r v. PAUL TEJINDER SINGH, 2011 QCCQ 1032

R. c. Tejinder Singh 2011 QCCQ 1032 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF BEDFORD TOWN OF COWANSVILLE Criminal and Penal Division No: 455-01-009829-098 DATE: FEBRUARY 15, 2011 ___________________________________________________________________ PRESENT: THE HONOURABLE SERGE CHAMPOUX J.C.Q. ___________________________________________________________________ HER MAJESTY THE QUEEN Prosecutor v.

PAUL TEJINDER SINGH Accused ___________________________________________________________________ JUDGMENT ON THE APRIL 16, 2010 APPLICATION FOR PRODUCTION OF DOCUMENTS ___________________________________________________________________ [ 1 ] The accused presented an application for production of documents, dated April 16, 2010. That application is referred to as an " O'Connor application for production of documents" by the accused. HISTORICAL BACKGROUND [ 2 ] Paul Tejinder Singh faces two charges related to events that took place on July 18, 2009.

On that day, he is accused of having the care or control of a motor vehicle while his ability to do so was impaired by alcohol and of having consumed alcohol in a quantity exceeding the legal limit while having the care or control of a vehicle. [ 3 ] Since those events took place after July 2, 2008, there can be no question as to the application of the recent amendments to the Criminal Code affecting the law of impaired driving.

These amendments are part of the Act to amend the Criminal Code and to make consequential amendments to other acts (S.C. 2008 C-6) ("Bill C-2"). [ 4 ] What the accused seeks is a long list of documents and information regarding the instrument that was used to test his breath, that is, an Alco-Sensor IV-RBT IV. [ 5 ] Below is the list of documents and information sought: The accused seeks the entire file which the ATC has with regards to the Alco-Sensor IV-RBT IV.

Without limiting the generality of the above, the accused seeks, in regards to the Recommended Standards and Procedures of the Canadian Society of Forensic Science Alcohol Test Committee ("ATC") (Can. Soc. Forensic Sci. J. Vol. 42 No 1 (2009) pp. 1-29), all of the following: 1. All documents supplied by the manufacturer to the ATC for the evaluation of the Alco-Sensor IV-RBT IV, more specifically, a. The specifications including schematic drawings for the Alco-Sensor IV-RBT IV being evaluated and any associated systems; b. Actual performance data; c. Detailed operating instructions (p. 5); 2.

All documentation as regards the procedure for inspecting the Alco-Sensor IV-RBT IV before being placed into service, and periodically thereafter, to ensure that they initially meet, and continue to meet, the manufacturer's specifications (p. 14); 3. All documentation as regards the additional preventative maintenance, which may be performed at the field level by suitably trained individuals. If applicable, the protocol for such maintenance, appropriate to the Alco-Sensor IV-RBT IV developed by Program Director (p. 14); 4.

All documentation as regards the approval process by the ATC of any modification to the Alco-Sensor IV-RBT IV (p. 15); 5. All documentation as regards the installation of approved modifications (p. 15);

6. All documentation as regards the selection of the location such that the location is adequate for effective secure operationand has adequate ventilation; 7. All documentation as regards the verification of the power supply such that it is adequate for the proper operation of theAlco-Sensor IV-RBT IV is surge-protected (p. 15); 8. All documentation as regards the use of a voltage monitor on the Alco-Sensor IV-RBT IV (p. 16); 9. All documentation as regards the use of radio transmissions from the room in which the Alco-Sensor IV-RBT IV is beingoperated (p. 16); 10.

The following documentation provided to the ATC by the Manufacturer before the evaluation for approval wascommenced (p. 18): a. The software/firmware version provided by the Manufacturer to the ATC; b. The data confirming that the Alco-Sensor IV-RBT IV complies with generally recognized safety requirements in Canada; c. Sufficient details to allow proper use of the Alco-Sensor IV-RBT-IV; including any specific analytical procedures requiredand any precautions that should be observed in the use of the Alco-Sensor IV-RBT IV; d. Performance data relating to the appropriate ATC standards; e.

