Court Information

Ontario Court of Justice (East Region)

Her Majesty the Queen v. Jacob Fitts

Before: Justice David M. Paciocco – Ottawa, ON

Reasons for Decision

Released: May 13, 2015

Counsel

For the Crown: Mr. M. Boyce

For Mr. Fitts: Mr. R. Auger

I. Overview

[1] The Crown presented evidence that on August 27, 2011 Jacob Fitts operated his motor vehicle with more than the legal limit of alcohol in his blood. If admitted, this evidence would show that his blood alcohol content at the time he provided breath samples into an approved instrument was 100 milligrams of alcohol in 100 millilitres of blood, in excess of the legal limit.

[2] During his trial Mr. Fitts tried to provoke the exclusion of this evidence by marshalling a series of Charter challenges relating to the manner in which those breath tests were obtained. I rejected those motions.

[3] Mr. Fitts also attempted to undercut the presumption of identity in section 253(1)(c), which the Crown requires to prove that Mr. Fitts blood-alcohol concentration was over the legal limit at the time of driving. Specifically Mr. Fitts argued that the samples had not been taken "as soon as practicable." I rejected this submission as well.

[4] Finally, of immediate relevance, Mr. Fitts sought to arm himself with information enabling a possible "evidence to the contrary" challenge to the presumption of accuracy in section 253(1)(c). He was looking for information that might raise a reasonable doubt about whether the instrument used to secure his breath samples, Intoxilyzer 8000C, SN 80-003827, was "malfunctioning or was operated improperly." Commencing on August 30, 2011, three days after the alleged offence, his counsel, Mr. Auger, began impressive, repeated efforts to secure information relating to this approved instrument. Some of those disclosure requests were met. Others were not.

[5] Mr. Auger ultimately brought an application before me to obtain the undisclosed Intoxilyzer material. When that application was being argued at the start of Mr. Fitts' trial, it became clear that some of the information contemplated by the disclosure requests was not in the possession of the Crown or the investigating police force. Specifically:

Cobra Data

(1) With each function, Intoxilyzer machines generate a computerized record of data relating to their preparation, use and performance. This data can be downloaded using software named "Cobra." However, the data stored by the Intoxilyzer 8000C used to secure Mr. Fitts' results was "wiped" or erased when the machine was declared surplus in February 2013, and surrendered by the Ontario Provincial Police to Ontario Shared Services. This makes it impossible for the Crown to disclose "all available download data … immediately prior to and after the Applicant's case…," as was requested.

Simulator

(2) When an Intoxilyzer machine is being readied for use, the operator is required to conduct a series of tests to ensure that it can produce reliable results. One of those tests, the calibration test, involves the simulation of a breath test using a "standard solution" with a known alcohol content, to challenge the ability of the Intoxilyzer machine to read it accurately. This standard solution must be heated to simulate the temperature of the human body, using an apparatus known as a "simulator." At the time that Mr. Fitts' test was conducted, the Ontario Provincial Police did not record which "simulator" was being used during any particular test. It is therefore impossible to match available simulator certifications with the simulator that was used when preparing the machine to receive Mr. Fitts' samples. In effect, it is argued that the information relating to which simulator was used was "lost" because of the failure to preserve it.

Calibration and Maintenance Records

(3) The Intoxilyzer 8000C used in Mr. Fitts' investigation was put into service on November 29, 2009. There are no records of the original calibration of, or any maintenance being conducted on, the Intoxilyzer prior to it being used to secure Mr. Fitts blood alcohol readings on August 27, 2011. The defence contends that these records are "lost evidence."

[6] Upon learning of the missing information, Mr. Fitts abandoned his disclosure application. In its place he brought an application pursuant to sections 7 and 11(d) of the Charter to stay the proceedings, or alternatively, to exclude the lynch-pin Intoxilyzer evidence because of the "loss of, or failure to preserve, relevant evidence."

[7] I do find that some of this information was "lost" in the relevant sense, specifically, the Cobra data, the information needed to identify simulator certification, and the initial calibration records for the approved instrument used in Mr. Fitts' case. In my view, all of this information was required to be disclosed as "first party disclosure," and its loss has now prevented the Crown from complying with its disclosure obligations. Since the loss of this evidence cannot be satisfactorily explained, there has been a "non-disclosure" breach of Mr. Fitt's Charter rights.

[8] My decision that the information Mr. Fitts seeks is subject to "first party disclosure" is controversial. This is because the information sought by Mr. Fitts is not "subject test information." In other words, it was not generated during his blood alcohol testing. If it had been, there would be no controversy, since subject test information, including "intoxilyzer test records" and "alcohol influence reports," are the fruits of the investigation in which they were generated, and fruits of the investigation will be "first party disclosure." By contrast the information sought by Mr. Fitts is "general Intoxilyzer information." It is information that is recorded either automatically by an approved instrument, or by those who operate it, over time. Canadian case-law is split on whether the disclosure obligation relating to general Intoxilyzer information should be tested using "first party" or "third party" disclosure law.

[9] Unfortunately there is no simple means for deciding which regime applies. While most "first party disclosure" consists of the fruits of the criminal investigation of the accused, this is not universally true. Other information within the control of the Crown or the investigating police force that is important to the proper prosecution or defence of a case can qualify as first party disclosure. I am persuaded that this is true for general Intoxilyzer information for three reasons:

1. Presumptive Relevance

General Intoxilyzer information chronicles the preparation and performance of the Intoxilyzer machine, over time. It is created and preserved to enhance the accuracy of the breath testing program so that the performance of approved instruments in accurately securing blood alcohol readings is known. This information is therefore about the reliability of results. It strikes me that, logically, accuracy verifying information derived from the very machine being relied upon by the Crown to generate "conclusive" evidence of the subject's blood alcohol content is prima facie relevant. This "presumptive relevance" is enough, in my view, to call upon the party wishing to disprove relevance to do so, if it wishes, which, of course, is how the first party disclosure regime operates.

2. Analogy to Witness Credibility

As I explain in these reasons, if one looks at other extensions of the first party disclosure regime beyond the fruits of the investigation, those extensions are analogous. The most poignant illustration is the authorities, including R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66, that require the first-party disclosure of readily accessible information in the control of the investigating police force that is relevant to the credibility and reliability of witnesses, such as the criminal records of witnesses and some discipline records of material police officers. If information bearing on the reliability of witness testimony is subject to first party disclosure, why not information relevant to the reliability of a forensic instrument offering conclusive proof?

3. Structure of Section 258(1)(c)

I am also persuaded that the structure of section 258(1)(c) presupposes that a generous disclosure regime will operate so that those who wish to challenge the presumption of accuracy have the means to attempt to do so. In my view, the Supreme Court of Canada decision in R. v. St-Onge Lamoureux, 2012 SCC 57, [2012] 3 S.C.R. 187 carries the same message. The disclosure regime that operates must be accessible and generous, characteristics that describe first party disclosure, but not third party disclosure.

[10] This "first party disclosure" obligation requires the Crown to disclose information that is not "clearly irrelevant." In an effort to demonstrate clear irrelevance and avoid a non-disclosure finding in this case, the Crown presented powerful and convincing evidence before me that none of the information that has been lost is in fact probative in evaluating the reliability of the blood alcohol results in a specific case. As I read the decision in R. v. St-Onge Lamoureux, supra, however, the application of the presumption of accuracy in section 258(1)(c) is not rebutted by evidence showing that blood alcohol results are inaccurate, or not reliable. As the language of section 258(1)(c) makes plain, the presumption is rebutted by evidence that the approved instrument was "malfunctioning or operated improperly." This does not mean that the law is disinterested in whether approved instrument results are accurate, a point I will return to shortly. It simply means that if there is a reasonable doubt about whether the machine is not malfunctioning or operated improperly, the Crown cannot take the short cut provided for in section 258(1)(c) of relying on the presumption of accuracy, and must demonstrate, with evidence, that the results are accurate.

