Her Majesty the Queen - v. -, 2013 SKPC 47

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 047 Date: March 27, 2013 Information: 39985125 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - James Kyle Pankiw Appearing: Bryce Pashovitz For the Crown Mark Brayford, Q.C. For the Accused DECISION ON DISCLOSURE VOIR DIRE D.E. LABACH , J INTRODUCTION [ 1 ] The accused, James Kyle Pankiw, is charged that on July 26, 2011, at or near Saskatoon, Saskatchewan, he did operate a motor vehicle while his ability to do so was impaired contrary to section 253(1) (

a) of the Criminal Code and further, that he did operate a motor vehicle while his blood alcohol level exceeded .08 contrary to section 253(1)(

b) of the Criminal Code .

[2] At the outset of the accused’s trial, Defence counsel brought an application for disclosure of the complete calibration,maintenance, history and usage logs and related certificates in relation to the screening device and the Intoxilyzer machine used to testthe accused as well as can-says from all officers dispatched or in direct communication with the accused and copies of any searches orinquiries made by officers involved in the investigation. [3] It was the Crown’s position that they had disclosed all relevant calibration, maintenance and usage logs and all appropriatecertificates in relation to both the approved screening device and Intoxilyzer used in this particular case and that if anything further inrelation to these instruments was disclosable in light of the recent Supreme Court of Canada decision in R. v.

St.-Onge Lamoureux, 2012SCC 57 , [2012] S.C.J. No. 57 (S.C.C.), they would like the Court’s direction in that regard. As for the requested can-says andcopies of any searches or inquiries, the Crown advised that they had canvassed all officers involved in this case and all the informationthey had received from these officers had been provided to the Defence. In other words, there was nothing further to give to the Defenceregarding the police officers’ evidence. [4] In order to resolve this disclosure issue it was agreed by all parties that the Court should enter into a voir dire.

The Crowncalled the Intoxilyzer technician on the voir dire and the Defence did not call any witnesses. However, with the consent of the Crown,the Defence filed an affidavit of the accused setting forth pertinent information necessary for their application. The Crown declined theopportunity to cross-examine the accused on his affidavit. This is my decision on the Defence disclosure application. FACTS [5] On the evening of July 25, 2011, the accused was at his acreage in the R.M. of Corman Park. He had been watchingtelevision and had a few beers to drink when he fell asleep on his couch.

At approximately 2:00 a.m. he woke up to see two flashlightbeams being shone around his backyard. As he exited his house he saw some persons fleeing towards the roadway. He gave chase butby the time he got to the road, they were gone. [6] As the accused turned back towards his home, he noticed his deck lights being flashed on and off. He ran back to his houseand discovered an ottoman knocked over, the television turned off and the stereo on. No one was inside. [7] He went back outside and noticed a set of tail lights on the roadway. He got in his truck and went after this vehicle.

Theaccused caught up to this vehicle as it was travelling southbound on highway 11 and began following it. While doing so he contacted911 to request the assistance of the police. He provided the license plate number and vehicle description to the 911 dispatcher and sheadvised the accused that she would have an officer call him back right away. [8] An RCMP officer called the accused on his cell phone at 2:20 a.m. and they spoke for some nine minutes.

Unfortunately,the officer was not in the vicinity and it would take him some time to get to the accused and the vehicle he was following. [9] At this moment, the vehicle the accused was following drove into the east ditch and attempted to get onto the northboundlanes of highway 11 to head back towards Saskatoon. As the vehicle tried to do this, it got stuck.

The accused stopped and approachedthe vehicle in the ditch demanding that the driver open the trunk so he could see what they had stole from his house. [10] The driver ignored the accused and was able to get his vehicle unstuck and up onto the northbound highway. The vehiclethen drove off toward Saskatoon. The accused got back in his truck but did not go down into the ditch. Instead he proceededsouthbound until he came to an approach.

He then turned around and headed northbound trying to locate the vehicle he had earlier beenfollowing. [11] He eventually caught up to a vehicle that he thought was the one he had earlier been following. He again called 911 andspoke to a dispatcher. She transferred him back to the RCMP officer he had been speaking with earlier. He spoke with this officer forapproximately eight minutes. By this time the accused and the vehicle he was following were in the City of Saskatoon. [12] The suspect vehicle stopped near the corner of 8th Street and Broadway Avenue. The accused stopped as well. Shortly

thereafter Saskatoon police officers arrived to deal with the situation. After they arrived, it became apparent that the vehicle the accused had followed northbound into Saskatoon was not the vehicle he had initially been following. At this stage, the officers began investigating the accused for impaired driving. He was given an approved screening device test and failed. He was then taken to the Saskatoon police station where he provided two Intoxilyzer samples both exceeding .08.

The accused was polite and cooperative with officers at the police station but when advised of the Intoxilyzer test results, he expressed concern that they could not have been accurate. Despite this, he was charged with drinking and driving. [ 13 ] The accused made his first court appearance on August 10, 2011 with legal counsel. Shortly thereafter he hired Mark Brayford, Q.C. to represent him. On August 16, 2011, Mr.

Brayford faxed a letter to the Crown requesting any further disclosure they had, including: . . . . copies of all statements and can-says in relation to any potential witnesses, whether the Crown intends to call them or not, copies of all notes made by any of the aforementioned persons, and a copy of any conversations or statements attributed to my client, whether written or oral . . . . and the calibration and annual maintenance records in relation to any alleged approved devices used in this investigation . . . . [ 14 ] On September 19, 2011, Mr. Brayford faxed a further letter to the Crown.

In the first paragraph of this letter he said: Not to diminish the generality of my disclosure request in my letter of June 2 nd , the two things that I would particularly appreciate receiving prior to proceeding further are the police station videos and the 911 calls that my client made, along with those of the other drivers, along with any corresponding communication directly to or from the police officers. [ 15 ] Defence counsel attended docket court on the accused’s charges numerous times in 2011 and 2012, each time adjourning the case while he waited for full disclosure to occur.

Over this time he received packages of disclosure containing some of the material he had requested but not all. Despite his written requests and a number of verbal requests, he was not given any disclosure as to the evidence of the RCMP officer to whom the accused had been speaking during the course of the incident, no tape recording of the two conversations the accused had had with this officer on his cell phone and no records for either the approved screening device or the Intoxilyzer used in this case. [ 16 ] On May 11, 2012, Mr. Bruce Bauer, the Associate Regional Crown Prosecutor, responded by letter to Mr.

Brayford that: With respect to disclosure, the position of the Crown is that disclosure is complete. Although your letter mentions missing calls, it is the Crown position that all of the calls from your client to the police that were recorded by the police have been disclosed to you. Any calls between your client and an officer not involved in dispatch were not recorded by the police. As a result, these calls are not missing. [ 17 ] On May 16, 2012, the accused entered a not guilty plea to his drinking and driving charges and they were set for a one day trial to November 5, 2012.

