The Criminal Code contains evidentiary presumptions relating to the accuracy of evidentiary breath tests. The only path to defend against this presumption is for the accused to raise a reasonable doubt on the issues of whether the instrument was malfunctioning or whether it was operated improperly. The materials which an accused person is entitled to receive from the Crown in order to attempt to raise such a doubt has been the subject of debate in Alberta courts (and elsewhere in Canada) for several years.
In January 2013, an Alberta Court of Queen’s bench decision on a summary conviction appeal held that maintenance logs for evidentiary breath testing instruments (such as the Intoxilyzer 5000C) must be disclosed by the Crown 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. The decision in Kilpatrick appeared to be in conflict with an earlier ruling of the Court of Appeal, in R. v. Black, 2011 ABCA 349, where the Court held that these maintenance records were “third party” records, which were required to be sought via an O’Connor application.
Since Kilpatrick, there had been several further decisions in the Provincial Court. In R. v. Sutton, 2013 ABPC 308, which I previously summarized, Judge Henderson concluded that the Crown was not obliged to produce maintenance records as first party disclosure; however, some other judges of the Provincial Court concluded they were bound by Kilpatrick and there were several prosecutions stayed or dismissed in circumstances where the Crown had failed or refused to produce maintenance logs and similar records: See cases summarized in R. v. Khuu, 2014 ABPC 30 at para. 22 to 27 and R. v. Carter, 2014 ABPC 291. It was subsequently reported that a number of charges of driving with an excess blood alcohol level had been withdrawn by Alberta Crown prosecutors in circumstances where maintenance was being performed by a third party agency pursuant to a contract with the RCMP.
On November 15, 2016, the Court of Appeal released R. v. Vallentgoed, 2016 ABCA 358, which also included reasons and a decision respecting the appeal in R. v. Gubbins. The majority ruled that maintenance records for evidentiary breath testing instruments are third party records and are not required to be disclosed by the prosecution.
The starting point for the analysis in Vallentgoed were the decisions in R. v. Stinchcombe, 1991 CanLII 45 (SCC) and in R. v. O’Connor, 1995 CanLII 51 (SCC). Stinchcombe was a watershed Charter decision that held that the Crown has a duty to disclose relevant information in its possession or control to accused persons. “The Crown”, for the purposes of Stinchcombe, is defined narrowly: it is to the Crown as prosecutor, not the police or other Crown branches and agencies. Records held by the police are not generally subject to a Crown disclosure requirement. (However, in the case of R. v. McNeil, 2009 SCC 3, it was held that police must provide certain information about misconduct and discliplinary findings against investigating officers to the Crown, so that it might be included within the prosecution’s disclosure materials.)
O’Connor had created a different set of principles relating to the disclosure of records held by third parties which, in most cases at least, includes police agencies. That process requires service of a subpoena for documents (a subpoena duces tecum) on the third party, along with an application, who must then deliver the requesting material to the presiding judge, who hears the application and determines the relevance of the material to an issue at trial. Before a court reviews third party records on an O’Connor application, the accused must show that the records are “likely relevant” to a material issue at trial. If so, the court reviews the record to determine that the record is actually relevant to a material issue.
The majority in Vallentgoed concludes that maintenance records that are not contemporaneous with the criminal charge are not “fruits of the investigation” – they have no connection to the case against the accused. They are, accordingly, not required to be produced as first party disclosure by the Crown.
As to the issue of production from police under the O’Connor procedures, the majority found it was unlikely that historical maintenance records would ever be relevant to a possible defence by the accused. As the majority points out, a properly maintained instrument may malfunction, and an improperly maintained instrument may work correctly. Records of routine maintenance, or of earlier test results, will not be relevant to the issue of whether the instrument malfunctioned at the time the the accused’s breath was tested. The majority continued:
 As a matter of evidence in these appeals, and as a matter of logic generally, historical maintenance records will rarely if ever be actually relevant to making full answer and defence in a particular prosecution, and therefore the accused will rarely be able to show “likely relevance” of those records. Merely arguing that there likely are maintenance records, and that the instruments likely underwent maintenance from time to time, is not sufficient to show that there is sufficient probative, relevant evidence in those historical records to justify disclosure.
A dissent was authored by Madam Justice Rowbotham. In brief, her Ladyship found:
- the Supreme Court of Canada’s decision in R. v. St-Onge Lamoureux (which was a decision as to the constitutionality of section 258 of the Criminal Code, which limited the attacks which an accused could make on the evidentiary presumption of accuracy of evidentiary breath testing instruments) had assumed that accused persons could challenge the presumptions of accuracy through evidence that the instrument wasn’t maintained properly;
- though disclosure obligations relating to were only briefly touched on by the Supreme Court in St-Onge Lamoureux in what might be regarded as obiter dicta, the discussion about the importance of maintenance was central to the decision;
- approved instruments are only reliable if properly maintained;
- it will not be onerous to require the Crown to provide maintenance logs for approved instruments, given that there are fewer than 200 of these instruments used in the Province of Alberta;
- other records, beyond the maintenance logs, should be the subject of O’Connor applications; the maintenance logs might assist in establishing that other records were likely relevant to a material issue.
Part of Justice Rowbotham’s decision runs contrary to the expert evidence that the Crown tendered in these cases and others. While it is true that an approved instrument is more likely to become unreliable over time if it is not properly maintained, instruments are designed to perform self-tests prior to accepting a sample and afterward. These tests will demonstrate whether the approved instrument is working reliably. As noted by the majority, records of these self-tests are first party records which must be disclosed (they were already part of the standard disclosure package provided by the Crown in such cases).
The Court of Appeal’s decision in Vallentgoed is also supported by the earlier unanimous decision of a panel of the Ontario Court of Appeal in R. v. Jackson, 2015 ONCA 832. Leave to appeal Jackson was refused by the Supreme Court: 2016 CanLII 41073 (SCC). Given the dissent in Vallentgoed, it is possible that this issue will now be considered by the Supreme Court.