[11] Accordingly, "clear irrelevance" is not demonstrated by showing that the contested information does not bear on the accuracy of the results. It is demonstrated by showing that the information has nothing to do with whether the machine was "malfunctioning or operated improperly." Of significance, R. v. St-Onge Lamoureux, supra, interpreted the phrase "operated improperly" as including data related to scheduled maintenance, over time. All of the lost evidence in this case relates to compliance with maintenance and operation protocols. It is not, therefore, "clearly irrelevant." It should have been disclosed but because this information was lost, disclosure has not occurred. There being no reasonable explanation for the non-disclosure, Mr. Fitts' Charter rights have been infringed by a "non-disclosure breach" contrary to section 7.

II. The General Principles of Law

[16] It is helpful at the outset to distinguish between "first party disclosure" and "third party disclosure," for, as I will explain, "lost evidence" applications apply solely to "first party disclosure."

[17] "First party disclosure" refers to information that the Crown is obliged to produce on demand to a person charged with an offence. This includes not only relevant non-protected information in possession of the prosecuting Crown, but also relevant non-protected information the prosecuting Crown controls. "For the purposes of the disclosure duty, [control means] the legal authority to compel production of information": Duff v. Alberta (Attorney General), [2010] A.J. No. 901, and see R. v. Chaplin, [1995] 1 S.C.R. 727. Since the investigating police force usually controls the flow of information, the police have a reciprocal duty to provide the Crown with information that the Crown requires to make first party disclosure. This, in turn, gives the Crown the necessary degree of control over material information even though physically with the police.

[18] In contrast, "third party disclosure" applies to relevant non-protected information that is possessed by parties other than the prosecuting Crown that is not controlled by the prosecuting Crown. Since the prosecuting Crown does not control the information, it is not required to produce it. Third party information can include information in the hands of the investigating police force that they are not legally compelled to furnish to the Crown under the reciprocal disclosure duty relating to the prosecution at hand. Access to third party disclosure is enjoyed through "O'Connor applications," and in sexual offence cases, "Mills applications" brought pursuant to Criminal Code section 278.1-278.91.

[19] Lost evidence complaints are about "first party disclosure," not "third party disclosure." This is because lost evidence applications are predicated upon the prosecuting Crown obligation to preserve information that it is obliged by law to disclose: R. v. La, [1997] S.C.J. No. 30 at para. 20. One cannot "preserve" what one does not possess or control. While it is no doubt possible to bring a Charter application against the Crown if state agents cause the loss or destruction of "third party disclosure," such applications would not be "lost evidence" applications per se. To succeed in the kind of lost evidence application brought before me the subject information must be information that the Crown is obliged to disclose as "first party disclosure."

[20] The principles that are to be applied in a "lost evidence" application coalesced in R. v. Carosella, [1997] 1 S.C.R. 727, and R. v. La, supra, and are helpfully summarized in other decisions including R. v. Miniaci, 2011 ONCJ 491 (Ont.C.J.) and R. v. Kolthammer, [2011] A.J. No. 1277. Those principles reduce themselves to the following propositions, material to this case:

1. Obligation to Preserve

The Crown has an obligation to preserve information that it is obliged by law to disclose as "first party disclosure": R. v. La, supra at para. 20. If evidence that the Crown was obliged to disclose becomes lost, the Charter may be breached in one or more of three distinct ways. There may be (1) a simple "non-disclosure breach," (2) a "breach of the right to make full answer and defence," or (3) an "abuse of process" breach.

2. Burdens of Proof

Each of these challenges requires a foundation that the target information or "evidence" has become lost. Disclosure obligations, and hence the law of lost evidence, cannot apply if the target information never existed. An applicant who brings a disclosure application is therefore required "to identify the existence" of the information it is seeking. This is not a formal evidentiary burden but requires the applicant to establish, either orally or by evidence in cases of dispute, that there is an air of reality or live issue that the information exists: R. v. Chaplin, [1995] 1 S.C.R. 727 at paras 25, 30. This burden is aided by the ethical obligation on the Crown to make disclosure (at para. 21), which includes an ethical obligation to acknowledge that it has or had possession or control of information being sought.

Where "the existence of certain information has been identified" by the claimant in this way and disclosure has not been made, the prosecuting Crown is obliged to offer an explanation for non-disclosure: R. v. Chaplin, at para. 25. This rule no doubt exists because only the Crown knows the actual status of what it possesses or controls. The Crown can discharge its obligation by "demonstrating that the information sought is beyond its control," or is not otherwise subject to first party disclosure (R. v. Chaplin, supra at para. 25). It can do so by:

(a) proving that, in spite of any air of reality to the contrary, it never, in fact, had possession or control over the information identified, or,

(b) establishing that the information "is clearly irrelevant or privileged" (R. v. Chaplin, supra at para. 25) and therefore not subject to first party disclosure, or

(c) "by establishing that the record in question is in the hands of a third party, or was generated by a third party who holds the information" or that the records "are held as third party records," therefore not subject to first party disclosure: Duff v. Alberta (Attorney General), [2010] A.J. No. 901 at paras. 79-81, and R. v. Coopsammy, 2008 ABQB 266.

3. The "Non-Disclosure Breach"

If it is found that information that the Crown is obliged to preserve as first party disclosure has been lost or destroyed, the onus falls on the Crown to explain how this occurred. There will be a breach of the duty to preserve evidence, and hence a "non-disclosure breach" of section 7 of the Charter, unless the Crown explanation proves that the evidence has not been lost or destroyed maliciously, or owing to unacceptable negligence; R. v. La, supra at para. 20.

In deciding whether an explanation is satisfactory "the court should consider the circumstances surrounding the loss of the evidence, including whether the evidence was perceived to be relevant at the time it was lost, and whether the police acted reasonably in attempting to preserve it. The more relevant the evidence is, the more care should be taken to preserve it": R. v. Miniaci, supra at para. 16, summarizing the law from R. v. La, supra, para. 21.

"Where the Crown fails to satisfy the Court, the Crown will have failed to meet its disclosure obligation and there will be a breach of s.7 of the Charter. There is no additional requirement to show prejudice in order to establish a breach in these circumstances": R. v. Kolthammer, supra at para. 34, citing R. v. Carosella, supra at para. 40.

4. The "Full Answer and Defence" Breach

"Even where the Crown has discharged its duty by disclosing all information in its possession and explaining the circumstances of the loss of any missing evidence, an accused may still rely on his or her s.7 right to make full answer and defence. Thus, in extraordinary circumstances, the loss of a document may be so prejudicial to the right to make full answer and defence that it impairs the right of an accused to receive a fair trial…. The accused must establish actual prejudice to his or her right to make full answer and defence": R. v. La, supra at paras. 24, 25.

5. The Abuse of Process Breach

In addition to a non-disclosure breach or the full answer and defence breach, a failure to produce evidence may be found to be an abuse of process: R. v. Miniaci, supra at para. 16, summarizing the law from R. v. La, supra at para. 20.

"[An abuse of process breach] 'must include conduct on the part of governmental authorities that violates those fundamental principles that underlie the community's sense of decency and fair play. The deliberate destruction of material … for the purpose of defeating the Crown's obligation to disclose the material will, typically, fall into this category. An abuse of process, however, is not limited to conduct of officers of the crown which proceeds from improper motive…. Accordingly, other serious departures from the Crown's duty to preserve material that is subject to production may also amount to an abuse of process …. In some cases an unacceptable degree of negligent conduct may suffice.": R.v. La, supra at para. 22.

6. The Remedy

None of these forms of breach satisfy the "obtained in a manner" requirement under section 24(2) of the Charter. If one or more of these breaches are established, the remedy must therefore be found in section 24(1), and can include the exclusion of evidence that the loss of the evidence in question compromises, or a stay of proceedings. In either case, "while the degree of prejudice may not figure in the determination of whether there has been a breach, it is material to the fashioning of an appropriate remedy": R. v. Kolthammer, supra at para. 76, citing R. v. Carosella, supra at para. 27.

