Court File and Parties

File No.: 61/13

Citation: R. v. Neville, 2013 ONCJ 500

ONTARIO COURT OF JUSTICE

(West Region, at St. Thomas, Ontario)

BETWEEN:

HER MAJESTY, THE QUEEN

• and –

AARON DAVID NEVILLE

Endorsement of Justice M.P. O'Dea

Heard: August 26, 2013

Decision Delivered: September 10, 2013

Counsel:

• Douglas B. Walker, for the Crown
• Patrick J. Ducharme, for the Accused

Decision

Mr. Neville is charged with impaired operation and "over 80". This is his application for disclosure in regard to the over 80 charge. The disclosure particulars demanded are extensive and are found at Schedule "B" of the application record.

Mr. Neville did not call evidence on his application. He relies entirely on comments by the Supreme Court in R. v. St.-Onge Lamoureux, 2012 SCC 57, and his demands are based on the 2003 Recommended Standards and Procedures of the Canadian Society of Forensic Science Alcohol Test Committee, Canadian Society of Forensic Science Journal, Vol. 36, No. 3 (2003) pp. 101-127 included in his brief. It is noted that the Court in St. Onge referred to the 2009 recommendations. I assume the two are similar in most respects.

The Crown called Dr. Daryl J. Mayers who is a toxicologist with the Centre of Forensic Sciences. Dr. Mayers' qualifications to give opinion evidence respecting the maintenance and operation of the approved instrument in question were not challenged. Dr. Mayers referred to the July 15, 2011 CFS Intoxilyzer 8000-C Information paper which provides a summary, among other things, of the scientific basis for opinion evidence regarding whether or not the Intoxilyzer 8000-C appears to be in proper working order. He also referred to the Alcohol Test Committee position paper respecting Documentation Required for Assessing the Accuracy and Reliability of Approved Instrument Breath Results. It is not clear when this paper was published but based on its content, it was clearly published after Bill C-2 was enacted in 2008.

Background on Bill C-2 and the "Carter" Defense

Bill C-2 came into force on July 2, 2008. It brought an end to the "Carter" defense and delineated evidence that would be admissible to attack the reliability of test results and thereby rebut the presumptions of accuracy and identity. It was clear to defense counsel at the time that notwithstanding their views about the validity of the amendments, the only sustainable line of attack was against the approved instrument. In the result, disclosure applications focusing on the broad demands of the amendments quickly became recurring docket items across the Province.

The evidentiary avenues open to an accused wishing to rebut a presumption under the amended s. 258(1)(c) were demanding. Each of the three avenues for rebuttal had to be consecutively proved. If an accused succeeded in identifying credible evidence that the instrument was malfunctioning or was operated improperly, he/she then had to identify some credible evidence that the malfunction or operation caused a reading over 80 mgs and then identify some credible evidence that his/her readings would not have exceeded 80 mgs at the time of the offense.

The amendments suggested to defense lawyers that they needed disclosure of everything ever written about the maintenance or operation of the approved instrument and unfettered access to the hardware and software that allowed the instrument to do what it was designed to do. They wanted access to the instrument's data and memory base, often from the day it was purchased. They did not just want the subject test results; they wanted all test results since the last inspection or since the alcohol solution was last changed. They wanted another audio/video system installed that would focus on the instrument in addition to the people.

Historical Consistency of Disclosure Decisions

Counsel for Mr. Neville states that decisions in these applications was inconsistent. I do not entirely agree. Most I have read consistently allowed access to maintenance and inspection records related to the instrument and its accessories with some inconsistency how far before or after a subject's testing this disclosure would cover. Most denied access to manufacturer's manuals. All, I believe, denied access to the hardware and software demanded.

The historic consistency issue is not important but for counsel's main submission – that St.-Onge cured the historical inconsistencies by clarifying what disclosure should be delivered. On this point, I absolutely disagree.

