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Court, lawyers call for added guidance on breathalyzer disclosure

|Written By Marg. Bruineman

As defence counsel continue to adapt to the elimination of the so-called two-beer defence, lawyers and the court are calling for additional guidance on what disclosure is relevant when it comes to assessing the reliability of breathalyzer machines.

‘There is an unprecedented amount of time being spent in court litigating this issue,’ says Marcy Segal.

Defence lawyers say the process suffers from a lack of consistency, particularly when it comes to the different court jurisdictions. But earlier this month, Justice Michael O’Dea of the Ontario Court of Justice released a lengthy decision in R. v. Neville on a disclosure application in which he outlined what the Crown should disclose in impaired-driving cases and provided a checklist of sorts. But, he added, there’s plenty of room for a higher court to clarify the requirements.

“On the whole, I am of the view the court’s specific references to disclosure are general and do not venture far beyond the general maintenance and operational information now being disclosed in most jurisdictions. Until the court specifically addresses the perimeters of what it considers to be ‘relevant evidence that is reasonably available,’ many issues that have been raised since 2008 and in this particular application remain unaddressed at the appellate level,” wrote O’Dea.

O’Dea found the Crown should disclose the inspection and maintenance logs for the instrument and accessories since the date of purchase. He also provided an outline of what the information should contain and responded to each of the demands of the accused. In addition, he agreed that access to the inspection and maintenance manuals is essential.

Beyond that, he ordered disclosure of all directives, policies, and qualification demands for technicians from the manufacturer involving the machine’s maintenance, including those related to replacement parts. And he ordered the company servicing the parts to disclose the checklist used by a technician.

“It is in the interests of justice to know whether maintenance procedures exist,” wrote O’Dea.

The decision, says Jacob Stilman, a criminal lawyer and partner at Lo Greco Stilman LLP, “puts the fire to the feet of the Crown.”

Impaired-driving cases have become more difficult to defend and more technical over the years as the introduction of Bill C-2 in 2008 limited the defences available and left the breathalyzer and its operation as the only remaining lines of attack. The change opened the floodgates for disclosure applications as defence lawyers seek to prove there’s a problem with the machine.

Even before that, Stilman found acquittals were becoming difficult to come by. The opportunity for the defence is to demonstrate a malfunction in the operation of the machine. The result, however, requires a well-funded defence and can take days of court time in pursuit of disclosure.

In Neville, O’Dea gave the defence a chance to “really look under the hood” of the instruments, says Stilman. “There’s likely to be a high degree of deference to this decision” because it offers something of a disclosure template, he suggests.

But because it’s a trial-level decision, there could still be disparate rulings in other courts. And that’s what Toronto criminal lawyer Marcy Segal sees as the problem.

“Jurisdictions aren’t being consistent,” she says. “So you’re actually spending a lot of time litigating issues that have been litigated since 2008.”

She suggests a unified Crown prosecutors’ policy would be helpful. Some sort of provincewide approach might eliminate some of the litigation and save court time, she suggests.

While the Supreme Court upheld key aspects of the 2008 amendments in R. v. St-Onge Lamoureux last year, it did find that breathalyzer machines aren’t infallible. But the top court didn’t specify what disclosure the Crown should provide to defence lawyers trying to determine if the machine made a mistake. And that’s inevitably where lawyers have focused much of their efforts in impaired cases.

“There is an unprecedented amount of time being spent in court litigating this issue,” says Segal.

In making the request for disclosure before O’Dea, Windsor, Ont., criminal lawyer Patrick Ducharme said he relied upon the list created through the alcohol test committee.

He figures he currently has upwards of 20 impaired cases pending in southern Ontario courts and this month filed for appeal on another.

“I have made this a bit of a mission,” he says. “This is a live issue. This issue I don’t think is going to be resolved for years.”

Ducharme is skeptical about the maintenance of the machines and questions if authorities really are keeping logs. For the courts to accept the instruments, he adds, the Crown should provide evidence of their proper maintenance and use and that there was no user error.

“We said to the prosecutors, ‘Well, provide us with this information.’ We’re finding great resistance to that,” he says.

The Ministry of the Attorney General’s position is that when it comes to over-80 cases, Crowns routinely disclose police notes and breathalyzer test records. The Neville case was different because of the additional material sought. The Crown is still reviewing the decision to determine if it will take the matter further.

For more, see "'Mr. Carter's not dead.'"

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