Court File and Parties
Ontario Court of Justice
Date: 2018-06-15
Court File No.: Barrie 17-1425
Between:
Her Majesty the Queen
— and —
Radoslaw Sajda
Before: Justice Carlton
Heard on: March 28, 2018
Reasons for Judgment released on: June 15, 2018
Return Trial date: July 11th in Collingwood
Counsel
Julie Janiuk — counsel for the Crown
Patrick Metzler — counsel for the defendant Radoslaw Sajda
Judgment
Carlton J.:
Introduction
[1] This is a defence application to compel the production of notes and a report from the Crown under first party disclosure pursuant to R. v. Stinchcombe, [1991] 3 S.C.R. 326.
[2] The applicant, Mr. Sajda, has been arraigned on a charge of care or control of a motor vehicle with a blood alcohol concentration of greater than 80 mg of alcohol in 100 ml of blood. The offence is alleged to have been committed on March 4, 2017. No evidence has been heard.
Nature of Application
[3] The applicant seeks two categories of documents from the Crown:
Printout record of previous tests conducted by this ASD on March 4, 2017.
Notes of two officers: Provincial Constable Gee and Provincial Constable Watson from the offence date of March 4, 2017 "regarding their storage or handling of the Approved Screening Device (ASD) used upon the applicant".
Anticipated Evidence
[4] In the application and in the Crown response the Court was advised of the following anticipated evidence:
(1) The arresting officer, Provincial Constable Vivian tested the ASD at the beginning of his shift at approximately 1835 hours on March 4, 2017.
(2) A RIDE program was set up by P.C. Vivian and three other officers at approximately 1915 hours. These other officers included P.C. Gee, P.C. Watson and P.C. Thompson. P.C. Thompson is also the qualified technician in this case.
(3) An ASD demand under section 254(2) was made of the applicant at 1948 hours and he supplied a sample of his breath into the ASD at 1951 hours. The applicant registered a "fail" and a demand was made under section 254(3) of the Code.
[5] No viva voce evidence was called on the application. The applicant filed an affidavit setting out the history of its requests for these items.
[6] The Crown filed some additional correspondence in this regard. It is clear that the applicant sought this material at an early opportunity. It is equally clear that the Crown has always taken the view that its disclosure obligation does not apply to the materials sought.
The Charter Application
[7] The applicant has also brought an application under sections 8, 9 and 24(2) of the Canadian Charter of Rights and Freedoms seeking the exclusion of the breath testing of the applicant from the approved instrument. This second application is relied on by the applicant to demonstrate the potential relevance of the items sought in this application.
[8] That application asserts that P.C. Vivian demanded that the applicant provide samples of his breath into the ASD when he did not have a reasonable belief that the ASD would yield a reliable result.
[9] The basis for that submission is that the maximum temperature in Collingwood, Ontario on March 4, 2017 was -6 degrees. The Charter application asserts that the "manufacturer and police service memoranda state that the Drager Alcotest should only be operated in ambient conditions of -5 degrees to +50 degrees".
[10] These assertions are not provided in affidavit form but for purposes of this decision I will accept that some evidence in this regard will be tendered by the applicant at trial either through cross-examination of Crown witnesses or through direct evidence.
[11] The defence also relies on P.C. Vivian's notes that at the time of the ASD he recorded:
I read him a demand Roadside screening test P.C. Gee had on truck (sic) of P.C. Watson's car.
[12] This application will be considered alongside the test for reliance on the ASD by an officer issuing a s.254(3) demand. In the recent case of R. v. Jennings, 2018 ONCA 260, [2018] O.J. No. 1460 (C.A.), the Court of Appeal restated that when the grounds for reliance on an ASD test to issue a s.254(3) breath demand are challenged "[W]hat matters is whether the officer had a reasonable belief that the device was calibrated properly and in good working order and whether the test was properly administered" (at para. 17).
The Defence Position
[13] The applicant submits that none of the materials are third party disclosure or that governed by the Court of Appeal decision in R. v. Jackson, 2015 ONCA 832, [2015] O.J. No. 6274 (C.A.).
[14] The applications seeks the printout of the ASD for the offence date and notes of two assisting police officers. The notes sought are from the start of the RIDE program until the test of the applicant. The notes may address the movement of and the use of the particular ASD prior to the applicant's test. The note of P.C. Vivian suggests that the ASD had been outside for some time prior to the applicant's ASD test.
[15] The applicant submits that it has brought a narrow, focused application anchored in the expected evidence and anchored in the Charter application. It does not seek maintenance or test records. It only seeks records from the date of the alleged offence. As such, it is submitted, the application does not run afoul of the closed "fishing season" described by Justice Watt in the Jackson decision.
[16] The applicant acknowledges that the test is not whether the device was in fact working properly but whether the arresting officer reasonably believed it to be so. While the threshold to be met by the Crown is low, the defence is nonetheless entitled to material as part of making full answer and defence that may give it grounds to challenge whether such a reasonable belief existed. In this case, the challenge to the reasonableness of the belief is anchored in the potential evidence regarding the storage of the device leading up to the applicant's test.
