Her Majesty the Queen - v. -, 2014 SKPC 143

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 143 Date: August 14, 2014 Information: 24409098 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Scott Worden Appearing: Anthony Gerein For the Crown Bob Hrycan For the Accused JUDGMENT J.D. KALMAKOFF , J INTRODUCTION [ 1 ] Scott Worden is charged with having care or control of a motor vehicle while impaired by alcohol, and while his blood alcohol concentration exceeded the legal limit, contrary to sections 253(1) (

a) and (

b) of the Criminal Code . The incident giving rise to the charges occurred near Craven, Saskatchewan, on September 23, 2012. [ 2 ] During the course of the investigation, the police obtained breath samples from Mr. Worden. Those breath samples were

provided into, and analysed by, an instrument approved for that purpose under the provisions of the Criminal Code . [ 3 ] After Mr. Worden was charged, he sought disclosure of a number of documents that relate to the operation and maintenance of the approved instrument in question. The Crown has disclosed some of the documents requested, but has refused to provide others, on the basis that they are not the fruits of the investigation, and do not otherwise meet a standard of relevance which would compel their disclosure to the defence. Accordingly, Mr. Worden seeks a ruling that the Crown, by refusing to disclose those documents, has breached his rights under

section 7 of the Charter , and asks that I grant an appropriate remedy under section 24(1). [ 4 ] For reasons that follow, I am not satisfied that the Crown has failed to meet its disclosure obligation. Mr. Worden’s application is dismissed. FACTUAL BACKGROUND [ 5 ] Mr. Worden is charged with drinking and driving-related offences. In cases like this one, where the accused has provided breath samples into an approved breath testing instrument, section 258(1) (

c) of the Criminal Code creates an evidentiary presumption that operates in favour of the Crown, as it relates to proving the blood alcohol concentration of the accused. That evidentiary presumption applies in the absence of evidence tending to show that the approved instrument was malfunctioning or was operated improperly. [ 6 ] In this case, Mr. Worden provided breath samples into an Intox EC/IR II, which is an approved instrument as defined in

section 254 of the Criminal Code . The particular Intox EC/IR II used in this case was located at the Lumsden Detachment, and went into service on February 4, 2011. [ 7 ] The Crown provided general disclosure information to Mr. Worden, including the following documents related to the operation of the approved instrument used to collect and analyse breath samples in this case: • A copy of the Subject Test printout detailing Mr. Worden’s tests; • A copy of the Certificate of a Qualified Technician specifying the results of Mr.

Worden’s tests; • The record of the last annual maintenance performed on the instrument prior to the tests in this case; • The record of the last Supervisor Test performed prior to the tests on Mr. Worden; • The record of the next Supervisor Test done after the date of the tests on Mr. Worden; • The Alcohol Standard (Wet Bath) Change Form regarding the last alcohol standard solution change prior to the date of the tests on Mr. Worden; and • The two Certificates of Analyst pertaining to the alcohol standard solution used for the tests in Mr. Worden’s case. [ 8 ] Mr.

Worden has requested more documents, but the Crown has refused to disclose them, taking the position that the documents either do not exist, or are irrelevant. In particular, Mr. Worden seeks disclosure of various documents relating to the Intox EC/IR II used in this case from the time it first went into service, up to and including its next yearly maintenance subsequent to the offence date of September 23, 2012. The documents Mr. Worden seeks are the following: • The personal logs of the Qualified Technician who operated the instrument; • Maintenance logs; • Instrument usage logs;

• Alcohol standard change logs; • The simulator annual certificates; • The analyst’s certificate or reporting letter as to alcohol solution suitability; and • Any information bulletins. [ 9 ] The Qualified Technician in this case did not use a check sheet, and did not keep a personal breath log, so the “personal logs” sought by Mr. Worden do not exist. [ 10 ] In addition to that, the instrument used in this case was not serviced between the time it came into use and its first annual maintenance. No other maintenance or servicing was done between that time and the tests performed on Mr. Worden.

The only “Maintenance log” in existence has already been disclosed to Mr. Worden, as have the “analyst’s certificates” relating to the alcohol solution suitability. The Intox EC/IR II: [ 11 ] The Intox EC/IR II was approved as a breath testing instrument by the Attorney General of Canada in 2009. Since 2011, the Intox EC/IR II is the only approved breath testing instrument used by police in Saskatchewan. Evidence of Dr. Tracey Cherlet [ 12 ] Dr. Tracey Cherlet is a forensic toxicology services specialist employed by the RCMP.

She was qualified as an expert in (1) absorption and elimination of alcohol by the human body; (2) the science of breath testing to measure alcohol concentration in the human body; and (3) the process of evaluating and recommending breath testing instruments for parliamentary approval. [ 13 ] Dr. Cherlet is currently the chief instructor for the Qualified Technicians course, meaning she teaches police officers how to use breath testing instruments such as the Intox EC/IR II.

She is also the chair of the Alcohol Test Committee (ATC), which is a subcommittee of the Canadian Society of Forensic Scientists, an advisory body to the Department of Justice for Canada. The ATC has two main functions: (1) evaluating breath testing equipment for recommendation for approval by the Attorney General; and (2) developing standards and procedures for the operation and use of that breath testing equipment. [ 14 ] Dr.

