R. v. Moreau, 2019 QCCQ 2297

Lloyd c. Director of Criminal and Penal Prosecutions 2019 QCCQ 2297 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF ABITIBI LOCALITY OF AMOS “Criminal and Penal Division” No.: 605-61-051637-187 DATE: April 2, 2019 ______________________________________________________________________ PRESIDING: THE HONOURABLE MARIE-FRANCE BEAULIEU, P.J.P. ______________________________________________________________________ PATRICK LLOYD Applicant v.

DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS Respondent ______________________________________________________________________ JUDGMENT ON AN APPLICATION FOR DISCLOSURE OF ADDITIONAL EVIDENCE ______________________________________________________________________ [ 1 ] The applicant seeks to obtain additional disclosure of evidence further to the interception of his vehicle and the issue of a statement of offence for a speeding violation.

The charging officer used a Kustom Eagle, E23169 series, Doppler speed detection device (hereinafter the “device”), to measure the speed of the applicant’s vehicle, which indicated a speed of 141 km/h in a 90 km/h zone. [ 2 ] After pleading not guilty, the applicant requested the disclosure of evidence. Following the initial disclosure, counsel for the defendant requested additional information from the respondent. [ 3 ] He sought to obtain sections of the Operator’s manual for the device used by the police officer.

In particular, he wished to obtain information pertaining to the accuracy or inherent margin of error of the device, the instructions regarding its calibration and the instructions regarding the manipulations recommended by the manufacturer, which would be included in the manual. [ 4 ] The respondent refused to disclose the requested evidence.

In the letter addressed to the defense attorney, the prosecutor in charge of the file stated: [ translation ] After checking with the persons in question, we are unable to confirm the existence or availability of the manufacturer’s manual. [1] [ 5 ] Thus, the respondent does not acknowledge the existence of the manual and asserts that he is not in possession of it. [ 6 ] The applicant submits that the above-mentioned elements are relevant to the debate and necessary to make his defense.

He argues that these elements could tend to show a margin of error in the results obtained by the device and have an impact on their accuracy. In his view, the respondent’s refusal to disclose these elements violates his right to make full answer and defense. Consequently, he is seeking an order to compel the disclosure of the above-mentioned evidence within a certain period of time. THE PRINCIPLES APPLICABLE TO OFFENCES IN SPEEDING CASES [ 7 ] In speeding offence cases, the prosecutor must prove the following essential elements beyond a reasonable doubt: 1. The identity of the driver; 2.

The place of the offence; 3. The posted speed limit and the compliance of the signage; 4. The speed captured by a radar or speedometer. [2] [ 8 ] In statutory speeding cases, when the reliability requirements established in D’Astous are met, the speed measurement constitutes prima facie evidence, that is, complete evidence that is nevertheless subject to reasonable doubt. [3] In D’Astous , Gendreau J.A., who drew inspiration from an obiter written by Beetz J. in R. v. Moreau on the subject, stated: [translation]

[T]he accused is most certainly allowed to present evidence to show its ineffectiveness for this use or its inaccuracy due to a too-great margin of error. ... As such, because of the status of the radar in relation to that of the breathalyzer, the prosecution must offer more extensive evidence. It will have to show that the device used is reliable, which allows the accused to raise a doubt about the results obtained. [4] [ 9 ] A judge must be convinced that the device used to measure the speed of a vehicle was functioning properly, accurately, and reliably.

In short, when an operator is qualified, when the device was tested before and after its use, and when the testing shows that the device was accurate, then there is prima facie evidence that the device was in good working order, subject, obviously, to reasonable doubt or evidence to the contrary. [5] [ 10 ] Such evidence to the contrary must be credible, tend to demonstrate that the speed measured is not the defendant’s speed when the offence was committed, and be supported by accurate and sufficiently detailed facts. [6] [ 11 ] In this context, it is relevant for a defendant to raise the inaccuracy of the device, which could reverse the presumption that the device was in good working order.