All details pertaining to the theory and operation of the Alco-Sensor IV-RBT IV including those that the manufacturercan justify as being proprietary and that may have been held confidential by the Committee). These details shall be sufficient toallow evaluators to identify potential malfunctions which could adversely affect the results; 11. The following documentation compiled by the ATC in the evaluation process (p. 16-17): a. Each evaluators comments on each standard; b. All test results; c. Results which the ATC considers to be inappropriate and the reasons for doing so; 12.

All documentation as regards the generally recognized safety requirements accepted (p. 19); 13. All documentation as regards: a. If the Alco-Sensor IV-RBT IV is equipped with software/hardware to …detect RFI…, the function of these checks shall beinvestigated and tested by the Evaluator(

s) to see whether the appropriate response is produced; b. To evaluate Alco-Sensor IV-RBT IV response to RFI, this test shall be conducted by transmitting from a portable radio,of the type, power, and frequency used in police operations, approximately one meter from the Alco-Sensor IV-RBT IV whiletaking a subject test (p. 22); [6] The instrument used to test the breath of the accused was not put into service because of or concurrently with the newamendments to Bill C-2.

The evidence reveals that it was introduced in Canada in the mid-nineties, when it became an approvedinstrument under the Approved Breath Analysis Instruments Order ("the Order"). [7] As well, O'Connor applications are nothing new. They arise from the 1995 decision of the Supreme Court of Canada in thecase of Hubert Patrick O'Connor (1995 (SCC), 4 S.C.R. 411). That decision deals with the proper procedure forobtaining third-party disclosure of evidence. [8] Disclosure itself became a formally established rule in 1991, with the Stinchcombe decision (1991 2 S.C.R. 326).

Although theCrown's duty to disclose is unquestionable, the extent of the duty remains debatable, at least at its extremes. [9] This short historical background is sufficient to show that, even if the amendments brought into force by Bill C-2 constitute achange in law, the Crown's obligations of disclosure have remained the same. [10] The new-found interest in presenting applications such as that brought by the accused (see for example R. v. Armitage 2010ONCJ 150, R. v. Murray 2010 ONCJ 151, R. v. Black 2010 ABQB 461, R. v. Klug 2010 ABPC 88, R. v. Hay [2010] O.J. No. 1662, R. c.Legault 2009 QCCQ 15360, R. v.

Muzuva 2009 ONCJ 574, R. v. Kazmer 2009 ONCJ 506, R. v. Phagura 2009 BCPC 296, R. v.McCoughey [2009] O.J. No. 5785, R. v. Payne [2009] O.J. No. 5615, R. v. Robertson 2009 ONCJ 388, R. v. Lo 2009 ONCJ 307, R. v.Pfaller 2009 ONCJ 216, R. v. Deonanan 2009 ONCJ 200, R. v. Jemmett 2009 ONCJ 741, R. v.. Robertson 2009 ONCJ 388, R. v.Latchmansingh [2009] O.J. No. 4185, R. v. Rochon 2010 QCCQ 5763, R. v. Hillier [2010] O.J. No. 2682, R. v. Ahmed 2010 ONCJ 130,R. v. Gamble 2010 ONCJ 558, Duff v. Alberta [2010] A.J. No. 901, R. c. Boivin 2009 QCCQ 216, R. v. Seright 2009 ONCJ 738, R. v.Ament 2009 ONCJ 137, R. v.

McKenna 2009 SKQB 134, R. v. Anderson [2009] O.J. No. 912, R. v. Tessier [2003] J.Q. No. 13290, R. v.Mellor 2007 ONCJ 694 , [2008] O.J. No. 5457, R. v. Coopsammy 2008 ABQB 266, R. v. Mercey 2010 ONCJ 598, R. v.