Cherlet described how the Intox EC/IR II works, how it receives breath samples and analyses them to determine blood alcohol concentration, how it is meant to be operated, what records it produces, what procedural and operational safeguards it has in place to prevent production of inaccurate test results, and how records related to it can be used to determine whether it malfunctioned or was improperly operated.

She testified that the Intox EC/IR II will provide accurate and reliable results when operated by a properly trained Qualified Technician who follows the standard operating procedures. [ 15 ] The breath testing procedure with the Intox EC/IR II begins with a number of pre-test quality assurance procedures. [ 16 ] First, the temperature of the simulator must be checked to make sure that it is between 33.8C and 34.2C. Second, the test subject’s mouth must be checked to make sure that it is free of foreign objects, such as gum, candy, tobacco, etc.

Both of these steps are done manually by the Qualified Technician. [ 17 ] Third, the Qualified Technician must observe the test subject for 15 minutes before the first sample is taken, to make sure that the subject does not consume anything, or vomit or belch. This is to ensure that the test sample being provided into the machine for

analysis is deep lung air, and is not being affected by alcohol present in the test subject’s mouth. In addition to the safeguard provided by the observation period, the Intox EC/IR II has an internal mechanism to detect mouth alcohol. If mouth alcohol is detected, the test will automatically be aborted, and the machine will not allow the Qualified Technician to start another breath test until at least 15 minutes have passed. [ 18 ] Following the pre-test quality assurance procedures, the Intox EC/IR II can begin its breath testing sequence, which is comprised of the following seven steps: 1.

Diagnostic testing: The instrument automatically checks various baselines and the temperature to make sure that they are within the instrument’s operating parameters. If the values observed fall within the acceptable parameters, the instrument displays a “Diagnostic Test Passed” message, and the test can continue. If not, the instrument displays a “Diagnostic Test Failed” message, the testing sequence is automatically aborted, and no further testing can be performed until the issue is resolved. 2. Purging: The instrument then draws in air from the room through the breath tube.

The room air is tested to make sure there are no potential contaminants that may interfere with the breath tests. It also clears air from any previous samples from the instrument. If the purge is successful, and the air free of contaminants, then testing can continue. If not, the machine will automatically make another attempt to purge. If the machine detects contaminants or is unable to obtain a stable infrared signal after three purge attempts, it will display a “Check Ambient Conditions” message, and automatically abort the test sequence. No further testing can be conducted until the problem is resolved. 3.

Blank check: The blank check ensures that a sample taken from the infrared system and analysed by the electrochemical system of the instrument is near zero, meaning there is no alcohol in the chamber. A successful blank check will produce a “BLK” message, and the test procedure will continue. If the blank check is unsuccessful, the instrument will display the message “High Blank”, the test sequence will automatically be aborted, and no further testing can be performed until the issue is resolved. 4. Alcohol standard test: Dr. Cherlet described this as the most critical of the quality control checks.

It is conducted prior to each breath test, and is used to check the calibration of the instrument. The instrument does this by testing a certified alcohol standard located in a simulator. The certified alcohol standard is a known sample analysed and certified as suitable for use for this purpose by analysts designated by the Attorney General, under the provisions of the Criminal Code . When tested, it should produce a reading of 100 mg/%. If this automated test produces a reading within the acceptable (+/- 5%) margin of error, the instrument displays a “STD” message, and the testing process can continue.

If not, the testing sequence is automatically aborted, the instrument displays a “Alc Std Test Out of Range” message, and no further tests can be performed until the issue is resolved. The certified alcohol standard solution used can only be used for a maximum of 15 days or 50 tests, whichever comes first, once it is placed in the simulator. The certified alcohol standard expiry date and number of uses are automatically monitored by the instrument.

The instrument will not permit a testing sequence to begin if the certified alcohol standard expiry date has passed, or if the maximum number of uses has been reached. 5. Purging: The instrument then performs another purge, identical to step (2). 6. Blank check: The instrument then repeats the blank check procedure, identical to step (3). 7. Ready for sample: Once all the other checks have been completed successfully, the instrument will display a “Please blow / Press ‘R’ for refusal” message. This means the instrument is ready to receive a sample from the test subject.

The subject must blow long enough and with enough pressure to generate a sufficient sample (i.e., deep lung air). The instrument monitors the sufficiency of the sample. If the subject does not blow long enough or deep enough, the instrument will generate an “Insufficient sample” message, and automatically begin a purge cycle. The instrument also continuously monitors for the presence of mouth alcohol or other interfering substances, and if any of those are detected, it will generate a “Mouth alcohol” or “Interfering substance” message, and the test will automatically be aborted. 8.

Purging: The instrument then performs another purge, identical to steps (2) and (5). 9. Blank check: The instrument then performs another blank check, identical to steps (3) and (6). [ 19 ] Generally speaking, two samples are obtained from the test subject, and there must be a minimum of 15 minutes between the first test and the second. The instrument will not permit a new test sequence to begin for one individual any sooner than 15 minutes after the completion of the previous test sequence.