In speeding cases, evidence of the measuring device’s inaccuracy is a relevant element. On this subject, Claude C. Gagnon J. of the Superior Court had the following to say: [ translation ] [23] The inaccuracy of the measuring device, whether it arises from factors that are inherent to the device, the operator’s improper manipulation, or even the operator’s incompetence, is undoubtedly congruous. [7] TWO REGIMES FOR DISCLOSURE OF EVIDENCE [ 12 ] There are two regimes for the disclosure of evidence.

The first is the Stinchcombe regime, which applies to information in the possession or under the control of the prosecuting Crown. The police have a duty to disclose the “fruits of the investigation” and “any other information obviously relevant” to the prosecution of the accused. The second regime concerns the disclosure of files in the possession of third parties, which is addressed in O’Connor .

Proof must be made by the applicant that the information sought is “likely to be relevant”. [ 13 ] In matters of disclosure, subject to exceptions, judges must be guided by the general principle that information should not be withheld if there is a reasonable possibility that doing so will impair the accused’s right to make full answer and defence. [ 14 ] Over the years, the courts have recognized the benefits of disclosure.

It intrinsically promotes the search for truth, prevents taking the accused by surprise, saves time that would otherwise be devoted to the dispute, increases the number of guilty pleas entered, and reduces the number and length of trials. [8] [ 15 ] Generally, failure to disclose has a negative impact on the overall fairness of a trial and the applicant’s right to make full and answer and defence. [ 16 ] The prosecuting Crown must favour inclusion in disclosure. The evidence must be relevant, however.

To assess the prosecution’s duty to disclose, the relevance of the evidence must be assessed in relation to the offence alleged. [9] [ 17 ] First, the Court will determine what type of disclosure regime applies in this case. A.

The Stinchcombe regime: disclosure of evidence by the first party [ 18 ] In Stinchcombe , the Supreme Court established the following principle with respect to disclosure, the same already named in Chaplin : ... 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, or privileged. [10] [ 19 ] In 2015, in Henry v.

British Columbia (Attorney General) , the Supreme Court recalled that this duty was incumbent upon the Crown in criminal prosecutions, as follows: [67] Disclosure is one of the Crown’s fundamental obligations in a criminal prosecution.

The Crown is duty-bound to disclose relevant information to the defence, and this obligation is a continuing one. [11] [ 20 ] To determine which of the two regimes applies, in Gubbins , the Supreme Court recently addressed the issue and established that two questions should be asked: [12] • Whether the information that is sought is in the possession or control of the prosecuting Crown, and • Whether the nature of the information sought is such that the police or another Crown entity in possession or control of the information ought to have supplied it to the prosecuting Crown.

Among other things, is the information part of the “fruits of the investigation” or information that is “obviously relevant”. [ 21 ] If the answer to either of these queries is affirmative, the Stinchcombe disclosure regime is the one that applies. 1. Determining what is in the prosecuting Crown’s possession or what should have been transmitted 1.1 The existence of the document [ 22 ] The prosecuting Crown is compelled to disclose only those elements in its possession or under its control. In disclosure matters,

the burden of persuasion is different depending on whether or not the documents are under Crown control. In a recent case, Georgescu , White J. stated the following: [translation] [27] If the documents are in the possession or under the control of the prosecuting Crown , then it bears the burden of justifying its refusal to disclose a document by showing that it is irrelevant or privileged.

That is the rule established by the Supreme Court in Stinchcombe . [28] However, if the documents sought are not under the prosecuting Crown’s control , it is then up to the applicant to show their relevance, as the Supreme Court decided in O’Connor . [13] (Emphasis added) [ 23 ] In the event the prosecuting Crown’s compliance with the duty to disclose is disputed, the defendant may address the judge because a procedure to do so exists.

