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.).

Free newsletter

Our daily newsletter is FREE and keeps you up to date on all the developments in the Ontario legal community. Please complete the form below and click on subscribe for daily newsletters from Law Times.

Recent articles & video

Province’s auto insurance plan deemed problematic by lawyers

Ontario Human Rights Commission calls on police to address racial profiling

Cassels Brock’s Noble Chummar reappointed to LCBO

Ford government’s cuts to Toronto city council ruled constitutional

Histories of Canadian law and Métis people are entwined, says Jean Teillet

More women are on TSX company boards - but there’s slow progress to the C-Suite, says Osler

Most Read Articles

Ontario court rules cap on general damages does not apply to sexual abuse

Man discharged from his fourth bankruptcy

Ontario law firms targeted by divorce settlement fraud attempts

Ford government’s cuts to Toronto city council ruled constitutional