R. v. Mercey, 2010 ONCJ 598

COURT FILE No.: Walkerton 09-362 DATE: 2010·12 06 Citation: R. v. Mercey , 2010 ONCJ 598 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — RYAN D. C. MERCEY Before Justice Brophy Heard on 17 September 2010 Reasons for Ruling on Disclosure Application released on 6 December 2010 David S. Foulds .......................................................................................................... for the Crown Clayton J. Conlan ...................................................................... for the accused Ryan D. C.

Mercey Brophy J.: INTRODUCTION [ 1 ] This is a disclosure application in the context of an over 80 trial. [ 2 ] The accused is charged with an over 80 offence contrary to section 253(1) (

b) of the Criminal Code . He entered a not guilty plea on 17 September 2009. The trial proper is scheduled to be heard 3 February 2011. APPLICATION [ 3 ] The Application material requested a number of items related to the investigation generally and specifically with respect to the Intoxilyzer 5000C used in this case. A number of those requests have been satisfied. [ 4 ] The defence continues to seek the following: (a)A sample of Calwave Standard Alcohol Solution, lot number 20662. (

b) Simulator servicing and certification records. (

c) All Intoxilyzer 5000C, serial number 64-004072, test records pertaining to this investigation. (

d) Intoxilyzer 5000C, serial number 64-004072, usage and calibration records. (

e) Downloaded data to a central computer, bracketing Mr. Mercey’s set of breath tests. ARGUMENT [ 5 ] The Crown argues that disclosure has been made and that anything in addition is not relevant. The Crown also argues that it is up to the moving party to establish that there is in fact something to disclose and that something has to be relevant. [ 6 ] The Defence states that the material requested is relevant to the issues in the case. LAW [ 7 ] Justice Pringle in the R. v. Gubins, 2009 ONCJ 80 (CanLII) , [2009] O.J.

No. 848, at paragraphs 6 to 12 provides a thorough review of the current state of the law with respect to disclosure: 6 The test for disclosure as set out in R. v. Stinchcombe (1991), 1991 CanLII 45 (SCC) , 68 C.C.C. (3d) 1 (SCC) is that the Crown is required to disclose all relevant information, whether it is inculpatory or exculpatory, and whether or not the Crown intends to introduce it as evidence. This broad duty of disclosure is subject only to a limited discretion to withhold what is "clearly irrelevant", privileged, or

beyond the Crown's control. 7 The Crown's discretion to withhold information is reviewable by the trial judge. Justice Sopinka stated in Stinchcombe at page 12: Counsel for the defence can initiate a review when an issue arises with respect to the exercise of the Crown's discretion. On a review the Crown must justify its refusal to disclose .

As much as disclosure of all relevant information is the general rule, the Crown must bring itself within an exception to that rule. (my emphasis) 8 Justice Sopinka further explained what constitutes "relevant information": The trial judge on a review should be guided by the general principle that information ought not to be withheld if there is a reasonable possibility that the withholding of information will impair the right of the accused to make full answer and defence , unless the non- disclosure is justified by the law of privilege. (my emphasis) 9 In R. v.

Egger (1993), 1993 CanLII 98 (SCC) , 82 C.C.C. (3d) 193 (SCC) at p. 204, he went on to state: One measure of the relevance of information in the Crown's hands is its usefulness to the defence: if it is of some use, it is relevant and should be disclosed: Stinchcombe , supra, at p. 16.

This requires a determination by the reviewing judge that production of the information can reasonably be used by the accused either in meeting the case for the Crown, advancing a defence or otherwise in making a decision which may affect the conduct of the defence such as for example whether to call evidence. (my emphasis) 10 In R. v.

Chaplin (1995), 1995 CanLII 126 (SCC) , 96 C.C.C. (3d) 225 (SCC) at para. 25 , Justice Sopinka re-iterated that where the material exists and has been identified, the Crown must justify non-disclosure by: ... demonstrating either that the information sought is beyond its control, or that it is clearly irrelevant or privileged. The trial judge must afford the Crown an opportunity to call evidence to justify such allegation of non disclosure. (my emphasis) 11 Eight years later the Supreme Court of Canada affirmed these principles in strong terms. In R. v. Taillefer; R. v.

Duguay (2003), 2003 SCC 70 (CanLII) , 179 C.C.C. (3d) 353 at para. 60 , Justice Lebel spoke for the court in saying: As the courts have defined it, the concept of relevance favours the disclosure of evidence. Little information will be exempt from the duty that is imposed on the prosecution to disclose evidence . As this Court said in Dixon, 1998 CanLII 805 (SCC) , [1998] 1 S.C.R. 244 supra, "the threshold requirement for disclosure is set quite low ....

The duty to disclose is therefore triggered whenever there is a reasonable possibility of the information being useful to the accused in making full answer and defence" (para. 21; see also R. v. Chaplin at paras. 26-27 ). "While the Crown must err on the side of inclusion, it need not produce what is clearly irrelevant" ( Stinchcombe , supra, at p. 339). (citations omitted, my emphasis) The strength of these principles has not abated. Very recently, in R. v.

