Accused failed to provide expert opinion on how maintenance records might be relevant to determining whether instrument was malfunctioning

Supreme court | Criminal Law | Disclosure | Third party disclosure [O’Connor]

V and G were charged with impaired driving and driving with excessive alcohol. Accused had provided breath samples which were analyzed using approved instrument. Crown refused to disclose maintenance records for breathalyzers on basis that these were third party records and that they did not meet required threshold of relevance. V’s application for disclosure was dismissed at trial and he was later convicted. G’s application for stay of proceedings under s. 7 of Canadian Charter of Rights and Freedoms was allowed. Summary conviction appeal judge hearing both appeals determined that maintenance records were first party records and ordered new trial for V and dismissed Crown’s appeal of G’s stay. Majority of Court of Appeal found that maintenance records were third party records, reinstated V’s conviction and set aside G’s stay. Accused appealed. Appeals dismissed. V’s conviction was affirmed and G’s matter was remitted for new trial. Requested records were not part of first party disclosure. Records were not in possession or control of prosecuting Crown, they did not form part of “fruits of investigation” and evidence was that maintenance records were not “obviously relevant” to cases of accused. Neither accused attempted to provide expert opinion on how maintenance records might be relevant to key material issue of determining whether instrument was malfunctioning or operated improperly. In absence of any such evidence, expert evidence of Crown was persuasive that records were not relevant.

R. v. Gubbins (2018), 2018 CarswellAlta 2404, 2018 CarswellAlta 2405, 2018 SCC 44, 2018 CSC 44, Wagner C.J.C., Abella J., Moldaver J., Karakatsanis J., Gascon J., Côté J., Brown J., Rowe J., and Martin J. (S.C.C.); affirmed (2016), 2016 CarswellAlta 2195, 2016 ABCA 358, Ronald Berger J.A., Frans Slatter J.A., and Patricia Rowbotham J.A. (Alta. C.A.).

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