According to the principles established in Chaplin , [14] the steps to take are the following: - if the document exists: In that case, the prosecuting Crown must justify non-disclosure by demonstrating either that the document sought is beyond its control or that it is clearly irrelevant or privileged, such as to protect the identity of an informant or to avoid compromising an ongoing investigation. [15] - if the existence of the document is in doubt: The defence must establish its existence clearly.

Once this has been done, it is up to the prosecuting Crown to justify its refusal to disclose, if necessary. [ 24 ] The defence’s search for evidence to disclose must not be a mere fishing expedition. [ 25 ] The prosecuting Crown has a duty to disclose and must encourage the police to participate in this duty. [16] The Court adopts the remarks of Gagnon J. in Dusseault , when he says: [translation] [31] Even though the roles of the prosecuting Crown and the police are distinct, a police organization must take

part in the disclosure process. … [32] ... the police department in charge of the investigation is not a third party. [17] [ 26 ] In cases where the existence of the information is disputed, the defence must first establish the facts that allowing the judge to find that it exists. In Chaplin , the defence sought to know whether the accused had been the target of an electronic surveillance authorization that was unrelated to the investigation into the charge against him. The Supreme Court decided as follows: In the second situation, the Crown may dispute the existence of material which is alleged to be relevant.

Once the Crown alleges that it has fulfilled its obligation to produce, it cannot be required to justify the non - disclosure of material, the existence of which it is unaware or denies . The defence, therefore, must establish a basis which could enable the presiding judge to conclude that there is in existence further material which is potentially relevant. ... The existence of the disputed material must be sufficiently identified not only to reveal its nature but also to enable the presiding judge to determine that it may meet the test with respect to material which the Crown is obliged to produce.

The matter may often be resolved by oral submissions of counsel without need of a voir dire , though viva voce evidence and a voir dire may be required where the presiding judge cannot resolve the matter on the basis of submissions by counsel. The requirement that the defence provide a basis for its demand for further production serves to preclude speculative and time - consuming disclosure requests, and avoid impeding ongoing criminal investigations. If the defence establishes a basis for the conclusion that the evidence may exist, the Crown must then justify a continuing refusal to disclose .

This obligation is the same as that in first instance. If the matter cannot be resolved without viva voce evidence, the Crown must be afforded an opportunity to call relevant evidence. [18] (Emphasis added) [ 27 ] According to the Supreme Court, the accused in that case were unable to convince the judges of the existence of the authorizations sought or of the derivative evidence relevant to their defence.

Furthermore, it was decided that the application was conjecture and a fishing expedition. 1.2 In the possession or under the control of the prosecuting Crown [ 28 ] According to McNeil , the prosecuting Crown has a duty to make sufficient inquiries of the police or other bodies concerning documents that are not in its possession, when it is informed that potentially relevant information exists. [19] [ 29 ] In Gubbins , [20] the Supreme Court concluded that the breathalyzer maintenance records requested by the defence were not included in the disclosure package from the first party.

These documents were not in the possession or under the control of the Crown because they were held by the RCMP as operational records that were not specific to a particular investigation. Furthermore, the maintenance records were not “obviously relevant”. [ 30 ] In this case, according to the evidence heard by the Court, the information sought, that is, the manufacturer’s manual, is not in the possession or under the control of the prosecuting Crown. [ 31 ] Now, to determine whether this information should have been disclosed, it is necessary to determine whether it is the fruit of

the investigation or obviously relevant information. 1.2.1 The “fruits of the investigation” [32] In Gubbins, the Supreme Court offered the following definition: [22] The “fruits of the investigation” refers to the police’s investigative files, as opposed to operational records or backgroundinformation. This information is generated or acquired during or as a result of the specific investigation into the charges against theaccused.

Such information is necessarily captured by first party/Stinchcombe disclosure, as it likely includes relevant, non-privileged information related to the matters the Crown intends to adduce in evidence against an accused, as well as anyinformation in respect of which there is a reasonable possibility that it may assist an accused in the exercise of the right to make fullanswer and defence. The information may relate to the unfolding of the narrative of material events, to the credibility of witnesses or thereliability of evidence that may form part of the case to meet.