"[A] stay is the appropriate remedy only if it is one of those rare cases that meet the criteria in R. v. O'Connor": R. v. Miniaci, supra at para. 16. Those principles have been modified, as set out most recently in R. v. Babos, 2014 SCC 16 at para 32. Specifically, for a stay of proceedings to be appropriate:

(1) There must be prejudice to the accused's right to a fair trial or the integrity of the justice system that "will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome."

(2) There must be no alternative remedy capable of redressing the prejudice; and

(3) Where there is still uncertainty over whether a stay is warranted after steps 1) and 2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against "the interests that society has in having a final decision on the merits."

Exclusion of evidence must satisfy the standards for exclusion under section 24(1) of the Charter established in R. v. Bjelland, namely, "(a) where the [admission] renders the trial process unfair and this unfairness cannot be remedied through an adjournment and disclosure order or (b) where exclusion is necessary to maintain the integrity of the justice system": R. v. Bjelland, 2009 SCC 38, [2009] 2 S.C.R. 651 at para. 24, and see R. v. Kolthammer, supra.

III. Is the Information Sought Subject to the First Party Disclosure Regime?

[21] The target information in this case, consisting of Cobra data, simulator certification documents, and calibration and maintenance records relating to the Intoxilyzer 8000C machine used in Mr. Fitts' case, is "Intoxilyzer information." Broadly speaking, there are two categories of "Intoxilyzer information." "Intoxilyzer information" can be described helpfully as "subject test information," on one the one hand, and "general Intoxilyzer information," on the other.

[22] As the name suggests, "subject test information" is generated at the time the accused provides the relevant breath samples. It includes the "intoxilyzer test record" and the "alcohol influence report" produced while the machine is being readied for the subject test and while that test is conducted. It is not controversial that "subject test" information is "first party disclosure" that is to be produced by the Crown, without more. Other information also disclosed as "first party disclosure" relating to the subject test includes information showing compliance with statutory provisions material in proving an alcohol-driving offence, such as the "certificate of the qualified technician" and a "copy of the qualified technician's designation," and even the "Certificate of Analysis of the Alcohol Standard Solution."

[23] There is tremendous disagreement nationally, however, over the disclosure of information relating to the Intoxilyzer machine itself. Many cases, including the bulk of decisions in Eastern Ontario, evaluate disclosure requests using the "first party disclosure" rules: See the following decisions filed during this hearing: R. v. Gubins, 2009 ONCJ 80, [2009] O.J. No. 848 (Ont.C.J.); R. v. Boudens (20 April 2009), (Ont.C.J.), (Unreported); R. v. Pfaller [2009] O.J. No. 1999 (Ont.C.J.); R. v. McCaughey [2009] O.J. No. 5786 (Ont.C.J.); R. v. Robertson [2009] O.J. No. 3483 (Ont.C.J.); R. v. Shrigley [2009] O.J. No. 5593 (Ont.C.J.); R. v. Jackson, (6 August 2013), (Ont.C.J.), (Unreported) per Nadelle J. at para. 11, affirmed R. v. Jackson, [2014] ONSC 1880 (Ont.S.C.J.); R. v. Netcalfe/R. v Tye (17 June 2014), (Ont.C.J.), (Unreported): R. v. Oleksiuk, 2013 ONCJ 50, [2013] O.J. No. 604 (Ont.C.J.). Other decisions insist that requests for Intoxilyzer information is "third party disclosure," including these cases provided to me by the parties: R. v. Coopsammy, 2008 ABQB 266, [2008] A.J. No. 478 (Alta. Q.B.); R. v. Ahmed, [2010] O.J. No. 1500 (Ont.C.J.); R. v. Batenchuk [2010] O.J. No. 2302 (Ont.C.J.); R. v. DaCosta [2011] O.J. No. 3942 (Ont.C.J.); R. v. Lenti [2010] O.J. No. 5081 (Ont.C.J.); Duff v. Alberta (Attorney General), [2010] A.J. No. 901 (Alta.Prov.Ct); R. v. Sutton 2013 ABPC 308, [2013] A.J. No. 1266 (Alta. Prov. Ct); R. v. Parsons [2013] O.J. No. 3100 (Ont.C.J.); R. v. Coughlin [2013] O.J. No. 6073 (Ont.C.J.); R.v. Matchett (24 October 2014), (Unreported), (Ont.C.J.); R. v. Mercer (3 December 2014), (Ont.S.C.J.). (Unreported). And see R. v. Ocampo, 2014 ONCJ 440, where a more nuanced evaluation led to the application of the third party record regime for some of the Intoxilyzer information.

[24] The implications of this controversy are significant, even in a simple disclosure application.

[25] First, in third party disclosure cases, record holders and persons with privacy interests in the records have notice and standing rights. They do not have such rights for "first party disclosure."

[26] Second, disclosure controversies tend to turn on the "relevance" of the target records, and the approach to relevance differs markedly in first and third party records cases. In a first party records application a generous approach is taken, with the onus on the Crown to disclose the target information unless it can show the information to be "clearly irrelevant." The decision in R. v. Gubins, supra, provides a useful catalogue of comments from the Supreme Court of Canada emphasizing just how generous "first party disclosure" is to be. By contrast, in a third party records application the onus is on the applicant to show "likely relevance," and then persuade the trial judge that the records are important enough to disclose notwithstanding competing interests. In R. v. Oleksiuk, supra (Ont.S.C.J.) Justice M.S. James noted that in cases such as R. v. Ahmed, supra, "when the more restrictive [third party records] approach is employed, accused persons have had difficulty making the case that the required records can have probative value and that they are likely to contain material and relevant information respecting the reliability of a particular set of readings."

[27] Many applicants deal with uncertainty about which regime applies, as Mr. Fitts originally did, by bringing both first and third party records applications for the same information, out of an abundance of caution. In a lost evidence application, however, there is no fall-back position. If the target records do not fall within the "first party disclosure" regime there can be no "lost evidence" breaches.

[28] The paradigm category of "first party disclosure" is comprised of the "fruits of the investigation," specifically, relevant information gathered by the investigating police force to assist in the prosecution of the accused on the charge before the court: R. v. Stinchcombe, [1991] 3 S.C.R. 326. Information about the Intoxilyzer machine, as opposed to the particular test conducted on the accused, is not "fruits of the investigation."

[29] There are exceptions where "first party disclosure" extends beyond the "fruits of the investigation," however. From the outset "first party disclosure" has included information that was in the possession of the investigating police force, not gathered for the prosecution of the accused, but which was clearly relevant to the credibility of witnesses - such as their criminal records. In R. v. Hutter, 86 C.C.C.(3d) 81 (Ont.C.A.) it was held, for example, that the Crown is required to disclose, as first party disclosure, information in the possession of the investigating police force that can be used as bad character evidence against the accused, since such information can influence the way the defence presented the case. As already indicated, certification documentation relating to the Alcohol Standard Solution, and qualification documentation for qualified technicians, are treated as first party disclosure although not technically the fruits of the investigation.

[30] The point, of course, is that "first party disclosure" includes, but is not confined to, the "fruits of the investigation." This is why I am not persuaded by decisions such as R. v. Ahmed, supra, which appear to dispose of the "first party/third party" obligation controversy on the simple footing that Intoxilyzer information is not the "fruits of the investigation." As the examples I have just provided illustrate, the issue is more subtle than that.

[31] Indeed, in R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66 the Supreme Court of Canada reinforced that "first party disclosure" is not confined to the "fruits of the investigation." The specific decision held that the Crown must disclose information relating to police misconduct by officers who played an important role in the investigation, even if that information was gathered for other purposes (para. 54), or in other investigations, provided that it realistically bears on the credibility or reliability of the officer's evidence (para. 59).