The trial sheet prepared at the time indicates that there were disclosure issues and that disclosure was ongoing. [ 18 ] On September 7, 2012, Crown and Defence counsel attended a case management conference for the accused’s case. In consultation with the case management judge, the parties determined that one day would not be sufficient to complete the accused’s trial so the November 5, 2012 trial date was vacated. New trial dates were set to March 4 and 5, 2013. On the trial sheet for the new court dates it indicated that disclosure was ongoing.

On the case management form, the judge made the following notation: - disclosure issue - was call with RCMP officer recorded? - if not available, Defence wants officer’s notes or report re: this conversation. - Crown will follow-up.

[ 19 ] On January 30, 2013, Defence counsel received another disclosure package from the Crown. One of the documents in the package was an e-mail from Corporal Gerry Pankratz with an attached report. The e-mail read: Sean, here you go. I have no notes, this is the only report. Gerry Corporal Gerry Pankratz, Montmartre Community Detachment Apparently Corporal Pankratz was the RCMP officer that had been speaking to the accused on the night in question. The report attached to this e-mail was entitled “Occurrence

Summary” and contained a one paragraph

summary of his cell phone conversations with the accused. [ 20 ] On February 15, 2013, Defence counsel filed with the Court a “Notice to the Attorney General of Canada and the Minister of Justice for Saskatchewan Pursuant to The Constitutional Questions Act ” indicating among other things, that he intended to argue the following:

a) that the accused’s sections 7, 11(

b) and 11(

d) Charter rights were violated. In his view, the Crown refused to provide complete disclosure which led to unacceptable delay in getting this matter on to trial and continuing publicity prejudicing the accused’s reputation;

b) that the accused’s sections 8 and 9 Charter rights were violated in that the officers lacked reasonable and probable grounds to make a breath demand on the accused;

c) the applicability of the Defence of necessity and officially induced error;

d) that the accused’s

section 12 Charter right would be violated if the accused is convicted and a one year driving prohibition imposed. Such a driving conviction would be cruel and unusual punishment on the facts of this case;

e) that there be an exclusion of evidence pursuant to section 24(2) of the Charter or a stay of proceedings pursuant to section 24(1) of the Charter or that section 259(1) (

a) of the Criminal Code and section 141(1) and (3) of The Traffic Safety Act be declared of no force and effect. [ 21 ] On February 28, 2013, the Crown sent another disclosure package to Defence counsel. This package included the following documents: 1. The initial inspection report for the Intoxilyzer EC/IR II S/N 011399 (one page); 2. Maintenance records for the Intoxilyzer EC/IR II S/N 011399 (two pages); 3. Alcohol standard change form/supervisor test prior to test (one page); 4. Maintenance record for ASD #19, S/N ARTM - 0400 which was used for test (one page); 5. Alcotest calibration record for ASD #19 for the test (one page).

[ 22 ] On March 4, 2013, during the testimony of Constable Gilbertson, the Intoxilyzer operator who performed the breath tests on the accused, the Crown sought to tender an Intoxilyzer EC/IR II subject test record for the accused’s tests. Defence counsel advised the Court that while they were not taking issue with this document being entered as an exhibit, it had not been disclosed to them.

A review of the Crown file showed that this document was stamped “disclosed” however due to inadvertence, it had not been copied and forwarded to Defence counsel. [ 23 ] Constable Gilbertson explained all of the entries on the accused’s subject test record. In relation to the accused’s first breath test, the officer said that there were five unsuccessful attempts before a successful sample was obtained. He opined that the five attempts were unsuccessful due to a “lack of breath being put in”.

There was no problem obtaining a successful sample on the accused’s second breath test. [ 24 ] According to Constable Gilbertson, the Intoxilyzer EC/IR II machine he used to perform the accused’s breath test was new to the Saskatoon Police Service. It was first used in May, 2011 and the accused’s test was the seventy-seventh performed by that machine. All Intoxilyzers used by the Saskatoon Police Service are supposed to be tested and maintained yearly unless there is a specific problem with the machine.

The officer did not know what the annual maintenance date of this particular machine was. [ 25 ] Subject to capacity, every test that is done on the Intoxilyzer is retained within its hard drive. Moreover, whenever the Intoxilyzer is calibrated it draws its own test number and the data that corresponds to the test is stored in the hard drive. According to Constable Gilbertson, all of this data can be reprinted in an instrument usage report at anytime. [ 26 ] Constable Gilbertson advised that he was not responsible for changing the solution in the Intoxilyzer upon its expiration.

However, he was aware that once the solution is changed, the machine is tested and must produce results within an acceptable range. If the machine does not produce results within this acceptable range the solution must be changed again. It appeared from the alcohol standard change form disclosed to Defence and filed as an exhibit, that the Intoxilyzer Constable Gilbertson used had its solution changed twelve days before the accused’s tests were taken. However, the officer had no idea how many times the solution had to be changed on that date before it produced results within the acceptable parameters.

Constable Gilbertson was aware that an alcohol standard change log is kept and if an instrument is not giving proper results after a solution is changed that would be evident from this log. [ 27 ] Constable Gilbertson was also aware that a maintenance log is supposed to be kept for the Intoxilyzer. This log would show all the maintenance and calibration done on that particular machine.

Whenever officers do any maintenance or calibration on a machine they generate a document and it is placed in a tray and collected and kept by the supervising officer. [ 28 ] Constable Gilbertson said that he keeps a personal log that would show every test he has ever done. This log would show how much experience he had performing breath tests, whether or not he had results that were inconsistent with one another and how many three test subjects he has had. [ 29 ] Constable Gilbertson said that approved screening devices “drift”.

He explained this to mean that over time, if they are not regularly calibrated they will drift away from the acceptable standard. As a result, they are supposed to be calibrated every two weeks. In this case the approved screening device used on the accused was calibrated on July 14, 2012. The accused was tested on it on July 26th and it would then have been calibrated again on July 28th.

Unfortunately, without seeing the July 28th calibration log for this particular approved screening device, he could not tell whether it was drifting on July 28th or how much it may have been drifting, if at all, prior to that date. [ 30 ] Finally, Constable Gilbertson acknowledged that from time to time, bulletins for qualified technicians of the Intoxilyzer EC/IR II are sent out. These bulletins contain instructions for qualified technicians on a variety of topics regarding the Intoxilyzer EC/IR II. ISSUES

A) Has there been a breach of the accused ’s

section 7 Charter right to make full answer and defence to the charges that he is facing

by the Crown ’s failure to disclose to the Defence:

a) the complete calibration, maintenance history and usage logs and the simulator annual certificates and Analyst ’s certificates for the particular Intoxilyzer EC/IR II into which the accused provided his breath samples?

b) all bulletins for the EC/IR II Intoxilyzer model?

c) the complete use, maintenance history and calibration logs and annual certificates for the particular approved screening device into which the accused provided his breath samples?

d) the qualified technician ’s personal log?

e) can-says from all officers involved in the investigation, including all officers dispatched or in direct communication with the accused along with copies of all searches or inquiries made by officers involved in the investigation?

