Court File and Parties

Court File No.: 13-248; 10-1425; 09-326; 12-1610; 10-8167; 12-1674; 11-1001; 10-749; 12-2274; 12-11891; 13-LE-8153

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Devin Coughlin, Michael Fines, James Barta, Matthew Desjarlais, Cecil Bailey, Tara Mullin, Matthew Donnelly, Jeremy Arsenault, Jason Boutette, Robert Chencharik and Dustin Wright

Before: Justice Lloyd Dean

Dates Heard: June 27, 2013 and August 20, 2013

Counsel:

• S. Kerwin, for the Crown
• P. Ducharme, for the Applicants

Ruling on Disclosure Applications

Introduction

[1] Applications for disclosure have been brought prior to trial by all of the above named accused. All of the applicants have a charge pertaining to the operation of a motor vehicle while their blood alcohol concentration exceeded 80 mgs of alcohol in 100 ml. of blood contrary to s. 253 (1) (b) of the Criminal Code. Defence counsel has requested numerous items relating to the breath tests performed on the accused. Both defence and Crown counsel have agreed to combine these matters and have all of them determined by me through this one ruling. I have taken some time to deliver my ruling on this matter. There were many cases provided by each counsel. I have read each of them and several others which are referred to in my ruling. There have been numerous decisions made across this province and other provinces with respect to similar matters. Most of them are at the provincial court level. Unfortunately they are all over the map. I hope by taking the time I have to prepare this judgment is at least of benefit in my jurisdiction. It may be that until an Appellate court gives a clear ruling there will never be clarity with respect to these types of applications and they will continue to be filed.

[2] I begin my ruling by reproducing an excerpt from the Supreme Court's ruling in R. v. Stinchcombe, [1991] 3 S.C.R. 326, wherein Sopinka J. stated:

I am confident that disputes over disclosure will arise infrequently when it is made clear that counsel for the Crown is under a general duty to disclose all relevant information. The tradition of Crown counsel in this country in carrying out their role as "ministers of justice" and not as adversaries has generally been very high. Given this fact, and the obligation on defence counsel as officers of the court to act responsibly, these matters will usually be resolved without the intervention of the trial judge. When they do arise, the trial judge must resolve them.

[3] A little further he stated:

The general principles referred to herein arise in the context of indictable offences. While it may be argued that the duty of disclosure extends to all offences, many of the factors which I have canvassed may not apply at all or may apply with less impact in summary conviction offences. Moreover, the content of the right to make full answer and defence entrenched in s. 7 of the Charter may be of a more limited nature. A decision as to the extent to which the general principles of disclosure extend to summary conviction offences should be left to a case in which the issue arises in such proceedings. In view of the number and variety of statutes which create such offences, consideration would have to be given as to where to draw the line. Pending a decision on that issue, the voluntary disclosure which has been taking place through the co-operation of Crown counsel will no doubt continue. Continuation and extension of this practice may eliminate the necessity for a decision on the issue by this Court.

[4] Unfortunately, despite Justice Sopinka's confidence, disputes over disclosure have been frequent, and have even increased since the drinking and driving amendments in 2008. Trial judges across the country have had to resolve the disputes, even though most of them involve summary conviction offences. Perhaps even more unfortunately the decisions at the trial level have often been inconsistent with one another.

[5] The following observation was made by Watt J. in the 2005 case of R.v. Bottineau, 32 CR (6th) 70 (S.C.J.) who at that time was sitting as a Superior Court judge:

[30] . . . Despite nearly a decade and a half of judicial development, disputes about disclosure continue, apparently unabated, at least in some quarters. Unremitting demands. Unyielding resistance.

[6] Before me now are eleven matters where the issues surrounding disclosure have not been able to be resolved by counsel. Each party filed an Application record and have made oral submissions. No viva voce evidence was led on these applications.

[7] I have been asked to determine whether the disclosure requested is governed by the first or third party disclosure regimes. I have also been asked whether the defence should be provided maintenance logs and records up to 60 days beyond the applicants' subject tests. The defence has argued the items sought are first party records as a result of the Supreme Court's ruling in R. v. St-Onge Lamoureux 2012 SCC 57 and ought to be disclosed. The Crown asserts that any items that have not been disclosed are third party records, or in the alternative, if deemed to be first party records, the items should not be ordered disclosed as they are clearly irrelevant.

Position of the Parties

Defence Position

[8] It is the defence's position that the court's ruling in St-Onge Lamoureux at paragraph 48 answers in the affirmative the question about whether disclosure related to the proper functioning or operation of the breath instrument constitutes first party records.

[9] Defence counsel submits that as a result of the Supreme Court's ruling the focus in defending over 80 charges shifts from evidence to the contrary toward attacking the reliability of the breath testing instrument itself. The success of such a defence, submits defence counsel, turns on counsel's ability to obtain disclosure that assists or is capable of undermining the presumed accuracy of the breath instrument. It is defence counsels position that the Supreme Court's ruling says the defence 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 the be disclosed to the defence pursuant to Stinchcombe. Counsel submits it is relevant because the Supreme Court suggested evidence that shows possible deficiencies in the maintenance of the breath device or in the test process can be used to attack the accuracy of the breath instrument. Relying on the Supreme Court's ruling defence counsel submits the Crown should disclose all the items they have requested. Counsel further submits all previous cases that decided against the defence on the issue of disclosure, that is, the defence seeking disclosure concerning the proper functioning and operation of the breath instrument may now be viewed as overruled. It is the defence position, relying on St-Onge Lamoureux, the items requested are first party records and therefore the Crown has the onus of showing these items were clearly irrelevant if they are not prepared to provide them. Defence counsel has also provided several cases from the provincial court level, decided subsequent to St-Onge Lamoureux, in support of its position.

[10] Defence counsel has acknowledged they have simply converted the Canadian Society of Forensic Scientists Alcohol Test Committee's 2003 recommendations into a form of disclosure request, relying on the fact that the Supreme Court referred to and placed significant emphasis on those recommendations in its ruling. Attached as Appendix A to this ruling is the extensive list of items requested by defence counsel. Defence counsel seeks disclosure of approximately 75 items related to the Approved Screening Device (ASD), the functioning, use and operation of the Approved Instrument (AI) and the use and operation of the AI in a remote location or mobile use. Several of the items I would expect to be part of the usual disclosure made to defence counsel in these types of cases, such as the name of the qualified technician and their notes, the readings received from the instruments and a copy of the certificate of analysis for example.

[11] In addition, defence counsel has requested maintenance logs and records for the devices/instruments used for up to 60 days beyond the subjects tests. Their position is that these logs and records are relevant because they would show if there was a problem with the device or instrument shortly after the subjects' tests were conducted. Why 60 days? Defence counsel chose that number based on his 38 years of experience. Based on that experience he submitted it generally takes that amount of time to get and review disclosure and be in a position to set a trial date.

[12] Defence counsel has also relied on what they describe are fundamental principles. The first being the right to make full answer and defence as guaranteed in s. 650 (3) of the Criminal Code and s. 11 (d) of the Charter. Defence submits that principle includes the accused right to defend against all and any state effort to achieve a conviction. Any ruling the court makes in the absence of some clear ground or policy that justifies exclusion or withholding of information should be expansive and not run afoul of the fundamental concept of justice and what constitutes a fair trial.

Crown's Position

[13] It is the Crown's position that the issue of the Crown's disclosure obligation was not directly before the Supreme Court in St-Onge Lamoureux. The Crown disagrees with the defence's assertion that the court's ruling answers the question about whether disclosure related to the proper functioning or operation of the breath instrument constitutes first party records. The Crown submits the ruling does not assert that the requested items ought to be disclosed to the defence pursuant to the Stinchcombe regime. Rather, the Crown submits the court's ruling, by making reference to R. v. O'Connor, [1995] 4 S.C.R. 411, supports the Crown's position that requests for items relating to the proper functioning or operation of the approved instrument are third party records. Further, the Crown submits the Supreme Court's decision has not suddenly made the requested disclosure items relevant and necessary. The applicable section of the Criminal Code has been in force since July of 2008. The ability to attack how the AI functioned or was operated has always been an avenue for the defence to pursue within the course of a trial.