Analysis of St.-Onge Lamoureux

St.-Onge was a constitutional challenge. The accused asserted sections 258(1)(c), (d.01) and (d.1) breached her rights under sections 7, 11(c) and 11(d) of the Canadian Charter of Rights and Freedoms. The Court struck down the second and third avenues for rebuttal under s. 11(d) leaving only the first (that the instrument was malfunctioning or was operated improperly) and then confirmed the constitutionality of the balance of sections 258(1)(c), (d.01) and (d.1). The Court dismissed the constitutional challenges under sections 7 and 11(c).

The Court concluded the second and third avenues should be struck down for reasons discussed between paragraphs 21 and 64 of the decision and it is within these paragraphs (with one exception) that the accused herein argues that the Court clarified the disclosure issue.

Within these paragraphs, the Court confirmed what had been acknowledged by most experts who testified in the many disclosure applications since July of 2008: if the approved instrument is not operated or maintained properly, a trial court's trust in the reliability of the test results may be diminished; and, to assure ongoing trust, the practices and procedures in the Recommended Standards and Procedures of the Canadian Society of Forensic Science Alcohol Test Committee should be followed by every police department using an approved instrument. These findings are givens.

However, it is otherwise impossible to separate references in the decision justifying striking down the second and third avenues from what will pass as appropriate disclosure under the first. How the second and third avenues might impact disclosure does not affect Mr. Neville since he was charged long after those avenues were struck down. Indeed, it appears to me that the Court specifically declined discussion about what would constitute appropriate disclosure when it stated at paragraph 42 "Since the nature and scope of the evidence that might be considered relevant has not been argued on this appeal, it would not be appropriate to rule on the specific limits of that evidence."

Mr. Neville argues in his factum that St. Onge promotes that "the defense should be allowed to marshal a much stronger argument that any information that goes to whether or not the device has been properly operated and/or maintained is relevant and ought to be disclosed to the defense pursuant to Stinchcombe".

The Court's only reference to disclosure related to the surviving avenue for rebuttal is at paragraph 78 where it stated:

"Although Parliament now requires evidence tending to establish a deficiency in the functioning or operation of the instrument, this does not mean that there are limits on the evidence that can reasonably be used by the accused to raise a doubt in this regard. The accused can request the disclosure of any relevant evidence that is reasonably available (my emphasis) in order to be able to present a real defense."

In my mind, the Court's comment falls far short of promoting the disclosure of any evidence and it makes no reference to Stinchcombe. Rather, it references R. v. O'Connor in the event of a dispute. The parties offered differing explanations why the court referred to O'Connor rather than Stinchcombe. Reasons for the reference are not clear from a reading of the decision as a whole; but, it may achieve some clarity when paragraph 13 of R. v. McNeil, 2009 SCC 3 is considered:

"Third, to the extent that the operative terms of the production order below may suggest that records in the possession of one Crown entity are deemed to be in the possession of another, this interpretation should be discarded. The notion that all State authorities constitute a single indivisible Crown entity for the purposes of disclosure finds no support in law and, moreover, is unworkable in practice. Accordingly, Crown entities other than the prosecuting Crown are third parties under the O'Connor production regime."

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.

Notwithstanding that McNeil determines that information in the possession of the investigating police force and not in the possession of the Crown is third party information, it significantly blurs the tests for disclosure defined in Stinchcombe and O'Connor – "presumptively relevant" as fruits of the investigation or "likely relevant" to promote full answer and defense – to the point that the first and third party arguments are almost meaningless in regard to certain information. The blurring is the result of both statutory and common law duties of police forces to participate in the disclosure process.

Police Duties and Disclosure Obligations

The issue is what should police be delivering to a Crown in addition to information traditionally delivered pursuant to those duties? In my mind, a breath technician must reasonably conclude, for each test administered, that the approved instrument was functioning properly before he/she issues the formal Certificate of Qualified Technician. This conclusion, considering the context of s. 258(1)(c) and the evidence today, must consider not only operational issues but maintenance issues as well.