B) If there has been a breach of the accused ’s

section 7 Charter right, what is the appropriate remedy? ANALYSIS

A) Has there been a breach of the accused ’s

section 7 Charter right to make full answer and defence to the charges he is facing by the Crown ’s failure to disclose to the Defence:

a) the complete calibration, maintenance history and usage logs and the simulator annual certificates and Analyst ’s certificates for the particular Intoxilyzer EC/IR II into which the accused provided his breath samples?

b) all bulletins for the EC/IR II Intoxilyzer model?

c) the complete use, maintenance history and calibration logs and annual certificates for the particular approved screening device into which the accused provided his breath samples?

d) the qualified technician ’s personal log?

e) can-says from all officers involved in the investigation, including all officers dispatched or in direct communication with the accused along with copies of all searches or inquiries made by officers involved in the investigation? [ 31 ] At the outset of my analysis I must point out that the Crown advised the Court that it was their view that the records sought by the Defence were first party disclosure. Consequently, their arguments proceeded on the basis of whether the requested documents were relevant and whether they had already been disclosed.

I expect that the Crown took this position because all documents being requested by the Defence were in the hands of the Saskatoon Police Service. There seems to be a division of judicial opinion as to whether some of the requested documents are first party or third party disclosure, however given the Crown’s position I will not wade in on this discussion.

Instead, I will confine my reasons to the issue of relevance and evaluating what the Defence has received. [ 32 ] The law is clear that the Crown has a duty to disclose to the accused all information reasonably capable of affecting the accused’s ability to make full answer and defence. This includes not only information related to those matters the Crown intends to

adduce in evidence against the accused but also any information in respect of which there is a reasonable possibility it may assist theaccused. This obligation to disclose is subject to the discretion of Crown counsel to withhold evidence which is clearly irrelevant,privileged or its disclosure is otherwise governed by law. The timing of disclosure is also subject to Crown discretion.

While theCrown’s general duty is to disclose information early enough to leave the accused adequate time to review and digest the informationand to determine if and how it will assist in making full answer and defence, the Crown has discretion to delay disclosure out ofnecessity to protect witnesses or to complete an investigation. See R. v. Stinchcombe, (SCC), [1991] 3 S.C.R. 326(S.C.C.) at paras. 19, 20, 28 and 29; R. v. Egger, (SCC), [1993] 2 S.C.R. 451 (S.C.C.) at para. 19; R. v.

McNeil, 2009SCC 3 , [2009] 1 S.C.R. 66 (S.C.C.) at paras. 14, 17 and 18. [33] The Stinchcombe disclosure regime extends only to material in the possession or control of the Crown. The law cannotimpose an obligation on the Crown to disclose material which it does not have or cannot obtain. The general duty to investigate crimefalls on the police, not the Crown. The evidence against an accused therefore will generally have been gathered and any resultingcriminal charges laid by the police.

While the roles of the Crown and police are separate and distinct, the police have a duty toparticipate in the disclosure process. The means by which the Crown comes to be in possession of the fruits of the investigation lies inthe corollary duty of police to disclose to the Crown all relevant material in their possession. See R. v. McNeil, supra at paras. 22 and 23. [34] However, this does not mean that the Crown is simply a passive recipient of relevant information with no obligation of itsown to seek out and obtain relevant material. The Crown is not an ordinary litigant.

The Crown’s undivided loyalty is to the properadministration of justice. Crown counsel who receives notice of the existence of potentially relevant information has a duty to obtain theinformation if it is reasonably feasible to do so. See R. v. McNeil, supra at paras. 48 and 49. [35] The Crown’s discretion in fulfilling its disclosure obligation is reviewable by the trial judge. On a review, the Crown mustjustify its refusal to disclose.

The trial judge should be guided by the general principle that information ought not to be withheld if thereis a reasonable possibility that the withholding of information will impair the right of the accused to make full answer and defence unlessthe non-disclosure is justified by the law of privilege. See R. v. Stinchcombe, supra at paras. 21 and 22. [36] A trial judge may also review the Crown’s exercise of discretion as to relevance. One measure of the relevance ofinformation in the Crown’s hands is its usefulness to the Defence. If it is of some use, it is relevant and should be disclosed.

Thisrequires a determination that production of the information can reasonably be used by the accused either in meeting the Crown’s case,advancing a defence or otherwise in making a decision which may affect the conduct of the Defence such as whether to call evidence. See R. v. Egger, supra at para. 20. [37] Likely relevance for disclosure purposes has a wide and generous connotation and includes information in respect of whichthere is a reasonable possibility that it may assist the accused in the exercise of the right to make full answer and defence.

Littleinformation will be exempt from this duty that is imposed on the Crown. This means that material that would be admissible at trialshould be produced and material that would not, on its own, be admissible should be produced. Material in this latter category may, forexample, be of use to the Defence in cross-examining a witness on matters of credibility or in pursuing other avenues of investigation. See R v. Duguay (2003), 2003 SCC 70 , 179 C.C.C. (3d) 353 (S.C.C.) at para. 60; R. v.

McNeil, supra at para. 44. [38] While an accused should receive disclosure of relevant material that finds its way into the hands of the prosecuting Crown,accessing relevant material in the hands of third parties will often be more problematic. Third parties are under no obligation to comeforth with relevant information to assist the accused in his defence. Any record beyond the possession or the control of the prosecutingCrown is governed by the O’Connor regime for third party production. However, the investigating police force is in a differentposition.

The necessary corollary to the Crown’s disclosure duty under Stinchcombe is the obligation of police to disclose to the Crownall material pertaining to their investigation of the accused. For the purposes of fulfilling this corollary obligation, the investigatingpolice force, although distinct and independent from the Crown at law, is not a third party. Rather, it acts on the same first party footingas the Crown. See: R. v. McNeil, supra, at paras. 14, 26, 27, 47 to 59. [39] Having summarized the applicable law relating to disclosure, I will deal with each of the items the Defence is requestingseparately.

a) Intoxilyzer records and certificates

[40] Prior to July 2nd, 2008, section 258(1)(

c) established a presumption of accuracy of the results of an accused’s breath analysisand a presumption of identity that the results were presumed to correspond to the blood alcohol level of the accused at the time of thealleged offence. Section 258(1)(d.1) established a second presumption of identity that a blood alcohol level over .08 at the time of theanalysis is presumed to be the same as the blood alcohol level of the accused at the time of the alleged offence. These presumptionscould be rebutted by establishing evidence to the contrary.