Further, the Crown disagrees with the defence claim that the Supreme Court's ruling in St-Onge Lamoureux stands for the proposition 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. Rather, the Crown argues, at paragraph 78 of the ruling the court states "the accused can request any relevant evidence that is reasonably available in order to be able to present a real defence". The Crown contends that the items requested that fall within that statement made by the Supreme Court has been or will be disclosed.

[14] The Crown's response also addressed the disclosure request separately as it relates to the ASD and the AI.

With respect to the approved screening device

[15] The Crown submits the use of an ASD is for the purpose of forming reasonable and probable grounds in making a demand for breath samples with an AI. The Crown submits the only issue pertinent with the use and subsequent results of this device is the subjective belief of the officer in relation to reasonable and probable grounds to make a demand for samples into the AI. Relying on case authority, the Crown submits that certain items requested by defence counsel constitute third party records and the Applicants have not met the "likely relevant" test. In the alternative the Crown submits even if they were classified as first party records the items are clearly irrelevant.

With respect to the approved instruments

[16] The Crown indicates that many of the items requested have been provided by way of routine disclosure. The Crown is prepared to provide further items of disclosure with the caveat that they are not agreeing that the materials are in any way relevant to the functioning of the AI during the breath testing sequence of the applicant on the alleged offence to disclosure of those items should not be construed as a concession of relevance by the Crown.

[17] The Crown is prepared to provide, among other things, maintenance records and logs of the Intoxilyzer 5000 C and 8000 C from the date of the last annual inspection up to and including the time of the individual subject's breath tests. To the extent the defence seek historic records beyond this period of time, up to 60 days subsequent to the subjects' breath tests, the Crown maintains the records lack any relevance to the issues before the court whether they be determined to be first or third party records.

[18] In one of the cases, R. v. Mullin, which forms part of these matters, the Crown is prepared to provide the calibration logs in relation to the AI, as a result of the circumstances surrounding that particular case.

[19] In response to defence counsel simply converting the Canadian Society of Forensic Scientists Alcohol Test Committee's 2003 recommendations into a form of disclosure request, Crown counsel submits that creates difficulties for a few reasons. Firstly, some of the requested items may not exist in Ontario. Additionally, these recommendations were directed to police services with the objective of encouraging the development of the quality assurance system or best practices within a breath testing system, and are not intended to be considered as required elements of proof additional to those already provided in the Criminal Code. Further the Crown submits all standards do not have a direct bearing on the result, only on the overall quality system that is in place. The requested documents, with one exception, will not further assist in determining the working status of the AI or ASD, beyond the documents already disclosed as part of the standard package of evidence provided in these types of cases. In support of its position the Crown relies on the affidavit of Dr. Robert Langille, a toxicologist employed with the Centre of Forensic Sciences and a current member of the Canadian Society of Forensic Scientists Alcohol Test Committee.

[20] The Crown submits the defence must establish a basis that could enable the court to conclude that there is in existence further material that is potentially relevant and the existence of the disputed material must be sufficiently identified, not only to reveal its nature, but also to promote the presiding judge to conclude that it may meet that test required for prosecutorial disclosure. In support of its position the Crown relies on the case of R. v. Chaplin, 96 CCC (3d) 225 (S.C.C.).

[21] With respect to defence counsels request for additional material as it relates to the qualified breath technicians involved in each case, the Crown maintains that it has provided all notes and reports made by the qualified breath technicians. The Crown submits that some items sought are not a disclosure request at all, but more like a request for further investigation. It is the Crown's position that the defence during cross examination can properly explore issues with the qualified breath technician and can examine not only the circumstances surrounding the use and operation of the instrument, but also the absence of any details in the officer's notes. The Crown submits, based on the principles outlined in R. v. Darwish 2010 ONCA 124, [2010] O.J. No. 604 (O.C.A.), paragraph 39, to properly perform the functions of the prosecution, the prosecution must decide on the nature and scope of the investigation. In other words, the accused is entitled to the product of the investigation, but is not entitled to dictate the nature or scope of the investigation.

The Crown submits the items that have not been disclosed to the defence fall under the category of third-party records. The Crown relies on several cases included within its case brief to support its position. Therefore, the Crown submits, the defence has the onus of showing the items are likely relevant. The Crown's position is they have failed to do so. In the alternative, the Crown submits should this court rule that the items fall within the first party regime, the materials are clearly irrelevant. The Crown not only relies on the case law provided but again relies on Dr. Langille's affidavit and the exhibits attached to his affidavit, which includes the Canadian Society of Forensic Scientists Alcohol Test Committee Alcohol Test Committee's 2012 position paper.

[22] The Crown asks this court to dismiss the applications as there is a lack of any evidentiary foundation for the requested items not already disclosed. The Crown submits there is no nexus between the requested items and the individual cases before the court and the requests amount to no more than a fishing expedition. The Crown argues the defence must show an evidentiary foundation that the requested items bear relevance to what actually occurred in the applicant's breath testing sequence to have made the AI function improperly or that an operator error was committed. In the absence of this evidentiary basis the Crown submits the court is left with mere speculation on the part of the defence. Simply asserting that the items may disclose prior malfunctions or improper operation of the instrument is not itself sufficient to establish an item is likely relevant. The accused must be able to point to case specific evidence or information to show that the item in issue is likely relevant to an issue at trial or the competence of the witness to testify. The Crown relies on my ruling in R. v. Lalic [2010] O.J. No. 5140 (C.J.) to support that position. (Note: defense counsel was aware of my ruling in Lalic before agreeing to have these matters argued before me)

The Law

Disclosure Generally

[23] In St‑Onge Lamoureux, the Supreme Court dealt with the issues surrounding malfunctioning or improperly operated instruments in the context of the issue of evidence to the contrary. The requirements that had to be met by the accused in order to rebut the presumptions in s. 258 (1) (c) were altered by the Supreme Court's decision. The second and third requirements in s. 258(1) (c) were struck down as unconstitutional. The balance of the Criminal Code amendments was upheld. As a result the only evidence that can be tendered to raise a reasonable doubt about the reliability of Breathalyzer test results is now evidence that the instrument was malfunctioning or was operated improperly. The accused must now show evidence that tends to establish that the reliability of the breath test results is in doubt due to malfunction or improper operation of the instrument. If this is done a reasonable doubt arises as to the accused's guilt because the Crown can no longer rely upon the accuracy of the test results.

[24] In Stinchcombe the Supreme Court held the prosecutor has a duty to disclose to the accused all information within its possession or control ("fruits of the investigation"), save that which is clearly irrelevant or privileged. Stinchcombe made clear that relevant information in the first party production context includes not only information related to those matters the Crown intends to adduce in evidence against the accused, but also any information in respect of which there is a reasonable possibility that it may assist the accused in the exercise of the right to make full answer and defence (pp. 343-44).

[25] The Crown's obligation to disclose all relevant information in its possession to an accused is well established at common law and is now constitutionally entrenched in the right to full answer and defence under s. 7 of the Charter. The duty is triggered upon request and does not require an application to the court: see paragraphs 14 and 17 of R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66.

[26] The necessary corollary to the Crown's disclosure duty under Stinchcombe is the obligation of police (or other investigating state authority) to disclose to the Crown all material pertaining to its investigation of the accused. For the purposes of fulfilling this corollary obligation, the investigating police force, although distinct and independent from the Crown at law, is not a third party. Rather, it acts on the same first party footing as the Crown: See McNeil, paragraph 14.

