R. v. Thompson, 2016 ONCJ 600

ONTARIO COURT OF JUSTICE DATE: 2016·06·27 Guelph CITATION: R. v. Thompson , 2016 ONCJ 600 BETWEEN: HER MAJESTY THE QUEEN — AND — ADAM WALTER THOMPSON Before Justice G.F. Hearn Heard on May 4, 2016 Ruling released on June 27, 2016 Ms. Janine E. Hodgins ........................................................................... counsel for the Crown Mr. Stephen Biss ....................................... counsel for the accused Adam Walter Thompson Ms. Judith C.

Sidlofsky Stoffman................................. counsel for the Guelph Police Service Hearn J.: INTRODUCTION : [ 1 ] Adam Thompson has entered a plea of not guilty to a charge alleging that he on or about the 13 th day of September 2015 at the City of Guelph, having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood did operate a motor vehicle, contrary to s. 253(1) (

b) of the Criminal Code of Canada . [ 2 ] The circumstances surrounding the detention and arrest of Mr. Thompson and the procedure that followed are not in dispute for the purposes of this ruling only. Those circumstances indicate that at about 1:08 a.m. on September 13, 2015 Mr. Thompson was operating a motor vehicle which entered a RIDE program being operated by the Guelph Police Service.

The arresting officer spoke with the accused and noted a strong odour of alcohol on his breath and glassy eyes. [ 3 ] As a result, the officer is said to have formed a reasonable suspicion that the accused had alcohol in his body while operating a vehicle and made a demand for a sample of breath to be provided into an approved screening device. [ 4 ] After some unsuccessful attempts to provide such a sample, Mr. Thompson ultimately provided a sample which registered a fail. Thereafter the officer formed the necessary grounds to arrest Mr. Thompson for an offence under s. 253 of the Criminal Code .

He made a demand of Mr. Thompson to provide samples of his breath in order to determine the concentration, if any, of alcohol in his blood and to accompany the officer for the purpose of enabling such samples to be taken. [ 5 ] Mr.

Thompson was transported to the Guelph Police Service and ultimately provided two samples of his breath into an approved instrument (Intoxilyzer Model 8000C SN80-004339) to a qualified Intoxilyzer technician resulting in readings in excess of 80 milligrams of alcohol in 100 millilitres of blood. [ 6 ] The instrument was operated in accordance with the training and qualifications of the technician and prior to the providing of such samples the qualified technician determined the approved instrument to be in proper working order. The interaction of Mr.

Thompson and the technician as well as the officer’s conduct in relation to the approved instrument were all captured on video.

[ 7 ] Following the charge being laid and the matter being placed before the court, counsel for Mr. Thompson requested and received various disclosure from the Crown with regard to the offence. Additional disclosure was requested by the defence and as some of that disclosure was not provided the accused brought an application returnable initially on May 4, 2016 seeking both what the accused describes as “first party Stinchcombe records” and “third party O’Connor records”.

The “first party” records are said to be in the possession or control of the Crown and the “third party" records in the possession or control of the Guelph Police Service. Both the Guelph Police Service and the Crown attorney’s office were served with copies of the necessary documentation relating to the application.

Following receipt of the application and shortly before May 4, both counsel for the Crown and the Guelph Police Service filed documentation in response. [ 8 ] On May 4 counsel for the Crown and the Guelph Police Service submitted that the application brought by the accused should be dismissed outright and the matter should otherwise proceed to trial.

On May 4 preliminary discussions took place between the court and counsel and as a result of those discussions the matter was adjourned to June 27 in order to allow written submissions to be received from all parties as to whether or not the application of the accused should be permitted to proceed any further. Those submissions have now been received and the matter before the court today is a ruling on that preliminary issue only. MATERIAL FILED :

a) Material Filed by the Applicant : [ 9 ] The material filed by the applicant is as follows:

i) An application seeking an order for disclosure of “first party records” from the investigative file in the possession of the Crown pursuant to ss. 7 , 11(

d) and 24 of the Charter of Rights as well as a production order for third party O’Connor records in the possession of the Guelph Police Service. The “first party” records sought from the investigative file are said to include: 1) the standard alcohol solution log relied upon by the qualified technician concerning the breath tests provided by Mr.