Protocol also dictates that, if the analyses of two samples differs by more than 20 mg/%, the test sequence must be repeated until there are two samples that are within 20 mg/% of each other. It is also important to note that the Qualified Technician cannot override the automated sequence of the instrument, or its quality control program. [ 20 ] Dr. Cherlet was asked to comment on the significance of the various documents produced and maintained in accordance with the use of the Intox EC/IR II. She testified that, according to the Alcohol Test Committee, review of the following information will

determine whether the breath test results are reliable and accurate: 1. Results of all blank tests associated with the subject test procedure; 2. Results of the alcohol standard test (calibration check), including documentation to support the suitability of the alcohol standard used, and sufficient information to demonstrate the use of the alcohol standard has met the criteria specified in the ATC operational procedure; 3. Any instrument messages produced by the instrument during the subject test procedure; and 4. The subject breath test results. [ 21 ] According to Dr.

Cherlet, the alcohol standard test (calibration check), is the most important record in terms of determining the accuracy of any particular subject test. If the alcohol standard test is successfully passed, it means the instrument is properly calibrated. Dr. Cherlet also testified that the subject test record essentially contains all the information one would need to review in order to determine whether the instrument was functioning properly at the time of the test. It displays, among other things, the result of the alcohol standard test (calibration check).

However, if one were looking for more assurances, the Certificate of Analyst regarding the certification of the alcohol standard solution used would be of assistance, as it would show whether the alcohol standard solution used in the tests met the standard for certification.

The supervisor test record, and the alcohol standard change form (alcohol standard wet bath change form) completed most recently prior to the subject test in question, would also be of significance, as those records speak to the suitability of the alcohol standard solution used in the tests, and also as to whether the proper steps were taken when the alcohol standard solution was last changed. [ 22 ] The supervisor test record is of significance, according to Dr.

Cherlet, because it is a test conducted, after changing the alcohol standard solution used in the simulator to ensure that the alcohol standard solution is within its proper parameters, and that the instrument is properly calibrated. In the supervisor test, the instrument goes through the purge / blank / alcohol standard test five times, and on each occasion, must produce a reading between 95 mg/% and 105 mg/%. If it does so successfully, then the instrument can be used for testing. However, if the result falls outside that range, the Qualified Technician would have to troubleshoot the machine.

If, after troubleshooting, the required results could not be produced, then the instrument would have to be sent for servicing before it could be used to conduct any subject tests. [ 23 ] However, Dr. Cherlet pointed out that the supervisor test records do not speak to the accuracy of the instrument at the time of an individual subject test. She said the best indicator of whether or not the instrument was functioning correctly at the time of an individual test is to review the records from that test.

She said that supervisor tests generally do not speak to the operating condition of the instrument at the time of the subject test, and historical supervisor tests have no bearing when assessing the accuracy of a particular subject test. [ 24 ] Similarly, subject test records for individuals tested before or after the particular subject in question - in this case, Mr. Worden - have no bearing on the accuracy of the tests conducted on the accused.

Furthermore, annual maintenance documents have no value in assessing the accuracy of a particular test, because they do not speak to the working order of the instrument at the time of the test. They do, however, speak to “quality assurance”. That said, merely letting a maintenance date pass by does not render the instrument inaccurate. The accuracy of the instrument is determined by the result of the alcohol standard test. As Dr. Cherlet said “The alcohol standard test speaks to the proper working order of the instrument.

If your alcohol standard test results are within the appropriate range, then your instrument is in proper working order.” ( Transcript of Proceedings, p. 144, ll . 21-25.) [ 25 ] With respect to test summaries, the Qualified Technician can print out test summaries from previous tests, supervisor tests, subject test results, simulator updates, etc., but previous test summaries say nothing about the accuracy of an instrument on a particular occasion.

Nor do any other historical documents (this is the case because the instrument must go through its self-checks each and every time the testing procedure occurs, and if it is not functioning properly, testing cannot occur). [ 26 ] As to the documents requested by the defence in this case, Dr. Cherlet had this to say: • Personal log: Each Qualified Technician is instructed and encouraged to keep a personal log, to record such things as the number of alcohol standard solution changes they have performed and the number of subject tests they have performed, so that, if asked, they can provide that testimony in Court.

This is a personal record, and is not kept with the instrument, or in any way entered into the instrument. Such a record says nothing with respect to the accuracy of an individual test.

• Maintenance log: This is a collection of maintenance and service records, and says nothing with respect to the accuracy of an individual test. • Instrument usage log: This would be previous test summaries. They say nothing with respect to the accuracy of an individual test. • Alcohol standard change log: This is a record of all previous alcohol standard solution change forms. The RCMP maintain such records, but they have no bearing on the accuracy of an individual test. • Information bulletins: There has only been one bulletin released with respect to the Intox EC/IR II.

It dealt with a “midnight” issue, stating that in some instances, the instrument may not let the Qualified Technician enter observation times which straddled midnight. However, this bulletin is of no relevance with respect to tests that do not straddle midnight. [ 27 ] Dr. Cherlet testified that, according to the Alcohol Test Committee, there are four key factors that must be reviewed to ensure that the instrument was functioning properly, and that it produced accurate results. Those factors are: 1. The blank checks; 2.

The calibration check (with the alcohol standard solution): There must be sufficient information to ensure that the alcohol standard solution used meets the criteria set out in the ATC operational procedure (i.e. used within 15 days and less than 50 tests, and at a temperature of between 33.8C and 34.2C); 3. Instrument messages must be reviewed (these will be printed on the subject test result); and 4. The subject breath test results: Must have two results that are within 20 mg/% of each other to be valid. [ 28 ] Dr.