Speckner 2010 ONCJ 451 , R. v. Dufour 2009 QCCQ 7790 , R. v. Dionne 2009 ONCJ 609 , R. v. Hoover 2009 ONCJ 361 , R. v. Pierre 2009 ONCJ 365 , R. v. Emm [2009] O.J. No. 4080 , R. v. Mousseau [2008] O.J. No. 4428 , R. v. Scurr 2008 ABQB 127 ) therefore does not derive from any change in the law of disclosure, but from the necessity to explore new lines of defence. EVIDENCE FOR THE APPLICATION [ 11 ] Only one witness was called, André Dion. [ 12 ] André Dion is the member of the Alcohol Test Committee ("ATC") who represents the jurisdiction of Québec.

He is also a toxicologist with Montréal's medico- legal laboratory. He was called as a witness by the accused. No one questions his expertise in his field of work. [ 13 ] The evidence revealed how an instrument such as the Alco-Sensor IV-RBT IV becomes an approved instrument. Very briefly, the manufacturer, as well as the general public, has access to a technical document called the Recommended Standards and Procedures of the Canadian Society of Forensic Science Alcohol Test Committee ("RSP").

The RSP gives a comprehensive list of all the testing an instrument must undergo and the requirements it must meet in order to be approved. [ 14 ] The current RSP (2009) was produced as Exhibit R-1 and the RSP under which the Alco-Sensor IV-RBT IV was approved, as Exhibit R-4. I understand that, as a rule, the ATC publishes new RSPs as needed, no doubt as the science evolves. [ 15 ] A manufacturer wishing to have an instrument approved must submit two samples to the ATC which, in turn, designates two of its members to evaluate the device.

The designated ATC members conduct independent evaluations in accordance with the RSP. Each member submits a complete report of the testing to the ATC for discussion and recommendations. [ 16 ] If the ATC approves the instrument, a recommendation is made to the Department of Justice of Canada, which then adds the instrument to the Order. Any subsequent changes in the instrument must be accepted by the ATC, following a specific procedure whose thoroughness depends on the extent of the proposed modifications. [ 17 ] The ATC itself is a subcommittee of the Canadian Society of Forensic Science.

It is composed of about ten members, all experts in their field, hailing from a broad sampling of Canadian regions and representative of most, if not all, the law enforcement agencies. Although the members of the ATC may work with police forces (RCMP, OPP or SQ), my understanding is that they all retain their professional independence and are governed by their own code of ethics. [ 18 ] The testimony of André Dion revealed that, although the documents the accused seeks to obtain do in fact exist and are in the archives of the ATC, the ATC is not ready to disclose that information to him without a Court order.

As well, Mr. Dion is not aware of any instances in which such information would have been made available to an accused or of any Court order that would have been rendered in that regard. [ 19 ] The evidence also revealed that, as a toxicologist, André Dion does not require access to information of that nature to render an opinion on a given scenario of alcohol consumption and breath testing counter verifications.

As a chemist and scientist, he trusts and relies on the approval of the instrument by the ATC. [ 20 ] What he requires and feels he has to verify, on the other hand, are all the relevant data from the accused's test. Not only the instrument printout itself is relevant—displaying as it does a blank test and a control test in addition to the accused's breath test—but also the factual elements behind the data.

They include observation of the accused, time elapsed between the tests, certification of the alcohol standard used for the control test, the date on which the alcohol standard solution was changed, etc. [ 21 ] Based on the above information, André Dion can draw a conclusion on a given case and be satisfied with it, as a scientist. LEGAL BASIS OF THE APPLICATION [ 22 ] It is important to note that the application brought by the accused is not a constitutional challenge of the decision to approve the Alco-Sensor IV-RBT IV and add it to the Order.