The Position of the Crown
[17] The primary position of the Crown is that pursuant to the Ontario Court of Appeal decision in R. v. Jackson, the ASD printout is a third party record and the procedure for its production is governed by the two-stage test set out in R. v. O'Connor, [1995] 4 S.C.R. 411.
[18] As per Jackson, such a document, if it can be produced, can only be produced by the third party, the Ontario Provincial Police. The ASD printout is not the fruits of the investigation but historical data about the device. The Crown submits that the printout is on no different a footing than the documents found to be third party records in Jackson.
[19] The application as filed is clearly one that relies entirely on the submission that the document is first party disclosure governed by Stinchcombe. No notice was given to the Ontario Provincial Police. The Crown seeks a dismissal of the application as being procedurally flawed. As such, the Court, should it decide that the ASD printout is governed by Jackson and O'Connor, it need not even consider whether the printout is "likely relevant" as per the first stage of O'Connor.
[20] Further, the Crown submits that such a document has never been produced by the Ontario Provincial Police in cases involving an ASD. It is not clear that the Ontario Provincial Police has the capacity to produce the document to the Crown for disclosure.
[21] Alternatively, the Crown submits that if the third party records regime does not apply, that the ASD printout should not be ordered disclosed by the Court as part of the Crown's first party disclosure obligation. The same position is taken with respect to the notes of the two officers.
[22] The Crown relies on the law regarding the belief of the officer administering the ASD as to the operability of the ASD. The officer must only have a reasonable belief that the device was in proper working order. The officer may be incorrect in his conclusion. The Crown submits therefore the use of the ASD by other officers on third parties prior to the test on the applicant is clearly irrelevant.
Issue 1: Is there a sufficient basis to consider disclosure of the ASD records?
[23] The applicant submits that an ASD printout is a document that can be downloaded from the device. The printout produced from this download is said to contain a listing of the tests including the date, time and result and therefore available to challenge the officer's reasonable belief in the operation of the ASD.
[24] It is not at all clear whether such a document, in fact, exists should it be ordered disclosed. The applicant refers to the decision in R. v. Trinh, [2015] O.J. No. 6638 (C.J.) in which such a document is disclosed by the Crown and relied on by the Court in that case to find that the ASD test did not occur. That case involved the Toronto Police Service while this case involves the Ontario Provincial Police.
[25] In Trinh, the defendant asserted that no ASD test had ever taken place. To prove the fact of the test the "Crown produced a one-page, printed document which purported to catalogue the details of use of a particular ASD on the morning of September 7" (at para. 3). There is no further discussion of the content of that record. The Court found that despite the filing of the record that no ASD test took place, although that in part relied on a discrepancy in the identification of the ASD.
[26] In R. v. Ruscica, [2017] O.J. 5469 (C.J.) the Court considered a third party records application for ASD records. The request was broader than the request in this application. Again, it is unclear from that case that the records sought existed (at para. 33-34):
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.
The applicant has failed to establish such records exist …
[27] This uncertainty regarding even the existence of these records demonstrates the utility of serving the O.P.P. with the application. The police service is in a better position than the Crown to provide information to the Court as to the scope and content of any records relating to the ASD.
[28] Despite this real uncertainty, I do find that the issue of disclosure should be addressed on its merits. The ASD records fall into the class of materials whose existence is disputed. The applicant has at least established "a basis which could enable the presiding judge to conclude that there is in existence further material which is potentially relevant" (see R. v. Chaplin, [1995] 1 S.C.R. 727 at para. 30). I will therefore assume for this analysis that these records do exist in some form and are capable of extraction by the O.P.P. and could be produced by them to the Crown for disclosure if ordered to do so.
Issue 2: Is the Disclosure/Production of the ASD printout first party disclosure or a third party record?
[29] The second issue is whether the ASD printout is governed by the rules regarding third party records applications in O'Connor. If so, the application as it relates to the ASD printout should be dismissed as the record holder has not been served.
[30] The application has been framed as a first party disclosure application and no submissions were made on the "likely relevance" test at the first stage of O'Connor.
[31] This question is governed by the Ontario Court of Appeal decision in Jackson. In that case the Court found that service records, usage and calibration records and results of other tests (Cobra data) of the approved instrument were in fact third party records and therefore governed by the O'Connor test for third party records. The Court went on to find that the applicant in that case had not met the "likely relevance" test for production of third party record.
[32] The applicant submits that its request is much narrower in scope than the more expansive request made in Jackson. The application here seeks only records of the ASD from the alleged offence date. The application is anchored in the temperature at the time of the ASD test and any effect that may have on the reliability of the test result. The applicant submits its request is therefore not simply "historical records" of the ASD … at times and in places unrelated to the investigation of the respondent" (at Jackson para. 95).
[33] Notwithstanding the narrower scope of the current application, I find that the request for the ASD printout in this case is governed by the third party records regime.
i) Fruits of the Investigation
[34] The Court in Jackson set out two factors that must be met in order for the item in issue to be considered first party disclosure: whether the item sought is "fruits of the investigation" and whether the item is in the control of the prosecuting Crown.