Cherlet noted that much depends on whether or not the Qualified Technician oversees the testing procedure and conducts the tests properly. For instance, it is important that the Qualified Technician properly monitors and records the temperature. However, if the Qualified Technician makes an error in this respect, there is no way to tell that from the documents that are produced. Evidence of Gerard Kampman [ 29 ] Gerard Kampman was called by the defence. He is a pharmacist by profession, but spent from 1991 - 2001 employed by the RCMP as a Forensic Alcohol Specialist.

From 2001 until the present, he has also worked as a Forensic Alcohol Consultant. He was qualified as an expert in the physiology of alcohol and the processes of absorption and elimination, the theory and operation of breath testing, and breath testing equipment, its use and operation. [ 30 ] Mr. Kampman, through his previous employment with the RCMP, was very familiar with breath instruments such as the Breathalyzer and the Intoxilyzer 5000C.

And, while he was somewhat familiar with the Intox EC/IR I (the first version of the Intox EC/IR series, which ultimately was not approved for use), he candidly admitted he had no hands-on experience with the Intox EC/IR II. [ 31 ] Mr. Kampman expressed the view that, generally speaking, one cannot simply rely on the fact that a breath instrument is approved by Parliament to ensure that it produces a forensically valid result. There must be a program of control checks and good laboratory procedures to make sure the instrument is used properly.

He said no testing system is infallible, and as such, it is important that it be reviewable to ensure that proper protocols are followed. [ 32 ] In an ideal world, said Mr. Kampman, each breath test procedure would be audio and video recorded, so that not only the functioning of the instrument, but also the conduct of the Qualified Technician could be assessed, and it would be possible to determine if all protocols were being followed. However, in the absence of an audio/video record, the only record is the documentation.

He agreed that the subject test record contains a lot of useful information, but said it lacks the detail necessary to determine whether certain quality control steps have been fully implemented and completed. It simply does not provide enough information to make that determination. [ 33 ] Mr. Kampman disputed, for instance, that having two tests within 20 mg/% of each other is a demonstration of accuracy,

stating that if the machine is malfunctioning, it could produce two results that are consistent with each other, but still inaccurate. [ 34 ] Mr. Kampman agreed, however, that the alcohol standard test (calibration check ) result, if it is valid, will prove the proper working order of the instrument at the time of the test in question. In order to determine whether the calibration check is valid, one would need to know the following: 1. The concentration of the alcohol standard solution used; 2. The target value for the alcohol standard solution; 3.

What alcohol standard solution was used (i.e., the lot number); 4. Whether the alcohol standard solution was used within the proper parameters (i.e. fewer than 50 tests, and fewer than 15 days); 5. The temperature, i.e. whether it was between 33.8C and 34.2C as required, although he noted there is no way to determine this from the subject test record; and 6. That the alcohol standard solution lot was tested and found suitable. [ 35 ] As such, Mr.

Kampman suggested the following documents would be necessary to make that determination: • Information regarding the testing of the alcohol standard solution (such as a Certificate of Analyst or lab test results); • Solution change logs; • Supervisor test records (the most recent are the most relevant); • Records of annual maintenance. These would be useful because they show whether the machine was properly serviced and what quality controls have been implemented.

However, he agreed that maintenance records older than the most recent ones have no relevance in that respect; and • Documents regarding temperature, to show that the alcohol standard solution was used at the proper temperature, and also documents verifying the accuracy of the thermometer. [ 36 ] I found both Mr. Kampman and Dr. Cherlet to be knowledgeable and professional. Both gave evidence in a straightforward and credible fashion. In the end, there is little discrepancy in their evidence, but where any such discrepancy exists relating to the details of the Intox EC/IR II, I accept the evidence of Dr.

Cherlet, as she has technical and practical knowledge relating to that instrument that Mr. Kampman does not. ISSUES [ 37 ] This application raises three main issues: 1. Are the records sought by the defence first party or third party records, and why does that matter? 2. Is the Crown obligated to disclose the records sought by the defence? 3. If the Crown has breached its disclosure obligations, what remedy is appropriate? ANALYSIS General Principles Relating to Disclosure

[38] Generally speaking, the Crown has a duty to disclose relevant information in its possession to a person charged with anoffence. This is well established at common law, and is constitutionally entrenched in the right to make full answer and defence underthe Charter: R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66 (McNeil); R. v. Stinchcombe, (SCC), [1991] 3 S.C.R. 326(Stinchcombe); R. v. Spackman, 2012 ONCA 905. [39] While the Crown’s disclosure obligation is not absolute, there are very few exceptions.

The Crown must disclose all materialin its possession to the defence, except for that which is clearly irrelevant, privileged, or for which disclosure is otherwise governed bylaw: McNeil, at para. 18; R. v. Anderson, 2013 SKCA 92 (Anderson). Where the Crown refuses to disclose information in its possessionon the basis of such an exception, the Crown bears the burden of proving that it fits within the exception: R. v. Egger, (SCC), [1993] 2 S.C.R. 451 (Egger); Stinchcombe; Anderson. [40] The “Stinchcombe”, or first-party principles of disclosure apply to material that is in the possession of the Crown.