[27] In R. v. O'Connor, [1995] 4 S.C.R. 411, at paragraph 194, McLachlin J., as she then was, stated:

Perfect justice in the eyes of the accused might suggest that an accused person should be shown every scintilla of information which might possibly be useful to his defence. From the accused's perspective, the catalogue would include not only information touching on the events at issue, but anything that might conceivably be used in cross-examination to discredit or shake a Crown witness. When other perspectives are considered, however, the picture changes. The need for a system of justice which is workable, affordable and expeditious; the danger of diverting the jury from the true issues; and the privacy interests of those who find themselves caught up in the justice system - all these point to a more realistic standard of disclosure consistent with fundamental fairness. That, and nothing more, is what the law requires.

[28] In R. v. Basi, 2009 SCC 52, [2009] 3 S.C.R. 389 at paragraph one, speaking for the court, Fish J. observed:

Everyone charged with a criminal offence in Canada is constitutionally entitled to full and timely disclosure of all relevant material under the control of the Crown. To withhold that material without justification is to jeopardize impermissibly the right of the accused to make full answer and defence. The entitlement to disclosure must therefore be broadly construed. But it is neither absolute nor unlimited.

[29] Referring again to McNeil, at paragraph 18, Charron J. noted:

While the Stinchcombe automatic disclosure obligation is not absolute, it admits of few exceptions. Unless the information is clearly irrelevant, privileged, or its disclosure is otherwise governed by law, the Crown must disclose to the accused all material in its possession . . .

First or Third Party Records – Why Does It Matter?

If First Party Records

[30] If the applications are characterized as Stinchcombe applications, then the obligations of the Crown are mandated by that decision and the Crown is under a general duty to disclose all information, whether inculpatory or exculpatory, except evidence that is beyond the control of the prosecution, clearly irrelevant, or privileged: see Stinchcombe and R. v. Egger, [1993] 2 S.C.R. 451. The so called "fruits of the investigation" are considered first party records. Any items in the possession of the prosecuting Crown pertaining to the accused are considered first party records: see Stinchcombe and McNeil. The investigating authority is under an obligation to disclose to the prosecuting authority all material pertaining to its investigation of the accused. For the purposes of fulfilling this corollary obligation, an investigating police force is not a third party, but acts on the same footing as the prosecuting authority: See R. v. Black, 2011 ABCA 349, [2011] A.J. No. 1291 (Alta. C.A.). Further, while the Crown has discretion to exclude from disclosure that which is clearly irrelevant, it also has a duty to err on the side of inclusion. Any information that "may be useful to the defence" is considered to be relevant in this context: See O'Connor at paragraph 22.

[31] Under first party disclosure, the obligation rests with the Crown to justify any non-disclosure of material in its possession on the assumptions that material in the possession of the prosecuting authority is relevant to the accused's case and that such material will likely comprise the case against the accused. If the Crown attempts to justify non-disclosure of material in its possession, it must show that the material is beyond its control, clearly irrelevant or privileged.

If I decide that the items requested are first party records then the defence application for disclosure in response to the Crown's resistance to disclose becomes a review by the court of the Crown's performance of its obligation. In that case the test to be employed is whether there is the "reasonable possibility that the withholding would impair the accused's right to make full answer and defence" as enunciated by Sopinka J. at pp. 340 and 341 of Stinchcombe:

The trial judge on a review should be guided by the general principle that information ought not to be withheld if there is a reasonable possibility that the withholding of information will impair the right of the accused to make full answer and defence, unless the non-disclosure is justified by the law of privilege. The trial judge might also, in certain circumstances, conclude that the recognition of an existing privilege does not constitute a reasonable limit on the constitutional right to make full answer and defence and thus require disclosure in spite of the law of privilege. The trial judge may also review the decision of the Crown to withhold or delay production of information by reason of concern for the security or safety of witnesses or persons who have supplied information to the investigation. In such circumstances, while much leeway must be accorded to the exercise of the discretion of the counsel for the Crown with respect to the manner and timing of the disclosure, the absolute withholding of information which is relevant to the defence can only be justified on the basis of the existence of a legal privilege which excludes the information from disclosure.

The trial judge may also review the Crown's exercise of discretion as to relevance and interference with the investigation to ensure that the right to make full answer and defence is not violated. I am confident that disputes over disclosure will arise infrequently when it is made clear that counsel for the Crown is under a general duty to disclose all relevant information. The tradition of Crown counsel in this country in carrying out their role as "ministers of justice" and not as adversaries has generally been very high. Given this fact, and the obligation on defence counsel as officers of the court to act responsibly, these matters will usually be resolved without the intervention of the trial judge. When they do arise, the trial judge must resolve them. This may require not only submissions but the inspection of statements and other documents and indeed, in some cases, viva voce evidence. A voir dire will frequently be the appropriate procedure in which to deal with these matters.

[32] In R. v. Egger, [1993] 2 S.C.R. 451 at 467 the Supreme Court tied relevance to usefulness to the defence:

One measure of the relevance of information in the Crown's hands is its usefulness to the defence: if it is of some use, it is relevant and should be disclosed -- Stinchcombe, supra, at p. 345. This requires a determination by the reviewing judge that production of the information can reasonably be used by the accused either in meeting the case for the Crown, advancing a defence or otherwise in making a decision which may affect the conduct of the defence such as, for example, whether to call evidence.

[33] A similar statement was made by the Supreme Court in Chaplin. At paragraph 30, citing Stinchcombe, Sopinka J., stated:

. . . Relevance is determined in relation to its use by the defence (at p. 340): ... " The trial judge on a review should be guided by the principle that information ought not to be withheld if there is a reasonable possibility that the withholding of information will impair the right of the accused to make full answer and defence unless the non-disclosure is justified by the law of privilege.

If Third Party Records

[34] Criminal investigations that do not fall within the scope of first party disclosure are governed by the O'Connor regime for third party production. In that case, there is a procedure the accused would be required to follow. Where privilege is not in question, the judge determines whether production should be compelled in accordance with the two-stage test established in O'Connor. At the first stage, if satisfied that the record is likely relevant to the proceeding against the accused, the judge may order production of the record for the court's inspection. At the next stage, with the records in hand, the judge determines whether, and to what extent, production should be ordered to the accused: See paragraphs 26 and 27 of McNeil.

[35] Therefore, the determination by me of whether the items sought by the Applicants are first or third party records will determine who has the onus and what test is to be applied in determining whether that onus has been met. In my view, it is the first thing I need to resolve.

Analysis

[36] In its Application Record defence counsel relies on paragraph 48 in St-Onge Lamoureux in support of his position that the items requested are first party records. It reads:

The prosecution gains a clear, albeit limited, advantage from the requirement, since evidence to the contrary is limited to the real issue: whether the test results are reliable. The evidence to be tendered relates directly to an instrument that is under the prosecution's control. The prosecution must of course disclose certain information concerning the maintenance and operation of the instrument, but it is free to establish procedures for tracking how such instruments are maintained and operated. Moreover, the prosecution has control over the people who maintain and operate the instruments.

[Emphasis added.]

[37] Paragraph 78 is also referred to in the Application Record. It reads:

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 in order to be able to present a real defence. If the prosecution denies such a request, the accused can invoke the rules on non-disclosure and the available remedies for non-disclosure (see R. v. O'Connor, [1995] 4 SCR 411). In short, the accused might rely, for example, on a maintenance log that shows that the instrument was not maintained properly or on admissions by the technician that there had been erratic results, or he or she might argue that health problems had affected the functioning of the instrument (see R. v. Kasim, 2011 ABCA 336, 515 A.R. 254).

[Emphasis added.]

