Court Information

Ontario Court of Justice

Date: October 17, 2017

Court File No.: Newmarket

Parties

Between:

Her Majesty the Queen

— and —

Matthew John Ruscica

Before: Justice Marcella Henschel

Heard on: September 27, 2017

Reasons for Judgment for third party records released on: October 17, 2017

Counsel

Brian McCallion — counsel for the Crown

Mr. Alex Palamarek — counsel for the applicant Matthew John Ruscica

Mr. Jason Fraser — counsel for the York Regional Police

Judgment

HENSCHEL J.:

Overview

[1] The applicant, Matthew Ruscica, is charged with operating a motor vehicle while impaired by alcohol, contrary to s. 253(1)(a) of the Criminal Code, and operating a motor vehicle "over 80", contrary to s. 253(1)(b) of the Criminal Code. He has applied for production of third party records relating to the approved screening device (ASD) used in the investigation. The Crown and the York Regional Police, the third party records holder, oppose the production of the records on the basis that the applicant has failed to establish that the records are "likely relevant". On September 27, 2017 I dismissed the application for production because the applicant had failed to establish "likely relevance" with reasons to follow. These are my reasons.

Summary of the Allegations

[2] In support of the request for production, the applicant relied upon the application record (Exhibit 1), notes of the investigating officer PC Oliva (Exhibit 2), the "impaired charges time sheet" (Exhibit 3), a photograph of the ASD with a sticker displaying the date of calibration, July 10, 2016 (Exhibit 4), signed by PC Gifuni #1890, and the ICC (in-car camera) recording (Exhibit 5). No expert evidence or evidence about the workings of the ASD was tendered.

[3] The allegations are that on July 17, 2016, PC Oliva received information from the dispatcher that an individual was following an impaired driver who was driving a truck southbound on Bayview Avenue in Richmond Hill. At 2:18 a.m., PC Oliva located the truck going through a McDonald's drive-through. PC Oliva stopped the vehicle, driven by the applicant.

[4] PC Oliva asked the applicant if he had anything to drink. He replied "nothing". PC Oliva told him he smelled alcohol coming from his mouth. He replied that he had one drink. PC Oliva told him that he was being detained for possible impaired driving, and read him the rights to counsel and caution. He asked the applicant to exit his truck and go with him to the police cruiser.

[5] At the cruiser, PC Oliva read the applicant an approved screening device demand. The officer noted that the ASD was an Alcotest 6810 with serial number AREH 027, calibrated on July 10, 2016 by PC Gifuni #1890. PC Oliva did a self-breath test, to establish that the device was working properly and to show the applicant how to provide a sample. PC Oliva received a reading of "0", and explained to the applicant that was because he had not "had anything".

[6] He provided the ASD to the applicant. PC Oliva noted that: "the first attempt was not an attempt as I had to reset the device. After resetting, the driver blew into the device successfully and it registered a fail." The ICC captures PC Oliva telling the applicant during the first attempt that he had to blow harder. The ICC shows PC Oliva providing the device to the applicant for a second attempt. The applicant blew into the device, PC Oliva looked at the device and told the applicant that the device registered a fail, and explained that meant that he was over the legal limit.

[7] After receiving the fail reading on the ASD, PC Oliva placed the applicant under arrest for operating a motor vehicle "over 80" and read the breath demand pursuant to s. 254(3) of the Criminal Code. The applicant, after providing breath samples into an approved instrument at the police station, was ultimately charged with the offences of impaired driving and driving "over 80".

Position of the Parties

[8] The applicant sought production of a wide range of records pertaining to the ASD for a seven month period, specifically:

All calibration, accuracy, maintenance, service, repair, inspection and any other records concerning the Drager Alcotest 6810, P/N 8318570, AREH 0287 held by the York Regional Police Service maintained from January 17, 2016 to August 17, 2016 including:

A. COBRA downloads of subject tests;

B. diagnostic tests;

C. calibration checks; and

D. error and/or inspection messages.

[9] The applicant filed a written notice of application and affidavit setting out the grounds in support of the request for production and served notice, and a subpoena duces tecum on the third party records holder, the York Regional Police.

[10] In the notice of application the applicant submitted that the records sought are "likely relevant" for the following reasons:

i. the records may contain information concerning instrument malfunction or operator error with respect to the ASD;

ii. the "fail" reading of the ASD informed PC Oliva's reasonable and probable grounds to charge the Applicant with "over 80";

iii. the records may contain information concerning the unfolding of the events underlying the Applicant's arrest for "over 80";

iv. the records may contain information that bears on PC Oliva's reliability and ability to recall; and

v. the records may contain information that bears on the credibility and character of PC Oliva.