Generallyspeaking, the Crown is under no obligation to disclose material which it does not possess. [41] This does not mean, however, that the defence cannot obtain disclosure of material that is in the possession of parties otherthan the Crown. Where the defence seeks disclosure of material that is in the possession of third parties, a slightly different rule applies. In such cases, the accused bears the onus of demonstrating that the material sought is likely relevant: R. v.

O’Connor, (SCC), [1995] 4 S.C.R. 411 (O’Connor), which means the accused must establish that there is a reasonable possibility that theinformation being sought is logically probative to an issue at trial or the competence of a witness to testify. [42] Relevance is always a key factor when considering the disclosure obligations of the Crown. It is important to remember thatthe accused has no right to adduce irrelevant evidence: R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443; Anderson. What is relevant inany given case is determined by a number of factors, but principally by what facts are in issue.

The facts in issue are determined by thecharges before the Court, the defences being raised by the accused, and the respective positions taken by the Crown and the defence:Anderson; R. v. West, 2010 NSCA 16 (West); R. v. Arp, (SCC), [1998] 3 S.C.R. 339. In Egger, the Supreme Courtheld that material is relevant if it can reasonably be used by the accused to meet the case for the Crown, advance a defence, or otherwisemake decisions which affect the conduct of the defence. 1. Are the records sought by the defence first party or third party records, and why does that matter? [43] Mr.

Worden argues that the records sought are first party records. The Crown argues that although the records in question arein their possession in this case, they are not the sort of records generally provided to the prosecuting Crown in the ordinary course,because they are background relating to an instrument used in the investigation, rather than anything arising as a result of theinvestigation. As such, the Crown says they are third party records. [44] The importance of this distinction relates to procedure and onus.

If the records sought are first party records, they are subjectto the “Stinchcombe” disclosure regime, and the Crown is obligated to disclose them unless the Crown can establish that the records areclearly irrelevant or privileged. [45] If the records are third party records, then they are subject to the “O’Connor” disclosure regime, and a different processwould apply (requiring a subpoena duces tecum and notice of the application to be served on the holder of the records, and provision forthe holder of the records to make representations). Mr.

Worden would be required to demonstrate, through evidence, that the records inquestion are likely relevant to an issue at trial. In that case, if I conclude the records are likely relevant, I would order production of therecords for inspection. Then, following a further opportunity for the relevant parties to be heard, I would determine whether, and to whatextent disclosure of the records should be ordered. [46] In the context of this case, the records in question are not privileged records, or records which invoke significant privacyinterests.

The real issue here is relevance, and whether I assess the application for disclosure on the basis of the Crown having toestablish that the records sought are clearly irrelevant, or on the basis of Mr. Worden having to demonstrate that the records are likelyrelevant.

[47] The Stinchcombe, or first party, disclosure regime generally applies only to material arising from the investigation that is inpossession or control of the prosecuting Crown, i.e. the “fruits of the investigation”: McNeil, at para. 22. The police investigate crime,and they have a corresponding duty to disclose the fruits of the investigation to the Crown. As it relates to the fruits of the investigation,the police and the Crown may be viewed as one entity for disclosure purposes. However, this “deemed indivisibility” does not apply toall records maintained by the police.

The police and the Crown are separate entities, both in fact and law, so not all records maintainedby the police are automatically subject to the first party disclosure regime: McNeil; R. v. Quesnelle, 2014 SCC 46. [48] In the context of this application, and the records related to the approved instrument used to conduct breath tests on Mr.Worden, only the Subject Test record printout and Certificate of Qualified Technician relating to Mr. Worden fall squarely into thecategory of “fruits of the investigation”.

Any records relating to tests performed on other individuals, other calibration checks, alcoholsolution change logs, supervisor tests, information bulletins, and historical maintenance records are not fruits of the investigation in thestrict sense, because they do not relate directly to the investigation of the charges Mr. Worden is facing. [49] That does not mean that such records cannot be subject to first party disclosure.

In McNeil, at paragraph 15, the SupremeCourt held that certain records maintained by the police which are not the fruits of the investigation against the accused may fall into thecategory of first party records if they are either related to the investigation, or could reasonably impact on the case against the accused.

McNeil, of course, dealt with police discipline records which, while not strictly fruits of the investigation, would be first party records if(1) the misconduct or discipline in question related to the investigation of the accused, or (2) a finding of misconduct could reasonablyimpact on the case against the accused.

In the case of such records, the police and the Crown are deemed to be one entity for disclosurepurposes, as they are in the case of fruits of the investigation. [50] Applying this to the context of breath instruments, those records which are not “fruits of the investigation” may still be firstparty records, but only if they might realistically have some bearing on the determination of whether the approved instrument in questionwas malfunctioning or was improperly operated at the time of the tests in question. Only if that were the case could such recordsreasonably impact the case against Mr.

Worden. [51] Amendments to the provisions of

section 258 of the Criminal Code which came into force on July 2, 2008, changed the natureof the “evidence to the contrary” defence in drinking and driving cases. As a product of those amendments, the results of breath testsobtained by an approved instrument are deemed to be accurate unless the defence is able to raise a reasonable doubt about the properfunctioning or operation of the approved instrument. [52] Defence counsel has argued that in R. v. St. Onge-Lamoureux, 2012 SCC 57 (St. Onge-Lamoureux), and R. v.

