R. v. McLaughlin Date:, 2011 BCPC 164

Citation: R. v. McLaughlin Date: 20110126 2011 BCPC 0164 File No: 82302-1 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. KELLY JAY McLAUGHLIN ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE ST. PIERRE Counsel for the Crown: P. Ng Counsel for the Accused: G. Cranston Place of Hearing: Port Coquitlam , B.C. Date of Hearing: January 26, 2011 Date of Judgment: January 26, 2011 [ 1 ] THE COURT : Prior to the Bill C-2 amendments there was fairly little interest in how the approved instrument worked or was operated.

It was always open to the defence at that time to challenge the accuracy of a breath test reading by calling their client and establishing a drinking pattern and then having an expert analyze that drinking pattern as it relates to the time of their driving as there could be found to be a reasonable doubt.

But with these new requirements they put the functioning of the approved instrument squarely back onto the table as a central issue. [ 2 ] We have dealt with criminal lawyers where they feel forced to make these requests now that the burden is on the accused to establish some kind of malfunction or error in the operation of the machine in order to have their defence considered. [ 3 ] There are all kinds of litigations out east now about source codes and third party applications for different kinds of disclosure, none of which are in issue here, but it just shows the nature and the extent of the enquiries being made now.

Stinchcombe makes it plain that the Crown is obliged to disclose all relevant information in its possession and then there is the case not too long ago of McNeil that describes any information that is in possession or control of the Crown is first party disclosure and that the police have a duty to participate in that process and provide the Crown with all relevant material. [ 4 ] Crown says that this information is not particularly relevant material; it is information that Mr.

Cranston seeks because he has a document from Dav Tech Analytical Services who apparently conduct the annual maintenance on this particular machine. There is a

document that has been produced and the document says: This instrument had the requested annual maintenance/service completed and requires the following actions on your behalf before it is to be placed back into operation. [ 5 ] There are a number of options there to check off and I am assuming that the items that are checked off are the items that are required to be completed and actions to be taken before the instrument is placed back into operation. One that is checked off is to conduct the external standard change when it is due.

That generally is covered off during the actual testing process, calibration, instrument is fully operational, all of that. [ 6 ] There is a "Miscellaneous" one that is added as being checked off as having to be completed before it is placed back in operation and that is that the Datamaster should be on a "UPS surge protector of 400 to 500 watts available at Radio Shack" and I think the estimate of the cost there is $130.00 or something like that. [ 7 ] Mr. Cranston says that he wants information as to whether that requirement was completed prior to the Datamaster being put back into operation. [ 8 ] Mr.

Ng for the Crown resists that request because he says it is not relevant for a number of different reasons, one of them being that he has not received any notice that there is an evidence to the contrary defence which he would necessarily have to receive by way of expert notice, et cetera, and he says that in light of that there is no relevance to that request. [ 9 ] His other submissions are that on a previous occasion he asked Mr.

Cranston to call this matter ahead and deal with the disclosure application prior to the trial and now this application has taken some time to deal with and we are on the day of trial. [ 10 ] That is a consideration I suppose but does not address the merits of the application. While it is not dispositive it certainly is troublesome as far as trial management goes and things of that nature. I am not sure I am prepared to simply dismiss it on that basis alone. However, I agree with Mr.

Ng that when the Crown asks that the matter be dealt with before trial it is a perfectly reasonable request in light of our busy court schedules. [ 11 ] Relevant information in the first party context includes not only information related to matters that the Crown intends to adduce in evidence against the accused, but also any information - and I think the test is - that has a reasonable possibility it may assist the accused in the exercise of his right to make full answer and defence. [ 12 ] The catch-22 -- and I suppose the current way of looking at things -- is that Parliament has made it extremely difficult for an accused person to meet the burden that is on them to show that the tests are not accurate or that one of the presumptions does not apply.

That has been made more difficult by recent amendments to the Criminal Code . That being said, the only way it can be done is to have all and full information available to them that might have some "reasonable possibility" that it could be used to argue some aspect of an over .08 count and the Datamaster's results. [ 13 ] While I appreciate Mr.

Ng's position on relevancy and not wanting this perhaps to become some kind of precedent, I do not see it becoming that way because this is one of those issues where it is under the "miscellaneous" heading of what is to be done before the machine is put back in operation and somebody there, the field service operations people, have said this machine should be on a UPS surge protector. I do not know what to make of that. It should/could be read as mandatory.

Certainly that is one of the easy characterizations of the word "should" -- being a mandatory requirement of this machine -- I do not even know if it is all machines -- that it be put on a UPS surge protector prior to being placed back into operation. [ 14 ] Erring on the side of the accused's right to make full answer and defence, s. 7, I think it would be easy enough to provide the information as to whether that direction was complied with in the circumstances. [ 15 ] The use to be made of that, again I am not going to get into it with Mr.

Cranston about the panoply of creative arguments he might come up with depending on the answer to that, but I do not think it is necessary to do so at this particular time because I am taking the widest view of "reasonable possibility" and I think the information should be provided to him. (ORAL REASONS FOR JUDGMENT CONCLUDED)