[11] During submissions, the applicant agreed that the ASD records are sought primarily to challenge PC Oliva's reasonable grounds to make a s. 254(3) demand and in furtherance of a potential s. 8 Charter application to exclude the Intoxilyzer readings under s. 24(2) of the Charter. The applicant also argued that the records are relevant to the investigating officer's general credibility.

[12] The respondents submitted that the application record failed to establish "likely relevance". They submit that the evidentiary support for the request fails to ascend beyond the speculative, particularly because the records sought relate to the ASD, a device used only to establish the investigating officer's reasonable grounds for a s. 254(3) breath demand.

Governing Legal Principles

[13] The parties agree that the records sought are third party records and their production is governed by the analytical framework established by the Supreme Court of Canada in R. v. O'Connor. Under O'Connor, production does not issue as of right upon application. When an accused seeks production of materials in the possession of a third party the court must conduct a two-step analysis.

(1) The accused must demonstrate that the material is "likely relevant" to the proceeding; and

(2) If the "likely relevant" threshold is met, the documents must be produced to the court for review in order to determine whether, and to what extent the materials should be produced. In making the determination the court must balance the salutary and deleterious effects of a production order and whether a non-production order would constitute a reasonable limit on the ability of the accused to make full answer in defence.

[14] In the disclosure context the meaning of relevance is expressed in terms of whether the information may be useful to the defence. In the context of production, the test of relevance is higher: the presiding judge must be satisfied that there is "a reasonable possibility that the information is logically probative to an issue at trial or the competence of a witness to testify". Relevance to an issue at trial refers not only to evidence that may be probative to the material issues in the case but also to evidence relating to the credibility of witnesses and to the reliability of other evidence in the case.

[15] While the burden to establish "likely relevance" is a significant burden, it should not be interpreted as an onerous burden upon the accused. The burden to establish "likely relevance" at the first stage is a requirement to prevent the defence from engaging in "speculative, fanciful, disruptive, unmeritorious, obstructive and time-consuming" requests for production. For example, an unsupported assertion that prior inconsistent statements might be unearthed is inadequate to establish likely relevance.

[16] At the "likely relevance" stage privacy interests or whether the evidence would be admissible as a matter of policy should not enter into the analysis.

[17] In Jackson, the Ontario Court of Appeal held that records of the history and performance of an "approved instrument" were third party records and, on the facts of the case, were not proven to be "likely relevant". In Jackson, the trial court had ordered disclosure of service records, usage and calibration records, and downloaded data of samples that bracketed the samples provided by the accused. At first instance, the Crown and accused called forensic toxicologists to give expert evidence about the workings of the approved instrument and to explain the relevance (or lack thereof) of the records sought. Relying upon the expert evidence, the trial judge and the reviewing court (considering a certiorari application to quash the disclosure order) concluded that the records were first party disclosure relevant to the assessment of whether the machine used to gather the evidence against the accused had malfunctioned. The reviewing court concluded that the records would also meet the O'Connor "likely relevance" threshold.

[18] The Court of Appeal reversed the findings of the reviewing court. After finding that the records were third party records subject to the O'Connor framework, the Court of Appeal concluded that the accused had not established that the proposed records were "likely relevant" for the following reasons:

(1) Nothing on the face of the disclosure indicated any problem with the Intoxilyzer 8000C approved instrument or any error by the technician in its operation. There was no air of reality to the claim of instrument malfunction or operator error.

(2) The expert evidence about the potential relevance of the records was speculative, and was contrary to the report to the Alcohol Test Committee that belies the assistance of the records sought in determining whether the instrument functioned properly for a particular subject test.

(3) The records sought had no relevance to the unfolding of the narrative of the material events in the case. The historical data had nothing to say about what gave rise to the prosecution, or about the credibility of any party involved in making the demands or the operation of the instrument.

(4) The "likely relevance" standard is more demanding than the "whether the information may be useful" criterion for first party disclosure. The more stringent standard is consonant with the underlying policy consideration and the gatekeeper function assigned to the trial judge.

[19] The records sought in this case are more remote from the material issues than the records sought in Jackson. In Jackson, the records related to the instrument that produced the breath test results that were the evidence of the concentration of alcohol in the accused's blood. In contrast, an ASD does not provide evidence of the blood alcohol concentration of the accused, or even evidence that may support a finding of guilt. The results of an ASD cannot be used to incriminate an accused. The ASD is an investigative tool used in the formation of reasonable and probable grounds and is not evidence upon which the trial judge may rely for proof of the offence. The ASD fail result was used only to establish the reasonable grounds required to make a breath demand for samples to be provided into an approved instrument.

