Judge makes ‘controversial’ ruling about breathalyzer disclosure

Criminal lawyers have mixed feelings about a recent Ontario Court of Justice decision that affirms the Crown’s obligation to disclose information related to the maintenance and reliability of breathalyzers but offers no remedy in a case where there was a breach of that duty.

“The decision helps the defence in a sense [as] it affirms it is a first-party record but where it is disappointing to the defence is that it doesn’t offer a proper remedy,” says Toronto criminal lawyer Irwin Isenstein.

Ever since the elimination of the so-called two-beer defence, defence lawyers have sought to discredit the accuracy of breathalyzer tests using information about the instrument’s maintenance record and reliability in cases involving charges of impaired driving and driving over the legal limit. Amid continued questions about the extent of the Crown’s obligation to turn over that information, Ontario Court Justice David Paciocco found it was subject to first-party disclosure in R. v. Fitts on May 13. “I am persuaded that in an alcohol driving case where an approved instrument has been used, general Intoxilyzer information that is relevant to the functioning and operation of that instrument qualifies,” he wrote.

Although his conclusion was in line with the defence position in the case against Jacob Fitts, criminal lawyers have mixed thoughts about the ruling as the judge didn’t order any remedies for the disclosure breach he found.

“The problem with the decision in some ways is that if the police continue to not produce the records, would you ever impose a remedy?” asks criminal lawyer Peter Lindsay.

“I mean, it would be odd in my view if the results in other cases were the same because then the police could simply breach the disclosure obligation without there being any kind of remedy.”

Despite finding an obligation on the Crown’s part to disclose such information, failure to do so wasn’t fatal for the prosecution’s case in Fitts. The breach, Paciocco found, didn’t result in prejudice to the defendant in a way that would render the whole process unfair. And even if the Crown had disclosed the requested information, it would have been incapable of raising reasonable doubt about the accuracy of the readings in Fitts’ case, according to the judge.

Fitts had requested information related to the machine’s simulator. If the simulator wasn’t working, it would indicate police hadn’t properly calibrated the machine before taking Fitts’ breath sample, the defence had argued.

But according to the ruling in Fitts, there was the evidence of a successful calibration. Paciocco ruled along similar lines about other requested information relating to the breathalyzer’s inspection record.

“I am persuaded that the conduct of the test on Mr. Fitts itself is therefore powerful circumstantial evidence that, whether the simulator was certified at the time it was put in service, or inspected as required, it was operating properly on the day in question,” wrote Paciocco, noting he would therefore not grant any remedies for the disclosure breach.

“Whatever that evidence may have showed, it could not reasonably stack up against the indicia of reliability relating to the functioning of the simulator at the relevant time that was generated through the successful completion of the subject test,” he added.

Isenstein says he “respectfully disagrees” with the judge that the breach didn’t warrant a remedy. “It does warrant a remedy because on the one hand you’re saying it is a first-party record and the authorities suggest, including the Supreme Court of Canada, that they are relevant,” he says.

“Then if the records weren’t disclosed, or in this case they were lost, how can the defence show that the instrument was malfunctioning or was not being operated properly?” Isenstein asks.

Citing the case of R. v. St-Onge Lamoureux, Lindsay agrees. “Given what the Supreme Court said in St-Onge about how proper operation includes proper maintenance, arguably this is a bit inconsistent with that,” he says.

“If they don’t keep proper maintenance records and the judge says, ‘Well, you should have, but there’s no remedies,’ arguably that’s undercutting what the Supreme Court said in St-Onge.”

Lindsay is counsel of record in a similar case, R. v. Lam, where the Crown did disclose the evidence sought regarding a breathalyzer but police hadn’t performed the recommended maintenance on the instrument. While the Ontario Court initially acquitted the defendant, the Superior Court reversed that decision. Lindsay has sought leave from the Ontario Court of Appeal, which may provide more guidance on the weight of such evidence.

In Fitts, the Crown couldn’t disclose the information the defendant had requested because the Ontario Provincial Police had wiped the data when it put some of its instruments out of commission. “My decision that the information Mr. Fitts seeks is subject to ‘first party disclosure’ is controversial,” wrote Paciocco.

“This is because the information sought by Mr. Fitts is not ‘subject test information.’ In other words, it was not generated during his blood alcohol testing. If it had been, there would be no controversy, since subject test information, including ‘intoxilyzer test records’ and ‘alcohol influence reports,’ are the fruits of the investigation in which they were generated, and fruits of the investigation will be ‘first party disclosure.’”

Previous rulings had established that the fruits of the investigation in criminal matters are subject to first-party disclosure.

“The same holds true, in my view, for Intoxilyzer records that relate to the performance of the approved device that is being relied upon by the Crown as offering conclusive evidence of the blood alcohol content of the accused,” wrote Paciocco.

“It seems to me that given the presumptive relevance of such records, it is reasonable and appropriate to require the Crown to demonstrate their irrelevance if it wishes to withhold disclosure.”

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