[38] It is my view the Supreme Court's ruling does not answer the question as to whether the items sought by defence counsel on these applications are first or third party records. As indicated in the court's ruling the issue of disclosure was not before the court and other than making some comments regarding the issue of disclosure, which are of importance, they cannot be seen to have answered that question. At paragraph 41 and 42 Deschamps J. states:

[41] It should also be mentioned that the new provisions do not make it impossible to disprove the test results. Rather, Parliament has recognized that the results will be reliable only if the instruments are operated and maintained properly, and that there might be deficiencies in the maintenance of the instruments or in the test process. What the new provisions require is that evidence tending to cast doubt on the reliability of the results relate directly to such deficiencies.

[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. I will merely note that, in light of the evidence accepted by the trial judge, there are several pieces of evidence that can be provided to a person who is charged under s. 253(1) (b) Cr. C., including the breathalyzer readings, the qualified technician's certificate and the analyst's certificate concerning the sample of the alcohol standard.

[Emphasis added.]

[39] As seen, Deschamps J. does mention several pieces of evidence that can be provided to a person charged under s. 253 (1) (b). These are items already provided in the cases before me and are items the Crown routinely has in its possession and therefore is provided in disclosure to defence counsel.

[40] In paragraph 48 of the decision, stated above, Deschamps J. does state the prosecution must disclose certain information concerning the maintenance and operation of the instrument. But one cannot stop there. Further in her judgment at paragraph 78, as set out above she indicates "the accused can request the disclosure of any relevant evidence that is reasonably available in order to be able to present a real defence" and if the prosecution denies such a request the accused can look to the rules on non-disclosure and the available remedies for non-disclosure set out in O'Connor. She goes on to say the accused might rely on "a maintenance log that shows that the instrument was not maintained properly or on admissions by the technician that there had been erratic results".

[41] Madam Justice Deschamps is silent as to whether she views such disclosure as being first or third party records. The Crown submits her reference to O'Connor implies she is suggesting that such evidence would fall under the third party regime. I cannot agree with that submission. In O'Connor both the Stinchcombe and third party rules on non-disclosure and available remedies were discussed. It is not clear to me which regime Deschamps J. was indicating by making that reference to O'Connor. It is even possible she is referring to both.

[42] Therefore without any clear definitive statement on this issue from the Supreme Court and with no appellate authority in this province before me on this issue, the question remains open for me to decide whether or not the items requested are first or third party records.

[43] None of the previous seminal cases from the Supreme Court pertaining to disclosure issues have been overruled by the St-Onge Lamoureux decision. The principles enunciated above from cases such as Stinchcombe, O'Connor, Egger, Basi, McNeil and Chaplin are still applicable.

[44] There are two assumptions that are implicit in the Crown's broad duty to disclose the contents of its file under Stinchcombe. First is that the material in possession of the prosecuting Crown is relevant to the accused's case. Otherwise, the Crown would not have obtained possession of it. The second assumption is that this material will likely comprise the case against the accused. These two assumptions explain why the onus is on the Crown to justify the non-disclosure of any material in its possession. See O'Connor at paragraph 12 and McNeil at paragraph 20.

[45] The Stinchcombe regime of disclosure extends only to material in the possession or control of the prosecuting Crown authority, commonly referred to as the "fruits of the investigation". At paragraph 22 of McNeil, Charron J. stated in part:

The law cannot impose an obligation on the Crown to disclose material which it does not have or cannot obtain: R. v. Stinchcombe, [1995] 1 S.C.R. 754.

[46] In Canada, the general duty to investigate crime falls on the police, not the Crown. Therefore the fruits of the investigation against an accused person will generally have been gathered and charges laid, if any, by the investigating police force. The roles of the Crown and the police are separate and distinct. That being said, the police have a duty to participate in prosecutions. The police have a legislated duty under the Ontario Police Services Act to participate in the disclosure process. Police investigators have a corollary duty to disclose to the Crown all relevant material in their possession: See McNeil, paragraph 23. The Court in McNeil, at paragraph 25, maintained the separation between the prosecuting Crown and the police when it went onto to state that although in this narrow sense, the police and the Crown may be viewed as one entity for disclosure purposes they are unquestionably separate and independent entities, both in fact and in law.

[47] Again from McNeil, paragraph 22, in part:

The notion that all state authorities amount to a single "Crown" entity for the purposes of disclosure and production must be quickly rejected. It finds no support in law and, given our multi‑tiered system of governance and the realities of Canada's geography, is unworkable in practice. As aptly explained in R. v. Gingras, 120 A.R. 300 (C.A.), at para. 14:

If that line of reasoning were correct, then in order to meet the tests in Stinchcombe, some months before trial every Crown prosecutor would have to inquire of every department of the Provincial Government and every department of the Federal Government. He would have to ask each whether they had in their possession any records touching each prosecution upcoming. It would be impossible to carry out 1% of that task. It would take many years to bring every case to trial if that were required.

[48] Accordingly, the Stinchcombe disclosure regime only extends to material relating to the accused's case in the possession or control of the prosecuting Crown entity, the fruits of the investigation.

[49] In Black, at paragraph 31, Ritter J.A., speaking for the majority, stated with reference to McNeil:

The second important statement of law is that although the disclosure obligation rests with the prosecuting authority, the investigating authority is under an obligation to disclose to the prosecuting authority all material pertaining to its investigation of the accused. For the purposes of fulfilling this corollary obligation, an investigating police force is not a third party, but acts on the same footing as the prosecuting authority. However, this corollary duty only extends to the fruits of the investigation, being the investigation of the accused, and does not include other materials or files in the possession of the police; for example, criminal files relating to a victim or witness. If the accused wants access to those files he or she must make an O'Connor application.

[50] In the case of R. v. Keirsted, 2004 ABQB 491, Clackson J. sitting as an appellate court judge stated:

[10] The test records could be considered to be related to the investigation of the Respondent because they relate to the very machine that the authorities rely upon to establish that the Respondent had excessive blood alcohol. However, that is too broad an interpretation of the test. In my view evidence and records can be considered to be related if they are obtained or created as a result of the specific investigation or the specific prosecution of the accused. In my view that would encompass all that the authorities actively sought or that came to be created or possessed by them in conjunction with or in furtherance of the investigation or prosecution. It is not the type of record or its potential value that is determinative. It is the purpose for which it was made or obtained and the circumstances in which it was made or obtained that will determine whether the record can be said to be sufficiently related to be producible pursuant to Stinchcombe.

[11] In this case applying the test as I have formulated it, the previous tests performed by this machine are not sufficiently related to the investigation or prosecution. Therefore, the test records can only be compelled by application of the procedure outlined by the Supreme Court of Canada in O'Connor. Since that process was not followed by Judge Kerby, the order for disclosure of the test records must be quashed.

[Emphasis added.]

[51] In the Keirsted case the defence was seeking the production of the records of all tests performed on a specific Intoxilyzer in the 30 days prior to its use in testing the accused's breath. The trial judge had ordered the records to be disclosed. As a result of the trial judge not following the O'Connor regime the appellate court overruled the trial judge and the order compelling production of the test records was quashed.

[52] Given the principles enunciated in the above paragraphs it is my view that the sought after material in the cases before me, that have not already been provided, are the fruit of another investigation or, at a minimum, are not items involved in the investigation of the Applicants. They are items not in the possession or control of the prosecuting Crown. There is an insufficient evidentiary link between the requested items and the proceedings against the accused for the police and Crown to be considered indivisible, and thus no basis to order disclosure of the records sought pursuant to the Stinchcombe procedure. They are items in the possession of a third party as they are not items related to the applicant's case. They are properly classified as third party records.

[53] Having decided that the outstanding items are third party records, the onus to be met is on the accused. They must satisfy the court that the items sought are likely relevant.