Dineley, 2012SCC 58 (Dineley), the Supreme Court of Canada paved the way for expanded disclosure of breath instrument records. In St. Onge-Lamoureux, the Supreme Court upheld the constitutionality of the 2008 amendments to

section 258, to the extent that breath test resultscan be challenged only by raising problems that can be objectively identified and that relate to possible deficiencies in the instrumentitself or the procedure followed in operating it. In both cases the Supreme Court pointed out that the new provisions in

section 258 donot make it impossible to disprove breath test results. Rather, they said Parliament recognized that approved breath testing instrumentsare reliable, but only if properly maintained and operated. That said, in order to cast doubt on an instrument’s reliability, there must beevidence that relates directly to deficiencies in the functioning or operation of the instrument. [53] At paragraph 78 in St.

Onge-Lamoureux, Justice Deschamps, writing for the majority, said: [78] Although Parliament now requires evidence tending to establish a deficiency in the functioning or operation of the instrument,this does not mean that there are limits on the evidence that can reasonably be used by the accused to raise a doubt in this regard. Theaccused can request the disclosure of any relevant evidence that is reasonably available in order to be able to present a real defence. Ifthe prosecution denies such a request, the accused can invoke the rules on non-disclosure and the available remedies for non-disclosure(see R. v.

O’Connor, (SCC), [1995] 4 S.C.R. 411). In short, the accused might rely, for example, on a maintenance logthat shows that the instrument was not maintained properly or on admissions by the technician that there had been erratic results, or he orshe might argue that health problems had affected the functioning of the instrument (see R. v. Kasim, 2011 ABCA 336, 515 A.R. 254). [54] In Dineley, the issue was whether the amendments to

section 258 operated retrospectively. However, the issue of disclosurewas discussed in a tangential fashion. Justice Deschamps, again writing for the majority, said:

[22] In addition to the impact on the substantive rights of the accused, there is another reason why the Amendments should not be found to operate retrospectively. As a result of the Amendments, the evidence the accused may present to rebut the presumptions is limited to evidence that the instrument was malfunctioning or was operated improperly. The nature of that evidence is not defined in the Amendments, but it presumably has to relate to the instrument that was used to test the accused and not to the functioning of such instruments generally.

This means that the accused may need to have access to information concerning the instrument used in his or her case or to operating records that would enable him or her to determine whether the instrument was functioning properly and was operated correctly. It is difficult to conceive how such an examination could take place months or even years after the tests were conducted. There is no indication that the instruments are isolated after being used in a given case.

Parliament has not provided for the preservation of evidence for cases that began before the Amendments came into force. [ 55 ] In my view, neither St. Onge-Lamoureux nor Dineley amount to direction from the Supreme Court that the scope of disclosure in drinking and driving cases involving the use of approved breath testing instruments should be expanded.

In fact, in Dineley , at paragraph 42 , Justice Deschamps specifically said that the nature and scope of the evidence that might be considered relevant was not argued in that case, and accordingly it would not be appropriate for the Supreme Court to rule on the specific limits of what evidence would be relevant. [ 56 ] In St. Onge-Lamoureux , the Supreme Court said the accused can request the disclosure of any relevant evidence that is reasonably available in order to be able to present a real defence.

To me, this does not suggest that documents which were irrelevant before the amendments suddenly became relevant after the amendments. Documents related to the approved instrument are relevant only if they can assist the accused in presenting a real defence. Irrelevant material, or material which says nothing about the proper functioning or operation of the instrument at the relevant time is not material which can assist in presenting a real defence. Such material was not relevant before St. Onge-Lamoureux and Dineley , nor is it relevant after St.

Onge-Lamoureux and Dineley . [ 57 ] Disclosure was not the issue before the Court in St. Onge-Lamoureux and Dineley, and in those decisions, the Supreme Court did not settle the issue of whether records of the nature being sought by Mr. Worden in this case are first party or third party records. At present, there exists a considerable divide in the case law on that point. [ 58 ] A substantial number of cases have held that records of the nature being sought by the defence in this case are third party records, and do not meet the standard of likely relevance. See R. v.

Ahmed , 2010 ONCJ 130 , 253 C.C.C. (3d) 378; R. v. Lalic , 2010 ONCJ 564 ; R. v. Lenti , 2010 ONCJ 554 ; R. v. Batenchuk , 2010 ONCJ 192 ; R. v. Catley , [2010] O.J. No. 6173 ; R. v. Da Costa , [2011] O.J. No. 3942 (C.J.) ; R. v. Bensette , 2011 ONCJ 30 ; R. v. Sutton , 2013 ABPC 308 ; and R. v. Coughlin , [2013] O.J. No. 6073 (C.J.) . [ 59 ] In R. v. McIvor , 2013 ONCJ 757 and R. v.

Carriveau , 2011 ONCJ 837 , the Courts made no finding on the first versus third party issue, but found material of the nature sought by the defence in the case before me to be “clearly irrelevant” and thus exempt from disclosure. [ 60 ] Other cases have reached the conclusion that records of the sort being sought by the defence in this case are first party records, and properly the subject of disclosure. R. v. Kilpatrick , 2013 ABQB 5 ( Kilpatrick ) ; R. v. Pankiw , 2013 SKPC 47 ( Pankiw ); R. v. Jackson , 2014 ONSC 1880 ( Jackson ) ; and R. v. Oleksiuk , 2014 ONCJ 313 ( Oleksiuk ) are examples. [ 61 ] In R. v.