[35] In Jackson "fruits of the investigation" is described as follows (at para. 92):
The term embraces relevant, non-privileged information related to the matters the Crown intends to adduce in evidence against an accused, as well as any information in respect of which there is a reasonable possibility that it may assist an accused in the exercise of the right to make full answer and defence. The information may relate to the unfolding of the narrative of material events, to the credibility of witnesses or the reliability of evidence that may form part of the case to meet.
[36] I find that the materials sought are not "fruits of the investigation". They were not relied on by any officers in making any decisions about the applicant or by the Crown in continuing the prosecution. They were not available to the officer issuing the demand and do not form part of any reasonable belief by the officer that the device was calibrated properly or in good working order.
[37] I do accept that the application is more narrowly framed than that in Jackson. The request here is limited to the use of the ASD during the RIDE program in which the applicant was stopped. That said, there is no evidence in the application about the content of the record being sought or how it could relate to the "exercise of the right to make full answer and defence". As such, I find that the ASD printout is not part of the fruits of the investigation.
ii) Control of the Records
[38] The records sought are clearly not in the possession or control of the prosecuting Crown. Again, assuming the records can be accessed, they can only be "generated by and in the exclusive control of the" O.P.P. (see Jackson at para. 98).
[39] I read the test for first party disclosure in Jackson as requiring that the applicant show both the existence of both of the two factors discussed; that is the applicant must show that the item sought is both the fruits of the investigation and under the control of the prosecuting Crown. I have found that the contrary has been shown for each of the two factors.
[40] The production of the ASD printout, therefore, is governed by the third party records regime from O'Connor. No third party records application is before the Court and the O.P.P. has not been served. I need not, therefore, conduct an examination of whether the item sought is "likely relevant". I therefore dismiss the application for production or disclosure of the ASD printout.
[41] I make two other observations.
[42] The position of the applicant, that the record sought is first party disclosure, would lead to a result where there was a more onerous disclosure regime for records of the ASD, itself a screening device whose results have no evidentiary significance in proving the merits of the over 80 charge, than for the approved instrument whose results are direct evidence of the blood alcohol concentration of a defendant. I say this again noting that the current application is narrower in scope than that in Jackson.
[43] Further, this conclusion is consistent with other decisions of this Court. In Ruscica, the request for ASD records was considered by all parties as a third party records application. The Court found that the applicant had not met the threshold of "likely relevance" and did not order the records produced by the third party police service.
[44] As noted, in Trinh it was the Crown who produced ASD records to prove that an ASD test had in fact occurred. I do not read that case as a finding that ASD records are first party disclosure. The issue of disclosure was not considered by the trial judge.
Issue 3: Should the officer's notes be ordered disclosed?
[45] The applicant also seeks the notebook entries from the RIDE program of P.C. Gee and P.C. Watson prior to the ASD test on the applicant. The Crown resists disclosure of these notes.
[46] The Crown relies in its submissions on the anticipated evidence that P.C. Vivian tested the device and inspected the calibration records at the beginning of the shift. Indeed, that may well be powerful evidence regarding the reasonableness of his belief as to the operability of the device.
[47] At the same time, it shows a reliance on information conveyed by other officers (the note of the officer who calibrated the device) by P.C. Vivian shortly before he used the ASD on the applicant. Equally, the notes of the other two officers at the RIDE program may contain notes of events or of information conveyed to P.C. Vivian shortly before the use of the device on the applicant that could impact on the continued reasonableness of his belief regarding the ASD. Whether the notes and/or the evidence of the other officers does or does not impact the reasonableness of P.C. Vivian's belief is a matter of evidence at trial.
[48] It is not the case that the mere use of the ASD by other officers at a RIDE stop imposes an obligation on the Crown to disclose the notes of the other officers as a matter of course. I do find that in the circumstances of this case, given the anticipated evidence about the temperature and the reference in P.C. Vivian's notes to the placement of the ASD prior to the applicant's test by P.C. Gee, that the applicant has shown a potential relevance of the notes of P.C. Gee and P.C. Watson from the start of the shift in question as it relates to their use of the ASD and/or any information conveyed to P.C. Vivian about the ASD.
[49] Lastly, I note that the Crown has agreed to have P.C. Gee and P.C. Watson attend at the trial. They are potential witnesses for the defence. The orderly management of the trial suggests that their notes be produced in advance of the trial.
Remedy
[50] The application has not been framed as a Charter application but rather as one in which the applicant is seeking the provision of the items sought as relevant and necessary to make full answer and defence (see Stinchcombe at para. 22). I will therefore simply note my conclusion and leave the response to the respondent Crown to comply with my ruling.
[51] I do find that the applicant has shown that there is a reasonable possibility that the withholding of the "memobook notes of OPP Officers P.C. Watson and P.C. Gee regarding their storage and handling of the Approved Screening Device (ASD) used upon the Applicant … on March 4, 2017" would impair the ability of the applicant to make full answer and defence.
Released: June 15, 2018
Signed: Justice Carlton