This came to be known as the Carter defence. [41] In July 2008, the federal government enacted amendments to these provisions in effect doing away with the Carter defence. Under the new provisions, to challenge the accuracy of the breath results, an accused had to show that

a) the breathalyzer instrument wasmalfunctioning or was being operated improperly,

b) that the determination that the blood alcohol level of the accused exceeded the legallimit resulted from a malfunction or improper operation of the instrument, and

c) that the blood alcohol level of the accused would not infact have exceeded the legal limit at the time when the offence was alleged to have been committed. In order to rebut the presumption ofidentity, the accused had to adduce evidence showing that his consumption of alcohol was consistent with a blood alcohol reading underthe legal limit at the time of the offence and with the test results. [42] In R. v. St. Onge Lamoureux, 2012 SCC 57 , [2012] S.C.J.

No. 57 (S.C.C.) the Supreme Court of Canada consideredthe constitutionality of the 2008 amendments in light of an accused’s rights to be presumed innocent, to make full answer and defenceand against self-incrimination. The majority concluded that Parliament was justified in requiring that any evidence adduced to cast doubton the test results be directed at the functioning or operation of the instrument. However, where such evidence casts doubt on thereliability of the results, the imposition of additional conditions did not constitute a reasonable limit on the right to be presumedinnocent. (See St.

Onge Lamoureux, supra at para. 3) [43] In the course of determining that the requirement that the accused must adduce evidence establishing that the instrumentmalfunctioned or was operated improperly was a justified infringement of the right to be presumed innocent, Deschamps, J made thefollowing statements: [47] . . . . The limits that flow from the requirement have a significant effect on the defences available to the accused, as it is now moredifficult to rebut the presumptions. The evidence to be adduced is more complex.

The accused must retain a technician or an expert todetermine whether the instrument malfunctioned or was operated improperly. It is impossible for a layperson to do this. However, itshould be borne in mind that the Carter defence also required the accused to retain an expert. [48] The prosecution gains a clear, albeit limited, advantage from the requirement, since evidence to the contrary is limited to the realissue: whether the test results are reliable. The evidence to be tendered relates directly to an instrument that is under the prosecution’scontrol.

The prosecution must of course disclose certain information concerning the maintenance and operation of theinstrument, but it is free to establish procedures for tracking how such instruments are maintained and operated.

Moreover, theprosecution has control over the people who operate and maintain the instruments. (Highlights are mine.) [44] Later on when determining that this requirement did not infringe the accused’s right to make full answer and defence,Deschamps, J said: [78] Although Parliament now requires evidence tending to establish a deficiency in the functioning or operation of the instrument, thisdoes 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 realdefence. If the prosecution denies such a request, the accused can invoke the rules on non-disclosure and the available remedies fornon-disclosure. (See R. v.

O’Connor, (SCC), [1995] 4 S.C.R. 411) In short, the accused might rely, for example, on amaintenance log that shows that the instrument was not maintained properly or on admissions by the technician that there hadbeen erratic results, or he or she might argue that health problems had affected the functioning of the instrument. (See R. v.

Kasim,2011 ABCA 336, 515 A.R. 254) (Highlights are mine.) [45] It appears to me to be quite clear from these passages that the Supreme Court not only expected that documents regarding themaintenance and operation of the breath instrument be disclosed to defence but that they considered it necessary that these documents be

disclosed. Given the 2008 amendments it makes sense that if the police control the instrument as well as maintaining, calibrating andoperating the instrument, they must disclose this information if it is requested or an accused would never be able to truly determine if theinstrument was working properly at the time he provided his breath tests or if the certified breath technician was performing the testproperly. This conclusion has support in the Supreme Court of Canada judgment in R. v.

Dineley, 2012 SCC 58 when, at paragraph 22,the Court says: [22] In addition to the impact on the substantive rights of the accused, there is another reason why the Amendments should not be foundto operate retrospectively. As a result of the Amendments, the evidence the accused may present to rebut the presumptions is limited toevidence that the instrument was malfunctioning or was operated improperly. The nature of that evidence is not defined in theAmendments, but it presumably has to relate to the instrument that was used to test the accused and not to the functioning ofsuch instruments generally.

This means that the accused may need to have access to information concerning the instrument usedin his or her case or to operating records that would enable him or her to determine whether the instrument was functioningproperly and was operated correctly. It is difficult to conceive how such an examination could take place months or even yearsafter 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. (Highlights are mine.) [46] In the case before me, the Crown recognized their obligation to disclose documents regarding the maintenance, calibrationand operation of the particular Intoxilyzer Constable Gilbertson used to perform breath tests on the accused. They did not suggest thatinformation of this nature was covered by privilege or that its disclosure was governed by statute.

They accepted that there may be somerelevance to this disclosure, so to satisfy this obligation, the Crown disclosed the initial inspection report for this Intoxilyzer, two pagesof maintenance records for this Intoxilyzer, the alcohol standard change form for the tests prior to the accused’s tests and the subject testrecord for the accused. In their view these were the relevant maintenance, calibration and operation records necessary for the accused todetermine if they wanted to take issue with the working of the instrument in question or whether there was some sort of operator error.

They questioned the relevance of any other records. [47] Defence on the other hand wanted all of the maintenance, calibration and operational records for this machine from the firstday it became operational until March 4, 2013, the date of trial. In their view, based on the facts set forth in the accused’s affidavit thathe did not believe that the test results were accurate in light of his drinking behaviour that evening, they established an air of reality tothis defence.

As such, it was up to the Defence to decide what was relevant and what was not and the Crown was bound to disclose allrequested information to them. [48] Even though this is a defence application that the accused’s

section 7 Charter right has been violated, on a review of theCrown’s discretion not to disclose certain materials the onus is on the Crown to justify its refusal to disclose. This is similar to a section8 Charter application where once an applicant shows that a search and/or seizure took place and that the search was warrantless, then theonus shifts to the Crown to show that the search was reasonable.

In a case where the material in question is first party disclosure, oncean accused establishes that he requested the disclosure, that it was related to an issue he wished to argue at trial and that the Crownrefused to make disclosure, the onus shifts to the Crown to show that the requested disclosure was irrelevant, subject to privilege orotherwise governed by law. [49] In this case, the Crown has not satisfied me that the maintenance, calibration and usage logs and other records from the datethe Intoxilyzer EC/IR II, serial no. 011399, was put into use to the date the accused blew into the instrument were irrelevant.

