2016 QCCQ 4605, 2016 QCCQ 4605

R. c. Vachon 2016 QCCQ 4605 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL LOCALITY OF MONTREAL "Criminal and Penal Division" No.: 500-01-108729-143 DATE: JUNE 3, 2016 ______________________________________________________________________ PRESIDING: THE HONOURABLE MYRIAM LACHANCE, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutrix v. VACHON Normand Accused ______________________________________________________________________ PRELIMINARY JUDGMENT ON AN AMENDED APPLICATION FOR DISCLOSURE OF EVIDENCE ( sections 7 , 11(

d) and 24(1) of the Canadian Charter of Rights and Freedoms ) ______________________________________________________________________ [ 1 ] The accused is charged with operating a motor vehicle while impaired by alcohol and while having a blood alcohol level in excess of 80 milligrams of alcohol per 100 millilitres of blood. [ 2 ] These events occurred on May 10, 2014, that is, after the Supreme Court of Canada’s decision in St-Onge Lamoureux [1] on the constitutionality of certain provisions of the Criminal Code [2] (“ Cr.

C. ”) concerning these types of offences. [ 3 ] Since that date, many C-2 applications (from the name of the bill [3] ) have been presented to obtain disclosure of additional evidence, as in the case at bar. [ 4 ] The accused claims that to raise reasonable doubt on the functioning of the breathalyser and the approved screening device (ASD), he must have access to the evidence concerning the inspections, maintenance, repairs, changes and replacement of parts, as well as the defect reports and its accessories. [ 5 ] Vachon maintains that the disclosure regime provided in Stinchcombe [4] should apply, while the prosecution submits that this is rather an O’Connor [5] application, since the applications concern evidence in the possession of a third party unrelated to the prosecution. [ 6 ] The parties ask the Court to rule on this issue before holding the hearing on the merits of this application.

ISSUE [ 7 ] Is the C-2 application for disclosure of evidence governed by Stinchcombe [6] or by O’Connor [7] ? BACKGROUND [ 8 ] The prosecution has already disclosed to the defence what it considers to be the case to meet. [ 9 ] This disclosure includes the fruits of the investigation, the relevant evidence, and certain evidence which the prosecution does not consider to be relevant to the case but which it disclosed just the same. [ 10 ] The defence requests disclosure of the following items and information: 10.1.

Concerning the Alco-Sensor IV @ DWF approved screening device (serial number 027778): ➢ The purchase invoice;

➢ The maintenance and repair records for the simulators used both during the latest 15-day calibration check and during the annual certification preceding the event; ➢ The usage records for the alcohol standards used both at the time of the latest 15-day calibration check and during the annual certification preceding the event; ➢ The computer database for the maintenance, repair, verifications, changes, transport, parts purchases, etc. kept by the Sûreté du Québec repair unit, which can be identified by the device serial number; ➢ Were changes made to the device?

If so, by whom and when ? 10.2 The breathalyser: Data Master DMT-C @ (serial number 200856): ➢ The results of the tests conducted before it was put into service (by the distributor FGDM); ➢ The user manuals for qualified technicians (manual of the École nationale de police du Québec and manufacturer’s manual), in this case those which the technician used and/or consulted and/or has in possession; ➢ The manufacturer’s maintenance and repair manual(s); ➢ The manufacturer’s sales invoice kept by the distributor FGDM; ➢ The computer database for the maintenance, repair, verifications, changes, transport, parts purchases, etc. kept by the Sûreté du Québec repair unit, which can be identified by the device serial number; ➢ Were changes made to the device?

If so, by whom and when ? 10.3 Simulator used during the control tests with the Guth @ 12V500 breathalyser (serial number MP1076): ➢ The qualifications of the technician who repaired or maintained the device mentioned in FGDM’s repair report dated March 22, 2013. [ 11 ] The defence submits that FGDM, which distributes and repairs the devices used in this case, is a third party related to the prosecution. [ 12 ] The requested information would therefore form part of the “fruits of the investigation” or would not be clearly irrelevant to the case. [ 13 ] The prosecution does not agree with this

interpretation. [ 14 ] It notes that disclosure of evidence is broader since St-Onge Lamoureux , [8] but that the defence’s requests go beyond what need be disclosed to it . [ 15 ] It maintains that its disclosure obligations are met.