On Dr. Mayers' evidence, I am of the view a technician can reasonably conclude the instrument operated as it was designed to do on the strength of the Analyst's certificate respecting the alcohol solution, the test printouts for the initial calibration check at the start of the shift in which the subject tests were conducted, from the subject testing itself and on the strength of the results of his/her department's last inspection/maintenance of the approved instrument and its accessories. Considering chain of command duties that exist in most police departments, firsthand knowledge in a technician of the results of the last inspection/maintenance is not demanded; rather, knowledge possessed by the person in charge of inspections/maintenance is deemed to be known by all technicians who operate the instrument. If the instrument has not been inspected or maintained at all or as recommended by the Alcohol Test Committee or deficiencies not rectified, it is arguable that the technician's reliance on the printouts was unreasonable and the Certificate should not be admitted.

In the result, I find that inspection logs, maintenance logs, inspection findings (results), maintenance demands identified, maintenance work undertaken and parts replaced or repaired on the instrument and its accessories constitutes information police must deliver to the Crown pursuant to its statutory or common law duty. The timeline within which this information fits the duties is since the last inspection or maintenance visit that focused on the instrument used in the subject testing. As I understand the submissions, the Crown in this case has delivered this information to the accused.

Beyond this information, I find Mr. Neville must apply for disclosure pursuant to R. v. O'Connor. If he wants additional detail to the disclosure delivered in consequence of the officer's duties, that detail will be addressed in an O'Connor application.

Analysis of Specific Disclosure Demands

The additional information sought by Mr. Neville that I intend to specifically address is set out below. Any reference to the approved instrument includes its accessories. Except as identified below, I have not set out most of the operational disclosure demanded since I believe it has already been delivered.

1. Technician Training and Certification

Demand: Name and rank of each calibration technician and qualified technician who operates the subject approved instrument, date of each technician's initial training course, course content and upgrading courses and content.

Ruling: The information sought in number 1 is certified upon publication in the Gazette. I trust that process and no reason has been shown why it should now be challenged.

2. Inspector and Maintenance Technician Qualifications

Demand: The name and qualifications of each inspector or maintenance technician, date each such technician was qualified, qualification courses taken and course content.

Ruling: With one exception, I have significant relevancy issues with the disclosure sought in number 2. My issues are based on lack of evidence. It is not clear whether any process has been established respecting qualifications of inspectors or maintenance technicians. The evidence is unclear who designed qualification programs or fixed criteria (if at all). Without evidence that the information exists, I do not intend to order it disclosed. Further, it is not at all clear how this information would advance the trial process. It appears it would confuse, not advance, the fact-finding function.

Exception: The name of the last inspector or maintenance technician who dealt with the instrument or its accessories is hereby ordered. This much must be disclosed to allow the accused the choice whether to investigate the person or the person's skills.

3. Inspection and Maintenance Logs

Demand: Inspection and maintenance logs since the date of purchase of the instrument until 60 days following the subject testing.

Ruling: As to number 3, I am of the view the Inspection and maintenance logs for the instrument and accessories since the date of purchase should be disclosed and it is hereby ordered. With all due respect to Dr. Mayers' opinion respecting relevancy, it would be critical to any lawyer, in context of full answer and defense, to know whether the instrument has been plagued with physical or technical problems that regular attention has not resolved or has not been given. A lawyer is entitled to know the nature of those problems and investigate the possibility that those problems might shed a doubt on reliability. To the extent, however, that the DAVTECH maintenance reports already disclosed are confusing, I cannot order anything more than what DAVTECH delivers. I have no control over its reporting process.

I do not agree with Mr. Neville that the same information post-testing is relevant. He appears to argue that a total systems failure shortly following his tests might have some impact on his results. I agree it could but disclosure of this sort of information in every case is wasteful. If a total systems failure occurs shortly following the accused's testing, I am of the view the Crown is obligated to notify the defense in any event. Beyond a total systems failure, Mr. Neville has offered no evidence identifying the likely relevance of this information.

4. Inspection or Maintenance Manuals and Protocols

Demand: Inspection or maintenance manuals or other protocols used.

Ruling: Mr. Neville asks, in number 4, for inspection or maintenance manuals or other protocols used respecting the instrument and accessories. Having regard to the evidence and the defense identified in the statute, I am of the view something akin to what is requested is essential.

I will not order production of entire manuals or protocols without notice to the manufacturer and service depot. Privacy may need to be addressed.

There is absolutely no evidence identifying who has occupied the field directing inspection and maintenance technicians and that I find somewhat unsettling.