While theaccuracy of the science of breath testing is well documented, no machine is infallible. In R. v Kilpatrick, 2013 ABQB 5 , [2013]A.J. No.41 (Alta.Q.B.), Mr. Justice Graesser, in finding that the maintenance logs for the breathalyzer should be disclosed to Defence,said at paragraph 82: [82] . . . . The results of the analysis of the approved instrument is the main evidence of an accused’s guilt.

I do not think it can be saidthat a trier of fact could never have a reasonable doubt in the reliability of the machine if the maintenance log shows (for example)historic and perhaps chronic problems with the breathalyzer. That finding would depend upon the information in the log and perhaps anexpert analysis of that information.

Without the log, an accused could never know (for example) whether the breathalyzer he blew intowas a lemon. [50] My understanding of Constable Gilbertson’s testimony is that the disclosure requested by the Defence is all readily availablefrom the Saskatoon Police Service as they keep these records in the ordinary course of operating their breath instruments or theinstrument itself stores the information in its hard drive.

The evidence before me on this application is that the accused only had acouple of drinks that evening and that when he provided his first sample into the Intoxilyzer EC/IR II, serial number 011399, he had to

blow five times before the machine registered a valid sample. The officer’s explanation about why it took five attempts to provide thefirst sample is vague at best. On the evidence, I am not sure if the Saskatoon police officers who stopped the accused noticed any signsof impairment however they did see fit to request that the accused blow into an approved screening device at the roadside.

On thesefacts, there may very well be something to the Defence’s contention that the Intoxilyzer was not working properly at the time that theaccused blew into it or conversely that the officer was not operating it properly. [51] The Defence has a difficult road to travel in order to show that a breath instrument malfunctioned or was not being operatedproperly, even after the Supreme Court read down the 2008 amendments to

section 258 of The Criminal Code. The accused’s and thebreath technician’s evidence as to what occurred at the time of testing is important and useful, but given the high degree of reliability ofbreath instruments proven through scientific testing, some evidence explaining any anomalies that may have occurred at the time oftesting is necessary. This is why the records sought by the Defence and/or some expert testimony is all important in order to pursue thiskind of a defence.

Given that this material is in the hands of the police and readily available, there is no reason why it should not bedisclosed as it may have some likely relevance to the Defence. [52] In R v. Gubins, 2009 ONCJ 80 , [2009] O.J.

No. 848 (Ont.C.J.), in allowing the Defence application for themaintenance, calibration and usage logs for the Intoxilyzer, Pringle, J. put it very succinctly at paragraph 39 where she said: [39] My final reason for ordering disclosure of these records stems from the amendments themselves, and the new emphasis thatParliament has placed on showing an error or malfunction in the approved instrument in order to establish a defence of evidence to thecontrary.

In my view, to refuse to provide readily available disclosure about the instrument just at the time that the defence is required tofocus on the instrument is completely contrary to the wide and generous approach to disclosure advocated by the Supreme Court ofCanada since Stinchcombe. . . . [53] The Intoxilyzer used by Constable Gilbertson came into use in May, 2011, only two to three months before the accusedprovided his samples. Suffice it to say that on the facts in the present case, I see no reason why the records from May 2011 to the date ofthe accused’s tests should not be disclosed.

There may be something in the set up and initial use of the instrument that would besignificant to whether the machine was operating as it was supposed to. It is for Defence to determine if any of these records will berelevant to their defence. However, had this machine been in use for five or ten years prior to the samples the accused provided, I wouldhave found that some historical records would be relevant but not the entire records going back that entire time.

A decision on whatwould be an appropriate time frame over which to disclose would depend on the facts of each particular case. [54] What is more problematic is the Defence request for the maintenance and calibration records for the period after July 26,2011. I agree with the Defence argument that records for a period of time thereafter may be relevant to the operational integrity of theinstrument.

For example, if the instrument had some problems right before the accused’s tests and then the records show that the sameproblem persisted right after the accused’s tests, this pattern along with some expert opinion evidence may very well establish that themachine in question was not working properly. However, I fail to see how records that are significantly after the accused’s tests wouldbe of any use to the Defence.

As an example, if the Intoxilyzer was working fine at the time of the tests, disclosure identifying a problemtwo years later would be of no value. [55] Taking into account that the Intoxilyzers in use at the Saskatoon Police Service receive regular maintenance once a yearunless specific problems are noted, it would be reasonable that all records for Intoxilyzer EC/IR II, serial number 011399, from July 26,2011 to and including the date of its regular yearly scheduled maintenance in 2012 would be appropriately disclosable in this case.

I failto see how anything after that date would have any relevance to the Defence. [56] In

summary then, it is my view that the calibration, maintenance history and usage logs and the simulator annual certificatesand Analyst’s certificates from the date Intoxilyzer EC/IR II, serial no. 011399 was put into active service at the Saskatoon PoliceService to and including its yearly annual maintenance date in 2012 are properly disclosable. Since only some of these documents overthis time frame have been disclosed, the accused’s

section 7 Charter right has been violated.

b) All bulletins for the EC/IR II Intoxilyzer model [57] These bulletins, as it has been explained to me, provide general information for breath technicians who have been qualified on

the Intoxilyzer EC/IR II. This information can encompass such things as relevant caselaw and tips on being more efficient. It can alsoinclude information on problems with the Intoxilyzer EC/IR II and how to deal with those problems.

Constable Gilbertson was asked ifone of these bulletins discussed a software glitch regarding the waiting period around midnight and how you could manually override thesystem to fix the problem He acknowledged he was aware of this issue but he had not seen the specific bulletin referencing it. [58] I am cognizant of Madam Justice Deschamps comments within paragraph 22 of Dineley, supra, where she says that, “ thenature of evidence going to instrument malfunction or operator error has to relate to the instrument that was used to test the accused andnot to the functioning of such instruments generally”.

In light of these comments and insofar as these bulletins identify generalinformation unrelated to calibration, maintenance or operating issues, I would not be inclined to find that they should be disclosed toDefence. However, as is clear from Constable Gilbertson’s testimony, these bulletins can be used to draw a technician’s attention toproblems with the Intoxilyzer EC/IR II and how those problems should be dealt with.

Information such as this could go straight to theissue of whether a particular instrument was malfunctioning or whether the technician was operating it properly and, in my view, isdisclosable. [59] Therefore, I would find that to the extent that the Crown has not disclosed any bulletins in the possession of the SaskatoonPolice Service relating to calibration, maintenance or operating issues with the Intoxilyzer EC/IR II, they have violated the accused’ssection 7 Charter right.

c) The approved screening device use, maintenance history, calibration logs and annual certificates [60] In this case, Defence has given notice that they intend to argue that the officer who made the breath demand on the accuseddid not have the reasonable grounds to do so thereby violating the accused’s sections 8 and 9 Charter rights. Based on the limited factsbefore me, it appears that the Saskatoon Police Service members who dealt with the accused suspected that he had alcohol in his body,made an approved screening device demand on the accused which he failed and thereafter made a breath demand on the accused.