ANALYSIS The prosecution’s duty of disclosure [ 16 ] The prosecution’s role in criminal matters is not to obtain a conviction, but rather to present credible evidence relevant to the alleged offence. [9] [ 17 ] It therefore has a constitutional duty to provide the defence with the fruits of the police investigation, as well as the evidence and information in its possession or under its control, except that which is clearly irrelevant or protected by certain privileges. [10] [ 18 ] This duty flows from the accused’s right to make full answer and defence and to have a fair and equitable trial as guaranteed by the Canadian Charter of Rights and Freedoms ( Charter ). [11] [ 19 ] The prosecution’s obligation to disclose is not absolute, although it must err on the side of inclusion. [12] [ 20 ] In McNeil , [13] the Supreme Court noted that the Crown has a duty to make reasonable inquiries when put on notice of material in the hands of the police or other Crown entities that is potentially relevant to the prosecution or the defence. [ 21 ] This principle was reiterated by the Supreme Court in Quesnelle , [14] in which it stated that as an officer of the court, the Crown is duty-bound to avoid wrongful convictions and to seek justice.

Its role is not to obtain convictions. [ 22 ] The Crown’s duty to disclose does not end once the defendant is charged. This obligation is ongoing and persists throughout the trial process. [15]

[ 23 ] In McNeil , [16] the Supreme Court stated that information that does not directly concern the ongoing investigation but that is obviously relevant to the accused’s case should form part of the police’s disclosure package to the prosecution without prompting. [ 24 ] According to Chaplin , [17] o ral submissions in support of Stinchcombe applications may be sufficient to meet the defence’s burden . [ 25 ] When the trial judge is not satisfied with this, however, additional evidence will be required. [18] [ 26 ] The impact of the defence’s obligation to present an O’Connor application for disclosure is that it imposes a more stringent burden of proof on the defence in terms of the criterion of relevance. [19] [ 27 ] An expert’s opinion on the potential relevance of a usage record for the device as well as the assertions of the defence would alone be insufficient to meet the more demanding standard of an O’Connor [20] application.

Disclosure of evidence in C-2 applications [ 28 ] The Court of Appeal for Ontario recently quashed a trial court decision to grant an application for disclosure related to the maintenance of the breathalyser used in the arrest of the accused in Jackson . [21] [ 29 ] In that case, the evidence heard at trial did not reveal any possible problem with the breathalyser.

The device was new and had not yet reached the annual maintenance date. [22] [ 30 ] A video of the tests conducted had also been disclosed to Jackson. [23] [ 31 ] The Court of Appeal for Ontario found nothing in particular to suggest that the device was not functioning properly and concluded that the defence’s applications amounted to a fishing expedition. [ 32 ] In Jackson , [24] the Court explained that the additional evidence sought by the defence was in the possession of an investigative body, that is, the police department, which is an entity independent from the prosecution.

It concluded that the applicable disclosure scheme was therefore that of O’Connor , [25] not Stinchcombe. [26] [ 33 ] Dionne, J.S.C., followed this reasoning in Paradis , [27] concluding that the additional evidence sought by the defence was in the police’s possession, but that it was not subject to Stinchcombe disclosure rules. [ 34 ] It should be noted, however, that initially the trial judge in Paradis [28] found that the relevance of the information sought had not been established but nevertheless ordered its disclosure to the defence. [ 35 ] Paradis [29] was first heard in the Superior Court before Lavoie, J.S.C., who granted the prosecution’s certiorari application in order to quash the trial decision.

The matter had been treated as a Stinchcombe application. [ 36 ] Paradis , [30] as well as the certiorari application in Rodrigues v. Desaulniers , [31] was heard before the Court of Appeal for Ontario’s ruling in Jackson . [32] [ 37 ] Cournoyer, J.S.C., in Rodrigues v.

Desaulniers , [33] referred to the finding in St-Onge Lamoureux that the possibility of malfunction is not speculative and that the accused should have access to information on the handling and maintenance of breathalysers. [ 38 ] He concluded that the prosecution should disclose this information to the defence according to the Stinchcombe [34] disclosure scheme, not O’Connor . [ 39 ] The Court must therefore decide which of the two disclosure schemes applies in this case.