In its normal, natural everyday sense, the phrase “fruits of the investigation” posits a relationship between the subject matter sought andthe investigation that leads to the charges against an accused. (R. v. Jackson, 2015 ONCA 832 , 128 O.R. (3d) 161, at paras. 92-93) [23] In addition to information contained in the investigative file, the police should disclose to the prosecuting Crown any additionalinformation that is “obviously relevant” to the accused’s case. The phrase “obviously relevant” should not be taken as indicating a newstandard or degree of relevance: Jackson, at para. 125, per Watt. J.A.

Rather, this phrase simply describes information that is not withinthe investigative file, but that would nonetheless be required to be disclosed under Stinchcombe because it relates to the accused’s abilityto meet the Crown’s case, raise a defence, or otherwise consider the conduct of the defence.

McNeil requires the police to hand suchinformation to the Crown.[21] [33] Consequently, as decided by the Alberta Court of Appeal in Black,[22] the police must disclose investigation files as documentscontemplated by the first party disclosure regime established under Stinchcombe, whereas the other records in the possession of thepolice are subject to the procedure set out under O’Connor. [34] Operational records or information about criminal records is not considered to be the fruits of the investigation.

They are notspecific to a particular investigation. 1.2.2 Disclosure of “obviously relevant” information [35] When information obviously relates to the prosecution of an accused, documents that are not part of the “fruits of theinvestigation” may nevertheless be included under the first party disclosure regime established in Stinchcombe. [36] As the Supreme Court stated in paragraph 23 of Gubbins, quoted above, documents that relate to the accused’s ability to meetthe Crown’s case, raise a defence, or otherwise consider the conduct of the defence are relevant.

The judge must verify relevance in adisclosure context. [37] As for the prosecuting Crown, it must establish that its refusal is based on the fact that the information is irrelevant or of no useto the defence.[23] [38] Within the first disclosure regime (Stinchcombe), relevance is determined according to the use the defence could make of theinformation sought. To measure relevance, the usefulness to the defence of the subject disclosed must be determined.

Thus, if thedefence can reasonably use the disclosed information to meet the Crown’s case, raise a defence or make a decision that could impact theoutcome of the trial, relevance is established. [39] To the same effect, in Chaplin,[24] the Supreme Court stated that relevance was established when there was a reasonablepossibility that the information sought would help an accused make full answer and defence. Where there is a reasonable possibility, theinformation must be disclosed.[25] [40] As Healy J. says in R v.

Chun, speculation should not be mistaken for relevance: [translation] [8] The mere hypothetical possibility that there might be a hidden treasure trove behind any closed door cannot justify an order at thedefence’s request to open every door that is closed or appears to be closed.

Such a request must be driven by a reason, a ground to do so.I repeat: absent a rational connection between the information sought and an issue currently before the Court or one that couldreasonably be brought before the Court during the dispute, it is nothing more than speculation and time wasted.[26] [41] When the margin of error of a radar device is in question, this information could be useful to the defence to achieve thepurposes stated by the Supreme Court in Egger.[27] In this case, the judge indicated the stated purposes, that is, disclosure to meet theCrown’s evidence or arguments, make a defence or make a decision about its conduct.

Once the existence of a document has beenproved, the defence must establish its likely relevance to the speeding offence for disclosure to be ordered. B. The O’Connor regime of disclosure of evidence in possession of third parties [42] The third parties contemplated are any entities other than the prosecuting Crown, including the police when the informationsought is not subject to the first party disclosure regime (the first regime). [43] O’Connor applications cover the production of documents, rather than their disclosure, but always from the perspective of the

right to make full answer and defence. The documents must be examined by the Court for disclosure to be ordered, if the conditions are met. This is a two-step analysis. [ 44 ] First, it is up to the defence to establish that the document is “likely to be relevant”. This is the “likely relevance” threshold. The

interpretation of the “likely relevance” threshold is very broad to help an accused make full answer and defence. [ 45 ] The information requested must be logically probative to an issue at trial or the competence of a witness to testify. Production is ordered only if the documents are likely to be relevant and if production is appropriate, having regard to all the relevant considerations. The purpose of this analysis by the Court is to avoid applications for production based on conjecture or frivolous hypotheses. [ 46 ] At the second stage, the judge weighs the interests at issue.