[32] Some courts, including Duff v. Alberta (Attorney General), supra at paras 69-71, read the McNeil decision as confined to its immediate holding, in other words, to the disclosure of police officer misconduct records. I am persuaded that McNeil cannot be limited this stringently. In R. v. Quesnelle, 2014 SCC 46 Justice Karakatsanis cited McNeil in a non-police records case for the broader proposition that "police have a duty to disclose, without prompting, all material pertaining to its investigation of the accused" (para. 14) as well as other information "obviously relevant to the accused's case" (para. 59). Not surprisingly, there are cases that now treat "first party disclosure" as extending to information in the control or possession of the investigating police force that is "obviously relevant" to the accused's case: see, for example, R. v. Matchett, supra (Ont.C.J.).

[33] There are yet other cases that read R. v. McNeil, supra, even more aggressively. Some cases treat it "as standing for the proposition that first party records include records that 'could reasonably impact on the case against the accused'": R. v. Jackson, supra (Ont.S.C.J.) at para 16; R. v. Gubins, supra at para. 14 (Ont.C.J.). It has also been held that McNeil now requires disclosure of records that "pertain to the investigation of the accused," in the broad sense: R. v. Shrigley, supra at para. 18 (Ont.C.J.).

[34] In my view, neither the McNeil decision nor the Quesnelle case purport to provide a bright line, universal standard or test for determining when first party disclosure applications will suffice, and when third party applications are required. The significance of McNeil is more general. It reflects recognition that, where evidence in the hands of the investigating police force is important enough to a material issue that its disclosure is required in the interests of justice, the law can use the first party disclosure regime to ensure meaningful access even though that information is not, strictly speaking, the fruits of the investigation that the accused is being prosecuted for.

[35] I am persuaded that in an alcohol driving case where an approved instrument has been used, general Intoxilyzer information that is relevant to the functioning and operation of that instrument qualifies. I say this for several reasons.

[36] First, a principled approach supports this view. In Duff v. Alberta (Attorney General), supra (Alta.Prov.Ct), and in R. v Coopsammy, supra, Alberta Courts listed a number of the principles that should be consulted in deciding on the appropriate disclosure regime, including the purpose for which the records were created; the link if any between the investigation and the records; the nature and content of the record, and the presence of privacy interests in third parties. I do not agree with the outcome of the application of these principles in those cases. Both Duff and Coopsammy used them to find that generic intoxilyzer information is "third party disclosure." What I do agree with is that these are pertinent principles to consult.

[37] In my view, an examination of the purpose for which generic intoxilyzer records are created, as well as the nature and content of those records, support a "first party disclosure" characterization. Such records exist precisely to enhance the accuracy of the breath testing program. In R. v. McNeil, supra, at para 20, Justice Charron explained that the "fruits of the investigation" are subject to "first party disclosure" because, by their nature, they can be presumed to be relevant. The same holds true, in my view, for Intoxilyzer records that relate to the performance of the approved device that is being relied upon by the Crown as offering conclusive evidence of the blood alcohol content of the accused. It seems to me that given the presumptive relevance of such records, it is reasonable and appropriate to require the Crown to demonstrate their irrelevance if it wishes to withhold disclosure.

[38] I find that the link between the investigation and general Intoxilyzer information relating to the instrument relied upon also pushes in this direction. It is important to bear in mind that the target information is not housed in files entirely unrelated to the investigation at hand. The target information relates to the very machine that is being relied upon to secure test results from the subject. As a result, the connection of the general Intoxilyzer information to the investigation at hand is not tenuous, nor would it come as a surprise to anyone that such information might be sought by an accused person.

[39] Finally, although some general Intoxlyzer information - Cobra data in particular - does contain private information pertaining to other test subjects, experience shows that it can easily be presented anonymously by deleting identifying information. This makes it unnecessary to have third parties appear in order to protect those privacy interests. There is therefore no need to impose the more complex, cumbersome and costly third party records regime on accused persons.

[40] In addition to the application of these principles, there is also a compelling analogy to be drawn between other forms of "first party disclosure" that is not the "fruits of the investigation," and general Intoxilyzer information. The "Certificate of Analysis of the Alcohol Standard Solution," for example, is treated as first party disclosure, even though this information was not created for the investigation. It is disclosed routinely because it is relevant to the integrity of the solution that is used to promote the reliability of the breath test results. The same holds true with calibration records for the roadside screening devices. If such evidence warrants first party disclosure status, why should Intoxilyzer information relevant to the integrity of the machine itself not be treated the same?

[41] Similarly, the law of disclosure treats information relating to the reliability of witnesses as first party disclosure. Cases such as R. v. Hutter, supra make clear that information about the credibility of witnesses can fall within first party disclosure. The essential reasoning underlying R. v. McNeil, supra is similarly that accused persons should have access to police discipline records relevant to the credibility of officers who offer material information. If information about the reliability of witnesses can fall within the first party disclosure regime, why not information about the reliability of the Intoxilyzer machine that produces inculpatory information?

[42] Moreover, I am persuaded by the conclusion of a number of courts that the very structure of the amendments to section 258(1)(c) appear to presume that a generous approach to disclosure will be taken. Those amendments house a presumption that requires courts to treat the results of a reliable but not infallible machine as conclusive, unless the accused presents evidence raising a reasonable doubt that the machine was "malfunctioning or was operated improperly." The implication of the rebuttable presumption is that accused persons will have access to relevant information to enable them to do so: R. v. Jackson, (6 August 2013), (Ont.C.J.),(Unreported) per Nadelle J. at para. 11, affirmed R. v. Jackson, supra (Ont.S.C.J.), and see R. v. Pfaller, supra at para 27 (Ont.C.J.), per M. Green J. and R. v. Musuva [2009] O.J. No. 5164 (Ont.C.J.) by H.L. Fraser J. This position is most powerfully expressed in the widely followed decision of R. v. Gubins, 2009 ONCJ 80, [2009] O.J. No. 848 at para. 39:

"My final reason for ordering the disclosure of these records stems from the amendments themselves and the new emphasis that Parliament has placed on showing an error or malfunction in the approved instrument in order to establish a defence of evidence to the contrary. In my view, to refuse to provide readily available disclosure about the instrument just at the time that the defence is required to focus on the instrument is completely contrary to the wide and generous approach to disclosure advocated by the Supreme Court of Canada since Stinchcombe."

[43] Finally, while I do recognize that R. v. St-Onge Lamoureux, 2012 SCC 57, [2012] 3 S.C.R. 187 is not a disclosure case, I am persuaded that this decision supports a "a strong disclosure obligation on the Crown in order to enable the accused to determine whether there may be a reasonable doubt about the proper functioning and operation of the machine": R. v. Reeves, (4 October 2013), (Unreported), (Ont.C.J.), at para 14, per Alder J. In R. v. St-Onge Lamoureux the majority found restrictions on the evidence that can be used to challenge the accuracy of an approved instrument to be constitutionally valid largely on the assumption that accused persons would have disclosure of information relating to its proper functioning and maintenance so that they could realistically mount permissible challenges. This is because of the monopoly the Crown has over the information required to challenge the reliability of a test result. Justice Deschamps said:

48. The prosecution gains a clear, albeit limited advantage from the requirement [that evidence must be aimed at the establishing that the instrument malfunctioned or was operated improperly], 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.

49. 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 that 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 the instrument was not maintained properly or on admissions by the technician that there have been erratic results….

The generous access that is presupposed in these passages would simply not be achieved by requiring proactive, expensive and time-consuming third party records applications to be brought before the information required to decide if a challenge is feasible can be obtained.

[44] In the result, I find that when it comes to Intoxilyzer information, the test that is to be used to resolve that issue requires the Crown to demonstrate, before it denies disclosure, that the information sought is either clearly irrelevant or protected by privilege, or by some other privacy regime. I am not discouraged in that finding by the comments of Cromwell J., made in dissent, that he does not understand the majority to be establishing any new principle in relation to disclosure. No new principle is required, since a principled application of the existing law of first party disclosure enables the generous access to information that the majority clearly relied upon in arriving at its decision on the constitutionality of section 258(1)(c).