Hudye , 2013 SKPC 122 ( Hudye ), Judge Koskie did not clearly rule on the first versus third party issue, but ordered disclosure of the documents, following Kilpatrick and Pankiw , and applying the “not clearly irrelevant” first party standard. [ 62 ] I have reviewed all of these cases, and while some are persuasive, none are binding on me. It must be noted that none of the cases listed were decided on the basis of the evidence that is before me. Of the cases I have listed, only the Saskatchewan decisions dealt with records relating to the Intox EC/IR II.

All of the cases from other provinces dealt with different approved instruments. [ 63 ] Upon detailed review, I am not persuaded by the reported decisions that have concluded that records of the nature being sought in this case are first party records.

[ 64 ] In Kilpatrick , for instance, the decision was made in the absence of a full evidentiary foundation of the sort that is before me. In fact, it appears as though little evidence, if any, was led on the disclosure question. The Crown appealed the ruling. The Alberta Court of Appeal dismissed the application for leave to appeal ( 2013 ABCA 168 ), but in doing so noted: [4] The evidentiary record in this case is sparse.

It contains no expert evidence, nor any other evidence, relative to the operations of the Breathalyzer; nor is there any evidence regarding the “multiple internal tests” carried out by the approved instrument which it is argued make production of logs irrelevant.

Nor is there any evidence showing that the judge was incorrect in concluding that maintenance logs are easily accessible and therefore not onerous for purposes of Crown disclosure. ... [9] It may well be that the issues raised by the Crown on this application could meet the criteria for granting leave, if there were an appropriate evidentiary record supporting its submissions. However, the record in this case does not do so. [ 65 ] I also consider Jackson and Oleksiuk to be distinguishable, for a number of reasons. First, the instrument in question in those cases was different. It was an Intoxilyzer 8000C.

Second, the evidence before the Court in those cases was also different. In Jackson , there was evidence, which the Court accepted, that with respect to the Intoxilyzer 8000C, historical data of the nature being sought by Mr. Worden could have revealed improper operation of the instrument, or that the testing protocol was not properly followed, in a way that affected the ongoing reliability of the instrument. As such, the records could reasonably have an impact on the accused’s defence.

That is not the evidence before me. [ 66 ] In Oleksiuk , there was evidence that maintenance records relating to the Intoxilyzer 8000C might reveal that alterations made to the instrument during maintenance were of such a significant nature that the instrument would no longer be an approved instrument. There is no such evidence before me with respect to the Intox EC/IR II. [ 67 ] In Pankiw , Judge Labach ordered disclosure of the type of records sought by the defence in this case, relying upon the reasoning in Kilpatrick , and his reading of the Supreme Court’s decisions in St. Onge-Lamoureux and Dineley .

With the greatest of respect, I come to a different conclusion than did Judge Labach, for a number of reasons. [ 68 ] First, the evidence before me is very different than what was before the Court in Pankiw . In that case, as in Kilpatrick , there was no expert evidence relating to the detailed operation of the Intox EC/IR II, or concerning what records of the nature being sought in this case may or may not reveal. I have that type of detailed expert evidence before me. [ 69 ] Second, in Pankiw , the Crown appears to have conceded that the records in question were first party records.

They make no such concession here. [ 70 ] Third, Judge Labach based his decision in Pankiw , in part, on the conclusion that St. Onge-Lamoureux and Dineley gave increased significance to the type of records being requested in this case. With the greatest of respect, I disagree. As I indicated earlier in these reasons, in my opinion, St.

Onge-Lamoureux and Dineley merely highlight the fact that the accused is entitled to disclosure of relevant material relating to the functioning and operation of the breath testing instrument, and point out that the right to receive such disclosure is an important factor relating to the constitutionality of the amendments. Those cases do not, however, change the definition of relevance.

Records that have no bearing upon, and say nothing about, the proper functioning or operation of the instrument are still not relevant. [ 71 ] I decline to follow Judge Koskie’s decision in Hudye for the same reasons. [ 72 ] There is also my own unreported decision in R. v. Wosik , (25 April 2013 and 23 December 2013, Regina Information #39347559), in which I followed Pankiw and Kilpatrick , and ordered disclosure of similar documents. However, that decision was made without the appropriate evidentiary basis, and without the Crown at the time arguing that the records sought were third party records.

In hindsight, the procedure I adopted and my ruling in that case were very likely incorrect and should not be followed, especially given the findings I have made in this case with the benefit of proper procedure and a full evidentiary record.

[73] In my view, of the records Mr. Worden seeks in this case, those records which exist but have not already been disclosed bythe Crown are third party records. Specifically, this includes the maintenance logs (as they relate to any maintenance conducted afterSeptember of 2012), the instrument usage logs (i.e., the results of any tests on individuals other than Mr. Worden), alcohol standardchange logs (for any changes other than the most recent one preceding Mr. Worden’s tests); the simulator annual certificates, andinformation bulletins.