The adverse effects must be proportionate to the salutary effects of the constitutional objective being furthered. [ 47 ] To obtain the production of the piece of evidence, the applicant must give notice to the prosecution, the custodian of the record and any other person with a privacy interest in the record. The application is presented to the trial judge and is supported by affidavit. C. CASE LAW: APPLICATION OF PRINCIPLES [ 48 ] Here are examples of judgments establishing the various lines of authority on the disclosure of manufacturers’ manuals (or operators’ manuals): 1.

Judgments refusing disclosure of a manufacturer’s manual (or operator’s manual) or a training manual. • Trapani c. Directeur des poursuites criminelles et pénales : [28] The applicant sought the following elements: the qualifications of an officer and the training he received, the lifespan record of the speed detection device, and all the speeding tickets the officer issued that day. The training manual was a document in the possession of a third party (ÉNPQ) and was not under the prosecuting Crown’s control. It was not a fruit of the investigation. The O’Connor regime applied.

The Superior Court judge upheld the non- disclosure ordered by the trial judge, who had characterized the request as a fishing expedition. • Directeur des poursuites criminelles et pénales c. Hamelin : [29] Regarding the manufacturer’s manual , the Court found that the defence had failed to present any rational basis to support its application. The mere allegation that the manual would be useful to cross-examine the officer was insufficient by itself, and the premise that there might have been a breach of the manufacturer’s rules was no more than pure speculation. The disclosure regime is that under O’Connor .

The application was dismissed. • MacDonald c. Directeur des poursuites criminelles et pénales : [30] The application requested the manufacturer’s manual . The O’Connor regime applied. The document was under the control of a third party. Consequently, it was up to the applicant to convince the Court of the relevance of the document sought. No argument was submitted as to relevance and, therefore, the application was dismissed. • St-Bruno-de-Montarville (Ville de) c.

Roger : [31] A radar operator must be able to assert that the radar calibration procedure learned in training complies with the manufacturer’s instructions. The training manual originated from a third party (ÉNPQ) and was not under the prosecuting Crown’s control. • Antoine c. Directeur des poursuites criminelles et pénales : [32] The manufacturer’s manual , the inventory of the training courses taken and the documentation given to the police officer about the radar during his training were documents not under the prosecuting Crown’s control.

The trial judge considered the nature of these documents and whether they were truly relevant. Disclosure was refused. • Directeur des poursuites criminelles et pénales c. Laberge : [33] The application sought the disclosure of sections of the manufacturer’s manual for the speed detection device that concerned the device’s manufacture, the manipulation required to obtain measurements, and its inherent margin of error. The very existence of the document and the identification of the person or legal entity in whose possession it might be were at issue. There were no admissions on this subject.

The witness called by the applicant never used or even saw the manufacturer’s manual. Nothing in the evidence could justify a conclusion that the Sûreté du Québec was in possession of this document (manufacturer’s manual), contrary to Dusseault , where the existence of these documents had been proved. Thus, without any demonstration of the existence of this document and its possessor, the Court was unable to determine whether the rule under Stinchcombe or that under O’Connor should apply. Disclosure of was refused. The application was dismissed. • Directeur des poursuites criminelles et pénales c.