IV. Is the "General Intoxilyzer Information" That Was Sought Here Exempt from Disclosure as "Clearly Irrelevant"?

[45] If evidence is clearly irrelevant it need not be disclosed as first party disclosure, and there can be no lost evidence breach if that information disappears. Is the target evidence in this case "clearly irrelevant?"

[46] Relevance is a relative concept. It can be determined only by reference to the material issue that information is claimed to relate to. In this case relevance is measured by asking whether the target evidence relates to things that the defence must show to rebut the presumption of accuracy in section 258(1)(c). It is significant that the presumption does not invite rebuttal by evidence raising a reasonable doubt about the accuracy of the breath test results. The presumption can be rebutted only by showing that the machine had been "malfunctioning or operated improperly." In effect, if there is a reasonable doubt raised about the machine malfunctioning or being operated improperly, there is a sufficient prima facie case that the results may not be accurate, to displace the ability of the Crown to rely upon the presumption.

[47] Rebutting the presumption in this way does not end the matter. Even if the presumption is rebutted the Crown is still free to show with evidence that "despite the proven deficiency, the blood alcohol level of the accused exceeded .08 as shown by the test results": R. v. St-Onge Lamoureux, supra at para. 57. In simple terms, if there is no concern about malfunctioning or improper operation, the Crown can use the short-cut provided for in section 258(1)(c). If there is a reasonable doubt raised on the evidence about malfunctioning or improper operation, the Crown loses the short cut and must present evidence allaying concerns about the impact the malfunctioning or improper operation had on the accuracy of the results.

[48] When it comes to the question of relevance and rebutting the presumption, the field of relevant evidence is therefore that which relates to the functioning and proper operation of the Approved Instrument used in the case.

[49] The text of section 258(1)(c) that remains constitutionally valid after R. v. St-Onge Lamoureux, supra, makes all of this clear. When it comes to rebutting the presumption of accuracy, the material issue is indeed functioning and proper operation and not the ultimate issue of reliability per se:

"evidence of the results of the analysis is conclusive proof that the concentration of alcohol in the accused's blood both at the time when the analyses were made and at the time when the offence was alleged to have been committed was, if the results of the analysis are the same, the concentration determined by the analysis, and if the results were different, the lower of the concentrations determined by the analysis, in the absence of evidence tending to show…that the approved instrument was malfunctioning or was operated improperly… (emphasis added)."

[50] This focus on evidence about functioning and proper operation, as opposed to reliability at large, is in keeping with the objective behind section 258(1)(c) of corralling the kind of evidence that can be called to oppose the presumption. The test for admissible rebuttal evidence is not whether the evidence the accused wishes to call relates to the reliability of the approved instrument. In R. v. St-Onge Lamoureux, supra, the majority therefore remarked, at para 27 that "the accused can rebut the presumptions by showing that the instrument was not properly maintained or operated."

[51] These terms, "malfunctioning" and "operated improperly," are disjunctive. In other words, the presumption can be rebutted even by evidence creating a reasonable doubt that a properly functioning machine was operated improperly. Any evidence that has a logical tendency to instruct on either the functioning or operation of the machine is therefore relevant.

[52] Significantly, I agree with R. v. Lam, 2014 ONCJ 247 at 13 that R. v. St-Onge Lamoureux interpreted "operated improperly" as including improper maintenance procedures which "may have nothing to do with the actual operation on the particular day." I therefore respectfully disagree with the decision in R. v. Desjarlis, [2015] ONCJ 137 that the term "maintenance" is a source of confusion in the case. As I read the decision, the majority clearly read the term "operating improperly" as including the failure to comply with all accepted procedures relating to proper operation, including proper maintenance. Evidence of the failure to follow any of the recommended maintenance protocols including annual or periodic inspections, is therefore relevant.

[53] Specifically, the R. v. St-Onge Lamoureux majority concluded that, in passing this legislation, Parliament recognized that "the results will be reliable only if the instruments are operated and maintained properly" (at para 41). That the Court was speaking of maintenance at large, rather than simply the maintenance functions inherent in testing the machine before a subject test, was made clear when the majority commented, at para. 25, that:

"[A]pproved instruments [must] be inspected on an annual basis to ensure that they continue to meet the manufacturer's technical specifications. According to the [Alcohol Test Committee of the Canadian Centre of Forensic Science], the calibration and maintenance of instruments are essential 'to the integrity of the breath test program.'"

At para 48 the majority therefore offered the confident assertion that "the prosecution must of course disclose certain information concerning the maintenance and operation of the instrument…"

[54] Mr. Boyce, for the Crown, urged that I not interpret the R. v. St-Onge Lamoureux majority as having committed itself on this issue because the majority judgment includes a caveat against over-reading the decision on relevance issues. Specifically, the majority said, at para. 42, that "since the nature and scope of the evidence that might be considered relevant had not been argued on this appeal, it would not be appropriate to rule on the specific limits of that evidence." As I interpret this passage, the Court is simply saying that it is not in a position to give an exhaustive description of what will be relevant and what will not. It was in no way retreating from the clear position it communicated that the language "improper operation" includes general maintenance failures.

[55] This issue was contentious before me because the Crown evidence is that the assumption inherent in the St-Onge Lamoureux decision - that improper general maintenance will raise a reasonable doubt about the reliability of the blood alcohol readings obtained - is not borne out by scientific opinion. Dr. Mayer testified for the Crown that a distinction must be drawn between "quality assurance procedures" put in place to evaluate equipment and to monitor standards generally, and "quality control information" that is produced during the subject breath testing procedures to ensure that those tests are accurate. It was his view that only the latter information needs to be consulted to determine the reliability of the samples provided on a specific occasion. Simply put, so long as blank tests and calibration checks were done before the subject test was received, and no "exception or error" messages were received at the time of the tests, and there is sufficient agreement between the subject breath test results, then those results are reliable, regardless of how the machine performed on other occasions, and regardless of whether maintenance protocols were maintained.

[56] Dr. Mayer also explained that the reason why ongoing maintenance is required is to ensure that the machine will operate when needed. If improper maintenance causes problems, the machine will experience a diagnostic failure when it is used, and the machine will prevent a sample from being received. Simply put, a breakdown caused by maintenance problems will prevent an analysis from occurring, not cause an inaccurate one.

[57] Documents filed before me show that this is also the view of the Alcohol Test Committee, which believes that its 2009 materials misled the Court in R. v. St-Onge Lamoureux by not distinguishing clearly enough between quality assurance procedures and quality control information. The Committee therefore released a 2012 position paper and a revised "Recommended Standards and Procedures" Paper in 2013, on which Dr. Mayer based his evidence.

[58] I found this evidence from the Crown to be compelling. Not only was the Crown evidence offered in a measured and persuasive fashion with appropriate scientific caution, it is intuitively appealing. Dr. Mayer analogized to the tire of a car. There may be best practices involving the periodic inspection of tires, and a vehicle may have had a flat tire in the past, but on the question of whether the tire is currently flat, such history is of no assistance. What is useful is information relating to the condition of the tire at the time. When it comes to the condition of the Intoxilyzer 8000C, the number and nature of checks that occur during the subject tests are impressive. It does not seem reasonably likely that a failure by the machine on other occasions, or the failure to maintain an approved instrument, would cause it to erroneously produce the correct reading during a calibration check, a blank reading during a blank check, and then produce two matching incorrect readings during the subject test, when the machine, designed to detect malfunctions in operation detects none.

[59] The defence offered the evidence of Dr. Michael Ward, to dispute these claims. His affidavit proposed that, "All of the criteria outlined [in paragraph 3 of his affidavit, including subject test information and some general Intoxilyzer information] are necessary to determine if a breath analysis is accurate and reliable." By the time cross-examination on Dr. Ward's testimony was completed, he offered the more modest position that demonstrating that maintenance protocols have been followed and that the machine does not have a history of malfunction can increase confidence in the readings.