These documents are not the fruits of the investigation, because they were not created or produced as part of theinvestigation that led to the charges against Mr. Worden. Moreover, in McNeil, the Court noted that criminal investigation files relatingto persons other than the accused (such as, for instance, instrument usage logs or records of tests pertaining to any other individuals) areusually considered third party records (para. 25). [74] Furthermore, given the evidence before me, none of the records in question are sufficiently related to the investigation orprosecution of the case against Mr.

Worden as to become first party records on the basis of “deemed indivisibility” principles laid downin McNeil. Records that say nothing about the proper functioning or operation of the approved instrument at the relevant time cannotreasonably impact on the case against the accused. [75] Accordingly, the onus is on Mr. Worden to demonstrate that the records he seeks are likely relevant. 2. Is the Crown obligated to disclose the records sought by the defence? [76] Having concluded that the records that Mr. Worden seeks are third party records, it falls to him to demonstrate that they are“likely relevant”.

If he establishes that, then I must order the records to be produced for my review, and invite further submissions fromthe Crown, RCMP and Mr. Worden as to what, if any, records should be subject to disclosure. [77] In McNeil, at paragraph 29, the Supreme Court described the likely relevance threshold as a significant, but not onerous,burden on the accused. It is significant because it requires the Court to play a meaningful role in screening of disclosure applications toweed out speculative, fanciful, unmerited, obstructive and time consuming fishing expeditions.

On the other hand, the likely relevancethreshold should not be so onerous as to require the accused to demonstrate the specific use to which they might put information theyhave not even seen. [78] According to the Supreme Court in McNeil and O’Connor, “likely relevance” means that there is a reasonable possibility thatthe information is logically probative to an issue at trial or the competence of a witness to testify.

An issue at trial may include evidencerelating to the credibility of witnesses, or the reliability of other evidence in the case. [79] Third party records are not presumptively relevant, and do not become relevant by simply suggesting that they relate tocredibility “at large”. If such records are to be likely relevant on the basis of relating to credibility, it must be credibility on a specific,material issue: McNeil; O’Connor; R. v. Matthews, 2013 SKQB 302.

Applying that to this case, in order for the records sought by Mr.Worden to meet the likely relevance threshold, there must be a reasonable possibility that the information in the records is logicallyprobative of the reliability of the breath sample results obtained from Mr. Worden, or more specifically, logically probative of whetherthe approved instrument malfunctioned or was improperly operated at the time of Mr.

Worden’s tests. [80] Relevance requires a determination of whether, as a matter of human experience and logic, the existence of “fact A” makesthe existence or non-existence of “fact B” more probable than it would be without the existence of “fact A”. If it does, “fact A” isrelevant to “fact B”: R. v. Morris, (SCC), [1983] 2 S.C.R. 190; R. v. Seaboyer, (SCC), [1991] 2 S.C.R.577; West; Anderson.

Applying that to the case at bar, “fact A” would be that the records may reveal that the approved instrumentmalfunctioned, was improperly operated, or required maintenance on a prior or subsequent occasion. “Fact B” would be that theapproved instrument malfunctioned or was improperly operated at the time of the tests on Mr. Worden. While it is tempting to speculatethat past test records, maintenance records, or solution change records might possibly reveal something about an ongoing problem withthe instrument, there is nothing in the evidence I have heard which would support such speculation.

According to the evidence I havebefore me, even if the historical records reveal evidence of a previous malfunction, maintenance requirement or improper operation, thatsays absolutely nothing about whether or not the instrument malfunctioned or was improperly operated at the time of the tests performedon Mr. Worden. Speculation does not equal relevance.

[ 81 ] The evidence before me is that the records Mr. Worden seeks in this case, in particular the maintenance logs (other than those already provided), instrument usage logs (pertaining to tests conducted on other individuals), alcohol standard change logs (relating to changes other than the one immediately preceding the tests involving Mr. Worden) and information bulletins, have no possible bearing whatsoever on the accuracy of the tests performed on Mr. Worden, or whether the instrument was functioning properly or operated properly at that time.

According to the evidence, the only records which would possibly assist in making that determination have already been disclosed. [ 82 ] Based on the evidence I have heard, the additional records sought by Mr. Worden would reveal nothing that is of any possible relevance to the operation or functioning of the instrument at the time Mr. Worden’s breath samples were obtained. Mr. Worden has argued that, since the best record of the tests - i.e. an audio/video recording of the testing procedure - is not available, then access to more records is necessary as a safeguard, to make up for the absence of that.

With the greatest of respect, I disagree. Records which reveal absolutely nothing of relevance are of no assistance, regardless of whether or not the best possible evidence is available. [ 83 ] In my view, the Crown has already disclosed all the material that could possibly shed any light on whether the approved instrument malfunctioned or was improperly operated at the time of the tests conducted on Mr. Worden. The additional material sought by the defence is not relevant to anything, based on the evidence I have heard. It does not meet the standard of likely relevance.

In fact, I am satisfied from the evidence I have heard that the additional material being requested is clearly irrelevant, so even if I had concluded that such material was properly subject to first party disclosure, I would not have ordered that it be disclosed. CONCLUSION [ 84 ] I am not satisfied that the Crown has breached its disclosure obligations in this case. Mr. Worden’s application is dismissed. J.D. Kalmakoff, J