Ont. C.J.) at para. 27 : … the legislation itself, as I read it, contemplates the possibility of instrumental or operational error. Persons charged with the offence of "over 80" are presumed innocent. Assuming that some charged drivers are factually innocent as well, the combination of ss. 258(1)(

c) and 258(1)(d.01) funnels even these persons' defence down a narrow corridor focused on the functioning or operation of the approved instrument. Anything less than a generous approach to disclosure risks subverting the already circumscribed window of innocence- vindication left open by Parliament in passing the Bill C-2 amendments. [ 31 ] In Stinchcombe , at p. 11, the Supreme Court of Canada recognizes the importance of erring on the side of protecting the innocent when it says that: … there is no valid practical reason to support the position of the opponents of a broad duty of disclosure.

Apart from the practical advantages to which I have referred, there is the overriding concern that failure to disclose impedes the ability of the accused to make full answer and defence. This common law right has acquired new vigour by virtue of its inclusion in s. 7 of the Canadian Charter of Rights and Freedoms as one of the principles of fundamental justice. (See Dersch v.

Canada (Attorney General), 1990 CanLII 3820 (SCC) , [1990] 2 S.C.R. 1505 , at p. 1514 .) The right to make full answer and defence is one of the pillars of criminal justice on which we heavily depend to ensure that the innocent are not convicted. [ 32 ] I note here that if the Crown position is correct, the production of the test record cards will not assist either Applicant in his defence of the case against him. If that is the case, there is little, if any, likelihood of a guilty person going free because of the disclosure of that information.

On the other hand, if the defence position is correct, then the information sought could possibly prevent a wrongful conviction. [ 33 ] In conclusion, I have no difficulty at all in finding that the Crown has failed to establish that information gleaned from a review of copies of the Intoxilyzer Test Records for the subjects tested on the same instruments before each Applicant was tested and the Intoxilyzer Test Records for the subjects tested after each Applicant would be clearly irrelevant. [ 34 ] In fact, I would have been satisfied that the Applicants had established that such material was likely relevant had that been the test here. [ 35 ] I am however ordering production of the Intoxilyzer Test Records for only 25 rather than 50 subject tests prior to and 25 rather than 50 subject tests subsequent to each Applicant’s breath tests.

I am doing so because the original request was for 25 records and not for 50. Mr. Kupferschmidt did express a preference for 50 tests or even more, but he conceded that if he did not discover any problem following a review of 25 tests, he would not ask for the next 25.

In these circumstances, I see no reason to give counsel any more than he actually asked for. [ 36 ] Accordingly, the Crown will disclose copies of the Intoxilyzer Test Records for the 25 subjects tested on the same instruments before each Applicant was tested and the 25 Intoxilyzer Test Records for the 25 subjects tested after each Applicant. [ 37 ] In each case, the name, date of birth, gender, driver’s licence number and vehicle plate information pertaining to each subject will be redacted out of the copy provided to counsel for the Applicants.

Released: December 17, 2010 Signed: ________________________ Justice D.A. Harris