Thus, the power of the Minister, or any legal body for that matter, to place the instrument on the list of approved instruments for the purpose of

section 258 of the Criminal Code is not in question, nor is the mechanism by which the ATC is mandated to test new devices and make recommendations concerning them. [ 23 ] Also, although the application of the accused refers to an O'Connor application, in Court and in his written submissions, the accused refers to the Stinchcombe standards to obtain the information he now seeks. [ 24 ] That, of course, is relevant with regard to the burden borne by the accused and that must be applied. [ 25 ] Finally, I believe it is appropriate to recall certain elements of the reform engendered by the Bill C-2 amendments. [ 26 ] As it now stands, section 258(1) (

c) of the Criminal Code provides that the results obtained from the approved instrument are evidence and conclusive proof of an accused's blood alcohol concentration, in the absence of evidence to the contrary of the following elements: - The approved instrument was malfunctioning; - The instrument was not operated properly; - That malfunction or misuse resulted in readings above 80 milligrams of alcohol per 100 millilitres of blood; - Without that malfunction or misuse, the correct reading would have not exceeded 80 milligrams of alcohol per 100 millilitres of blood.

[27] This, of course, is a

summary description of that subsection. It simply draws attention to the fact that, as the law stands, it isdifficult to see how the instrument approval process could afford a viable defence. STINCHCOMBE OR O'CONNOR? [28] The Supreme Court of Canada states the following in McNeil 2009 SCC 3 , [2009] 1 S.C.R. 66 regarding the properlevel of disclosure to apply: [17] The Crown’s obligation to disclose all relevant information in its possession relating to the investigation against an accused is wellestablished. The duty is triggered upon request and does not require an application to the court.

Stinchcombe made clear that relevantinformation in the first party production context includes not only information related to those matters the Crown intends to adduce inevidence against the accused, but also any information in respect of which there is a reasonable possibility that it may assist the accusedin the exercise of the right to make full answer and defence (pp. 343-44).

The Crown’s obligation survives the trial and, in the appellatecontext, the scope of relevant information therefore includes any information in respect of which there is a reasonable possibility that itmay assist the appellant in prosecuting an appeal. [29] In the same decision, the Court explains the extent of the obligation to disclose and also addresses the question of third-partypossession of such information. More important, in my view, is the notion of the "fruits of the investigation". [22] The Stinchcombe regime of disclosure extends only to material in the possession or control of the Crown.

The law cannot impose anobligation on the Crown to disclose material which it does not have or cannot obtain: R. v. Stinchcombe, (S.C.C.),[1995] 1 S.C.R. 754. A question then arises as to whether the “Crown”, for disclosure purposes, encompasses other state authorities. Thenotion that all state authorities amount to a single “Crown” entity for the purposes of disclosure and production must be quickly rejected.It finds no support in law and, given our multi-tiered system of governance and the realities of Canada’s geography, is unworkable inpractice. As aptly explained in R. v.

Gingras (1992), (AB CA), 120 A.R. 300 (C.A.), at para. 14: If that line of reasoning were correct, then in order to meet the tests in Stinchcombe, some months before trial every Crown prosecutorwould have to inquire of every department of the Provincial Government and every department of the Federal Government. He wouldhave to ask each whether they had in their possession any records touching each prosecution upcoming. It would be impossible to carryout 1% of that task. It would take many years to bring every case to trial if that were required.

Accordingly, the Stinchcombe disclosure regime only extends to material relating to the accused’s case in the possession or control of theprosecuting Crown entity.

This material is commonly referred to as the “fruits of the investigation”. [30] That notion of fruits of the investigation is crucial in the case of the accused. [31] As opposed to a Stinchcombe application, an O'Connor application follows different rules, again explained in McNeil: [26] In O’Connor, this Court was concerned with the manner in which the accused, who was charged with multiple sexual offences,could obtain production of the therapeutic records of the complainants from third party custodians.

O’Connor has been overtaken byParliament’s subsequent enactment of the Mills regime contained in ss. 278.1 to 278.91 of the Criminal Code for the disclosure ofrecords containing personal information of complainants and witnesses in sexual assault proceedings. In respect of any other criminalproceeding, however, the O’Connor application provides the accused with a mechanism for accessing third party records that fall beyondthe reach of the Stinchcombe first party disclosure regime. [27] Stated briefly, the procedure to be followed on an O’Connor application is the following:

(1) The accused first obtains a subpoena duces tecum under ss. 698(1) and 700(1) of the Criminal Code and serves it on thethird party record holder. The subpoena compels the person to whom it is directed to attend court with the targeted records or materials.