[60] Frankly, as modest as his position turned out to be, I was unimpressed with Dr. Ward's testimony. It did not assist Dr. Ward's credibility that he presented a "curriculum vitae" in which he claimed to be "Designated as an Analyst, Section 254(1) CC., Solicitor General of Ontario, Toronto, Ontario 1985." This is not true. He was qualified to test the Intoxilyzer 5000C, not designated as a technician under the authority of the statute. The precise and detailed but false claim made in the curriculum vitae, including the term "designated" and the reference to section 254(1) of the Criminal Code, is deeply troubling.

[61] Dr. Ward also presented an affidavit dated 3 June 2014 in which his opinion is presented as if supported by the Alcohol Test Committee. It fails to disclose the material information, of which he was aware, that the Alcohol Test Committee has clarified its position and made clear that only subject test records are required to assess the accuracy of results on a specific occasion. This is in flat contradiction to the position offered by Dr. Ward that, "All of the criteria outlined is necessary to determine if a breath analysis is accurate and reliable." An expert witness who understands their role as an expert witness would have disclosed the most recent Alcohol Test Committee position and dealt with it, not present an affidavit that is highly suggestive that the Alcohol Test Committee endorses propositions it in fact disputes.

[62] I will stop short of saying that Dr. Ward attempted intentionally to mislead the Court on these matters, but this presentation of information reflects a lack of commitment to the kind of careful and neutral presentation of evidence expected of an expert, and it does much to discredit his evidence.

[63] While Dr. Ward did quality to give expert evidence because he knew more on the relevant issues than a trier of fact would, his modest expertise in the area of his testimony also compromises his evidence. During the course of his cross-examination, for example, Dr. Ward confessed that he did not have access to much of the scientific literature about the Intoxilyzer 8000C, has no experience training with that instrument, has never personally inspected such a machine, and does not have expertise on the issue of maintenance. He admitted that he had not read any scientific study dealing with maintenance. He does not know what annual inspection entails. He has not published about the Intoxilyzer 8000C, or even the Intoxilyzer 5000C for that matter. And his expertise derives solely from his familiarity with general scientific principles and experience with the Intoxilyzer 5000C which uses similar technology to measure blood alcohol levels, coupled with reading some material. Stated bluntly, Dr. Ward did not present as a compelling source of information on the issues before me.

[64] Dr. Ward gave evidence that information about the performance of the instrument before the subject test would be "more interesting" than information about its performance after the test. This opinion was not explained satisfactorily, and presented more as an impulsive, than a considered, answer.

[65] Of greatest concern is that when this testimony was later put to him, Dr. Ward said he could not recall what he had said on the matter. It is deeply troubling for a witness to offer information as expert guidance for a court, without being able to replicate it when the issue next arises.

[66] When Dr. Ward got into trouble when challenged about the irrelevance of maintenance and historical test records to determinations of the accuracy of specific test results, he did not make the concessions that were obviously required. Instead he offered the question-begging explanations that historical and maintenance data would be interesting, that historical records are relevant to the concept of reasonable doubt, and past records of proper operation and proper maintenance can instil greater confidence in the results.

[67] On the evidence before me the opinion given by Dr. Mayer, including the information from the Alcohol Test Committee adopted by Dr. Mayer, is not only compelling, it is untouched by creditable evidence to the contrary. It shows that improper maintenance and historical difficulties with an approved instrument cannot raise a reasonable doubt about the validity of individual test results. That evidence shows that the reliablity issue should be resolved with case-specific, subject test information generated at the time an accused person furnishes breath samples into an Intoxilyzer 8000C.

[68] The awkward implication of this fatual finding is that the assumption inherent in the Supreme Court of Canada decision in R. v. St-Onge Lamoureux, supra that improper maintenance and historical difficulties with a machine can raise a reasonable doubt about the validity of individual test results, may be inaccurate. There is no doubt that the R. v. St-Onge Lamorueux majority was heavily influenced by the 2009 "Recommended Standards and Procedures" Paper and treated the Alcohol Test Committee as an authoritative source of information on functioning and operation, even though the majority recognized that Parliament did not adopt the Committee's recommendations directly. Given that information relied upon by the Court in R. v. St-Onge Lamoureux from the Alcohol Test Committee has been compromised by the clarifying documentation it issued in the wake of R. v. St-Onge Lamoureux, I did consider whether I was at liberty, based on the principles of stare decisis as explained in R. v. Henry, 2005 SCC 76, [2005] S.C.J. No. 76, and R. v. Prokofiew, 2010 ONCA 423, [2010] O.J. No. 2498, aff'd 2013 SCC 49, [2013] S.C.J. No. 49, Canada (Attorney General) v Bedford, 2013 SCC 72, and Carter v. Canada (A.G.), 2015 SCC 5, 2015 S.C.J. No. 5, to deviate from R. v. St-Onge Lamoureux and find that maintenance information and information relating to the performance of the machine on other occasions is irrelevant information in determining whether it was malfunctioning or operated improperly during the subject test. It is my view, however, that I cannot, and should not, do this. Specifically, the principles of stare decisis hold that:

1. "The doctrine that lower courts must follow the decisions of higher courts is fundamental to our legal system. It provides certainty while promoting the orderly development of the law in incremental steps": Carter v. Canada (A.G.), supra at para. 44.

2. Not only is the ratio decidendi (the portion of the decision that is necessary to its outcome) of a Supreme Court of Canada decision binding, so too, is obiter dicta that is "obviously intended for guidance [to lower courts] and which should be accepted as authoritative": R. v. Henry, supra at para. 57. This shift in the classic conception of precedent occurred because the Supreme Court of Canada's mandate is now less one of error correction than it is the development of jurisprudence.

3. One can distinguish between binding obiter in Supreme Court of Canada judgments and non-binding obiter by asking, "What does the case actually decide?" "Some cases decide only a narrow point in a specific factual context. Other cases – including the vast majority of Supreme Court of Canada decisions – decide broader legal propositions, and in the course of doing so, set out legal analyses that have application beyond the facts of the particular case": R. v. Prokofiew, supra (Ont.C.A.) at para. 19.

4. "Obter dicta will move along a continuum. A legal pronouncement that is integral to the result or the analysis that underlies the determination of the matter in any particular case will be binding. Obiter that is incidental or collateral to that analysis should not be regarded as binding, although it will obviously remain persuasive.": R. v. Prokofiew, supra (Ont.C.A.) at para. 20.

5. In making these determinations, lower courts should presume that obiter dicta of the Supreme Court are binding upon them: R. v. Prokofiew, supra (SCC) at para. 55.

6. "Trial courts may reconsider settled rulings of higher courts in two situations (1) where a new legal issue is raised; and (2) where there is a change in the circumstances or evidence that 'fundamentally shifts the parameters of the debate'": Carter v. Canada (A.G.), supra at para. 44, citing Canada (Attorney General) v Bedford, 2013 SCC 72 at para. 42.

[69] The ratio decidendi of the R. v. St-Onge Lamoureux is its holdings that parts of section 258(1)(c) are constitutionally valid and other parts are not, according to the Charter provisions considered. The majority's conclusion that the term "operated improperly" embraces generic Intoxilyzer data such as maintenance records is therefore obiter dictum.

[70] As indicated, however, Supreme Court of Canada obiter dictum is presumptively binding on me. When it comes to the holding that "operated improperly" includes generic information about maintenance, this presumption is not rebutted. In my view, the interpretation of that phrase is not simply an incidental or tangential observation. As indicated, I see this conclusion as a matter of statutory interpretation. As such, this obiter dictum was "integral to the result," in a Charter based statutory challenge, given that constitutional validity cannot be decided without first determining the reach of the provision in question.

[71] I also considered whether I could revisit the Court's ruling, under the authority of Carter, supra and Bedford, supra, but I cannot. No new legal issue has been raised before me, and I am uncertain whether there is a change in the circumstances or evidence that "fundamentally shifts the parameters of the debate." I can have no confidence that the Supreme Court of Canada did not have evidence before it similar to that which has been presented before me, and that it did not reject the arguments before it that I accept here. Nor can I be confident that the evidence that I heard is complete. For example, the evidence before me was that "Cobra data" is never relevant, but R. v. Ocampo, 2014 ONCJ 440 offers persuasive reasoning that "Cobra data" relating to the subject test can include relevant information not included in the test record.