[54] The first step in the test requires the accused to satisfy the court that the items requested, and not yet provided, are likely relevant to the proceedings. It is important to understand the concept of "likely relevance" in the context of a production application. It is also important for the effective administration of justice that criminal trials remain focussed on the issues to be tried and that scarce judicial resources not be squandered in "fishing expeditions" for irrelevant evidence. The likely relevance threshold reflects this gate-keeper function: see paragraph 28 of McNeil.

[55] At paragraph 29 of McNeil, Charron J. stated:

It is important to repeat here, as this Court emphasized in O'Connor, that while the likely relevance threshold is "a significant burden, it should not be interpreted as an onerous burden upon the accused" (para. 24). On the one hand, the likely relevance threshold is "significant" because the court must play a meaningful role in screening applications "to prevent the defence from engaging in 'speculative, fanciful, disruptive, unmeritorious, obstructive and time-consuming' requests for production" (O'Connor, at para. 24, quoting from R. v. Chaplin, [1995] 1 S.C.R. 727, at para. 32). The importance of preventing unnecessary applications for production from consuming scarce judicial resources cannot be overstated; however, the undue protraction of criminal proceedings remains a pressing concern, more than a decade after O'Connor. On the other hand, the relevance threshold should not, and indeed cannot, be an onerous test to meet because accused persons cannot be required, as a condition to accessing information that may assist in making full answer and defence, "to demonstrate the specific use to which they might put information which they have not even seen" (O'Connor, at para. 25, quoting from R. v. Durette, [1994] 1 S.C.R. 469, at p. 499).

[Emphasis added.]

[56] The general common law threshold of likely relevance under O'Connor is intended to screen applications to ensure the proper use of state authority in compelling production of third party records and to establish the appropriateness of the application so as to avoid squandering scarce judicial resources: See McNeil, paragraph 31.

[57] In R. v. Gager, 2012 ONSC 388, [2012] O.J. No. 259 (S.C.J.) Clark J. stated at paragraph 127:

The threshold for disclosure is a low one and the scope of what will be considered to be relevant is broad. As Charron J. stated, at paragraph 33 of McNeil:

"Likely relevant" under the common law O'Connor regime means that there is "a reasonable possibility that the information is logically probative to an issue at trial or the competence of a witness to testify" (O'Connor, at para. 22 (emphasis deleted)). An "issue at trial" here includes not only material issues concerning the unfolding of the events which form the subject matter of the proceedings, but also "evidence relating to the credibility of witnesses and to the reliability of other evidence in the case" (O'Connor, at para. 22).

[Emphasis added.]

[58] As the authorities also make clear, however, the right to disclosure, while fundamental, is not without limit. It does not extend to any and all information in the possession of the police, but, rather, must bear some touchstone to the prosecution at hand.

And further at paragraph 132 of Gager, Clark J. stated:

While the likely relevance threshold is not meant to be onerous, particularly in view of an accused being in the unenviable position of having to argue the issue in a vacuum, in R. v. Thompson, [2009] O.J. No. 1109 (C.A.), at paragraph 15 speaking for the court, Goudge J.A., citing O'Connor at paragraph 19, stated "[t]his passage clearly cannot be taken to mean that the accused can always satisfy the likely relevance requirement by means of the oral submissions of counsel."

[59] The Applications before me are based on submissions only (written and oral). No evidence has been led; no exhibits have been tendered in support of the Applicants. The Crown was prepared to call evidence but that became unnecessary as a result of the position taken by defence counsel. The Crown is also prepared to call and has asked the court for the opportunity to call a toxicologist, if I were to rule that the items sought were first party records. In its Response to the Application, the Crown has included an affidavit of Dr. Langille (mentioned earlier), with exhibits attached to the affidavit. Defence counsel has not asked for the opportunity to cross examine Dr. Langille.

[60] The items sought by the Applicants, that have not been provided to date, including the maintenance logs and /or records for the instrument used up to 60 days beyond the subjects' breath test, do not relate to the police investigation or the taking of analyses of the breath samples in their specific cases. The Applicants have failed to point to specific evidence or information about the instrument itself at the time of the test on the accused that point to a possibility that the instrument was malfunctioning or being operated properly. The hope presumably is that something might be found in the items sought which would bear on the functioning or reliability of the instrument used. No basis has been established for a belief that such evidence may be found. The defence simply relies on s. 650 (3) of the Criminal Code and 11 (d) of the Charter, as well as the ruling in St-Onge Lamoureux and the other cases provided, that these items should be disclosed.

[61] Likely relevance must be established and the fact that some occurrences are proximate in time does not, alone, make those occurrences likely relevant. There is nothing before me to suggest that there was anything out of the ordinary in the testing of the Applicants. Without further particulars, I have no evidentiary basis upon which to conclude that the items requested, and not already provided, are likely relevant or that their production is necessary in the interests of justice and should therefore be provided to the court for review and possibly for disclosure to the Applicants. The applications must fail.

[62] The Supreme Courts' statements made regarding "usefulness to the defence" in Egger and Chaplin were made regarding items considered to be first party records as described in Stinchcombe, not in regards to third party records. That is not part of the test for third party records.

[63] Crown counsel has provided a chart, marked as exhibit A, wherein they provide a response to each item requested by the Applicants. Several of the items requested do not exist according to Crown counsel. Some of the items are not in the possession of the investigating police force. Several items the Crown concedes are first party records and they have already been disclosed. The Crown has also indicated they are willing to provide the Intoxilyzer Training Aid Manual that was used for the qualified breath technicians' last qualification prior to the subject breath tests. They are also willing to disclose all maintenance logs from the AI's last annual inspection up to the subjects' breath tests. Further, they are willing to provide the logs of all annual inspections from the last periodic/annual inspection up to the subjects' breath tests.

With Respect to ASDs

[64] The offence under s. 253 (1) (b) requires the Crown to prove that an investigating police officer had reasonable and probable grounds to conclude that a person was driving while impaired by alcohol. The assessment of the reasonable and probable grounds involves both a subjective and an objective element. The officer must personally believe the person drove while impaired, and his grounds for arriving at this conclusion must be such that an objective observer would reach the same conclusion: See R v Bernshaw, [1995] 1 SCR 254 at paragraph 48. The accuracy of the officer's beliefs does not affect their reasonableness. Even if the belief is drawn from "hearsay" (such as a pattern of driving witnessed by someone else and described to the investigating officer by that person) or assumptions that are incorrect based on facts that emerge later, it may still be objectively reasonable, as what is measured are the facts as understood by the peace officer when the belief was formed. Evidence that arises after the formation of the officer's belief is not relevant to the determination of whether that belief was based on reasonable and probable grounds. Objective reasonableness of the grounds is determined by the court asking whether the facts as the investigating officer saw them could objectively constitute reasonable grounds.

[65] The ASD's role in establishing an over .08 offence is that it provides officers with another means to gain the reasonable and probable grounds necessary to demand a Breathalyzer test. A fail result on a properly conducted ASD test constitutes reasonable and probable grounds to demand a Breathalyzer test. There is no requirement that the ASD be proven to be working properly. So long as the ASD has been approved under the statutory scheme, the officer can reasonably and honestly rely on its accuracy unless there is evidence that the officer knew or believed that it was not working properly: See Bernshaw at paragraph 80. Knowledge of future test results or maintenance logs/records cannot possibly form part of either the subjective element or the objective element of the review of the officer's grounds for the demand. The objective review is limited to the facts as the officer perceived them to be at the time. Facts that have not yet occurred cannot be part of that perception. Police officers are not expected to be able to guess what future testing might reveal. Moreover, future testing would not reveal anything about whether the ASD operated as it should at the time it was used in this investigation. These subsequent tests would do nothing to reveal how the ASD was operating on the day of the offence: See Black at paragraph 45.