(2) The accused also brings an application, supported by appropriate affidavit evidence, showing that the records sought arelikely to be relevant in his or her trial. Notice of the application is given to the prosecuting Crown, the person who is the subject of therecords and any other person who may have a privacy interest in the records targeted for production.

(3) The O’Connor application is brought before the judge seized with the trial, although it may be heard before the trialcommences. If production is unopposed, of course, the application for production becomes moot and there is no need for a hearing.

(4) If the record holder or some other interested person advances a well-founded claim that the targeted documents areprivileged, in all but the rarest cases where the accused’s innocence is at stake, the existence of privilege will effectively bar theaccused’s application for production of the targeted documents, regardless of their relevance. Issues of privilege are therefore bestresolved at the outset of the O’Connor process.

(5) Where privilege is not in question, the judge determines whether production should be compelled in accordance with thetwo-stage test established in O’Connor. At the first stage, if satisfied that the record is likely relevant to the proceeding against theaccused, the judge may order production of the record for the court’s inspection. At the next stage, with the records in hand, the judgedetermines whether, and to what extent, production should be ordered to the accused. The question of privilege is beyond the scope of this appeal.

However, I will elaborate on each stage of the O’Connor test for productionof third party records in turn. [32] The argument behind the reference to an O'Connor application is that the ATC, which holds most if not all the documentssought, should be considered as a third party, different and distinct from the Crown and the investigative body. [33] As mentioned above, although the accused's application refers to an O'Connor application, the attorney for the accused, in

Court and in his written submissions, contends that the ATC is not in fact distinct from the Crown, within the meaning of McNeil. [34] For the Crown, the accused's demands are clearly directed at a third party. [35] Although I tend to believe that the ATC is a third party in the present situation, I do not believe that I am required to settle theissue. RELEVANCY OR FRUITS OF THE INVESTIGATION [36] The minimum standard of disclosure is relevancy.

Something without relevancy need not be disclosed and, as a matter of fact,should not appear in the Crown's file. [37] As long as the law remains as it is, I cannot see how the fact of the instrument's being well or poorly tested for approvalpurposes could afford a defence to the accused. I do not see how the results of the testing, all of which were within acceptable norms,would help the defence. [38] The RSP provides for a level of accuracy that an instrument must display.

If we assume that the Alco-Sensor IV-RBT IV alwaysscores in the higher or the lower range of the bracket, but always within the acceptable range, that would not disqualify the instrumentfrom being approved. [39] Approval legally creates a presumption that an instrument's results are accurate and can be used to prove the amount of alcoholin an accused person's blood. [40] Should the RSP be different? Is it stringent enough? Did the Minister or Government include the instrument on the Orderarbitrarily? [41] I need not resolve any of these questions, and no evidence whatsoever points in that direction.

But more importantly, without aconstitutional attack from the defence, on the law as it stands, none of these issues would help the accused prepare his defence. [42] To repeat myself, the following are the lines of defence open to the accused under the relevant parts of the law as it stands: (

a) The instrument was not operated correctly; (

b) The instrument malfunctioned. [43] The appropriateness or ill-foundedness of the choice to place the instrument on the approved list is not one of them. [44] And, if it cannot afford a defence, I fail to see how it could be relevant. [45] Furthermore, there is at least one other reason to dismiss the accused's application. More than being legally irrelevant, I believe,with all due respect, that it is factually irrelevant as well. [46] The Crown has the obligation to disclose the fruits of the investigation. [47] The fruits of the investigation are what flows from the investigation.

This does not mean that the investigation has to be perfector ideal. Possibly, it could have been more complete, or other avenues could have been investigated. [48] In 2010, the Ontario Court of Appeal said the following in that regard in R. v. Darwish, 2010 ONCA 124 : [29] An accused does not have a freestanding constitutional right to an adequate investigation of the charges against him or her: R. v.Barnes, 2009 ONCA 432 , 2009 ONCA 432, at para. 1. Inadequacies in an investigation may lead to the ultimate failure of theprosecution, to a specific breach of a Charter right or to a civil remedy.

