Court File and Parties

Date: November 8, 2013

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Ngai Wong

Before: Justice M. Greene

Reasons for Judgment released on: November 8, 2013

Counsel:

• H. Song for the Crown
• J. Rosenthal for Ngai Wong

Background

[1] On September 29, 2012, Mr. Wong was charged with driving while having over 80 mg of alcohol in 100 ml of blood. Mr. Rosenthal, counsel for Mr. Wong, filed a notice of application on August 9, 2013, alleging that his client's rights as guaranteed by section 7 of the Charter were violated because the Crown refused to disclose any or all manuals used by P.C. Plate to conduct his periodic inspection of the Intoxilyzer 8000C used in Mr. Wong's case. In his notice of application, Mr. Rosenthal requested the remedy of a stay of proceedings. The return date for this application was on the trial date.

[2] The motion could not proceed on the trial date because the Crown failed to file a notice of response. The Crown took the position that they were not required to respond as Mr. Rosenthal had not complied with the rules of court. The Crown noted the following deficiencies in Mr. Rosenthal's application: that Mr. Rosenthal was not allowed to ask for stay of proceedings as his remedy; that Mr. Rosenthal ought to have made an application for disclosure of the requested item; and, that such a motion had to be heard before the trial date.

[3] I rejected the Crown's position and adjourned the matter for the Crown to file a notice of response. I held that the Crown was not entitled to dictate the remedy sought by the Applicant and that it was a judicial function to determine if there was a charter breach and what the appropriate remedy should be. I further held that it is for the trial judge to decide if the rules of the court have been complied with and what the remedy ought to be for failing to comply with the rules of the court. I ultimately held that the Crown was required to file a notice of response.

[4] Mr. Rosenthal argued that the remedy for the Crown's failure to file a notice of response was to stay the proceedings. I disagreed. I held that the Crown may have made an error in judgment in actively deciding not to file a notice of response but, as I could make no finding that the decision was based on malice, negligence or an abuse of their position, a stay of proceedings was not the appropriate remedy. Instead, I adjourned the matter so that the Crown could file a notice of response.

[5] On September 13, 2013, I received a notice of response from the Crown. In the notice of response the Crown argued that there was no charter violation and that as the item sought by Mr. Wong did not exist. An affidavit from P.C. Plate was filed stating that "in conducting this inspection I did not use or rely upon any CMI or manufacturer's manuals". He further stated that "generally these manuals are not referred to during these inspections, and specifically in this case no manuals were used in order to properly complete this worksheet". Mr. Rosenthal did not seek to cross-examine P.C. Plate on his affidavit.

[6] On Friday, September 27, 2013, at 3:45pm, Ms. Song, on behalf of the Crown, sent a fax to the Court containing a number of letters including: a letter dated September 12, 2013 from Mr. Goddard to Mr. Rosenthal, a letter dated September 19, 2013 from Mr. Rosenthal to Mr. Goddard, and a letter dated September 26, 2013 from Mr. Goddard to Mr. Rosenthal.

[7] In Mr. Goddard's letter of September 12, 2013, he advised that he was aware of a "CMI manual" but that he "has been advised that the CMI manual in fact does not even have any content that addresses the carrying out of periodic inspections". He further wrote that if Mr. Rosenthal could provide a reasonable explanation as to the relevance of the manual he would disclose it as long as Mr. Rosenthal signed an undertaking designed to protect the intellectual property interests of CMI.

[8] In Mr. Rosenthal's letter of September 13, 2013, he alerted Mr. Goddard to the fact that it was his intention to expand his disclosure application to include any manual relating to the functioning and maintenance of the Intoxilyzer 8000C. In his letter, Mr. Rosenthal wrote that he assumes there are additional manuals given the nature of the responses given by Mr. Goddard on this issue to date.

[9] In Mr. Goddard's letter, dated September 26, 2013, he took the position for the first time that the material sought is a third party record that requires an O'Connor application. Mr. Goddard wrote:

…in my opinion, while this might justify an O'Connor application directed to the police service that owns the Instrument, in this case, the OPP this does not make it a matter of Crown disclosure. If providing a copy of the manual that comes with the instrument is delivered were truly a matter of providing disclosure then the Crown would be obliged to provide a new copy of the exact same document on demand, without any explanation as to relevance, for every single new case of Over 80 until the instrument is taken permanently out of service. Surely that is not how the case specific disclosure process in criminal cases should work.

[10] On October 1, 2013 counsel made brief submissions in support of their position on the disclosure issue. Mr. Rosenthal did not clearly articulate that his application had been expanded and Ms. Song did not address the third party records issue raised in Mr. Goddard's letter. I asked both counsel about this apparent discrepancy and after some discussion I took a short recess so that counsel could consider their positions. Upon returning, I heard very brief submissions on the issue of whether the materials sought were subject to the third party record regime or the disclosure regime.