[66] There is no direct charge that follows a fail result on an ASD test. Therefore the items sought are also irrelevant to any issue flowing from the Breathalyzer test. What is relevant to charges of driving over .08 is the operation of the Breathalyzer machine and not the ASD. Again, see Black at paragraph 52.

[67] The only exception to this analysis would be cases where the investigating officer also played a role in calibrating the ASD at issue. In those cases, problems with the calibration process would be part of the officer's subjective knowledge and might impact on the reasonableness of his grounds for demanding a breath sample for analysis by a Breathalyzer: See Black, paragraph 50.

[68] There has been no suggestion at this point that the ASD or the approved instrument were in any way malfunctioning or that the technician operated the equipment improperly or was not properly designated as a qualified technician. The Applicants are unable to demonstrate likely relevance with respect to the items sought relating to the use of the ASD's used in each. Simply put, the items that have not been disclosed are not likely relevant to the charges the Applicants face.

Further Analysis

[69] I again reproduce paragraph 13 from McNeil:

[13] … 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. As I will explain, however, this does not relieve the prosecuting Crown from its obligation to make reasonable inquiries of other Crown entities and other third parties, in appropriate cases, with respect to records and information in their possession that may be relevant to the case being prosecuted. The Crown and the defence in a criminal proceeding are not adverse in interest for the purpose of discovering relevant information that may be of benefit to an accused.

[Emphasis added.]

[70] Looking further on in the McNeil decision, I believe the following paragraphs are instructive and ultimately of great assistance to me in in determining the ultimate conclusion and direction made on these applications. Beginning with the subtitle that appeared before paragraph 47:

Bridging the Gap Between First Party Disclosure and Third Party Production

[47] . . . While the accused will receive automatic disclosure of relevant material that finds its way into the hands of the prosecuting Crown, accessing relevant material in the hands of third parties will often be more happenstance. To a certain extent, that is inevitable. Third parties are under no obligation to come forth with relevant information to assist the accused in his defence. However, the prosecuting Crown and the investigating police force are in a different position and can assist in bridging the gap between first party disclosure and third party production. I will deal firstly with the Crown.

Crown Counsel's Duty to Inquire

[48] As stated earlier, the suggestion that all state authorities constitute a single entity is untenable and unworkable. In order to fulfill its Stinchcombe disclosure obligation, the prosecuting Crown does not have to inquire of every department of the provincial government, every department of the federal government and every police force whether they are in possession of material relevant to the accused's case. However, this does not mean that, regardless of the circumstances, the Crown is simply a passive recipient of relevant information with no obligation of its own to seek out and obtain relevant material.

[71] And then paragraph 50 to 52:

[50] The same duty to inquire applies when the Crown is informed of potentially relevant evidence pertaining to the credibility or reliability of the witnesses in a case. As the amicus curiae rightly states, "[t]he Crown and the defence are not adverse in interest in discovering the existence of an unreliable or unethical police officer" (factum, at para. 62). . .

[51] Hence, by properly fulfilling its dual role as an advocate and officer of the court, Crown counsel can effectively bridge much of the gap between first party disclosure and third party production. I now turn to the police corollary duty to participate in the disclosure process.

The Police's Corollary Duty to Disclose Relevant Information

[52] We have already seen that the police have a corollary duty to disclose to the prosecuting Crown all material pertaining to the investigation of an accused. This disclosure obligation accords with police codes of conduct enacted in many jurisdictions across the country. For example, under s. 2(1)(c)(vi) of the Code of Conduct found in O. Reg. 123/98, Sch., enacted pursuant to the Ontario Police Services Act, a police chief or other police officer commits neglect of duty if he or she "fails to report anything that he or she knows concerning a criminal or other charge, or fails to disclose any evidence that he or she, or any person within his or her knowledge, can give for or against any prisoner or defendant". See also Code of Professional Conduct Regulation, B.C. Reg. 205/98, s. 5 (e); Police Service Regulation, Alta. Reg. 356/90, s. 5(2) (h)(vii); Code of ethics of Québec police officers, (1990) 122 G.O. II, 1760, s. 7(2); and Code of Professional Conduct Regulation — Police Act, N.B. Reg. 2007‑81, s. 36(1) (d)(iii).

[72] The court in McNeil was dealing with determining whether the disclosure request for the production of the arresting officer's police disciplinary records and criminal investigation files ought to be considered pursuant to the Stincombe regime or the O'Connor regime. In other words were they first or third party records. While the issue before me is not the same, I believe there is something useful to be gleaned from the principles enunciated from the paragraphs I have reproduced immediately before this paragraph. The court in McNeil went on to consider the recommendations that had been made in the 'Ferguson Report'. The terms of reference for that commission conducted by the Honourable George Ferguson, Q.C. and reported upon in January, 2003, included a mandate to review "when, in what manner and under what circumstances does the Police Service have an obligation to bring to the attention of the Crown, alleged or proven acts of misconduct of a police officer who will be a witness or was otherwise involved in an investigation that has led to a criminal proceeding" (p. 1): See McNeil, paragraph 55.

[73] At paragraph 57 of McNeil it is stated:

The Ferguson Report concluded that leaving the entire question of access to police disciplinary records to be determined under the O'Connor regime for third party production "is neither efficient nor justified" (p. 15). In order to assist in bridging the gap between first party disclosure and third party production, the Ferguson Report made a number of recommendations, including the automatic disclosure by the police upon request by the Crown of the following information regarding acts of misconduct by a member of the Toronto Police Service who may be a witness or who was otherwise involved in a case before the court (at p. 17): . . .

[74] After setting out what those recommendations were the court went on to agree with the recommendations and stated, in part, at paragraph 59:

I agree that it is "neither efficient nor justified" to leave the entire question of access to police misconduct records to be determined in the context of the O'Connor regime for third party production. Indeed, as discussed earlier, the disclosure of relevant material, whether it be for or against an accused, is part of the police corollary duty to participate in the disclosure process. Where the information is obviously relevant to the accused's case, it should form part of the first party disclosure package to the Crown without prompting . . . .

[Emphasis added.]

[75] Then at paragraph 60:

With respect to records concerning police disciplinary matters that do not fall within the scope of first party disclosure obligations, procedures such as those recommended in the Ferguson Report, tailored to suit the particular needs of the community in which they are implemented, can go a long way towards ensuring a more efficient streamlining of O'Connor applications for third party production. Trial courts seized with motions for disclosure under Stinchcombe or applications for third party production are well placed to make appropriate orders to foster the necessary cooperation between police, the Crown and defence counsel.

[Emphasis added.]

[76] Watt J. as he then was gives some instructive principles in the case of R. v. Bottineau, 32 CR (6th) 70 (Ont. Sup. Crt.), from paragraph 44 to 46:

[44] Two brief passages will illustrate the nature of the relationship between the Crown and police in the disclosure context.

[45] In R. v. T. (LA.), 84 C.C.C. (3d) 90 (Ont. C.A.), 94, Lacourciere J.A. described the relationship and disclosure obligations in these terms:

The leading authority in this area is R. v. Stinchcombe, 68 C.C.C. (3d) 1, [1991] 3 S.C.R. 326, 9 C.R. (4th) 277 (S.C.C.). There is a duty on the Crown to make full disclosure and, accordingly, the Crown has a duty to obtain from the police — and the police have a corresponding duty to provide for the Crown — all relevant information and material concerning the case. In R. v. V. (W.J.), 72 C.C.C. (3d) 97 at p. 109, 14 C.R. (4th) 311, 10 C.R.R. (2d) 360 (Nfld. C.A.), Goodridge C.J.N. states:

The duty rests upon Crown counsel to obtain from the police all material that should be properly disclosed to defence counsel. It is not for the court to direct what should pass between the police and Crown counsel but both should be aware that, if Crown counsel is unable to make proper disclosure because he or she has not obtained from the police all such material, a new trial may be ordered. It is, once again, a matter of common sense.