St-Onge Lamoureux and the impact on disclosure of breathalyser evidence. [ 40 ] In St-Onge Lamoureux , [35] the Supreme Court of Canada had to rule on the constitutionality of paragraphs 258(1) ( c ), ( d.01 ) and ( d.1 ) of the Criminal Code . [ 41 ] The Court concluded that the new statutory provisions do not violate

section 7 and paragraph 11(

c) of the Charter . [36] [ 42 ] They do violate paragraph 11(

d) of the Charter , however, that is, the presumption of innocence, since an accused could be convicted even though the trier of fact has a reasonable doubt. [37] [ 43 ] As was stated in Jackson , St-Onge Lamoureux [38] is not about the scope of the evidence that might be considered relevant to the

defence. [39] [ 44 ] It is important to note, however, that it was in the specific context of the minimal impairment analysis (

section 1 of the Charter ) of this statutory provision, which violates the presumption of innocence, that Deschamps, J., for the majority, clearly stated that the prosecution has control over the people who maintain and operate the instruments. [40] [ 45 ] The Supreme Court observed that the possibility of an instrument malfunctioning or being used improperly when breath samples are taken is not merely speculative, but is very real. [41] [ 46 ] Once this violation was acknowledged, the Court concluded that saving the presumption of paragraph 258(1) ( c ), after severance of the second and third requirements for rebutting the presumptions, was justified under

section 1 of the Charter . [ 47 ] It is therefore in its minimal impairment analysis with regard to

section 1 of the Charter that the Supreme Court assessed the defence’s burden to rebut the presumption. [42] [ 48 ] The Court stated that the new provisions do not make it impossible to disprove the test results.

It is recognized that the results will be reliable only if the instruments are operated and maintained properly. [43] [ 49 ] Consequently, the Court cannot agree with the Court of Appeal for Ontario in Jackson , [44] which mentions a brief reference to O’Connor [45] in paragraph 78 of St-Onge Lamoureux [46] to support its conclusion that the third party disclosure regime was appropriate . [ 50 ] This passage in St-Onge Lamoureux [47] is found, rather, in the analysis of a possible violation of

section 7 of the Charter . [ 51 ] This argument was rejected because the Supreme Court pointed out that if the prosecution refuses to disclose necessary information to the defence, the rules of disclosure and the remedies provided in O’Connor [48] can be invoked. [ 52 ] This reference is therefore subsidiary to the prosecution’s refusal to give access to relevant information that is reasonably available so that a real defence can be presented. [ 53 ] The Court understands from this passage in St-Onge Lamoureux [49] that rejecting the argument of a violation of the right to make full answer and defence provided in

section 7 of the Charter is intrinsically linked to the accused’s opportunity to access information on the breathalyser used in his or her case. [50] [ 54 ] In addition, on the same day that the Supreme Court rendered its decision in St-Onge Lamoureux , [51] it delivered its judgment in Dineley , [52] in which it noted that the new requirement for rebutting the presumptions applicable to breathalyzer test results increased the burden on the accused . [ 55 ] The Supreme Court made it a point to mention that the statutory amendments are silent on the nature of the evidence that the defence will have to present.

It added that the accused may need information concerning the instrument used in his or her case or its operating records in order to mount a defence. [53] [ 56 ] The Court is of the view that this passage goes further than the handling of the breathalyser when taking breath samples from an accused.

St-Onge Lamoureux and the impact on applications concerning an approved screening device (ASD). [ 57 ] As Godri, J.C.Q., pointed out in Lemieux , [54] nothing in the statutory amendments applies to alcohol screening devices. [ 58 ] In Goodwin , [55] the Supreme Court had to decide whether British Columbia’s Automatic Roadside Prohibition (ARP) scheme was valid . [ 59 ] This scheme allowed for the use of licence suspensions, penalties and remedial programs based on a roadside analysis of drivers’ breath samples using an approved screening device (ASD). [ 60 ] A driver’s refusal or failure to provide a sample resulted in a licence suspension without the possibility of review .

The Court found that the demand to breathe into an ASD constitutes a seizure that infringes on an individual’s reasonable expectation of privacy under

section 8 of the Charter . [ 61 ] This legislation was not protected by

section 1 of the Charter because the analysis using an ASD was the sole basis for the penalties and suspensions provided, and because no challenge was allowed. [56] [ 62 ] It is only in this context that the Supreme Court raised concerns about the reliability of the ASD test results. [57] [ 63 ] Goodwin [58] also analyzed the amended version of the regulation, which allowed for an application for review in order to have a driving prohibition notice revoked . [ 64 ] The Supreme Court concluded that an ASD result can in and of itself give an officer the reasonable grounds required by the

Motor Vehicle Act. [59] [ 65 ] In

summary, an approved screening device is considered reliable in allowing police officers to obtain the grounds required to make an arrest. But its use before the courts requires that it be possible to challenge its reliability, failing which it would not comply with the constitutional framework of the Charter .