Bouchard : [34] The Court found that it could not compel the prosecuting Crown to disclose a portion of a manual when there was nothing to indicate that it was in its possession or under its control. There was a lack of evidence to that effect. • Vakilian c. Directeur des poursuites criminelles et pénales : [35] The prosecuting Crown maintained that it did not have the manufacturer’s manual and that it did not have to produce it. The Court did not agree with the defence’s argument that it was difficult for him to obtain the document. The prosecuting Crown quite rightly refused to accede to this request.

The manufacturer’s manual was not under the prosecuting Crown’s control and the application for disclosure was dismissed. 2. Judgments allowing disclosure of a manufacturer’s manual (or operator’s manual) • Dussault c. Lac-Beauport (Municipalité de) : [36] In that case, the Sûreté du Québec, who initiated the interception and the charges, was in possession of documents indicating the inherent margin of error or inaccuracy of the speed detection device. A broad

interpretation of the definition of fruits of the investigation must be favoured. Obviously, it was information the defence could use. The documents sought were available from the Sûreté du Québec. The witness had not been authorized to bring them or testify about them. He confirmed the existence of the device’s inherent margin of error or

inaccuracy. In addition to the manufacturer’s manual, this information was also available in the documents prepared by the École nationale de police. Disclosure was ordered by the Superior Court. • In McNeil , the Supreme Court established that the police department in charge of the investigation is not a third party. [37] Furthermore, disclosure of evidence as established in Stinchcombe is intended for documents relating to the accused’s case that are in the prosecuting Crown’s possession or under its control and these are usually assembled by the police. • R. c. Anctil : [38] A broader

interpretation of the notion of fruits of the investigation must be favoured. Thus, the fruits of the investigation cannot be limited only to the information gathered strictly by the police at the site of the investigation. • Directeur des poursuites criminelles et pénales c. Homayounfal : [39] Dionne J. ordered disclosure of the manufacturer’s manual , while adding the following: [translation] [37] ...

In some cases, it is important to go further, particularly when the outcome of the trial rests on the results obtained by a device. [38] The speed detection device is used to gather proof of the actus reus of the offence: excessive speed. It appears that evidence that it was in good working order, of how it was manipulated, and of its accuracy is the cornerstone of the debate.

Thus, we should conclude that if the good working order, manipulation and accuracy of the device are part of the fruits of the investigation, then the manufacturer’s manual for the parts relating to these aspects, as well as the maintenance records and tuning fork certification, is, by extension, evidence that must be assembled by the police or that is even under its control. [39] Moreover, because this evidence might be useful to the defence, in light of the Supreme Court ruling in McNeil , the prosecution must make these documents available to the defendant who requests them. [40] Although it is a manual prepared by the device’s manufacturer, a third party, it must be assumed that the police force that purchases such a speed detection device has possession of the instruction manual, since any device purchased in a store, even an electric kettle, is sold with an instruction manual.

The Court is therefore of the view that the defendant does not have to prove that this manual is in the prosecuting Crown’s possession or under its control. • Directeur des poursuites criminelles et pénales c. Bellavance : [40] In that case, the existence of the manufacturer’s maintenance and user’s manual was proved, even admitted. The ÉNPQ, created under the Police Act , is managed in large part by police officers and is dedicated to their training. It is not a third party, although it is separate from the prosecuting Crown, once again according to the ruling of McNeil concerning the police.

The regime under Stinchcombe and not O’Connor applied. The burden was on the prosecuting Crown to demonstrate that the elements sought are irrelevant. The disclosure of the manufacturer’s manual was therefore ordered by the Court. • Directeur des poursuites criminelles et pénales c. Deblois : [41] The police officer, when questioned about the manufacturer’s manual , admitted that he had received a copy thereof during training and when he was retested and that he still had it in his possession.

Trapani , which concerned the training manual, can be distinguished from this case in that the trial judge concluded that the manufacturer’s manual (the sections concerning the instructions on calibration and manipulation of the speed detection device) were relevant and had to be disclosed. The existence of the document had been adduced into evidence. An order to disclose was granted. • Directeur des poursuites criminelles et pénales c. Gagnon Bérubé : [42] An application for disclosure was brought concerning the manufacturer’s manual for the Kustom Eagle, E23169 series, Doppler speed detection device.

