A battle is underway in Alberta over whether maintenance logs for evidentiary breath testing instruments must be disclosed by the Crown to defendants as first party records, or whether they are third party records that must be sought from the police on an O’Connor application.
Back in January 2013, an Alberta Court of Queen’s Bench decision on a summary conviction appeal held that maintenance logs for these instruments must be disclosed to an accused person on request: R. v. Kilpatrick, 2013 ABQB 5. The Crown sought leave to appeal the decision of the summary conviction appeal court. Leave was denied, with Justice O’Brien concluding that the evidentiary record from the courts below was not sufficient for the Court of Appeal to properly consider the questions on which the Crown sought leave to appeal: 2013 ABCA 168.
In R. v. Sutton, 2013 ABPC 308, Judge Henderson of the Provincial Court of Alberta had the more comprehensive evidentiary record that the Court of Appeal felt was lacking on the Kilpatrick leave application. Testimony was given by two experts called by the Crown with respect to evidentiary breath testing technology.
Judge Henderson acknowledged in Sutton that Kilpatrick, a decision on appeal of a summary conviction appeal court was binding upon the Provincial Court. As well, he rejected the Crown’s arguments that a few other decisions of the Alberta Court of Queen’s Bench were contrary to Kilpatrick. Those decisions pre-dated the Supreme Court of Canada’s decision in R. v. McNeil, 2009 SCC 3, which established that police disciplinary records which are “obviously relevant” must be considered as first party records and produced to the accused. As Judge Henderson notes in Sutton:
 Kilpatrick … concluded that, through the use of the “perjury analogy”, the principle in McNeil can be extended to records other than “obviously relevant” police discipline records. That conclusion is a statement of law and is binding on me. As a result, I conclude that the range of records which can be classified as first party records is not closed and that records which are analogous to records disclosing a lack of credibility on the part of the investigating police officer, may also be classified as first party records.
Judge Henderson went on to consider whether maintenance records for the Intoxilyzer 5000C approved instrument are first party records, on the basis of this perjury analogy. The Court’s reasoning on this point was as follows: At the heart of the issue before the Court is whether the entries on the Maintenance Log relating to a past history of repairs arising from failures of the 5000C can be considered to be “obviously relevant.”  Instinct and intuition suggest that a history of past repairs or failures of any machine would be valuable information when assessing the proper functioning of the same machine at a later point in time. The logic may be that a long history of repairs and failures suggests that the machine is a “lemon” which operates erratically and unreliably thus giving rise to a doubt as to whether the machine was performing as it was designed.  The properly admissible expert evidence of Dr. Langille and Ms. Blake along with the evidence of Sgt. Moschansky does not support this instinct and intuition. On the contrary the properly admissible evidence demonstrates that past maintenance and repairs arising from failures do not provide any assistance in assessing whether the 5000C was operating properly at the time of a subject breath test. In the opinions of the experts, the only information which can assist in this regard is the detailed information that is generated during the breath testing sequence.  Instinct and intuition, along with common experience and a constellation of other factors, can be used in assessing whether to accept an expert’s opinion and the extent to which a Court can rely on that opinion. But instinct and intuition cannot be a substitute for properly admissible evidence. In this case, both Dr. Langille and Ms. Blake were properly qualified expert witnesses who have had extensive experience in dealing with the 5000C and other Approved Instruments. Both provided detailed evidence to support their opinions.  When considering whether and to what extent to accept and rely on the opinions of Dr. Langille and Ms. Blake, it is important to remember that both experts agree that the 5000C can and does fail, and that when failures occur entries will appear on the Maintenance Log. But references on the Maintenance Log to a history of failures is not necessarily an indication that the 5000C was not working properly. On the contrary, the very fact that the instrument stopped functioning and did not produce a result or, alternatively, that it produced an error message is an indication that the “failsafe” design features of the machine were operating properly.  Dr. Langille and Ms. Blake expressed the opinion that a history of failures as reported on the Maintenance Log is simply not relevant to the question of the accuracy and reliability of the 5000C. Both were fully cross-examined by experienced and well prepared counsel who was obviously very knowledgeable regarding the issues involving the 5000C. Despite this cross-examination, the opinions of the experts remained unshaken. No evidence was called to express opinions contrary to those of Dr. Langille and Ms. Blake despite the fact that some other experts apparently do not share the views of Dr. Langille and Ms. Blake.  When I consider the evidence before me in this case, I am not able to conclude that the Maintenance Log contains any information which would rise to the level of “obvious relevance.” …
Accordingly, the Court refused to stay the proceeding against Mr. Sutton, finding that the Crown had not failed to meet its first party disclosure obligations.