[46] In R. c. Gagné, 131 C.C.C. (3d) 444 (Que. C.A.), Otis JA of the Quebec Court of Appeal put it in these terms at p. 455:

The fact that it is the police, and not Crown counsel, who has the information sought does not stand in the way of the Crown's duty of disclosure. This duty of disclosure applies equally to the police and the prosecution (R. v. Antinello, 1995 ABCA 117, 97 C.C.C. (3d) 126 (Alta. Appeal C.A.)). The Crown has the duty of obtaining from the police the information which must be disclosed to the defence and the police have the corresponding duty of providing the Crown with this information (R. v. V. (W.J.), 72 C.C.C. (3d) 97 (Nfld. C.A.); R. v. T. (LA.), 84 C.C.C. (3d) 90 (Ont. C.A.)).

[Emphasis added.]

[77] And then at paragraph 54 and 55 Watt J. states:

[54] In general terms, a third party is one who is not a party to an agreement, a transaction, or a proceeding but may have some rights in it. In a criminal trial, there are two parties. Each is named in the charging document, the indictment. One is Her Majesty the Queen. The other is the person or persons charged. Crown counsel represents Her Majesty the Queen, one of the parties. The investigating police agency is not a named party.

[55] Despite the lack of any formal status as a party to the proceedings themselves, there seems little doubt that the investigating police agency and the Crown are considered one and indivisible for disclosure purposes. Crown counsel has a duty to make full disclosure to the person or persons charged, and a corresponding duty to obtain from the investigating police agency the material within their possession or control with which to make disclosure. For their part, the police have a corresponding duty to provide to Crown counsel for disclosure purposes all relevant information and material concerning the case. See R. v. T. (L.A.), above, at p. 94 per Lacourciere J A; and R. c. Gagné, above, at p. 455 per Otis JA.

[Emphasis added.]

Conclusion

[78] Despite the fact I have decided the items that have not been provided to the accused constitute third party records, and that the Applicants have not provided me sufficient evidence to conclude the items sought are likely relevant, the cases of McNeil and Bottineau when read together make it clear to me that the investigating police force is under a duty to make sure that all relevant information and material with respect to each of the accused cases have been provided to the Crown. The Crown is under a similar duty to make inquiries of the investigating police force to make sure such has been done. For example, the Crown might make inquiries as to whether any maintenance issues have been detected with the instrument or device used in each case since the last inspection date up to and including the time of taking samples from the accused. I also think it is appropriate for the Crown to, if they are asked to do so by the defence, attempt to provide the name of the person or company who performed the last inspection or maintenance of the instrument or device in the event the defence would like to contact that person or company and make inquiries of the person, which in turn may lead to the defence filing a third party record application.

[79] Similarly, the Crown should be prepared to provide to defence counsel, if they are asked to so by defence counsel, the name of the person performing the last calibration of the ASD before the subject test. That would allow the defence to know whether the officer who made the demand and conducted the roadside test was the same person or not who had last calibrated the ASD before the subject test. If it turns out to be the same person, the Crown should be prepared to attempt to have that officer provide any notes made at or near the time of the calibration, relating to that calibration.

[80] If defence counsel does not believe the Crown or the investigating police force has met its obligation in a specific case, then as stated, they are to seek the appropriate order from the court as they attempted to do in these cases. Although they have failed in this case I hope my direction and guidance in the preceding two paragraphs, will lead to the hope being met that was expressed by Sopinka J. in Stinchcombe, which I reproduce here again, in part:

I am confident that disputes over disclosure will arise infrequently when it is made clear that counsel for the Crown is under a general duty to disclose all relevant information. The tradition of Crown counsel in this country in carrying out their role as "ministers of justice" and not as adversaries has generally been very high. Given this fact, and the obligation on defence counsel as officers of the court to act responsibly, these matters will usually be resolved without the intervention of the trial judge.

[81] And further:

. . . the voluntary disclosure which has been taking place through the co-operation of Crown counsel will no doubt continue. Continuation and extension of this practice may eliminate the necessity for a decision on the issue by this Court.

[82] The prosecution's disclosure practices can vary significantly from one jurisdiction to the next and even within the same jurisdiction. The ease of disclosing this data may be relevant to Crown Counsel in the exercise of his or her discretion. The mere fact that disclosure may not be mandated by law does not preclude the prosecution from pro-actively disclosing information sought by the Applicants to further confirm the integrity of breath-testing procedures.

Dated: November 21, 2013, Windsor, ON

_____________________________________

Justice Lloyd Dean

APPENDIX 'A'

As to Approved Screening Device

a. The names and rank of each Calibration Technician;

b. The dates and times of all training course lectures, and the content of those lectures of each Calibration Technician;

c. The dates and times of all individual practical training courses and the content of those courses of each Calibration Technician;

d. The dates and times of all training or instruction and the content of that training and instruction on the field use of the device for each Calibration Technician;

e. The names and rank of each Device user;

f. The dates and times of all training course lectures, and the content of those lectures of each Device user;

g. The dates and times of all individual practical training courses and the content of those courses of each Device user;

h. The logs of all calibrations and/or calibration check procedures to establish the accuracy of the Device including any accessory equipment at the time of use;

i. The logs of any formal maintenance procedures in relation to the Device;

j. The logs of all individual inspections from the time of being placed into service and periodically thereafter assuring that the Device continues to meet the manufacturer's specifications;

k. The logs of all annual inspections identifying in each instance the person(s) who conducted the inspection and the qualifications of the person(s) who conducted the inspection;

l. The designation by the Program Director related to each inspector who performed any inspection on the Device;

m. The Program Directors protocol utilized by the inspector(s) for such maintenance to the Device or accessory equipment. Accessory equipment includes simulators, equilibrators or other equipment required for the use or calibration of the Device;

n. The logs of all additional preventative maintenance performed on the Device at the field level and the Program Directors protocol for such maintenance used by the inspector(s) for preventative maintenance;

o. All information concerning the inspector(s) training for preventative maintenance and/or periodic inspections of the Device approved by the Program Director including manuals used for the procedures necessary to determine that the Device and accessory equipment are in proper working order and continue to meet the manufacturer specifications;

p. All information related to any on-site examinations of the Device by the Program Director or a delegate of the Program Director;

q. All information concerning any modifications to the Device together with the approval of the modifications by the Alcohol Test Committee;

r. All information concerning the identity of any person performing modifications on the Device and a copy of their authorization to make such modifications by the Program Director;

s. All information as to the steps taken to return the Device to active use following any modification including any test taken to demonstrate that the Device successfully passed the equivalent of an initial inspection;

t. All maintenance logs For the Device and accessory equipment including the results of all inspections, documentation of the maintenance history including records of parts replaced and approve the modifications to hardware or software;

u. All notes and/or documentation of the Calibration Technician of his/her bi-weekly calibrations;

v. All notes and/or documentation of the Calibration Technician concerning his/her steps taken to restrict access to the calibration adjustment of the Device by anyone other than him/her;

w. The log(s) containing all results of the calibration checks maintained and made available to the users of the Device;

x. The log(s) of the Device if the Device operates with rechargeable batteries demonstrating that the Device was charged according to the manufacturer's recommendations;

y. The log(s) of the Device if the Device operates with a battery showing what battery checks, if any, were made as part of the test procedure;

z. All notes and/or documentation of the Calibration Technician concerning his/her steps taken to ensure that the Device was ready to receive a sample prior to the accused being tested;

aa. All notes and/or documentation of the Calibration Technician concerning his/her steps taken to ensure that the Device was not used until at least 15 minutes after the time when the accused consumed alcohol or advised the Technician that he/she had last consumed alcohol;

bb. All notes and/or documentation of the Calibration Technician concerning his/her steps taken to ensure that the Device was operated according to the manufacturer's recommendations.