An order to disclose was granted due to its relevance. Like Serge Délisle J. in DPCP c. Lazure

(2014) QCCQ 2212, the trial judge was of the view that the use and usefulness of the tuning fork were not judicial knowledge. The Court referred to Dusseault c. Lac Beauport (Municipalité de) and found that the elements were useful and relevant to the defence. Consequently, the prosecuting Crown had a duty to disclose the manufacturer’s manual. • Directeur des poursuites criminelles et pénales c. Miousse : [43] The application concerned obtaining the manufacturer’s manual and the maintenance records.

The judge stated: [translation] [31] It is entirely logical to argue that the manufacturer’s instructions on the manner of operating and maintaining the device, and especially with respect to calibration, manipulation, and the margin of error, and any information regarding its maintenance become essential for the party trying to meet the Crown’s case.

Thus, the Court is of the view that the documents sought are relevant in an application for disclosure of evidence. … [33] In McNeil , the judge said that disclosure under Stinchcombe is intended for documents relating to the accused’s case that are in the prosecuting Crown’s possession or under its control, and that these are usually assembled by the police. [34] ... Thus, the fruits of the investigation cannot be limited only to the information gathered strictly by the police at the site of the investigation.

In some cases, it is important to go further, particularly when the outcome of the trial rests on the results obtained by a device. [35] The speed detection device is used to gather proof of the actus reus of the offence: excessive speed. It appears that evidence that it was in good working order, of how it was manipulated, and of its accuracy, is the cornerstone of the debate.

Thus, we should conclude that if the good working order, manipulation and accuracy of the device are part of the fruits of the investigation, then the manufacturer’s manual for the parts relating to these aspects, as well as the maintenance records is, by extension, evidence that must be

assembled by the police or that is even under its control. … [37] Although it is a manual prepared by the device’s manufacturer, a third party, it must be assumed that the police force that purchases such a speed detection device has possession of the instruction manual, since any device purchased in a store, even an electric kettle, is sold with an instruction manual.

The Court is therefore of the view that the defendant does not have to prove that this manual is in the prosecuting Crown’s possession or under its control. [ 49 ] In her conclusions in that case, Dionne J. ordered that part of the manufacturer’s manual for the device be disclosed to the defendant, that is, the part with the instructions on calibration, the manipulation to obtain measurements, and the inherent margin of error. • Directeur des poursuites criminelles et pénales c. Savard : [44] The trial judge came to the same conclusion as in R v. Miousse , whereby the manufacturer’s manual should be disclosed.

This document is useful to the defence and the prosecuting Crown must make it available to the defendant, who requests it. The application was granted. ANALYSIS [ 50 ] First, the Court must consider whether the defence has proved that the manufacturer’s manual exists and contains the information sought. Has the defence proved that this manual is in the possession of the Sûreté du Québec? [ 51 ] At the outset, the Court affirms that it is of judicial knowledge that an instruction manual is prepared by the manufacturer of any device.

This fact does not relieve an applicant from the obligation to establish the manual’s existence or its relevance to his or her defence.

No witnesses were heard, and the Court cannot extrapolate from the evidence adduced before it. [ 52 ] First, the prosecuting Crown responded to the applicant’s application for disclosure of evidence as follows: [ translation ] After checking with the persons in question, we are unable to confirm the existence and availability of the manufacturer’s manual. [ 53 ] After hearing the evidence, the Court finds that the application for disclosure of the manufacturer’s manual must be considered under the second disclosure regime, that of O’Connor .