[20] The Applicant seeks the records of the ASD primarily to support a s. 8 Charter challenge. An O'Connor application made to support a s. 8 Charter application must be assessed in the context of the narrow issues that a s. 8 application is meant to address. A typical O'Connor application is designed to deal with production of documents that relate to material issues at trial bearing on the guilt or innocence of the accused. A s. 8 challenge to the lawfulness of a s. 254(3) demand is more limited in scope, relating to the admissibility of evidence, namely the Intoxilyzer breath sample results. This is an important distinction.

[21] Where there is an assertion that breath samples were obtained in contravention of s. 8 of the Charter, the court must assess the reasonableness of the search and seizure. The search will be reasonable if the statutory preconditions for the taking of the breath samples under s. 254(3) have been met. In order to make a lawful breath demand under s. 254(3) a police officer must have reasonable grounds to believe that an individual was committing, or had committed within the preceding three hours an offence under s. 253 of the Criminal Code.

[22] A police officer can form the required reasonable grounds based on a fail result on an ASD if they have a reasonable belief that the fail result means that the subject's blood alcohol content exceeds the legal limit. What matters is the reasonableness of the officer's belief regarding the significance of a fail result at the time the s. 254(3) demand is made. To establish that the belief was reasonable, the Crown is not required to prove that the approved screening device was working properly. An officer's belief can be objectively reasonable even if he or she had an honest but mistaken belief that the device was properly calibrated and in proper working order. The crown must only establish that the officer had a subjective belief that the approved screening device was working properly and that the belief was objectively reasonable. While an officer cannot ignore signs of a problem, if there is no indication that anything is amiss, officers do not need to conduct an investigation of the history of reliability of the device.

[23] The court determining a s. 8 Charter application need not determine whether the beliefs underlying an officer's s. 254(3) demand are ultimately true. What matters is what the officer knew or ought to have known at the time the s. 254(3) demand was made. In Black, a case which considered the production of records relating to an ASD, the Alberta Court of Appeal clearly articulated the point as follows:

The accuracy of the officer's beliefs does not affect their reasonableness. Even if the belief is drawn from hearsay, incomplete sources, or assumptions that are incorrect based on facts that emerge later, it may still be objectively reasonable as what is measured are the facts as understood by the peace officer when the belief was formed: R. v. Musurichan (1990), 107 AR 102 at para. 10 (CA). Evidence that arises after the formation of the officer's belief is not relevant to the determination of whether that belief was based on reasonable and probable grounds: R. v. McClelland (1995), 165 AR 332, at para. 22 (CA). Objective reasonableness of the grounds is determined by the court asking "whether the facts as the police constable saw them (the subjective aspect of the test) could objectively constitute reasonable grounds": R. v. Hutton (1990), 106 AR 116, at para. 8 (CA).

[24] Disclosure that can do no more than show that some of the information relied upon by the officer was "false" or unreliable is not likely to be useful unless it can also support the inference that the officer knew or ought to have known that it was false or unreliable.

[25] Consequently, in the context of a s. 8 Charter application it is of no value for the applicant to establish that historically the ASD has produced unreliable results, or that it has a history of not working properly, unless the applicant can also establish that the officer knew or ought to have known that the device produced unreliable results.

[26] Courts must not lose sight of the fact that an ASD is an investigatory tool, and the results obtained are not evidence that may be used to determine the guilt or innocence of the accused. The issues to be determined in a s. 8 challenge to the lawfulness of the seizure of breath samples are focused and narrow and this context must be kept in mind when assessing an application for third party records sought to support a s. 8 Charter application.

[27] In Black, the Alberta Court of Appeal concluded that the applicant had failed to establish the likely relevance in respect of similar ASD records. The court concluded that ASD records that post-dated the alleged offence were clearly irrelevant. Records that did not exist at the time of the offence could not possibly affect the investigating officer's reasonable and probable grounds. In respect of historic ASD records the court held that if the officer had no knowledge of the records such records could not affect the assessment of the officer's subjective or objective grounds. The court observed that the only exception where such records might have relevance was if the investigating officer played a role in certifying the ASD and was subjectively aware of a history of problems. Such circumstances could be relevant to the reasonableness of the officer's belief. The court emphasized that an officer is entitled to rely on the accuracy of an ASD particularly where a sticker of calibration conveys to the officer that the calibration of the device was recently performed. In Black the court concluded that "because there is no direct charge that follows a fail result on an ASD test, the logs are also irrelevant to any issue flowing from the breathalyzer test. What is relevant to charges of driving over .08 is the operation of the breathalyzer machine and not the ASD".

Principles Applied

[28] I am not satisfied that the applicant has established "likely relevance" as defined in O'Connor.