Thompson; 2) the internal data (COBRA) recording of the quality assurance checks relied upon by the technician with respect to the subject tests; and 3) the internal data (COBRA) regarding the single point calibration checks between the prior solution changed by another officer up to and including the next change of solution. ii) An application for the production of the “third party” O’Connor records said to be in the possession of the Guelph Police Service as follows: 1) the maintenance log for the Intoxilyzer used, described by the applicant as “aging” together with its, again as described by the applicant, “aging associated accessory equipment” including the wet bath simulator which maintenance records are alleged by the applicant to be “likely relevant to the issue of reliability and proper operation of an aging approved instrument”. iii) The affidavit of Norbert Bartels, sworn March 30, 2016. iv) The affidavit of Gerald J.

Kupferschmidt, also sworn March 30, 2016.

b) Material Filed on Behalf of the Crown : [ 10 ] The material filed on behalf of the Crown is as follows:

i) Response to the application for records together with a factum and supporting case law; ii) Notice of intention to call expert opinion evidence together with the affidavit and report of the proposed expert Laura Gorczynski.

c) Material Filed on Behalf of the Guelph Police Service : [ 11 ] The following material was filed on behalf of the Guelph Police Service:

i) Response and Factum together with supporting case law; ii) Affidavit of Cst. Ian Smith, the Breath Technician Coordinator for the Guelph Police Service, sworn April 29, 2016. [ 12 ] In addition to the above are the written submissions of all counsel which include factums and case law all of which have been helpful to the court, are very thorough and I thank counsel for same. It is of note that in the written submissions all counsel have referred to various material filed on the application in support of their respective positions concerning the jurisdiction of this court to proceed any further.

To be clear, the submissions of Mr. Thompson refer to the affidavit of Gerald Kupferschmidt, the submissions of the Crown refer to the affidavit of Laura Gorczyski and finally the submissions of counsel for the Guelph Police Service refer to the affidavit of Cst. Smith. None of these affidavits I appreciate and consider have been the subject of cross-examination.

DISCLOSURE PROVIDED TO DATE: [13] The Crown provided considerable disclosure to counsel for the accused in the early stages of this proceeding. In addition,and purportedly on a “without prejudice” basis and without “conceding any relevance” further disclosure was provided shortly beforethis matter came before the court on May 4, 2016. [14] The Crown has now provided the following disclosure to the defence who on the material before me makes no complaintabout the disclosure provided to date.

That disclosure includes the following: 1) notes and will state of the investigating officer; 2) notes and will state together with the alcohol influence report of the qualified technician; 3) Intoxilyzer test records with respect to the approved instrument used on September 13, 2015; 4) video of the proceedings within the breath room; 5) certificate of analyst; and 6) certificate of qualified technician. [15] All of the above disclosure was provided in the initial stages of this matter as noted.

By letter dated April 29, 2016, theCrown, while maintaining the position that the additional disclosure provided on April 29 was irrelevant and in fact were “third party”records, provided the following disclosure: 1) the Intoxilyzer 8000C periodic inspection worksheet, dated September 16, 2014; 2) the invoice and receipt for the software upgrade, dated in September of 2011; 3) the calibration/diagnostic log for the subject Intoxilyzer 8000C commencing May 31, 2015 and ending September 20, 2015showing the change of alcohol solution with respect to the subject instrument; 4) certificate of calibration dated June 29, 2009. [16] Of note, as well in the letter of April 29, 2016 delivered to counsel for Mr.

Thompson, Ms.

Hodgins on behalf of the Crownconfirmed previous discussions with counsel with respect to: 1) the apparent discrepancy of the invoice regarding the purchase of the Intoxilyzer 8000C and the date of certificate of calibrationconfirming that although the subject instrument was paid for and invoiced in 2008, the instrument itself was not received by the GuelphPolice Service until after June 29, 2009 and not put into use until October 2009; 2) the software update had been completed in September 2011 and had been completed by way of modem; 3) that the Guelph Police Service does not have COBRA software and cannot download/extract the data requested.

I note the applicantdistinguishes this request and states the disclosure sought relates to the data in its “raw form”. POSITION OF THE PARTIES:

a) Position of the Applicant: [17] The applicant takes the position that he has followed the procedural requirements as set out and determined appropriate inRegina v. Jackson

(2015) ONCA 832 with respect to the seeking of both “first party” and “third party” disclosure. That is, he has servedthe Crown as well as the Guelph Police Service requesting such records said to be in their respective possession. [18] The applicant submits that this case is therefore readily distinguishable from the procedural shortcomings noted in Jackson. [19] Further, the applicant challenges the continuity and integrity of the alcohol standard solution.