As scientific research agencies concerned about good laboratory practice, quality control and quality assurance, the CFS and the Alcohol Test Committee have adopted a questionable hands-off attitude about inspections and maintenance. They tout the importance of but decline involvement in the process. In my mind, to support an ongoing inference of trust in the reliability of test results based on scientific research, that same science must identify a basis for trust that the instrument and its accessories continue to meet the same standards as they did during initial laboratory testing.

Ruling: I order disclosure of all directives and/or policies and/or suggested best practices and/or qualification demands for technicians from the manufacturer of the instrument and accessories respecting maintenance of its product, including directives respecting the replacement of parts. I order that "DAVTECH" – which services the approved instrument (and apparently accessories) for the Elgin County OPP – shall disclose any checklist or similar guide used by a technician during an inspection or maintenance call; and, if an inspection is carried out by computer, the disclosure shall include all functions of the instrument and accessories the computer will explore.

I acknowledge a privacy claim could be made respecting some or all of this information if it is contained in a manual. However, I do not intend to delay this application for that eventuality. An entire investigative process has developed around the science of the approved instrument and it is in the interests of Justice to know whether maintenance procedures exist. Without this basic information, I see no end to these applications. Without this information, the will of Parliament may again be thwarted by acquittals arising from a lack of evidence on the maintenance side but ignoring the science behind the operational qualities of approved instruments.

5. Program Director Approval and Protocols

Demand: The "Program Director's" approval of each maintenance/inspection technician's appointment, any protocol demanded by the Program Director for inspections or maintenance, the Program Director's approval of any modifications to the approved instrument, evidence of the Program Director's approval of the approved instrument when it was initially placed into service and after any modifications or extensive systems maintenance.

Ruling: As to number 5, the Alcohol Test Committee recommended the appointment of a "Program Director" and identified his/her duties (see p. 108, 2003 Recommendations). However, there is no evidence an appointment was made or that any person exists who is tasked to carry out the recommended or similar duties. In the result, it is impossible to consider any request naming this person as the source. An order would be based on speculation and may be entirely impossible to comply with.

6. Breath Room Particulars

Demand: Particulars of the room where the approved instrument is located to assure it is properly ventilated, safe, secure from power surges and of adequate size.

Ruling: On the operational side, Mr. Neville asks for specific particulars about the breath room in number 6. I accept Dr. Mayers' evidence that if any of the specifics he seeks occurred and affected the functioning of the instrument, it will be shown in the test records. On the evidence before me, the test records are enough to allow Mr. Neville to investigate whether any of those factors might impact reliability.

7. Pre-Test Consumption

Demand: Particulars related to anything consumed by the accused or put into his mouth in the 15 minutes before the tests were administered.

Ruling: Particulars about what Mr. Neville consumed or put into his mouth immediately before the tests are administered (number 7) can come from Mr. Neville himself or the officer's notes. A new line of disclosure is unnecessary.

8. Alcohol Standard Usage

Demand: Particulars that the alcohol standard used in the subject tests was not from a batch or lot that had been in use for 15 days or 50 calibration checks whichever occurred first.

Ruling: I agree with item 8. The recommendations are clear how long the alcohol standard should remain in use. The instrument is programmed to deny a test when the standard has been in use beyond the recommended number but an accused is nevertheless entitled to know whether his was the last or close to last permissible test. Test records show some of this information but not all. I order disclosure of the particulars described in number 8.

9. Radio Interference

Demand: Particulars of efforts to prevent interference of the instrument by radio transmissions.

Ruling: As to number 9, I accept Dr. Mayers' evidence that the instrument is designed to deny a test if radio interference is a factor in the breath room. If it is, it will be shown in the test record.

Evidentiary Analysis

Before addressing these demands, I should discuss the evidence tendered today as it relates to relevancy.

Mr. Neville submits that this court need look no further than the Recommended Standards and Procedures to define likely relevance. Considering the comments in St. Onge at paragraphs 25 to 27, he is of the view that each and every standard or procedure identified has been deemed relevant.