Thefail reading on the approved screening device appears at this stage to be important to the officer’s basis for demanding a breath sample. [61] In R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254 (S.C.C.), the Supreme Court of Canada discussed what use,if any, can be made of unreliable approved screening device test results. At paragraphs 59 and 60 Mr.

Justice Sopinka said: [59] If the scientific evidence establishes a high degree of unreliability with respect to the screening device when certain conditionsprevail, and if a police officer knows, for example based on his or her training, that the resultant screening device will provide inaccurateresults where a suspect has consumed alcohol within the fifteen minutes prior to administering the test, how can the police officer testifythat he or she had an honest belief of impairment, absent other indicia?

Surely the knowledge that the screening test is unreliable wouldvitiate any subjective belief that an officer may have regarding reasonable and probable grounds of the commission of an offence undersection 253 of the Code. A police officer will have difficulty in concluding that such a flawed test upgrades one’s mere suspicion intoreasonable and probable grounds.

If the police officer is to give an honest answer as to his belief, I cannot see how, as a matter of law,we can tell the officer that the answer is wrong. [60] This, of course, is assuming that the results of the screening test are the sole basis for raising a police officer’s mere suspicion to fullreasonable grounds to demand a breathalyzer under section 253(3) of the Code. If other symptoms or indicia are present which aresufficient to provide reasonable and probable grounds, then the officer need not rely solely on a faulty screening device test and theabove problem would not necessarily arise.

As I indicated earlier, each case must be assessed on its facts. However, a “fail” result per seis insufficient to furnish reasonable and probable grounds where circumstances exist as discussed above, such that the police know thatthe test would yield faulty results. [62] In R. v. Beston, [2006] S.J. No. 1 (Sask. Q.B.), Mr. Justice Krueger, in dismissing an accused’s appeal from a conviction fordrinking and driving, discussed the effect of a failure to maintain a roadside screening device on an officer’s reasonable and probablegrounds to make a breath demand. At paragraph 6 he said: [6] A

section 8 Charter violation application was made by counsel for the respondent at the trial on the grounds that the failure tomaintain the roadside screening device pursuant to the user’s manual meant that the police officer did not have reasonable and probable

grounds to demand breath samples. Taking samples of the respondent’s breath under those circumstances, it was argued, amounted to anunreasonable seizure. Pursuant to section 24(2) of the Charter, it was sought to exclude the Intoxilyzer certificate of analysis. The trialjudge, correctly in my view, rejected that argument.

At pages 73 and 74 of the transcript of the trial he stated: With respect, the fact that an instrument has not been maintained does not - sent out for annual maintenance, does not, without more, leadme to the view that the instrument is suspect in its operation, particularly when calibration before and after the subject date shows themachine to be operating correctly, relative to a known breath sample. In my view, and this is a matter of onus, despite Mr.

Gillies ablearguments on the subject of onus, the overall onus of showing that the instrument may have given an inaccurate result lies with theapplicant and has not been met. It follows that I do not find that there has been a breach of the accused’s

section 8 rights. [63] In R. v. Fox, 2003 SKCA 79 , [2003] S.J. No. 556 (Sask. C.A.) the Court of Appeal made the following commentsabout the use that could be made of evidence that went to the unreliability of the approved screening device: [84] . . . . The roadside test result is not being used to convict the accused. It is merely “some evidence” which the Court can consider inweighing the whole of the evidence.

If evidence is led which calls into question the proper functioning or recent testing of the device,the trial judge may consider such evidence as part of the weighing process, but the absence of evidence of proper functioning or recenttesting should not lead to the automatic rejection of the test result. [64] In R. v. Einarson, (ON CA), [2004] O.J. No 852 (Ont. C.A.), Mr. Justice Doherty, in speaking of roadsidescreening tests, said at paragraph 14: [14] . . . .

The whole purpose of administering the test under section 254(2) is to assist the officer in determining whether there arereasonable and probable grounds to arrest the driver for a drinking and driving offence. If the officer does not, or reasonably should not,rely on the accuracy of the test results, it cannot assist in determining whether there are reasonable and probable grounds to arrest.

Administering the test without delay in those circumstances would be pointless and would defeat the purpose for which the test isadministered. [65] Other cases have recognized that if an accused can show that there were problems with the functioning of the roadsidescreening device that affected the results or in certain cases may affect the reliability of the device, that can vitiate an officer’s reasonablegrounds for demanding a breath sample. See R. v. Schram, [2003] A.J. No 1714 (Alta. Q.B.); R. v. Caruth 2004 ABQB 411 (Alta.Q.B.);R. v. Colbourne, [1999] O.J. No. 4729 (Ont. C.J.); R. v.

Konstantinov, [2008] O.J. No. 5571 (Ont. C.J.); R. v. Jeremias, [2010] O.J. No6052 (Ont. C.J.) However, the onus is on the accused to lead evidence at trial that there is a high degree of unreliability with thescreening device at the time that it was administered to the accused. See R. v. Paradisi, (ON CA), [1998] O.J. No.2336 (Ont. C.A.) at paragraph 1 and R. v. MacDonnell, [2004] O.J. No. 927 (Ont.

S.C.J.) at paragraph 24. [66] The Crown has suggested that all the use, maintenance and calibration logs and the annual certificates for the approvedscreening device the accused blew into at the roadside on the night in question up to March 4, 2013 are not relevant to the

section 8and/or

section 9 Charter argument the accused proposes to make. In their view the only relevant documents in relation to the approvedscreening device is the test certificate representing the results of the annual maintenance of the instrument and the Alcotest 7410 checkcalibration procedure being the results of the last calibration done on the device in question as well as the date to which the device iscalibrated to. [67] In light of the aforementioned cases, I do not agree with the Crown’s position.

These cases make it clear that the reliability ofthe approved screening device is a live issue in relation to a police officer’s reasonable grounds to demand a breath sample but only if theaccused can show a high degree of unreliability with the device that he blew into. How is he to do this if, as with the Intoxilyzer, thisinformation and the people who operate these machines fall under the auspices of the Crown?

Obviously it would be next to impossibleunless information of this nature was disclosed. [68] In this case, some of this information takes on a greater significance for the Defence when I consider the testimony ofConstable Gilbertson. He explained that over time, roadside screening devices “drift” away from their acceptable standard and as aresult, are supposed to be re-calibrated every two weeks. The device used in this case was last calibrated on July 14, 2011. This wastwelve days prior to the accused blowing into the machine. It was supposed to be re-calibrated on July 28, 2011 but without seeing the

calibration log for that date, Constable Gilbertson testified that he cannot tell whether this device was drifting on that day and if so, how much it may have been drifting. [ 69 ] I am of the view that some of this material regarding the approved screening device requested by the Defence is relevant to their

section 8 and/or 9 argument, but once again, I am concerned with the breadth of the Defence request. I do not know how long the approved screening device used by the officers on the accused had been in service but the records going back to the first time it was put into use would not be of much significance on the issue of whether the device was working properly unless it had only recently come into service.

