Court of Appeal Decision of the Week

Disclosure Requests in ‘Over-80’ Prosecutions and the Court of Appeal

Case: R. v. Jackson, 2015 ONCA 832

Keywords: Disclosure; ‘Over-80’; Stinchcombe; O’Connor; Subpoena Duces Tecum; Intoxilyzer 8000C; StOnge Lamoureux

Synopsis:

The Basic Facts

A police officer sees David Jackson’s car drift into an adjacent traffic lane three times before inexplicably decelerating. The erratic behaviour of the car leads the officer to signal for Mr. Jackson to pull over to the side of the road. There, the officer observes both that Mr. Jackson has glassy eyes and his breath smells of alcohol. Mr. Jackson provides a roadside sample of his breath to enable its analysis by means of an approved screening device (‘ASD’).

After Mr. Jackson fails, he is arrested and the officer demands he provide additional samples of his breath into the Intoxilyzer 8000C at the station. These breath samples reveal Mr. Jackson’s blood alcohol concentration exceeds the legal limit.

Mr. Jackson is charged with impaired operation of a motor vehicle and operation of a motor vehicle while having a blood alcohol concentration in exceeding 80 milligrams of alcohol in 100 millilitres of blood.

The Records Application

Mr. Jackson applies to the Ontario Court of Justice for an order requiring the disclosure of general information related to the history and performance of the particular Intoxilyzer 8000C devise used to obtain his samples. In particular, Mr. Jackson requests the following disclosure material on the theory that he is entitled, pursuant to the Stinchcombe regime:

  1. Service records;
  2. Usage and calibration records; and
  3. Downloaded data bracketing the breath tests.

Justice Nadelle grants the application for disclosure. On appeal, Justice Johnston of the Superior Court of Justice refuses to quash the disclosure order.

Grounds of Appeal

The Ottawa Police Service (OPS) and Crown appeal. They allege that the motion judge erred in law in finding that the trial judge did not commit jurisdictional error:

  1. in ordering the requested disclosure;
  2. by concluding that the requested records fell within the Crown’s first party (Stinchcombe) disclosure obligations;
  3. by concluding that the requested records were potentially relevant to the case against Mr. Jackson; and
  4. by violating the principles of fundamental justice.

Watt J.A. of the Court of Appeal allowed the appeal and overturned the decisions of both Justice Nadelle and Justice Johnston. The Ontario Provincial Police (“OPP”) and Criminal Lawyers’ Association (“CLA”) intervened on the appeal.

Importance:

How the Dispute Fits into ‘Over 80’ Prosecutions

Proof that an accused’s blood alcohol concentration exceeded 80 milligrams of alcohol in 100 millilitres of blood is an essential element in every ‘over 80’ prosecution. Crown prosecutors typically attempt to prove this by introduction of a ‘Certificate of Analysis’ – a document that reports the test results obtained from an ‘approved instrument’ such as the Intoxilyzer 8000C. Pursuant to s.258 of the Criminal Code, the Crown enjoys a strong presumption of accuracy that two test results in good agreement will be deemed “conclusive proof” of the accused’s blood/alcohol content at the time of driving. The presumption is “rebuttable”, however, in the event the prosecuting authorities fail to meet certain statutory preconditions or it can be shown the instrument was “malfunctioning or operated improperly” (see R. v. St-Onge Lamoureux 2012 SCC 57).

The First Party/Third Party Debate

The information sought by defence counsel for Mr. Jackson can be used to demonstrate that the Intoxilyzer 8000C malfunctioned. This information assists in overcoming the Crown’s advantage by virtue of the s.258 presumption. While it is not exclusively “subject test information” (meaning it was not generated during Mr. Jackson’s Intoxilyzer 8000C blood alcohol test), this information is supposed to shed light on the operational history of the instrument in order to attack the accuracy of the device itself in more general terms.

If the information sought was produced during the test, one assumes there would be no controversy. Why? It is settled law that “subject test information” (including “intoxilyzer test records” peculiar to the accused subject test) are considered the fruits of the investigation which generally triggers first-party Stinchcombe disclosure obligations on the Crown, and arguably the police service holding the records.