[11] I advised the parties on this date that in my view, even if the material requested ought to be disclosed, the appropriate remedy, given the record before me, would be to order that the items requested be disclosed. In my view, a stay of proceedings would not be a fair and just remedy. Stays of Proceedings are to be granted only in the clearest of cases. In the case at bar the Crown responded to all of Mr. Rosenthal's letters, disclosed 11 out of the 12 items sought by Mr. Rosenthal and explained their position on disclosure to him. I have no evidence that the Crown's decision to refuse disclosure of the manual(s) in question was malicious, abusive or negligent. This is clearly a case where the Crown and defence merely take opposing views on what material is relevant.

[12] On October 8, 2013, I invited counsel to make further submissions on the issue of third party records and disclosure. After reviewing the relevant case law, I had a number of questions relating to the issue of whether the items sought were third party records and wanted to afford counsel an opportunity to address my concerns. On this same date, Mr. Rosenthal advised the Court that he had received additional information from CFS about the existence of other manuals for the Intoxilyzer 8000C that related to its functioning and maintenance. Mr. Rosenthal advised he wanted this manual as well.

[13] After counsel completed their submissions, I concluded that the evidence was unclear on what manuals exist, what the manuals contain and whether or not they address the functioning and maintenance of the Intoxilyzer 8000C. While I had not yet released my decision on whether the manuals were subject to third party records regime or disclosure, in order to avoid further delay in this matter, I ordered that the manuals in question be produced to the Court to review. In my view, given the limited record before me and the conflicting information from counsel, this was the only way to determine the utility and relevance of the manuals. I appreciate that P.C. Plate wrote in his affidavit that he did not refer to any manual for his inspection, but he failed to indicate whether in the past he had used manuals in order to learn how to effectively maintain and inspect the instrument. In the absence of this evidence, it was unclear what manuals exist and what information is included in these manuals.

[14] On October 22, 2013, Ms. Song attended Court and provided me with a letter and five different documents:

1. The periodic inspection worksheet used by P.C. Plate during his inspections – this document had already been disclosed to Mr. Rosenthal;

2. The CFS training aid for the Intoxilyzer 8000C – this item had already been disclosed to Mr. Rosenthal;

3. The Operator's Guide that is sometimes included with the machine when it is purchased;

4. The training materials given to OPP personnel, including P.C. Plate by CMI during a training course of repairing the intoxilyzer 8000C;

5. Simulator basics and maintenance inspection slide presentation that P.C. Plate received during a training session that he personally attended.

Issues

[15] The two main issues raised in the case at bar are:

a) Are the manuals requested by Mr. Rosenthal third party records or disclosure, and

b) Should they be produced to Mr. Rosenthal.

Third Party Records v. Disclosure

[16] In R. v. Stinchcombe, [1991] 3 S.C.R. 326, the Supreme Court of Canada held that all fruits of an investigation that are not clearly irrelevant must be disclosed to the defence. In R. v. McNeil 2009 SCC 3, [2009] 1 S.C.R. 66, the Supreme Court of Canada reiterated the test from R. v. Stinchcombe, the Court stated at paragraph 17:

Stinchcombe made it 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.

[17] The Supreme Court of Canada went on to state that the only information the Crown need not disclose is information that is "clearly irrelevant, privileged, or its disclosure is otherwise governed by law" (see paragraph 18). The Crown bears the burden of justifying the nondisclosure.

[18] It was further noted in R. v. McNeil, supra, that there may very well be a residual privacy interest in the information that the Crown possesses, but, if this material is in the lawful possession of the Crown attorney and is potentially relevant, then despite the privacy interest, it must be disclosed (see also the exception of section 278 of the Criminal Code).

[19] This is not so with information that is not in the Crown's possession. Where relevant material exists but has not been seized by the police or is not in the lawful possession of the Crown, then the defendant must apply to the Court for the production of this material with notice to all relevant parties.

[20] In R. v. McNeil, supra, the Supreme Court of Canada articulated the process that must be used when material is in the hand of a Crown agency other than the one investigating or prosecuting the offence before the Court. The Court held that where the material is not in the possession of the investigating police agency or the prosecutor's office, a third party records application is required.

[21] The Court went on to note, however, that the Crown, as a minister of justice, is not an ordinary litigant and has a special role in the system. The Court stated at paragraph 48 of R. v. McNeil:

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, ever 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 evidence.

[22] As a minister of justice, the Crown, when put on notice that relevant evidence exists, cannot simply ignore it. "Unless the notice appears unfounded, Crown counsel will not be able to fully assess the merits of the case and fulfill its duty as an officer of the court without inquiring further and obtaining the information if it is reasonably feasible to do so" (see McNeil at paragraph 49).

[23] In my view, the manuals relating to the operation and maintenance of the intoxilyzer 8000C are similar to police disciplinary records in that it is neither efficient nor justified to leave the question of access to these manuals solely in the regime outlined in R. v. O'Connor. If the investigating police agency has the manuals in question and at one point reviewed them in order to set up, interpret or use the Intoxilyzer machine, then Stinchcombe applies and the manuals should only be withheld if they are clearly not relevant to any fact in issue at trial. If the manuals are not in the possession of the investigating police agency but in the possession another Crown agency, then they are properly considered third party records and the rules set out in R. v. O'Connor, [1995] 4 S.C.R. 411 apply with proper modifications as suggested in R. v. McNeil. Having said that, where the Crown is put on notice that there are issues that the manuals may be relevant to, the Crown does have a duty to investigate and disclose if relevant.