McNeil, 2009 SCC 3 , released January 16, 2009, Justice Charron stated for the Court at para. 44: As we have seen, likely relevance for disclosure purposes has a wide and generous connotation and includes information in respect of which there is a reasonable possibility that it may assist the accused in the exercise of the right to make full answer and defence. In considering the ambit of the information that can assist in the trial, regard must be given to the particular issue in the case and to the governing rules of evidence and procedure.

This does not mean that only material that would be admissible at trial should be produced. Material that would not, on its own, be admissible may nonetheless be of use to the defence, for example, in cross- examining a witness on matters of credibility or in pursuing other avenues of investigation. (my emphasis) 12 To recap: the threshold for likely relevance is a low one that favours disclosure, and is to be interpreted with a wide and generous application.

The burden to justify non-disclosure is on the Crown to show that the requested disclosure is "clearly irrelevant". [ 8 ] I would also reference the case of the R. v Bottineau , 2005 CanLII 63780 (ON SC) , [2005] O.J. No. 4034, by Justice Watt, of the Superior Court, as he then was, that made many of the same observations made by Justice Pringle with respect to disclosure.

He specifically confirms in paragraph 45 that it is for the Crown to justify non disclosure: 45 It is equally beyond controversy that, on review, it is for Crown counsel to justify non-disclosure, not for the person charged to establish a case for disclosure. Said somewhat differently, Crown counsel must bring her or himself within an exception to the general rule that requires disclosure of all relevant information. See R. v.

Stinchcombe , above, at p. 12, C.C.C. (3d) per Sopinka J. [ 9 ] Again relevancy is not dictated by whether it is admissible at trial but rather whether, in the words of Justice Sopinka in Egger , supra, the information “can reasonably be used by the accused either in meeting the case for the Crown, advancing a defence or otherwise in making a decision which may affect the conduct of the defence ...”. [ 10 ] With that law in mind, let us consider the evidence. EVIDENCE [ 11 ] In this Application I have heard from two experts: Dr. G. J. Kupferschmidt for the Defence and Jean-Paul Palmentier for the Crown.

The parties agreed that each was an expert in the field of toxicology and could provide opinion evidence with respect to issues related to measurement of blood alcohol concentrations and the workings of the Intoxilyzer 5000C. [ 12 ] Unfortunately their views of what is necessary to understand and proof the Intoxilyzer results are diametrically opposed. Dr. Kupferschmidt effectively challenges all aspects of the operation and workings of the machine and seeks information to confirm or contradict the reports that have been produced by the machine. Mr.

Palmentier says that the Intoxilyzer has a series of failsafe features that make it improbable and almost impossible for the machine to give a false reading.

[ 13 ] I note that the same evidence has been received in many other cases and that different trial courts have responded in different ways. There is no clear consensus in the case law as to whether disclosure of the nature being requested in this case should be granted or not. Justice Horkins in R. v. Kazmer [2009] O.J. No. 5083 , a decision dated October 13, 2009, included a chart setting out a variety of trial level decisions that offered various results.

A review of those cases shows how much judicial energy has been expended in trying to rationalize the proper response to disclosure requests and in assessing the expert evidence called on those applications. Since October of 2009 there have been many more cases on the same points with no clear winner. There is not yet an appellate decision. [ 14 ] Some judges have been critical of the defence evidence and its claims that there needs to be a microscopic review to satisfy the mantra of accuracy, precision, specificity and reliability with respect to the Intoxilyzer device. Most stringently in R. v.

Hillier [2010] O.J. No. 2682 Justice Baldwin said in paragraph 6 that Dr. Kupferschmidt would not be satisfied that the machine was accurate unless he was actually present when the instrument was being manufactured. Putting aside the hyperbole, the criticism goes to the question of whether it is proper to look behind the functioning of the machine when Parliament has given its imprimatur. [ 15 ] On the other hand, in some cases the Crown expert evidence, not necessarily Mr.

Palmentier, has been dismissed as effectively adopting the party line; simply saying nothing should go wrong, and if it did the built in safety devices would catch the error. [ 16 ] I hasten to add that in this case both experts testified honestly and forthrightly and their expertise was obvious. Because they are serious witnesses with substantial credibility, I find that the weight of their evidence for the most

part cancels each other out. ANALYSIS [ 17 ] In my view the argument by the Crown that it is for the Defence to establish that there is something to disclose is not the proper approach. If it is clear that the material exists, and in a general sense that is the case here, then the crown has to establish that it is irrelevant in the disclosure context or that it is privileged.

Given the nature of this case privilege does not enter into the calculation and therefore the only issue is relevance and the burden is on the Crown to show that the requested information is “clearly irrelevant”. [ 18 ] As for the expert evidence we know that it is to assist a judge in understanding a matter where special expertise is a necessity. See R v.

