R. v. Pastor Date:, 2011 BCPC 437

Citation: R. v. Pastor Date: 20110823 2011 BCPC 0437 File No: 22087 Registry: Nelson IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. PABLO PASTOR REASONS FOR JUDGMENT ON APPLICATION FOR DISCLOSURE OF THE HONOURABLE JUDGE L.J. MROZINSKI Counsel for the Crown: P. Patola Counsel for the Defendant: D. Skogstad Place of Hearing: Nelson, B.C. Date of Hearing June 27, 2011 Date of Judgment: August 23, 2011 [ 1 ] The defendant, Pablo Pastor, has been charged with driving while impaired, and while his blood alcohol content exceeded the legal limit contrary to ss. 253(1) (

a) and (

b) of the Criminal Code . [ 2 ] This is a pre-trial application by counsel for Mr. Pastor for disclosure of documents related to the proper operation of the breathalyzer machine into which he provided samples of his breath on the evening of April 10 th , 2009, as well as the qualification of the breathalyzer technician who took and then analysed his breath samples. This application is made in

part in reliance on the decision of Truscott J. in R. v. Phagura , [2010] B.C.J. No. 1328 . It is submitted by counsel for Mr. Pastor that R. v. Phagura has expanded the range of documents available to a defendant charged with an offence under s. 253 of the Code who wishes to challenge the results of a breath test by arguing, among other things, that the breathalyzer machine was either malfunctioning or operated improperly. [ 3 ] Mr. Pastor has received virtually all of the documents that Justice Truscott ruled had to be disclosed in Phagura. In addition to those documents he seeks:

a) Documentation regarding the qualifications, if any, of the person who conducted an annual test to determine the competence of the breath technician who took samples of his breath in this case; and

b) Documentation indicating that the standard alcohol solution used in the annual lab test of the breathalyser machine used in this case was itself suitable. [ 4 ] In resisting this application, the Crown submits that R. v. Phagura constitutes the high water mark for disclosure and no documents other than those outlined in Phagura need be disclosed. In particular, the Crown submits that the Court in Phagura has already ruled that the annual lab test results for the standard alcohol solution used to test the breathalyzer machine is not subject to disclosure.

Crown adds that the qualifications of the breathalyzer technician may be tested any number of ways, including by cross examination, rendering irrelevant documentation as to the qualification of the person qualifying the technician on an annual basis.

[5] In support of his application, counsel for Mr. Pastor referred in his submissions to a document entitled “Recommended Standardsand Procedures of the Canadian Society for Forensic Science Alcohol Test Committee”, Can. Soc. Forens. Sci. J. Vol. 36, No. 3 (2003),pp. 101 – 127 (the “ATC Report”). The Crown did not oppose the admission of the ATC Report though it was not entered as an exhibit. Counsel for Mr. Pastor also referred to R. v.

Kolthammer, [2011] A.J. 143, in which the ATC Report was entered by agreement of theparties and subsequently used by Johnson P.C.J. as a basis for ordering disclosure of documents. [6] The threshold question in this disclosure application is whether there is a reasonable possibility that the material in questioncould assist Mr. Pastor to make full answer and defence in this case: R. v. Stinchcombe, (SCC), [1991] 3 S.C.R. 326. [7] Mr.

Pastor argues that there is a clear nexus between the documents sought and a potential defence that the breathalyzer machinewas either not operating properly or the breath technician did not meet the requisite qualifications – either of which could assist thedefendant to make full answer and defence. In regard to the qualifications of the breath technician, counsel points to page 111 of theATC Report which provides that each breath test program shall have a process to determine the competence of all qualified breathtechnicians on an annual basis.

If it turns out the technician is not competent, he or she may be required to undergo refresher training. Alternatively, their designation may even be revoked.

Given the primacy the ATC Report places on training, and indeed the emphasisgenerally on the program’s best practices and sound scientific foundation, counsel submits that the qualifications of the person actuallyqualifying the breath technician would also be relevant. [8] In respect of the analytical results of the alcohol solution used to test the breathalyzer machine annually, again counsel points tothe ATC Report which emphasizes the necessity of annual testing on all approved instruments.

Counsel submitted that as part of theannual testing, an alcohol solution is used, and in this case, solutions from two separate lots were used. He has been provided the lotnumbers of what I will call the test solutions, and seeks documentation indicating that the test solution in each lot was itself suitable. Because counsel has the lot numbers, he is confident it will be simple enough to trace the lot numbers to the relevant documentationindicating the solution used for the annual test was itself tested and found to be suitable. [9] In essence, Mr.

Pastor seeks in addition to the documentation held to be discloseable in Phagura, other documents also going tothe qualifications of the breath technician and the proper operation of the approved instrument. As noted, Crown takes the position thatdisclosure must be limited to those documents listed in Phagura. As I read Phagura, such a narrow approach is not mandated. Rather,in my view, Phagura fully supports the application of Mr. Pastor. [10] It is important, as I read Phagura, to bear in mind the key finding in that case based on the evidence of Ms. Mendes, the expert attrial.

That is that despite all of the science behind these approved instruments, there is still room for human error. In Phagura, thiscentral fact was found to justify putting not only the qualifications and training of the breath technician in issue, but also the maintenancerecords of the instrument, both annually and bi-weekly. [11] As an example, the trial court in Phagura heard evidence that the breath technician must note the temperature of the solution inthe simulator that is used to check the operation of the approved instrument before it is used on a subject.