The Crown's broader position, through Dr. Mayers' evidence, is that the approved instrument is scientifically reliable until it quits functioning and while regular inspections are recommended, the fact that they have not occurred should not alter the scientific reliability of test results that do not include an error or exception message. In the result, he considers the additional maintenance information demanded to be irrelevant.

As indicated earlier, I am not prepared to adopt the breadth of the St. Onge comments as suggested in support of disclosure. The Supreme Court did not challenge its previous findings approving the science behind the approved instrument; in fact, it confirmed those findings. It confirmed the importance of the ATC recommendations. However, many of the recommendations are defined broadly and may not be implemented. I am also not prepared to accept that the Court intended its comments at paragraphs 25 to 27 to apply to disclosure. It is clear to me these references were limited to the finding of unfairness when a trial judge has to ignore a reasonable doubt arising on the first avenue in deference to the second and third.

Strictly in context of disclosure issues, I have some serious concerns with the general tenor of Dr. Mayers' evidence, particularly his view that the operational science supporting the reliability of test results somehow trumps the maintenance recommendations made by the ATC.

Concerns with Dr. Mayers' Evidence

First, his opinions as to relevancy were given in an effort to debunk arguments that might be taken at trial after having seen some of the disclosure demanded. Whatever submissions might arise from the disclosure is best left for a trial judge. This is neither the time to address them nor are they relevant on a disclosure application.

Second, his scientific opinion is limited to the approved instrument, not its accessories. As I read his paper attached to exhibit 1, strictly from a maintenance perspective, if the accessories may not be working as designed, any result the instrument produces must be questioned.

Third, assumptions counsel might make on a review of the instrument's test records include "variables" that can be subject to human error or rely on another manufacturer's quality control system. These are identified at page 4 of the CFS Intoxilyzer 8000-C Information document written on July 14, 2011 (see exhibit 1). These assumptions may impact the science supporting the approved instrument's output identified in its test record and diminish the value of the test record as an alternate to disclosure of maintenance information.

Fourth, the Alcohol Test Committee clearly recommends annual inspections and as-needed preventative maintenance to every approved instrument and its accessories. On one hand, Dr. Mayers states the recommendation is meant to assure quality control but on the other, he says it does not mean that if the recommendations are not followed, a court should lose trust in the results of breath tests. In my mind, this evidence simply defies logic: quality control is meant to enhance ongoing (not initial laboratory) reliability. It either means something or it does not.

Fifth, in context of inspections and maintenance, the Alcohol Test Committee recommends that inspections and maintenance should be performed only by persons who meet certain qualifications and who follow certain procedures in conducting their work. On the evidence heard today, it appears that the ATC has abandoned the field in regard to both qualifications and procedure. In Dr. Mayers opinion, to occupy the field would conflict with the Committee's strict focus on testing and making recommendations. This may be a wise choice but the decision has left a significant void that apparently has not been filled.

Dr. Mayers could not say whether the technicians who inspect or repair most approved instruments throughout the Province have been qualified and, if they have been, what criteria their qualifications were based on. He could not say if the inspectors used a manual or a checklist and if they did, who developed either of them or on what criteria. Since inspections and maintenance are intended to assure the instrument and accessories "continue to meet manufacturer's specifications" (2003, p. 113, s. V.C.), he assumed the manufacturers established the qualifications and procedures but could not be certain.

Maintenance vs. Operational Qualities

When the amendments to s. 258(1)(c) are considered in context of disclosure, maintenance issues are a central focus. The instrument's operational qualities must take a back seat to the right to make full answer and defense in regard to maintenance. The operational qualities will resume their proper place when the fruits of the disclosure are argued at trial.

Lastly, Mr. Neville's demands are so all-encompassing that it appears the Crown is being asked to prove its case in writing. Until a higher court directs me otherwise, my sense is that disclosure still requires a rational connection to the investigation of the accused, not a police investigation of a scientific principle. The information delivered should be enough to identify a prudent line of investigation for trial, not to satisfy defense counsel beyond a reasonable doubt that his client should plead guilty.

Conclusion

I encourage immediate communications between the Crown and third parties respecting the disclosures ordered so if trial might be delayed, it can be rescheduled earlier rather than at the last minute.

Justice M.P. O'Dea