The applicant doesacknowledge receiving from the Crown the “standard alcohol solution log” yet still requires as “first party” records the COBRA data“recording the single point calibration checks between the prior standard alcohol solution used and the testing of Mr. Thompson up toand including the next change of solution”. The defence relies on the decision of Regina v. Ocampo 2014 ONCJ 440 , [2014]O.J.

No. 3960 to support that position. [20] With respect to “third party” records the applicant does not seek historical COBRA data nor data with respect to “a newinstrument” as was the case in Jackson but data dealing with what the applicant states is an “aging Intoxilyzer instrument”. As a resultthe applicant asserts that a complete maintenance log in order to make full answer in defence is required and relies on the contents of theaffidavit of Mr. Kupferschmidt in that regard.

The applicant urges the court needs to hear expert evidence as well as the evidence filedon behalf of the Guelph Police Services in the form of the affidavit of Cst. Smith to fully assess the nexus between the maintenancerecords and the reliability of the Intoxilyzer system on September 13, 2015. [21] In Cst. Smith’s affidavit the officer asserts there were numerous periodic inspections of the approved device and that it was inproper working order on September 13, 2015.

The applicant submits that this assertion as well as others in the material filed on theapplication needs to be tested by cross-examination and the application should proceed with the calling of evidence in order for the courtto determine the issues with respect to the “first party” and the “third party” records requested.

b) Position of the Crown : [ 22 ] The Crown at the outset does not agree with the classification of the “disclosure” suggested by the applicant as “first party” and “third party” records.

Further, and in any event the Crown takes the position, all documentation in its possession has been provided to the defence including items which are not necessarily the “fruits of the investigation but which items were in the possession of the Crown” (see Crown’s letter of April 29, 2016). [ 23 ] In addition, the Crown submits even if such requested information can be classified as “first party” records, for example the COBRA data, it cannot be provided as the Guelph Police Service does not have that particular software.

If such documentation is as classified more appropriately as a “third party” record, the Crown submits the applicant cannot meet the threshold of “likely relevance” in any event on the facts of this case as required under the O’Connor regime. [ 24 ] The Crown submits the facts in Regina v.

Ocampo , a case relied upon heavily by the applicant are clearly distinguishable from the facts here as there is no issue alleged in the material with respect to the checks and tests undertaken by the technician as there was in the case of Ocampo . [ 25 ] Ultimately the Crown submits there is no live issue as to the integrity, identity and continuity of the alcohol standard solution, any records that have not already been provided are “third party” records and all disclosure in the possession and under control of the Crown has been provided to the applicant. The Crown offers that the reasoning in Regina v.

Jackson is a complete answer to the application and the application should be dismissed outright as it is without merit.

c) Position of the Guelph Police Service : [ 26 ] The Guelph Police Service relies as well on the reasoning in Jackson and addresses the issues raised in the application. Specifically the Service submits there is no error suggested by the applicant anywhere in the material with respect to the qualifications of the technician nor the workup and operation of the approved instrument as supported by the test printouts provided of the subject tests.

The Service effectively submits that the applicant’s position is based on unsupported assertions and implications of unreliability. [ 27 ] Further, the Service submits with respect to the issues of the purchase, age or testing of the equipment prior to the subject tests such information sought is historical, and in any event has been provided somewhat with documentation to answer concerns already.

Further, if such records are properly classified as “third party” records they are not “likely relevant” nor do they raise any concerns at all with respect to the performance of the approved instrument at the time of the testing of Mr. Thompson. [ 28 ] As with the Crown, counsel for the Service distinguishes the ruling of the court in Ocampo from the matter currently before the court ultimately submitting that historical documentation sought by the applicant is “not likely relevant” and adopts the reasoning in Jackson .

Counsel for the Service submits the applicant is basically on a “fishing expedition” with “nothing to imbue the claim of instrument malfunction or operator error with an air of reality”. The Service asks the application therefore be dismissed outright. ANALYSIS AND RULING : [ 29 ] All counsel in their submissions cite and either rely upon or attempt to, in the case of the applicant, distinguish the principles set forth in the most recent case dealing with the issues that are before the court. It is appropriate then to look at Regina v. Jackson in some detail. [ 30 ] Similar to Mr. Thompson, Mr.

Jackson was involved in a traffic stop initiated by the police. In Mr. Jackson’s case it was due to erratic operation of his vehicle and in the case of Mr. Thompson his introduction into a RIDE program. Both provided samples of their breath into an approved screening device following the appropriate demand and both registered a fail. Both were then arrested and required to comply with a further demand to provide additional samples of their breath into an approved instrument, the Intoxilyzer 8000C.