Those inadequacies do not, however, in-and-of-themselvesconstitute a denial of the right to make full answer and defence. … [34] The distinction between the right to the disclosure of the fruits of an investigation and a right to demand an additional investigationis made clear in R. v. Daley, 2008 BCCA 257 , 2008 BCCA 257. In Daley, the complainant in a sexual assault case had beenexamined following the assault by a nurse. The results of that examination were placed in a “sexual assault kit”. The police preserved thekit, but did not attempt to have the samples it contained forensically examined.

Disclosure of the kit was made to the defence. Thedefence argued that, as the samples were potentially exculpatory, the Crown was obliged not only to disclose their existence to thedefence, but also to have the necessary forensic tests performed.

[35] The British Columbia Court of Appeal unanimously rejected this submission, stating at para. 15: The Crown’s obligation was to disclose what could be inculpatory or exculpatory evidence. It did so. Once the appellant had knowledgeof the existence of the kit, it was open to him to have it examined and he could easily have done so. He evidently chose not to. [Citationsomitted.] [49] In R. v. Duff, 2010 ABPC 250, a disclosure application was presented in a breathalyzer case. The defence sought disclosure ofdata known as "ADAMS/COBRA" data.

These (ADAMS and COBRA) are names of software programs used to download data from theIntoxylizer (the instrument in that case). [50] Before dismissing the application, the Honourable Rosborough J. says: [127] It must be borne in mind that the characterization of data as a first or third party record will not likely be restricted to the facts of agiven case. Once classified as a first party record, police agencies would be obliged to purchase the necessary software, download anydata available and disclose it to the accused in every case.

Evidence at this hearing establishes that it would be costly for police agenciesto purchase, maintain and update software necessary to perform this function. They must also set in place the appropriate administrativesystems to facilitate production and disclosure. This, for information they consider to be so irrelevant that they do not even consider itthemselves. [128] On the other hand, it would be neither expensive nor disruptive for a witness commissioned by the Applicant to perform thisfunction.

Regardless of the resolution of this debate, I am not satisfied that the ease of disclosure is relevant either to the issue of itscharacterization (as first or third party disclosure) or to the issue of whether disclosure should be ordered. See also: Anderson, atpara.13. [51] I believe that R. v. Ahmed, 2010 ONCJ 130 clearly supports this (paragraphs 111 and 112). [52] The Alco-Sensor IV-RBT IV is a commercially available instrument and can be purchased and tested. The Crown's obligationof disclosure does not include a duty to assess every remote possibility or hypothesis that might reveal a valid defence.

How could testingof the Alco-Sensor be deemed, under any circumstances, to be fruits of the investigation against the accused? [53] Even if I am wrong in adopting this position, I believe that a line has to be drawn between relevancy and irrelevancy. [54] For instance, in a case of drug trafficking, the quantity of drug involved could be very relevant.

Depending on the facts, theaccuracy of the scales could relevantly be questioned. [55] Still, I do not believe that proper disclosure of evidence would necessitate that a certificate be issued in every drug case toestablish that the scales were recently calibrated by an expert. [56] In the same vein, digital photographs are used in Court on a daily basis, without anyone having to prove the scientific principlebehind the camera used. Witnesses testify as to who they saw.

The court typically accepts that there is a certain margin of error in anyinformation given, no matter how sincere the witness or competent the user of a certain device. No proof is perfect, no trial is decidedbeyond all doubt. The only requirement is proof beyond reasonable doubt. [57] In the case before us, if the line of relevancy has to be drawn, I believe it should be drawn somewhere before what the accusedis asking. FOR ALL THESES REASONS: [58] The application is DISMISSED. __________________________________ Serge Champoux J.C.Q. Mtre. Erin KavanaghCounsel for the prosecutor Mtre.

Steven SlimovitchCounsel for the accused