[72] When it comes to challenging the presumption of accuracy in section 258(1)(c), I am therefore constrained to find that the law holds that evidence will be relevant, and therefore subject to first party disclosure, where it relates to the functioning or proper operation, including the maintenance over time, of the approved instrument that is being relied upon in the case.

[73] It is important in evaluating the relevance of evidence for disclosure purposes to recognize that the party seeking disclosure is not required to demonstrate the precise use they would make of the information: R. v. McNeil, supra at para. 33. There is therefore no need before disclosure is required for a foundation to exist that perhaps something went awry with the functioning or operation or maintenance of the machine or its accessory equipment. Just as the accused is entitled to see a subject test record to identify whether anything may have gone wrong, the accused is entitled to disclosure of this material. Disclosure of information, even confirming that all is well, enables the accused to make appropriate decisions how to proceed, and services the interest of justice in encouraging resolution.

[74] Applying this standard, the Cobra data being sought is not clearly irrelevant to proper operation or proper maintenance of the machine. The Cobra data records diagnostic failures during testing sequences. According to Dr. Mayer's evidence, if a machine experiences two diagnostic fails in a testing process then both the Alcohol Test Committee and the Centre for Forensic Science recommend that further action be taken. The qualified technician should either send the machine out for service, as was done by Cst. Bennett-Ferland with respect to the other machine at Teron Road OPP detachment where Mr. Fitts was processed, or a diagnosis should be conducted of what is going on. Access to Cobra data can therefore determine whether such failures occurred, and whether proper operating and maintenance procedures were followed.

[75] Nor is the state of certification of the simulator used in this case "clearly irrelevant." The "Recommended Standards and Procedures of the Canadian Society for Forensic Science Alcohol Test Committee," both in 2009 and the current iteration, provide that accessory equipment such as simulators should be inspected before being placed in service and periodically thereafter, according to manufacturer specifications, as well as once a year. Operation without compliance with this protocol is evidence that the machine was not operated properly. In R. v. Ly, [2005] O.J. No. 6065 (Ont.C.J.) this is precisely what happened. Disclosure revealed that the approved instrument had not been serviced in two years, contrary to the accepted protocol.

[76] For the same reason, the initial certification documentation relating to the Intoxilyzer 8000C is not clearly irrelevant. It too, is required by the same guidelines to be individually inspected before being put into service.

V. Was the Target "Intoxilyzer Information" "Lost"?

[77] There is no issue that the "Cobra data" being sought existed, but has since been deleted and is therefore "lost." Things are not so simple with the other items at issue.

[78] The Crown urges that the information identifying the "simulator" that was used during Mr. Fitts' breath test has not been lost because, in 2011, it was not the practice, as it now is to record information identifying the simulator that is used. Since there was no record, there is nothing that could have been lost.

[79] I disagree. The investigating police force had control over this information. They just did not record it. By not doing so, the Crown has failed to preserve relevant information.

[80] In contrast, the maintenance records relating to the first 20 months the subject Intoxilyzer was in service, pending Mr. Fitts' test, are not lost evidence. Sgt. Rome, the Breath Testing and Criminal Driving Offences Coordinator for the Ontario Provincial Police, explained that although he would not have actual maintenance records even if maintenance had occurred, there would have been invoices on record setting out any maintenance that was done. There were no invoices for the subject machine during the period in question. Sgt. Rome also explained that at the relevant time annual maintenance was not done because it was not required by the manufacturer, given the two year warranty that CMI offered. Out of an abundance of caution, after the disclosure request he followed up with Davtech, the only one of the two service providers still in business. Davtech had no record of maintenance. Based on this information Sgt. Rome therefore formed the conclusion that no maintenance had been done. That inference is persuasive. The absence of such records is not, therefore, a "lost evidence" issue.

[81] This leaves the initial calibration records for the subject Intoxilyzer that Mr. Fitts alleges were generated when the approved instrument was put into service. There is no evidence before me that the manufacturer, CMI, actually produced a certification document when the Intoxilyzer was delivered. On that point Sgt. Rome could say no more than that he has no such records "in my archive." "I came up empty handed on the certificate."

[82] Still, there is, in my view, an "air of reality" that the Ontario Provincial Police would have inspected the Intoxilzyer 8000C when it was received. I say this because the "Recommended Standards and Procedures of the Canadian Society of Forensic Science Alcohol Test Committee," in both its 2009 and current iteration, requires that "All approved instruments intended for active use in a program shall be individually inspected before being put in service." Sgt Rome also testified that such inspections currently occur. What he was unsure of is whether records were kept at the time, as they now are. Given that initial inspections are currently undertaken, and such inspections were required at the time by protocol, it is my opinion that the modest air of reality standard that such inspections occurred is met on the evidence before me. So, too, is the prospect that records of that initial inspection would have been generated. This puts an obligation on the Crown to establish that it did not, in fact, possess such information. It has not done so. I am therefore to proceed on the basis that initial certification documents have been "lost."

VI. Has There Been a Non-Disclosure Breach?

[82] Given that the prosecuting Crown has failed to preserve the Cobra data, the information necessary to identify simulator certification information, and the information relating to the initial inspection of the Intoxilyzer 8000C, the burden falls to the Crown to offer a satisfactory explanation for the loss of the evidence. In assessing this explanation I am to consider whether the Crown acted reasonably given how relevant the evidence was perceived to be at the time it was lost, and whether the police acted reasonably in attempting to preserve it.

[83] In my view, the Crown did not act reasonably with respect to the Cobra data. To be clear, the prosecuting Crown itself cannot be faulted directly. It was aware that this information was being sought by the defence and was prepared to defend its position in Court, in the face of conflicting authority, that such information need not be disclosed. While waiting for argument, it had no reason to believe that the machine that contained the Cobra data would be made surplus and the Cobra data wiped. Evidence from the defence witness Dr. Ward was that he had never heard of this happening. The Crown cannot be faulted, then, for not having notified the Ontario Provincial Police upon receiving Mr. Fitts' disclosure request that the Ontario Provincial Police should secure the Cobra data.

[84] The Crown can, however, be faulted based on the reciprocal disclosure obligation that the investigating police force failed to discharge when the Cobra data was destroyed. On the evidence before me, the Ontario Provincial Police knew that such information could be subject to disclosure requests. There had been a flurry of case law in the East region relating to access to such information, and disclosure had been ordered in a number of cases. More importantly, the disclosure of this very information had already been litigated on November 8 and 19, 2012, when Mr. Fitts was convicted. That decision was under appeal when the Cobra data was destroyed, on or about February 28, 2013. If the Crown had shown that the Ontario Provincial Police had not been apprised of the appeal, and believed the matter to have been finally disposed of, I may have felt differently. I would have accepted the explanation as reasonable. On the evidence I do have, however, the explanation for the loss of the Cobra data is inadequate.

[85] For its part the explanation for the loss of information identifying the simulator that was used, specifically that there was no practice of recording such information, is not satisfactory. There now is such a practice, even though the relevant protocol issued by the Alcohol Test Committee has not changed. This kind of information should have been preserved at the time.

[86] The same holds true for the failure to retain records relating to any initial inspection done on the Intoxilyzer 8000C.

[87] I therefore find that there has been a non-disclosure breach relating to each of these items of information, resulting from the unsatisfactorily explained loss of this evidence.

VII. Has There Been a "Full Answer and Defence" Breach?

[88] There has been no breach of Mr. Fitts' right to full answer and defence. This doctrine is a "fall back" Charter claim that is to be used only if the Crown has explained the circumstances of the loss of the evidence. I have already found that the Crown has not done so. Mr. Fitts' Charter grievance is therefore to be brokered under the "Non-Disclosure Head" that I have just analyzed.