The prosecution and independent third parties [ 66 ] Although the Crown and the investigative body are two separate and independent entities in fact and in law, McNeil [60] points out the corollary police obligation to disclose the fruits of an investigation to the prosecution. [ 67 ] The Crown does not play a passive role and has a duty to make reasonable inquiries when put on notice of evidence in the hands of the police or other Crown entities that is relevant to the case. [61] [ 68 ] According to the Court of Appeal for Ontario in Jackson , [62] the Supreme Court made it clear in Quesnelle [63] that the prosecution and the police are independent entities.

That is why that Court of Appeal found that the O’Connor disclosure regime applied, even though the requested breathalyser information was in the possession of the police. [ 69 ] It should be noted that in Quesnelle , the accused sought disclosure of certain investigation reports concerning incidents involving the same complainant but which had nothing to do with the charges against him. [ 70 ] The Supreme Court concluded that this evidence was unrelated to the offence which was the subject of the proceedings and that the complainant’s privacy rights came into play. [ 71 ] This is completely different from an instrument such as a breathalyser, which enables the prosecution to establish an essential element of the offence. [ 72 ] In Jackson , [64] the Court mentioned that the historical records of a device concerning the investigation of offences that occurred at another time, and in another place, are not relevant for the defence. [ 73 ] With respect, the proper functioning of a device which is used by qualified technicians of the same police force, in the same police station, and which is related to the presumption that enables the prosecution to prove a person’s blood alcohol level, is relevant evidence concerning an essential element of the offence. [ 74 ] The place where this offence was committed is of no importance.

It is the use of the breathalyser that is relevant. It is an essential instrument that enables the prosecution to make its case. [ 75 ] The maintenance and proper functioning of this device are fundamentally related to its reliability, which makes it possible to override the violation of the presumption of innocence caused by this new presumption, through the safeguard in

section 1 of the Charter . [ 76 ] These elements are directly related to the charge here, contrary to what was claimed in Quesnelle . [65] [ 77 ] Here, FGDM was the sole distributor and repairer of the devices used by the police officers at the time of Vachon’s arrest. The officers disclosed to the prosecution the elements required to benefit from the presumption provided in paragraph 258(1) (

c) of the Criminal Code and to establish the validity of the grounds for arrest. [ 78 ] The Court finds that FGDM is therefore related to the prosecution and not an entity independent from it in respect of the breathalyser and the approved screening device used in the investigation that led to the charges in this case. CONCLUSION [ 79 ] As an officer of the court, the prosecution must disclose evidence which is of some relevance to the defence, and which it knows exists, even if it is in the possession of a third party.

It must make a reasonable effort to obtain the information in question. [ 80 ] Evidence obtained as part of an investigation that is unrelated to the investigation of the offence allegedly committed by the accused does not form part of the fruits of the investigation of his or her case, even if it is in the possession of the police. [ 81 ] Despite this, the prosecution must disclose evidence which is not clearly irrelevant to the case and which it has in its possession or under its control. [ 82 ] The requested evidence was not discovered during an investigation of the accused, but it is related to the maintenance, repair, use or purchase of the breathalyser and its components. [ 83 ] These items are in the possession of the only repairer that performs maintenance on them for the investigative body in this case. [ 84 ] As such, FGDM is not a third party independent from the prosecution. [ 85 ] Although it does not form part of the “fruits of the investigation”, the requested evidence served as grounds for the charges

brought because it allows for the application of the statutory presumption that violates the presumption of innocence of the accused. [86] The saved presumption of paragraph 258(1)(

c) of the Criminal Code does not exempt the prosecution from having to provideproof of the accused’s blood alcohol level. This essential element of the offence can be shown by the results of the analyses withouthaving to establish their validity.[66] [87] The Court notes that the saving of this violation under

section 1 of the Charter was possible only by recognizing the reliabilityof the breathalysers when they are properly handled and maintained. [88] As my colleague recently noted in Lopez,[67] the Court is not bound by the Jackson decision of the Court of Appeal for Ontario,since the doctrine of stare decisis does not apply to a decision of the appellate court of another province on an issue that has not been decided by the Court of Appeal of Quebec.[68] [89] As for the requests concerning the approved screening device, the result of its use does not trigger the application of a statutorypresumption, but it can have a direct impact on the grounds for arrest and, consequently, the legality of the arrest. [90] The defence will have to establish the relevance and the existence of the requested evidence, however, and if it does so, thisevidence will be considered under the control of the prosecution and not in the hands of an independent third party.