As to the Functioning of the Approved Instrument ("the AI")

a. The names and rank of each Calibration Technician;

b. The dates and times of all training course lectures, and the content of those lectures of each Calibration Technician;

c. The dates and times of all individual practical training courses and the content of those courses of each Calibration Technician;

d. The dates and times of all training or instruction and the content of that training and instruction on the field use of the AI for each Calibration Technician;

e. The names and rank of each AI user;

f. The dates and times of all training course lectures, and the content of those lectures of each AI user;

g. The dates and times of all individual practical training courses and the content of those courses of each AI user;

h. The logs of all calibrations and/or calibration check procedures to establish the accuracy of the AI including any accessory equipment at the time of use;

i. The logs of any formal maintenance procedures in relation to the AI;

j. The logs of all individual inspections from the time of being placed into service and periodically thereafter assuring that the AI continues to meet the manufacturer's specifications;

k. The logs of all annual inspections identifying in each instance the person(s) who conducted the inspection and the qualifications of the person(s) who conducted the inspection;

l. The designation by the Program Director related to each inspector who performed any inspection on the AI;

m. The Program Directors protocol utilized by the inspector(s) for such maintenance to the AI or accessory equipment. Accessory equipment includes simulators, equilibrators or other equipment required for the use or calibration of the AI;

n. The logs of all additional preventative maintenance performed on the AI at the field level and the Program Directors protocol for such maintenance used by the inspector(s) for preventative maintenance;

o. All information concerning the inspector(s) training for preventative maintenance and/or periodic inspections of the AI approved by the Program Director including manuals used for the procedures necessary to determine that the AI and accessory equipment are in proper working order and continue to meet the manufacturer specifications;

p. All information related to any on-site examinations of the AI by the Program Director or a delegate of the Program Director;

q. All information concerning any modifications to the AI together with the approval of the modifications by the Alcohol Test Committee;

r. All information concerning the identity of any person performing modifications on the AI and a copy of their authorization to make such modifications by the Program Director;

s. All information as to the steps taken to return the AI to active use following any modification including any test taken to demonstrate that the AI successfully passed the equivalent of an initial inspection;

t. All maintenance logs For the AI and accessory equipment including the results of all inspections, documentation of the maintenance history including records of parts replaced and approve the modifications to hardware or software;

u. All notes and/or documentation of the Qualified Technician who place the AI into service to ensure that the location of the AI is adequate for effective, secure operation and has adequate ventilation; that the AI has sufficient space for the AI, the simulator/equilibrator/dry gas Alcohol Standard cylinder, the Qualified Technician, the test subject and, if required, one observer;

v. All notes and/or documentation of the Qualified Technician ensuring a proper power supply adequate for the proper operation of the AI and that the AI is surge-protected;

w. All notes and/or documentation of the Qualified Technician concerning the immediate vicinity of the AI to ensure that it is free from drafts;

As to the Use and Operation of the Approved Instrument

a. All notes and/or documentation of the Qualified Technician demonstrating that the accused had not consumed or placed alcohol, or any other substance that may interfere with the test, in his/her mouth for at least 15 minutes prior to the collection of a breath sample;

b. All notes and/or documentation of the Qualified Technician of the system blank test and its reading together with any explanation of any reading exceeding 10 mg/100 mL;

c. All notes and/or documentation of the Qualified Technician of a system calibration check and any resulting reading not within plus or minus (+/-) 10 mg/100 mL of the expected reading with an Alcohol Standard specified in the range of 100-200 mg/mL;

d. All notes and/or documentation of the Qualified Technician where an equilibrator has been used for the calibration check demonstrating that the temperature of the Alcohol Standard is within the range of 19.5° to 29.0°C and within plus or minus (+/-) 2.0°C of the ambient temperature;

e. All notes and/or documentation of the Qualified Technician demonstrating that use of a portion of a batch/lot of Alcohol Standard in the equilibrator did not exceed 7 days or 16 calibration checks, whoever would have occurred first;

f. All notes and/or documentation of the Qualified Technician demonstrating that during the calibration check the temperature of the Alcohol Standard was within the range of 33.8° to 34.2°C;

g. All notes and/or documentation of the Qualified Technician concerning whether or not the simulator was with or without a recirculating system, and, if a non-recirculating system that his/her use of a portion of a batch/lot of Alcohol Standard did not exceed 7 days or 16 calibration checks whichever would have occurred first, or, if the simulator did utilize a recirculating system that he/she did not use a portion of a batch/lot of Alcohol Standard that exceeded 15 days or a 50 calibration checks, whichever would have occurred first;

h. All readings received by the Qualified Technician for the blank and calibration checks recording to the nearest milligram without truncation;

i. All notes and/or documentation of the Qualified Technician demonstrating that at least two samples of deep lung breath were collected at least 17 minutes apart;

j. All notes and/or documentation of the Qualified Technician reporting the readings of all breath tests received prior to truncation;

k. All notes and/or documentation of the Qualified Technician of any additional breath tests and the reason(s) for taking them;

l. All notes and/or documentation of the Qualified Technician regarding breath tests that differed by more than 20 mg/100 mL;

m. A copy of any certificate of the Qualified Technician completed, served, signed or unsigned whether or not it is intended to be tendered into evidence;

n. A will say/state statement by the Qualified Technician in the event that it is anticipated that the Qualified Technician will present viva voce testimony at the accused's trial;

o. All notes and/or documentation of the Qualified Technician concerning all efforts made by him/her to ensure that no radio transmissions occurred in the Intoxilyzer room where the AI was operated at the time of testing the accused.

As to the Use and Operation of the Approved Instrument in a Remote Location or Mobile Use

a. All notes and/or documentation of the Qualified Technician concerning the capabilities of the AI that permit it to be used in mobile operations or in isolated locations not served by a conventional public power supply, including any special design features specifically available for this type of use of the AI;

b. The written confirmation from the manufacturer of the AI to the Program Director that the AI in question is designed to permit such mobile or remote use, and, any information about any special requirements of the AI for mobile or remote use;

c. All notes and/or documentation of the Police Service's documenting the Program Director's approval that the AI used by the Service meets the standards for AI's under the specific conditions and environment used in relation to taking breath tests from the accused;

d. All notes and/or documentation of the Qualified Technician concerning the AI's design features that permit it to be used in a remote location or for mobile use;

e. All notes and/or documentation of the Qualified Technician demonstrating that the AI was securely fitted to an appropriate bench or counter at the time of testing;

f. All notes and/or documentation of the Qualified Technician concerning any auxiliary power supply used to operate the AI's voltage monitor;

g. If the AI was used in a vehicle or vessel please provide all notes and/or documentation of the Qualified Technician as to how he/she established the AI on stationary, level ground or in quiet water and what steps, if any were taken to reduce vibration to a minimum;

h. All notes and/or documentation of the Qualified Technician concerning efforts to ensure that the area around the AI was free from engine fumes;

i. All notes and/or documentation of the Qualified Technician detailing the use of a wet bath simulator or dry gas alcohol standard suitable for use in mobile operations;

j. All notes and/or documentation of the Qualified Technician as to the precautions taken by he/she during transit between locations to prevent undue movement of the simulator (if applicable);

k. All notes and/or documentation of the Qualified Technician if the instrument used by the Technician was a Breathalyzer Model 900 concerning the removal of the apples from the AI; the locking of the galvanometer; and, the method used to support the cylinder;

l. All notes and/or documentation of the Qualified Technician concerning the stabilization of the AI and all efforts made to support acceptable blank and system calibration checks.