[29] The applicant provided no evidentiary foundation to establish that the ASD was not working properly or that there was any error by the investigating officer in its operation. Rather, PC Oliva's notes and the ICC support the conclusion that P.C. Oliva believed that the ASD was working properly, and that his belief was objectively reasonable. P.C. Oliva noted that the device had been recently calibrated. He self-tested the device to confirm that it was working properly, and received a reading of "0", consistent with the fact he had "not had any" alcohol. The officer presented the device to the applicant, and during the applicant's first attempt encouraged him to blow harder because he was not blowing hard enough. No result registered the first time. The reasonable inference from the application materials is that this was because the applicant was not blowing hard enough, not because the ASD malfunctioned. On the second occasion, after the officer explained to the applicant that he had to blow harder, the applicant provided a suitable sample and a fail result was obtained. At no point in the ICC recording does the officer appear to express any concern that the device had malfunctioned. Nothing supports the suggestion that it was not working properly or that the officer did not operate it properly. As in Jackson, the use of the ASD was "about as routine as it gets", and there was nothing to imbue "the claim of instrument malfunction or operator error with an air of reality".

[30] The applicant submitted that it is possible that his first attempt to blow into the ASD left residual alcohol within the device and that the residual alcohol from the first attempt when combined with the second attempt resulted in an erroneous fail reading. Although not specifically requested in the written application, the applicant submitted that production of the operating manual together with electronic records of the results of the ASD might demonstrate this occurred.

[31] This assertion is purely speculative. Unlike in Jackson, wherein two forensic toxicologists testified, no expert evidence was tendered about the ASD, or the potential relevance of the records. No evidence, expert or otherwise, was tendered to establish that an ASD may render an unreliable fail result if an accused makes more than one attempt to provide a sample without a "0" reading between tests. There is no evidentiary foundation for the assertion that the records sought would support the claim that the fail result might be unreliable and that the officer knew or ought to have known that such circumstances could render the fail result unreliable.

[32] As in Jackson, nothing in the initial disclosure indicated any problem with the approved screening device or any error by the officer who was operating the device. Nothing imbued the claim of device malfunction or operator error with an air of reality. Moreover, there is no evidence that PC Oliva, the officer who used and relied on the ASD, consulted, or even had access to any of the records sought, most of which are historical maintenance, calibration and usage records. Such records simply cannot advance a claim that the officer knew or ought to have known that the ASD was unreliable. Even if there was a foundation for the assertion that the records could show that the device was unreliable, there is no basis to make the additional and necessary leap to a conclusion that P.C. Oliva knew this.

[33] In addition to seeking the materials for the purpose of exploring a s. 8 Charter breach, the applicant also submitted that the records might be relevant to PC Oliva's general credibility and reliability at trial. In essence the applicant submitted that if the device electronically stored the results of the officer's self-test and the applicant's two samples, and if the results are inconsistent with what the officer described having observed (i.e. the fail was not a fail, or the officer's sample did not produce a reading of 0, or the records demonstrated an error reading of some sort), this could negatively impact the officer's credibility. Said another way, the applicant submits that the records might unearth evidence inconsistent with the statements of the officer.

[34] The Applicant has failed to establish that such records exist, and the Court of Appeal in Jackson was clearly of the view that a bald assertion "that the record may relate to the credibility of the operator of the instrument" is insufficient to establish likely relevance. There is no evidence that the ASD internally stores a record of the results of samples taken in the past. Assuming that it does, the assertion that the records might unearth an inconsistency is insufficient to establish likely relevance.

[35] As was the case in Jackson, the records sought have no relevance to the unfolding of the narrative of the material events in the case. The historical and prospective data has nothing to say about what gave rise to the prosecution, or about the credibility of any party involved in making the demands or the operation of the instrument. I am not satisfied that the applicant has established that the records sought are likely relevant to the credibility or reliability of PC Oliva.

Conclusion

[36] As noted in World Bank and in Jackson, broad third party production requests can derail pre-trial proceedings and sweeping disclosure requests are a common cause of delay. A request for seven months of historical ASD records that were never seen by an officer who simply used an ASD as a tool to determine whether there were reasonable grounds to believe that an offence under s. 253 had occurred has the potential to significantly and needlessly delay a simple proceeding. As emphasized by the Supreme Court, while an accused has a right to production of relevant documents, there is no right to embark on a fishing expedition, and the right does not extend to every document relating to the case, regardless of who holds it or where it is. This especially so when production is sought in aid of a s. 8 Charter application challenging the existence of reasonable grounds.

[37] I am not satisfied that likely relevance has been established. In my view the application falls within the type of "fishing expeditions" that trial judges must discourage to prevent limited resources from being devoured. The respondent has failed to establish any reasonable possibility that the records sought are logically probative to an issue at trial or to the competence of a witness to testify and accordingly the application is dismissed.

Released: October 17, 2017

Signed: Justice Marcella Henschel