The simulator solution isrecorded by a thermometer within the simulator. The thermometer itself is checked annually as is the entire instrument by an outsideagency which provides the RCMP with a certificate of that maintenance. [12] The trial judge ruled that documents relating to the maintenance of the instrument, including its annual maintenance, wererelevant and had to be disclosed.

On appeal, Justice Truscott agreed, noting at paragraph 69 of his reasons that given the importance ofthe simulator temperature and the possibility of operator error, the annual maintenance certificate for the instrument in that case issued inthe year prior to the subject test could assist the accused to demonstrate the machine may not have been operating properly at the time ofhis test. [13] In this case, having been given the annual maintenance certificate, counsel for Mr.

Pastor seeks information related to anotheraspect of the annual maintenance of the instrument and that is the suitability of the alcohol standard solution used to test the machine.

Though not on all fours with Phagura, the point is the same: these documents could assist the accused to demonstrate that the machinewas not properly operating at the time of his test. [14] While there was no scientific evidence in this court regarding the significance of the alcohol standard solution used in the annualtest like that before the trial judge in Phagura related to the importance of thermometers as an example, it seems obvious that if thestandard alcohol solution used were unsuitable, it could undermine the accuracy or reliability at least of the instrument.

The evidence inPhagura leaves no doubt that the annual maintenance done on every Datamaster C machine by an outside agency is important. TheATC Report makes that clear as well. As such, I see no reason why a defendant should be required to accept the certificate ofmaintenance on its face.

It is not unreasonable to ask for proof that the alcohol standard solution used in testing the instrument was itselfsuitable and in my view such information ought to be disclosed. [15] Before leaving this point, it is necessary to address the Crown’s argument that Phagura is authority for the proposition that suchdocumentation is not relevant.

This argument as I understand it is based on the comments of Justice Truscott at paragraph 88 of hisreasons where he held that there was no possible relevance to alcohol standard change documents beyond those related to the alcoholsolution change made just prior to the test on Mr. Phagura. [16] In this case, what is sought is the alcohol standard analytical results for the alcohol standard used in the annual test of theinstrument used to test Mr. Pastor’s breath sample.

The court in Phagura did not hold that these documents are irrelevant; rather, ascounsel put it, these documents were simply not at issue in that case. [17] In Phagura, Justice Truscott also agreed that the very duties of a breath technician bring into issue the question of his or hercompetence.

As the qualifications of the breath technician are clearly relevant, the next question is whether it is going too far to seekdocumentation regarding the qualifications of the officer who would have conducted the annual re-qualification of the breath technicianin this case prior to the test at issue. [18] At the trial level in Phagura, Ms. Mendes testified that qualified technicians must be annually recertified. This is also set out in

the ATC Report at page 111. Ms. Mendes explained that a supervisor would be in charge of the recertification process and would walk the technician through a practical examination of the instrument. [ 19 ] As Mr. Justice Truscott noted at paragraph 79 of Phagura , Ms. Mendes explained that if a technician lapses in their annual re- certification or otherwise forgets to certify, they have a small window of opportunity to do a proficiency test with a supervisor. That test would in turn generate a proficiency test log which is stored at the detachment office where the test was done.

In Phagura , the court ordered the disclosure of the proficiency log, if it existed, of the breath technician in that case. [ 20 ] In this case, Crown submits that it goes too far to order disclosure of documentation outlining the qualifications of the officer who would have conducted the annual re-certification of the breath technician.

Rather, Crown argues that if the qualifications of the breath technician are at issue, his or her qualifications can easily be addressed by either the proficiency log or by cross examination. [ 21 ] It is apparent from the evidence in Phagura that a proficiency log will not exist in every case; rather, one only comes into existence if a technician does not re-certify. Here, there is no evidence that such a log exists.

If one does not, it would not be the end of the matter; questions of the qualifications of the breath technician would still arise quite naturally given the central finding in Phagura regarding the possibility of human error. In my view, even if a proficiency log existed, it would not end the matter. [ 22 ] While cross examination might assist in drawing out the qualifications or competency of the breath technician, it does not follow that his right to disclosure is limited simply because there are alternative ways to explore the same question.

Obviously, such documentation might even assist in cross examination were that granted. [ 23 ] The only question in my view is whether the qualifications so to speak of the supervisor would be relevant to the defendant’s right to make full answer and defence. It seems to me that if it were found the person who re-certified the technician in this case were not qualified to do so, it might follow that the technician him or herself was not qualified as required under the ATC Report and that fact could be relevant to the defence.

As such I am satisfied that this request meets the Stinchcombe requirements for disclosure and is not precluded by the reasons of Justice Truscott in Phagura. [ 24 ] Based on the foregoing, I order the disclosure of the following documents:

a) Documentation regarding the qualifications, if any, of the person who conducted the annual test of the breath technician in the year prior to the subject test to determine his competence; and

b) Documentation indicating that the standard alcohol solution used in the annual lab test of the breathalyser machine in the year prior to the subject test was itself suitable. ____________________________________ The Honourable Judge L.J. Mrozinski