Both did so and both registered readings indicating a blood alcohol concentration exceeding the legal limit. [ 31 ] In the Jackson case the accused applied to the trial court for an order for information relating to the history and performance of the approved device used to obtain his samples. Specifically pursuant to the disclosure regime set out in Regina v. Stinchcombe , (1995) 1 S.C.R. 326 Mr. Jackson required the service records, usage and calibration records and the downloaded data (relating to the breath tests that he was subject to).

The disclosure application was granted by the trial judge and that decision was upheld on a

summary conviction appeal. [ 32 ] The matter then went to the Ontario Court of Appeal by way of an appeal on behalf of both the Crown and the police service involved. The grounds for the appeal included, among other things, that the trial judge had erred in ordering the requested disclosure, that he also erred in concluding the records requested were “first party” records and subject to disclosure obligations on the part of the Crown and further that he erred in concluding that in any event the records that had been requested by the accused were “likely relevant” to the case against Mr.

Jackson. [ 33 ] The results of tests on the approved instrument and the admission of those results in evidence of course is vital to the Crown’s case here as the Crown must prove beyond a reasonable doubt the essential element of the offence that Mr. Thompson’s blood alcohol concentration exceeded 80 milligrams of alcohol in 100 millilitres of blood.

Section 258 of the Criminal Code sets out a presumption of accuracy that two test results in good agreement are deemed to be conclusive proof of the blood alcohol concentration of Mr. Thompson at the time of operation of the vehicle.

[ 34 ] The presumption is rebuttable, however, if the Crown fails to meet certain statutory preconditions or it can be shown that the machine was malfunctioning or operated improperly. The Supreme Court of Canada dealt with that particular issue in Regina v. St.-Onge Lamoureux

(2012) SCC 57. [ 35 ] Here the applicant seeks information clearly in the hope that such information can demonstrate the approved instrument was not operating properly or malfunctioned at the time of the subject tests.

The historical information sought presumably from the applicant’s point of view is relevant to the history of the operation of the instrument and therefore relevant in dealing with the accuracy of the instrument itself. [ 36 ] The Crown here has provided by way of disclosure all of the documentation and information to the defence with respect to the subject tests and in this case has further provided additional information which the Crown was in possession of prior to the decision in Jackson as set out in the letter of April 29, 2016 .

However, notwithstanding the decision in Jackson the Crown reasonably deemed it in the circumstances to be appropriate to disclose such information and documentation in any event notwithstanding their position taken on this application. [ 37 ] The obligations of disclosure set out in Stinchbombe relate to disclosure that is considered to be “fruits of the investigation”.

The Crown takes the position here that they have complied fully with the “first party” or Stinchcombe records, can do nothing further and if there is additional information being sought by the applicant that information is more appropriately obtained from the third party, ie. the Guelph Police Services. [ 38 ] The Court of Appeal in Jackson determined that general Intoxilyzer information is not the” fruits of the investigation” and as a result the information sought was not in the possession of the Crown.

That information, as I read Jackson , is information held by, in this case, the Guelph Police Services, a “third party” to the proceedings. [ 39 ] Justice Watt in Jackson noted under the Stinchcombe regime the Crown has a broad duty to disclose all relevant and non- privileged information in its possession or control. The Crown, according to Jackson and Stinchcombe , refers to the prosecuting Crown only and does not include the police. Therefore general Intoxilyzer information does not form part of the “fruits of the investigation” (see Regina v. Quesnelle

(2014) SCC 46 at paragraph 11), but is information in the possession of the police who are third parties to the proceeding. [ 40 ] A procedure was set out in Jackson as to how to deal with that issue and in this particular case, the applicant, and it is not argued otherwise, has followed the appropriate procedure by serving a subpoena duces tecum on the party said to be in possession of such information, the Guelph Police Service. [ 41 ] Given Jackson , it would seem and I find the remaining information and documentation requested by the applicant in this proceeding are in fact “third party” records and as a result such production is subject to the O’Connor regime.

In Jackson , Justice Watt suggested very strongly in his reasons that in that case Mr. Jackson could not meet the “likely relevant” standard under that regime.

Justice Watt noted that that particular standard plays a meaningful role in screening applications to prevent the defence from engaging in speculative, fanciful, disruptive, unmeritorious, obstructive and time consuming requests for production. [ 42 ] Justice Watt noted that under the “third party” production regime “likely relevant” means there is a reasonable possibility the information is logically probative to an issue at trial or to the competence of a witness to testify.