FOR THESE REASONS, THE COURT [91] DETERMINES that the application for disclosure of evidence should be governed byStinchcombe in respect of the requests concerning the breathalyser, its simulator and the approvedscreening device (ASD). __________________________________ MYRIAM LACHANCE, J.C.Q. Mtre Alexandre GautierCriminal and penal prosecutor Mtre Jean CordeauCounsel for the defence Date of hearing: April 14, 2016 [1] R. v. St-Onge Lamoureux, 2012 SCC 57 , [2012] 3 S.C.R. 187. [2] Criminal Code, R.S.C. 1985, c. C-46. [3]

An Act to amend the Criminal Code and to make consequential amendments to other Acts, commonly referred to as “Bill C-2”, S.C.2008, c. 6. [4] R. v. Stinchcombe, (SCC), [1991] 3 S.C.R. 326 at para. 23. [5] R. v. O’Connor, (SCC), [1995] 4 S.C.R. 411 at paras.15 to 34. [6] R. v. Stinchcombe, supra note 4 at para. 23. [7] R. v. O’Connor, supra note 5 at paras.15 to 34. [8] R. v. St-Onge Lamoureux, supra note 1. [9] Boucher v. The Queen, (SCC), [1955] S.C.R. 16 at 23-24. [10] R. v. Stinchcombe, supra note 4 at 334-335.

[11] R. v. Stinchcombe, supra note 4 at 336. [12] R. v. Chaplin, (SCC), [1995] 1 S.C.R. 727 at para. 22; R. v. Stinchcombe, supra note 4 at 339. [13] R. v. McNeil, 2009 SCC 3 , [2009] 1 S.C.R. 66 at para. 59. [14] R. v. Quesnelle, 2014 SCC 46 , [2014] 2 S.C.R. 390 at para. 18. [16] R. v. McNeil, supra note 13 at para. 59. [17] R. v. Chaplin supra note 12. [18] R. v. Paradis, 2014 QCCS 4260 at paras. 29-30. [19] R. v. Jackson, 2015 ONCA 832 at paras. 138. [20] Ibid. at para. 138. [21] Ibid. [22] Ibid. at para. 95. [23] Ibid. at para. 133. [24] Ibid. at paras. 90-98. [27] R. v. Paradis, 2016 QCCS 115 . [28] R. v.

Paradis, supra note 18 at para. 13. [29] R. v. Paradis, supra note 18. [30] R. v. Paradis, supra note 18. [31] Rodrigues v. Desaulniers, 2015 QCCS 1395 at paras. 64 to 66. [32] R. v. Jackson, supra note 19. [33] Rodrigues v. Desaulniers, supra note 31 at paras. 64 to 66. [34] Ibid. at paras. 74 to 76. [35] R. v. St-Onge Lamoureux, supra note 1 at para. 42. [36] Ibid. [37] Ibid. at para. 24. [38] Ibid. at para. 42. [39] R. v. Jackson, supra note 19 at para. 100. [40] R. v. St-Onge Lamoureux, supra note 1 at para. 48. [41] Ibid. at para. 28. [42] Ibid. at para. 39. [43] Ibid. at para. 41. [44] R. v.

Jackson, supra note 19 at paras. 100-105. [45] R. v. O’Connor, supra note 5 at para. 77.

[46] R. v. St-Onge Lamoureux, supra note 1 at para. 78. [47] R. v. St-Onge Lamoureux, supra note 1 at para. 78. [48] R. v. O’Connor, supra note 5 at para. 78. [49] R. v. St-Onge Lamoureux, supra note 1 at para. 78. [50] R. v. Dineley, 2012 SCC 58 , [2012] 3 S.C.R. 272 at para. 23. [51] R. v. St-Onge Lamoureux, supra note 1 at para. 78. [52] R. v. Dineley, supra note 50 at para. 17. [53] Ibid. at para. 22. [54] R. v. Lemieux, 2014 QCCQ 8178 at para. 42. [60] R. v. McNeil, supra note 13 at paras. 23 and 25. [61] Ibid. at para. 24. [62] R. v. Jackson, supra note 19 at para. 106. [64] R. v.

Jackson, supra note 19 at para. 134. [67] R. v. Lopez, 2016 QCCQ 964 at para. 39. [68] Allard v. R., 2008 QCCS 1362 at paras. 19, 22 and 26.