Moreover, all the records from July 26, 2011 to March 4, 2013 would also not be of much significance. [ 70 ] Taking into account that a police officer need only have a reasonable belief that a roadside screening device is properly calibrated and in working order before relying on a fail result and that there is no requirement that the officer know the calibration setting of the device when it was last calibrated or whether the device was in fact working properly, an accused needs to be able to point to a specific problem with the machine he blew into on the day he blew into it. [ 71 ] The records pertinent to this inquiry would be the use, maintenance and calibration logs for the month before and the month after the accused provided his samples into the device.

If this notion of drifting was occurring over this time frame or if there was a problem with the device, these documents should be sufficient to identify any concerns. In terms of the annual certificate regarding the record of annual maintenance for the approved screening device in question, I think that the annual certificate just prior to the test date and the annual certificate just subsequent to the test date could be relevant and should be disclosed. Other than that, nothing else is relevant to the defences the accused intends to rely on. [ 72 ] The Crown has disclosed some of these documents but not others.

As a result, I find that the accused’s

section 7 Charter right has been violated.

d) Qualified technician ’s personal log [ 73 ] Constable Gilbertson acknowledged that he keeps a log of all the breath tests he has performed including a record of the date they were performed, the name of the person supplying the breath samples, how many times they had to blow and the results of their tests. [ 74 ] The accused argues that this information is disclosable so that they can determine how experienced a breath technician the officer was and how many times he had to do three or more tests on an accused.

According to them, this information would assist in determining if he was operating the instrument properly. The Crown’s view is that this is irrelevant. It matters not that a technician may be inexperienced nor does it matter that on occasion they have had to do more than two tests on an alleged accused. What matters in the Crown’s view is how they performed the tests on this accused. [ 75 ] On this point, I agree.

The technician’s personal log would shed no light on whether he performed the tests properly on the accused in this case or whether the instrument was working properly and as such, the Crown has not breached the accused’s

section 7 Charter right by not providing this log.

e) Police officers can-says and other material [ 76 ] Defence counsel has not suggested that he has not received full disclosure of all police officers notes and evidence relating to the drinking and driving charges his client is facing. Rather, he is alleging that despite his requests to the Crown, he has not received any can-says or notes from the dispatcher who took the accused’s 911 call or any can-says from the RCMP officer to whom the dispatcher put him through on two separate occasions.

In his view, this information is of significance to the issue of impairment as well as to his defences of necessity, officially induced error and self-defence. Moreover, the Defence is also suggesting that the investigation into the alleged break and enter at his client’s residence bears some relevance to his defences on the drinking and driving charges and as such, any statements, notes, searches or inquiries made by any officer involved in the break and enter investigation should be disclosed as well.

[77] The Crown advised that they have disclosed to Defence all police officers notes and reports in relation to the drinking anddriving charges. Mr. Pashovitz also advised that he disclosed a six line occurrence

summary from the RCMP member who spoke to theaccused on two occasions on the evening in question. He also provided Defence with a recording of the accused’s discussion with thedispatcher. The Crown has nothing else in his possession to disclose. He has no knowledge of the investigation into the break and enterat the accused’s home, no information regarding that matter and was of the view that it was not relevant to the accused’s drinking anddriving charges. [78] In R. v. Stinchcombe, supra at paras. 30 and 33, Mr. Justice Sopinka said: [30] . . . .

There is virtually no disagreement that statements in the possession of the Crown obtained from witnesses it proposes to callshould be produced. In some cases the statement will simply be recorded in notes taken by an investigator, usually a police officer. Thenotes or copies should be produced. If notes do not exist then a “will say” statement, summarizing the anticipated evidence of thewitness, should be produced based on the information in the Crown’s possession.

A more difficult issue is posed with respect towitnesses and other persons whom the Crown does not propose to call . . . . (Highlights are mine.) . . . . [33] I am of the opinion that, subject to the discretion to which I have referred above, all statements obtained from persons who haveprovided relevant information to the authorities should be produced notwithstanding that they are not proposed as Crown witnesses.

Where statements are not in existence, other information such as notes should be produced, and, if there are no notes, then inaddition to the name, address and occupation of the witness, all information in the possession of the prosecution relating to anyrelevant evidence that the person could give should be supplied . . . . If the information is of no use then presumably it is irrelevantand will be excluded in the exercise of the discretion of the Crown.

If the information is of some use then it is relevant and thedetermination as to whether it is sufficiently useful to put into evidence should be made by the defence and not the prosecutor. . .(Highlights are mine.) [79] Having said this though, an accused does not have a freestanding constitutional right to an adequate investigation of thecharges against him or her. Inadequacies in an investigation may lead to the ultimate failure of the prosecution, to a specific breach of aCharter right or to a civil remedy.

Those inadequacies do not, in and of themselves, constitute a denial of an accused’s right to make fullanswer and defence. See R. v. Darwish, 2010 ONCA 124 , [2010] O.J. No. 604 (Ont. C.A.) at paragraph 29. [80] Furthermore, the Crown retains a discretion over the manner of disclosure and is not required to provide disclosure in aspecific format desired by the Defence so long as it provides the relevant information. The Defence is entitled to disclosure whichinforms the accused of the case he has to meet.

The Defence is not entitled to perfect disclosure or material which most easily facilitatesuse in cross-examination. See R. v. Akinchets, [2011] S.J. No. 376 (Sask. Prov. Ct.) at para. 29; R. v. W.A.O., 2001 SKCA 64 ,[2001] S.J. No. 316 (Sask. C.A.); R. v. Burns, 2010 SKPC 6 (Sask. Prov. Ct.). [81] Here, once the accused started following the alleged perpetrators of the break and enter at his home, he contacted the police. He initially spoke to a dispatcher who appears to have been someone by the name of “C. Richman”.

The dispatcher spoke only briefly tothe accused and a recording of that conversation has been provided to Defence. The dispatcher put the accused through to RCMPCorporal Pankratz who was on duty that night. Unfortunately, this conversation was not recorded. In any event, it ended when thealleged perpetrators of the break and enter went down into a ditch to turn around and got stuck. Shortly thereafter, the accused againcalled 911 as he pursued a vehicle back to Saskatoon. Once again he spoke to dispatcher Richman. A recording of that call hasapparently been disclosed to Defence.