If an applicant can satisfy the “likely relevant” test the records are then produced to the trial judge for inspection to determine whether or to what extent the records will be produced to the applicant. [ 43 ] Justice Watt in a postscript within the Jackson judgment noted, at paragraph 139, as follows: “It is critical for the efficient operation of trial courts, especially those in which alcohol-driving offences occupy a prominent place on the docket, that they be able to control their process.

This includes the authority to discourage unmeritorious third party records applications that devour limited resources. A principled approach to the issue, akin to that enacted in the current s. 278.3(4) of the Criminal Code , may be of some assistance to trial judges confronted with applications such as the present: Any one or more of the following assertions by the accused are not sufficient on their own to establish that the record is likely relevant to the issue of whether the approved instrument was malfunctioning or was operated improperly, within the meaning of s. 258(1)(c)(iv) of the Code : (

a) that the record exists; (

b) that the record relates to the instrument used in the incident that is the subject-matter of the proceedings; (

c) that the record relates to the qualified breath technician involved in the incident that is the subject-matter of the proceedings; (

d) that the record may disclose a prior malfunctioning of the instrument; or (

e) that the record may relate to the credibility of the operator of the instrument.” [ 44 ] In Jackson it was determined and stated importantly that the Crown is subject to the disclosure requirement set out in Stinchcombe . Any information in the possession of the police does not come under the umbrella of the Crown, but must be the subject of the “third party” application as here and subject to a different test for production. [ 45 ] In this case I note that a good deal of disclosure has already been provided to the applicant dealing with the historical information of the subject approved instrument.

I also note that one request for additional disclosure which I find is a “third party” record is the COBRA data which is said to be the possession of the Guelph Police Service relating to this machine. It is clear from the material and uncontradicted that the Guelph Police Service does not have such software and as such, such information is simply not

available for production in any event. Again I appreciate the applicant distinguishes this request on the basis of the request being for “raw data”. [ 46 ] As I see it, the applicant has all of the disclosure one might normally see in a case such as that before the court and importantly has additional information or documentation with respect to the calibration and diagnostic log, the invoice and receipt for the software upgrade, the software calibration and the subject Intoxilyzer 8000C periodic inspection worksheet dated September 16, 2014.

What the defence continues to seek I find is at best historical information or information that is not available from the source requested, ie. the Guelph Police Service nor, most importantly, is such information “likely relevant” to any issue in play here. [ 47 ] There is nothing advanced by the applicant in the extensive material that has been filed to indicate the technician who operated the instrument was not qualified to do so.

There is nothing to indicate that the workup of the machine nor the test records disclose any issue with respect to the accuracy and reliability of the subject breath tests involving Mr. Thompson. There is nothing in the additional material that has been provided to the applicant by way of disclosure to date with respect to the history of the instrument as well as the alcohol standard solution to indicate that the instrument was not functioning properly at the time of the subject tests.

There is a video recording of the entire testing procedure as I understand it that has already been provided to the accused as well.

There is nothing alleged in the material of the applicant to raise concern with respect to what might be disclosed in that video regarding the workup of the machine, the proper operation of the machine or the providing of samples of breath by the accused in anything other than an appropriate manner. [ 48 ] It seems to me the information already provided is available to the applicant to argue whatever the applicant may wish to argue at the trial of this matter with respect to, for example, the continuity of the alcohol standard solution or the “strange purchase history” alleged by the applicant.

However, it is clear to this court that any further information being sought as a “third party” record would not meet the “likely relevance” test set out in O’Conno r. The applicant’s submissions to the contrary even at their highest are based on speculation and conjecture. [ 49 ] The fact situation in Ocampo is very different from the fact situation here and to adopt Justice Watt’s reasoning in Jackson , there is “nothing to imbue the claim of instrument malfunction or operator error with an air of reality” in this particular case. [ 50 ] This matter should proceed to trial.

To delay the trial to have the court consider what would likely be a day or more of submissions and hearing of evidence on an argument which, in my view, is destined to be unsuccessful would be unfair to all parties and unreasonable. [ 51 ] The application is therefore dismissed.

If, during the course of the trial, it becomes apparent that evidence is given with respect to the issues which might reasonably be supportive of an application for additional records the court would consider permitting the accused to renew the application at the appropriate time if so inclined. [ 52 ] The accused is entitled to have his trial proceed without unreasonable delay and the matter will proceed to trial on June 29, 2016 as scheduled. Released: June 27, 2016 Signed: “Justice G.F. Hearn”