In the present case, the material sought and originally obtained by Mr. Jackson is general Intoxilyzer information from and about the device, recorded automatically by the instrument and its operators over time, but not exclusively while the subject accused is being tested. Canadian case-law is split across jurisdictions as to whether this general Intoxilyzer information is subject to first party or third party disclosure rules.

The clearest expression of the view that this information is properly characterized as first-party Stinchcombe records was penned by Paciocco J. of the Ontario Court of Justice. In Paciocco J.’s view, there are three basic reasons why this is the case (Note: Paciocco J. provides an excellent summary of the case-law and associated controversy in R. v. Fitts, 2015 ONCJ 262):

  1. General Intoxilyzer information is about the reliability of results. It follows that accuracy verifying information derived from a machine that is relied upon by the Crown to generate “conclusive proof” of the subject’s blood alcohol content will be prima facie
  2. v. McNeil, 2009 SCC 3 requires the first-party disclosure of readily accessible information in the control of the investigating police force that is relevant to the credibility and reliability of witnesses. Since this information is subject to first party disclosure, why not information relevant to the reliability of a forensic instrument offering conclusive proof?
  3. The structure of s.258(1)(c) presupposes a generous disclosure regime will operate to ensure that those who wish to challenge the strong presumption of accuracy have the means to do so: v. St-Onge Lamoureux, 2012 SCC 57.

Game changer

In Jackson, the Court of Appeal has determined general intoxilyzer information is not the fruits of the investigation and not held by the “Crown” – Ottawa Police Service is, for Watt J.A., a third party to the proceedings against Mr. Jackson.

How does Watt J.A. come to this conclusion? Under the Stinchombe regime, the Crown has a broad duty to disclose all relevant, non-privileged information in its possession or control (the process allows persons charged with criminal offences to understand the case to meet and make full answer and defence). For Watt J.A., the term “Crown” in Stinchcombe refers to the “prosecuting Crown only” and does not include the police. Therefore, for the Court of Appeal, the information sought by Mr. Jackson – general intoxilyzer information – does not form part of the “fruits of the investigation”. Citing R. v. Quesnelle, 2014 SCC 46 at para. 11, the police are third parties – strangers to the litigation.

For Watt J.A. the records sought by Mr. Jackson are not subject to the Stinchcombe regime. The material was not material given to the Crown by the OPS. Consequently, Watt J.A. takes the view that this material is properly characterized as third-party material subject to the O’Connor regime. A subpoena duces tecum must be served on the true record holder: the OPS as a third party.

What does this mean? Well, you’d think it means defence counsel will simply bring a third-party records or O’Connor application. However, Watt J.A.’s judgment includes a strong argument to suggest counsel for Mr. Jackson could not meet the “likely relevant” standard in the third party/O’Connor regime. Moreover, Watt J.A. provides a ‘Post-script’ which is seemingly designed to restrict the ability of defence counsel to bring applications of this kind.

Watt J.A.’s ‘Post-script’ instructions read as follows:

“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” (see para 139).

Concluding Thoughts:

The rules have been re-written. A debate that has continued in Ontario courtrooms since St. Onge-Lamoureux has taken an unfriendly turn for defence counsel, and the advantage falls to Crown prosecutors seeking convictions for ‘over 80’ offences. While it remains to be seen how this matter will resolve itself nationally in subsequent litigation, the notion that police will not be treated as the “Crown” for the purpose Stinchcombe analysis  may be a game changer.

Counsel for the Appellant Crown: Michael Fawcett and Philip Perlmutter

Counsel for the Appellant (Ottawa Police Service): Vincent Westwick and Hugh O’Toole

Counsel for the Respondent (David Jackson): Howard Krongold (Abergel Goldstein & Partners LLP)

Counsel for the Intervener (Criminal Lawyers’ Association): Paul Burstein (Burstein Bryant Barristers), Jonathan Rosenthal and Eric Neubauer

Counsel for the Intervener (Commissioner of the Ontario Provincial Police): Christopher Diana and Amal Chaudry

Posted: Wednesday, January 13, 2016