The documents sought by the applicant is information that is not part of the fruits of the police investigation and, moreover, is not under the prosecuting Crown’s control. [ 54 ] In light of the principles of the Supreme Court in Gubbins , here are the questions to be asked when determining the applicable disclosure regime:

(1) Is the information that is sought in the possession or control of the prosecuting Crown? and

(2) Is the nature of the information sought such that the police or another Crown entity in possession or control of the information ought to have supplied it to the prosecuting Crown? This will be the case if the information can be qualified as being part of the “fruits of the investigation” or “obviously relevant”. An affirmative answer to either of these questions will call for the application of the first party disclosure regime. Otherwise, the third party disclosure regime applies.

For the reasons that follow, the maintenance records are subject to third party disclosure . [45] (Emphasis added) [ 55 ] After asking themselves these very questions, the judges concluded that the maintenance records were subject to the O’Connor regime because they were in the possession of a third party. [ 56 ] With respect to the manufacturer’s manual (or the operator’s manual), it is not in the possession or under the control of the prosecuting Crown.

Although it is likely that the manufacturer’s manual (or the operator’s manual) is in the possession of the entity that bought the device, the applicant presented no proof of this. In the eyes of the Court, proof of the very existence of the manual has not been made.

No information or witness was offered to shed light on the actual existence of the manual. [ 57 ] However, even if it was proved that this document existed, the Court would not have allowed its production because proof of its relevance has not been made here. [ 58 ] Unlike in Gubbins , neither the Crown nor the applicant called an expert witness to testify on the relevance of the document sought. The Court cannot extrapolate to determine the ins and outs of what is obviously relevant to the applicant; it must assess the evidence before it.

A mere hunch is neither sufficient nor conclusive to establish relevance. [ 59 ] Presenting expert evidence to help the Court rule on the relevance of the manufacturer’s manual would have been very useful. No such evidence relating to the use, internal controls, or the manipulation of the speed detection device was offered. Radar devices are checked before and after they are used by police officers.

A manufacturer’s manual would not be used to determine an erroneous or improper operation of the device without proof of its relevance. [ 60 ] Consequently, the mere likelihood that the prosecuting Crown or a third party is in possession of the manufacturer’s manual is not compelling evidence. Moreover, conjecture as to its usefulness is not enough to make it likely to be relevant. As the Supreme Court recalled in St-Onge Lamoureux : The accused must retain a technician or an expert to determine whether the instrument malfunctioned or was operated improperly. It is impossible for a layperson to do this. [46]

[ 61 ] One thing is certain, if the document exists, it is in the possession of a third party and not under the prosecuting Crown’s control. [ 62 ] There is nothing to show that the Sûreté du Québec is in possession of the manual or that a

section of it contains passages about the inherent margin of error or any inherent inaccuracy in the device. [ 63 ] In this case, the applicant is not seeking the entire manufacturer’s manual but only the sections concerning the instructions on calibration, the manipulation of the device to obtain measurements and the device’s inherent margin of error. Here, neither its existence nor its relevance have been proved. [ 64 ] In light of the above, the documents sought by the applicant are not among those the first party must disclose.

In addition to not being under the prosecuting Crown’s control, the information sought (manufacturer or operator’s manual) is not part of the fruits of the investigation.

Consequently, the O’Connor regime applies and the manufacturer or operator’s manual, if it exists, is considered to be in the possession of a third party. [ 65 ] Because the Court has concluded that there is no evidence of the very existence of the manual or of its relevance, the applicant’s application for disclosure of evidence is dismissed. [ 66 ] The manufacturer or user manual may be disclosed to the defence if the defence can show that it is “likely to be relevant” to a question of significance to the outcome of the case. The defence has failed to prove this.

FOR THESE REASONS, THE COURT: [ 67 ] DISMISSES the applicant’s application. __________________________________ MARIE-FRANCE BEAULIEU, P.J.P. Mtre Francis Germain Cain Lamarre, s.e.n.c.r.l. Counsel for the applicant Mtre Pierre-Olivier Savard D.P.C.P. Office Counsel for the respondent Date of hearing: January 8, 2019