Mohan (1994), 1994 CanLII 80 (SCC) , 2 S.C.R. 9 and the Inquiry Into Pediatric Forensic Pathology in Ontario , September 30, 2008, The Honourable Justice Stephen Goudge Commissioner (the Goudge Report ). [ 19 ] But what is a court to do when experts on a complicated technical matter hold conflicting views and there is nothing to choose between them. An answer can be found in Recommendation 140(

b) of the Goudge Report where there is a reminder that fact finders should apply their common sense to expert testimony and that they can decide whether to accept all, part, or none of the experts opinion. In other words I am not bound to accept one expert view or the other.

Indeed it is my duty to assess that evidence, take from it what is useful and then apply my own sense of what is correct. [ 20 ] Although this is not yet the weighing of evidence in a trial with respect to guilt or innocence, nevertheless the point remains that when sifting through the evidence even on a disclosure application, the decision to be made is the responsibility of the judge and it is not that of the expert.

Ultimately it is the court that has to be satisfied as to the relevancy of a particular item that is requested in disclosure and that means that the court has to examine the request with its own critical mind, knowledge and experience. [ 21 ] In my view the issue before the court is simply whether the sought after items are relevant from a disclosure perspective.

In other words will the information reasonably be used by the accused either in meeting the case for the Crown, advancing a defence or otherwise in making a decision which may affect the conduct of the defence. [ 22 ] My opinion is that the first four items sought are all relevant and will have to be disclosed by the Crown if they exist and are in the possession of the police or Crown. They may assist the defence in making decisions with respect to the case and may offer a defence if some defect is discovered.

The Crown has not established that they are clearly irrelevant. [ 23 ] The test is not high to establish relevancy. Given the contradictory opinion evidence, the state of flux in the case law, and the interrelationship between the accused and the Intoxilyzer machine, it seems to me obvious that the Alcohol Standard Solution and the various records of service, usage and calibration are relevant from a disclosure perspective. They may offer to the Defence lines of inquiry that will prove fruitful. How this will happen I do not know. But there is an intersection between the tests on the accused and the machine.

Was the machine operated properly and was it maintained correctly. These are legitimate inquiries. [ 24 ] The fifth item, the downloaded data, however, in my view is not relevant. [ 25 ] The data with respect to tests taken before or after the accused can say nothing about what happened with respect to the particular tests on the accused. An error in a previous test or a subsequent test would not isolate a problem in the subject test. All it can do is suggest a problem with other tests. The relevancy has to relate to the interaction of the accused with the subject machine and its application to him.

This includes the operation of the machine and its maintenance. It can include the materials used in the testing process. Hence the Standard Alcohol Solution is of interest, as are the Service Records and the Usage and Calibration Records. They relate to the test on the accused. [ 26 ] The request for the downloaded data presumably also includes the downloaded data with respect to the test on the accused, although the language used by the Defence is not clear in that regard. Would this data be of assistance to the Defence. I fail to see how it could be.

Parliament has approved the use of the machine and its basic engineering, both electronic and physical. Electronic data produced by the Intoxilyzer is part of its inherent functionality. The functionality of the machine is decided by legislative fiat. What is of interest is the maintenance and operation – not the design or functionality of the machine. In my view the downloaded data is not relevant. CONCLUSION [ 27 ] For these reasons, I order that the Crown shall disclose, if they exist and are in the possession of the police or the Crown,

the following: (a)A sample of Calwave Standard Alcohol Solution, lot number 20662. (

b) Simulator servicing and certification records. (

c) All Intoxilyzer 5000C, serial number 64-004072, test records pertaining to this investigation. (

d) Intoxilyzer 5000C, serial number 64-004072, usage and calibration records. [ 28 ] I dismiss the Defence application with respect to the downloaded data. [ 29 ] The Crown shall disclose the items ordered disclosed if they exist and are in the possession of the police. If they do not exist or no longer exist then that may go to the weight to be assigned to other evidence or may be the subject of a Charter application. It will be decided at trial whether an inability to produce material has any impact whatsoever. [ 30 ] Justice Watt makes a final comment in Bottineau , supra, that is apposite.

He says at paragraph 73, with respect to the defence request for correspondence between the police and various holders of records, that: “While I am left to wonder how this information would help the applicants make any decision about the conduct of the defence, I cannot say that it is irrelevant in the disclosure context.” In this case I am left with the same question. I do not know what value the disclosed materials will be to the Defence, but I cannot say they are irrelevant. What is disclosable may not be relevant at the trial.

That remains to be determined. [ 31 ] Finally I am mindful of the comment made by Justice Horkins in R. v. Kazmer , supra, at paragraph 34 where he says: As Justice Moore noted in Branson [ R. v. Branson , u nreported Judgment of Moore J., June 22, 2009, O.C.J. - College Park] there have been very few, if any, miscarriages of justice flowing from an accused having too much disclosure material and the opposite certainly cannot be said. [ 32 ] It seems to me that disclosure should be generous so that an accused person can make full answer and defence – and so that mistakes are not made.

Released: 6 December 2010 Signed: “Justice Brophy”