She put the accused back in touch with Corporal Pankratz. This conversation was also notrecorded but because this pursuit was heading towards the city of Saskatoon, Corporal Pankratz passed this information on to theSaskatoon police. [82] It is apparent that both Corporal Pankratz and dispatcher Richman had only minor involvement in what started out as a breakand enter complaint by the accused. I glean from the Crown’s argument that they do not intend to call either Pankratz or Richman aswitnesses in the trial.

Even despite that, the Crown has disclosed a tape recording of the real time conversation the accused had withdispatcher Richman. I cannot think of any better evidence than that. In terms of Corporal Pankratz, he advised he had no notes of hisinteractions with the accused that night and that all he had was a brief

summary of the nature of their discussions. This occurrencesummary was provided to Defence. It is unfortunate that Corporal Pankratz did not have a more detailed report but he was not able to domuch for the accused because he was too far away and there was no reason for him to suspect that this situation would turn into a

drinking and driving investigation against the accused. [83] It is not the form of what is disclosed that is important but rather that the information is disclosed in some fashion. HereDefence received disclosure of the dispatch recording, Corporal Pankratz’s report and his contact information at the Montmartre RCMPDetachment. To the Crown’s credit, he eventually made inquiries to track down this disclosure.

As a result, I am not satisfied that theCrown has failed to meet its duty to disclose. [84] As regards the Defence contention that the Crown should seek out and disclose evidence of the break and enter investigationincluding any searches, inquiries or reports that have been prepared by officers investigating that matter, I see no basis for this request. This is a separate investigation that has nothing to do with the drinking and driving charges the accused is facing except it was the reasonthe accused was behind the wheel on the evening in question.

Who the perpetrators of that break and enter were makes no difference tothe accused’s case. If I understand his evidence correctly, he did not know who they were yet he still went after them. In my view, theCrown has established that this information is irrelevant to the accused’s present charges and consequently I am not persuaded there hasbeen a breach of the accused’s

section 7 Charter rights.

B) If there has been a breach of the accused’s

section 7 Charter right, what is the appropriate remedy? [85] I agree with my brother Judge Kalmakoff’s comments in R. v. Akinchets, supra, that the remedies for non-disclosure include: [11] At the trial stage, if the disclosure obligation has been breached and the undisclosed material is still available, an order fordisclosure of the material, along with an adjournment, is generally the appropriate remedy (R. v.

Upshaw, supra at para. 11). [12] Where non-disclosure by the Crown is flagrant and unjustified, the additional remedy of costs may be appropriate (R. v. 974649Ontario Inc., 2001 SCC 81 , [2001] 3 S.C.R. 575). Exclusion of evidence may also be an appropriate remedy in somecircumstances (R. v.

Bjelland, [2009] 2 S.C.R. 652). [13] A stay of proceedings is a remedy of last resort, to be used only in the clearest of cases involving breaches of Charter rights, whereno other remedy is capable of removing the prejudice to the accused or where irreparable harm would be caused to the integrity of thejudicial system if the prosecution were allowed to continue (R. v. O’Connor, (SCC), [1995] 4 S.C.R. 411; R. v. Regan,2002 SCC 12 , [2002] 1 S.C.R. 297; R. v.

Carosella, supra). [86] In this case, it was the Defence position that if they were successful in their application that the appropriate remedy was toorder the Crown to disclose the undisclosed material. I agree that that is the proper remedy in this case. The Crown had disclosed someof this information to Defence prior to this application and it appears that the rest of this information is in the hands of the police and isreadily accessible. As such, pursuant to section 24(1) of the Charter and to the extent that it has not already been provided, I order theCrown to provide the Defence the following: 1.

The calibration logs, maintenance logs, instrument usage logs, alcohol standard change logs, the simulator annual certificates and theanalyst’s certificate or reporting letter purporting to state the suitability of the alcohol standard solution for the Intoxilyzer EC/IR2, serialno. 011399 for the period from the date in May, 2011 when this machine was first put into service at the Saskatoon Police Service untiland including its yearly annual maintenance date in 2012; 2.

Any bulletins received by the Saskatoon Police Service regarding the Intoxilyzer EC/IR II model to the extent that they reference anycalibration, maintenance or operating issues; 3. The use, maintenance history and calibration logs for approved screening device no.19, serial no. ARTM-0400 from and includingJuly 1, 2011, to and including August 31, 2011;

4. The annual certificate regarding the record of annual maintenance for the approved screening device no.19, serial no. ARTM-0400 immediately prior to July 26, 2011 as well as the next annual maintenance certificate subsequent to July 26, 2011. [ 87 ] The Defence is also asking for costs in this application. Costs as a remedy for a Charter breach should be ordered if the Court is satisfied that there has been an unjustified and flagrant disregard for the accused’s rights. In this case I am not satisfied that the actions of Mr.

Pashovitz and/or the Crown’s office show an unjustified and flagrant disregard for the accused’s right to make full answer and defence. [ 88 ] According to the brief facts that have been placed before me the Crown provided a comprehensive disclosure package to Mr. Brayford shortly after he first requested disclosure. Thereafter as Mr. Brayford identified certain things that he felt were missing, the Crown made inquiries to determine if these further materials existed and as the Crown received these further materials, they were disclosed to Defence. Eventually, Crown and Defence reached an impasse.

The Crown felt full disclosure had been made but Defence was of the view that it had not. Despite this the matter was set for a one day trial on November 5, 2012. At a case management conference in September, 2012, the Court and both parties recognized that not enough time had been set for trial and as such a new trial date was selected encompassing two dates in March, 2013. It appears from the case management sheet that Mr. Brayford was continuing to press for further disclosure and despite his office’s earlier position, Mr.

Pashovitz investigated his requests and was attempting to gather this information if appropriate. Two more disclosure packages were sent to Mr. Brayford by Mr. Pashovitz after this case management date. By the date of trial, Mr. Pashovitz was satisfied that the Crown had made full disclosure to the Defence. By defending the disclosure application, Mr. Pashovitz simply wanted some direction from the Court as to how much further they had to go, if at all, to meet their obligations in R. v. St. Onge-Lamoureux and R. v. Dineley . [ 89 ] On these facts there has been no male fides on the part of Mr.

Pashovitz or his office. Mr. Pashovitz is a hardworking, dedicated Crown who takes his obligations as a prosecutor seriously. He disclosed a lot of what the Defence requested but not everything they requested because he was not satisfied of its relevance. Disagreement over what further materials should or should not be disclosed and actions taken as a result of that disagreement without more do not satisfy me that the Crown’s actions were flagrant or an unjustified disregard for the accused and his

section 7 Charter right. I therefore decline to award costs to the Defence on this application. ______________________ D.E. Labach, J