[24] In my view, this process best complies with the comments of the Supreme Court of Canada in R. v. St-Onge Lamoureux, 2012 SCC 57, [2012] S.C.J. No. 57 as expressed at paragraph 78:

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 S.C.R. 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 test 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]

[25] Crown counsel argued that since the Supreme Court of Canada cited R. v. O'Connor in the above passage, the presumption must be that when the Crown refuses to disclose, the applicant must bring a third party records application. I disagree. If the Supreme Court of Canada was of the view that the material referenced would always require a third party records application, the Supreme Court of Canada would have clearly stated this. Instead, the Supreme Court of Canada left it open for the trial Judge to asses each case on its own to determine which procedure should be followed.

[26] In the case at bar, it is clear that the manuals contained in item numbers 4 and 5 above were in possession of P.C. Plate, an officer involved in the case at bar and therefore Stinchcombe applies. It is unclear if P.C. Plate or the investigating officers ever had item number 3 in their possession. In my view this item should be treated a little differently from items 4 and 5. Having said that, this very short manual appears to be in the possession of the police officers who use the intoxilyzer 8000C and as a result, I am satisfied, given the record before this court that Stinchcombe applies to this document as well.

[27] Ms. Song further argued that the manuals requested are copyrighted and therefore they must be subject to the third party records regime. I appreciate Ms. Song's concerns, but in my view, this does not determine what process should be engaged. It is a factor, however, that must be considered if disclosure is ordered and a basis to limit the use and dissemination of the disclosure.

Relevance

[28] In R. v. St. Onge, supra, the Supreme Court of Canada, in deciding the constitutionality of the amended sections, held that the results of the intoxilyzer are presumptively reliable as long as the instrument is operated and maintained properly. The Court stated at paragraph 41 "…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".

[29] The Court also stated, as noted above, that maintenance logs or other material relevant to the proper working of the machine may also be relevant in particular cases (see paragraph 78 of R. v. St-Onge, supra).

[30] It is clear that information relevant to the proper functioning of the machine is relevant information required by the defendant to respond to the Crown's case. The question is whether the material requested in the case at bar is relevant to this issue.

[31] In R. v. Neville [2013], O.J. No. 4137, Justice O'Dea was faced with an extensive disclosure application including requests for manuals. In that case Justice O'Dea held 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" (see paragraph 20).

[32] On the issue of manuals, Justice O'Dea made the following comments:

[42] 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 defence identified in the statute, I am of the view something akin to what is requested is essential.

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

[33] In R. v. Neville, supra, the trial Judge had far more evidence before him as to the relevance of the manuals. A very different record has been placed before this Court. Nonetheless, in the case at bar, I also find that inspection or maintenance manuals or other protocols used respecting the instrument used in this case are essential to preparing a defence in this case.

[34] I appreciate that in the case at bar there is no evidence before the court that the machine in question was not functioning properly at any point in the past. Nor is there any evidence that the machine required any special maintenance or repair. There is information before this Court, however, through the case law that the instrument does need to be maintained and that the proper maintenance of the machine may affect the overall reliability of the test results. I therefore agree with Mr. Rosenthal that this is an appropriate area of inquiry. I further agree that Mr. Rosenthal cannot properly ask questions to determine if the officers are properly using or maintaining the instrument if he does not first know the correct protocols for using and maintaining the instrument. I therefore find that Mr. Rosenthal is entitled to receive disclosure from the manuals that relate to the functioning, maintenance and use of the intoxilyzer 8000C.

[35] In light of this finding, I find that a portion of material provided to the Court to review should be disclosed. In my view all of item number five should be disclosed to the defence. Item number five addresses the operation and maintenance of the simulator and is therefore relevant to the defence. In relation to item number four, in my view tabs B, D, G, H, J, K, L, M, O, R and S are relevant to the operation and maintenance of the Intoxilyzer 8000C and therefore should also be disclosed to the defence.

[36] At this stage, I am not prepared to order disclosure of the remaining items as they do not appear to relate to proper functioning or maintenance of the instrument. Item number three appears to be a substantially shortened version of what is included in item number four. Subject to further submissions, given the general tone of this document it is difficult to imagine how it could be useful or relevant to Mr. Wong. The items I have excised from Item Number 4 also do not appear to be relevant to the functioning, maintenance or repair of the machine. Having said, that, in my view Mr. Rosenthal, once more informed about the content of these documents may have articulable reasons why the material is potentially relevant. To that end, I have drafted a judicial summary of the material I have not disclosed and invite counsel to make specific arguments about these documents if he chooses.

[37] I will also entertain submissions from both parties with respect to the appropriate conditions to be placed on the use and dissemination of the material I have just ordered be disclosed.

Released: November 8, 2013

Signed Justice Mara Greene