VIII. Has There Been an "Abuse of Process"?

[89] As indicated, in the "lost evidence' context, the "abuse of process" doctrine does not focus on trial fairness or full answer and defence; its preoccupation is with conduct leading to the loss of evidence that violates "those fundamental principles that underlie the community's sense of decency and fair play." The doctrine embraces the malicious destruction of disclosable information, as well as loss or destruction that reaches a sufficiently blameworthy state of negligence that the conduct can be censured as indecent or unfair. The onus, of course, is on Mr. Fitts to establish this. I am not satisfied that he has. The failure by the Ontario Provincial Police to preserve the simulator information and initial calibration records and Cobra data is unimpressive, but it does not rise to this level of an abuse of process.

[90] I will deal first with the simulator information and calibration records. While it is true that even in 2011 the Alcohol Test Committee protocols required proper certification and initial inspection of approved instruments being put into service, at that time litigation concerning disclosure obligations relating to generic Intoxilyzer information was, in relative terms, in its infancy. The lower courts were, and still are, divided on the matter. One would always hope that even where lower courts are split on a legal question that bears on the obligations of police forces that this will encourage police forces to review their practices so that they can comply, in the event that such obligations do exist. Police forces are, however, human institutions with a wide range of priorities, and without unlimited resources, and we are not speaking about compliance with a settled authority of importance issued by an authoritative appeal court. Should the developing case law relating to disclosure as it stood in 2011 have prompted the Ontario Provincial Police to adopt policies to enable disclosure, out of an abundance of caution? Ideally, yes. It may even be that this should have been done. But is the failure to implement new practices to respond to conflicting trial level authority so "abusive [as] to violate the fundamental principles that underlie the community's sense of decency and fair play"? I am not persuaded.

[91] The loss of the Cobra data is a closer call, because it was destroyed while an appeal from a conviction was pending in a case where that very Cobra data had been sought. If Mr. Fitts had marshalled evidence that the Ontario Provincial Police had been aware of the appeal when the Cobra data was destroyed, I would have readily found sufficient institutional neglect to violate the fundamental principles that underlie the community's sense of decency and fair play. As it stands, I have no such evidence. The evidence before is that the Ministry determined that it had too many Intoxilyzer machines in service at the time. It therefore made an administrative decision to make many of them, including the Theron Road machine used in Mr. Fitts case, surplus. Perhaps to make those machines ready for reassignment, the Cobra data was destroyed. This was not done to frustrate access to information, nor was the decision to clean these instruments offensively negligent. This was an administrative decision that no doubt had unanticipated consequences. This conduct does not support a finding of abuse of process based on the branch of the law which, in this context, deals only with offensive conduct.

IX. Remedy

[92] What, then, is the appropriate remedy for the "Non-Disclosure Breach" in failing to preserve the Cobra data, the documentation required to confirm simulator certification, and the initial certification information? Mr. Fitts is seeking that the proceedings be stayed, or in the alternative, that the breath analysis evidence be excluded.

[93] In light of the principle that prejudice is material in fashioning an appropriate remedy, even though prejudice is not material to whether a breach has occurred, it is helpful to begin with that question and consider the degree of prejudice to Mr. Fitts experienced as a result of the loss of the evidence described. Since the Charter claimant bears the onus of showing that a remedy is "appropriate and just" on the balance of probabilities, it is up to Mr. Fitts to establish any prejudice he wishes to rely upon.

On the evidence before me, Mr. Fitts has not demonstrated meaningful prejudice. Indeed, I am satisfied that any prejudice that may have occurred from non-disclosure was modest. While the non-disclosed evidence may have enabled Mr. Fitts to rebut the presumption of accuracy in section 258(1)(c), I am persuaded that even if the presumption had been rebutted, this would have had no meaningful impact on this case. Compelling proof was offered by the Crown in this case that despite any "malfunction or improper operation," or despite any improper maintenance that may have been shown, the test results were nonetheless accurate. Simply put, even if Mr. Fitts had secured this evidence and it proved helpful in challenging the presumption, it would not have changed the outcome of this case.

[94] I will begin with the simulator evidence, for if the simulator was not working, then the machine was not properly calibrated before Mr. Fitts' test. As explained, the critical function of the simulator is to heat the standard solution to the proper temperature. The evidence before me is that if an attempt was made to introduce into the Intoxilyzer 8000C air that did not fall into the appropriate temperature range, the machine itself would generate an error code and cease operating. Dr. Michael Ward, for the defence, and Dr. Darryl Mayers for the Crown, agreed on this. In effect, the machine itself measures the temperature of the vapour emanating from the standard solution, providing a redundant safeguard against a malfunctioning simulator.

[95] Moreover, the evidence before me is that the calibration test was in fact successful. Not only did the Approved Instrument receive the calibration sample and analyse it, it recorded an appropriate temperature and produced the expected result. I am persuaded that the conduct of the test on Mr. Fitts itself is therefore powerful circumstantial evidence that, whether the simulator was certified at the time it was put in service, or inspected as required, it was operating properly on the day in question. That being so, what Mr. Fitts lost through non-disclosure of the simulator certification was the opportunity to secure direct evidence about the condition of the simulator at some point in the past, either when it was initially certified or inspected, as opposed to the day in question. Whatever that evidence may have showed, it could not reasonably stack up against the indicia of reliability relating to the functioning of the simulator at the relevant time that was generated through the successful completion of the subject test.

[96] I find the same to be true of both the certification information that would have been generated when the Approved Instrument was first put into service, and the Cobra data of the kind requested here, being information related to subject tests conducted proximately to Mr. Fitts' own test. On the evidence that I accept, this information, even if disclosed, would be incapable of raising a reasonable doubt about the accuracy of Mr. Fitts' own readings. As Dr. Mayer testified, even if the Approved Instrument was not maintained or serviced as required, and even if it had malfunctioned on another day, the subject test information shows that on that day the machine produced reliable results. First, when the Approved Instrument went through its self-check, it did not generate any error messages, and was able to receive samples, even though it is designed not to do so if an error is occurring. Second, when it was tested without alcohol vapour in the blank test, the Approved Instrument produced the expected result of zero, and when the calibration test was conducted, the machine produced a reading in the expected range. Third, when the subject tests were conducted, they were in agreement. As Justice Tuck-Jackson observed in R. v. Ahmed, supra, and as the evidence before me supports, "I fail to see how a review of the instrument's condition in the past would generate any information that would impact favourably [for the accused person] on the trilogy of propositions." Simply put, there is no evidence of ultimate prejudice caused by the non-disclosure of either the initial certification information, or the Cobra data.

[97] This being so, a stay of proceedings is not an appropriate remedy. There is no prejudice to the accused's right to a fair trial. Moreover, this is not a case where there is prejudice to the integrity of the justice system caused by improper Crown or police conduct that would support a stay of proceeding. The unimpressive performance of the police is not serious enough to produce that result.

[98] Nor is this a case where exclusion of the test samples is an appropriate and just remedy under section 24(1), applying the test in R. v. Bjelland, supra. Given that the Crown has presented compelling evidence that, regardless of the non-disclosed material and whether the presumption of accuracy would have fallen aside, Mr. Fitts blood alcohol readings were accurate, there is therefore nothing in the admission of the samples that would render the trial unfair. Nor is the failure to disclose shown, in the circumstances, to be serious enough to require exclusion to maintain the integrity of the justice system.

[99] I am therefore declining to order a remedy for the non-disclosure breaches identified.

X. Conclusion

[100] The Crown has breached Mr. Fitt's Charter right by non-disclosure of evidence that Mr. Fitts had the right to receive. Non-disclosure occurred because the Crown failed to preserve the evidence, without proper explanation. This is a case, however, where neither of the remedies sought by Mr. Fitts are "appropriate and just" within the meaning of section 24(1) of the Charter. This is not a case for exclusion, and it is not a case for a stay of proceedings. I am therefore admitting the Intoxilyzer results that were secured from Mr. Fitts on August 27, 2011 into evidence during this trial.

Released: 13 May 2015

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The Honourable Justice David M. Paciocco