ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-12-1078 and CR-12-891
DATE: 2013-10-09
B E T W E E N:
HER MAJESTY THE QUEEN and ONTARIO PROVINCIAL POLICE
Co-Applicants
Dallas Mack and Sam Humphrey, for the Crown
Katie Clements, for the Ontario Provincial Police
- and -
KERSTI OLEKSIUK and
ERIC THOMPSON
Darwin Yantha, for Mr. Aucoin
Respondents
HEARD: July 2, 2013
REASONS ON CERTIORARI APPLICATION
JAMES J.
Nature of the Application
[1] This matter involves applications by both the Crown and the Ontario Provincial Police (the “OPP”) for a writ of certiorari quashing the decision of Radley-Walters, J dated January 23, 2013 wherein he ordered the Crown to disclose certain records and information in the possession of the OPP relating to an Intoxylizer 8000C breath testing device.
[2] The respondents are both charged with the offence of operating a motor vehicle with a blood alcohol concentration in excess of the legal limit. They both made applications for disclosure of certain items and records (the “records”) relating to the device that provided the breath test results, an Intoxylizer 8000C (sometimes referred to as the “approved instrument”).
[3] The applications were heard together. The respondents (the applicants in the first instance) called no evidence. The Crown called one expert witness, Dr. Robert Langille, a forensic toxicologist at the Centre of Forensic Sciences and a member of the Alcohol Test Committee. The Alcohol Test Committee is a committee of the Canadian Society of Forensic Sciences. The committee provides advice to the Minister of Justice on breath testing and impaired driving issues and is the sole body that evaluates breath testing equipment. The committee also publishes recommended standards and procedures for alcohol breath testing and blood testing equipment.
[4] The respondents sought disclosure of the following five items:
i. A sample of the alcohol standard solution used in the test in question;
ii. Subject test records for the approved instrument in question and for the previous twenty-four subject tests;
iii. Calibration records for the approved instrument in question for a period of 3 months prior to the subject tests;
iv. Maintenance logs and records for the approved instrument in question for a period of one year prior to the subject tests; and
v. Usage logs regarding the alcohol standard solution since the last calibration prior to the tests in question.
[5] An alcohol standard solution is used to perform calibration checks prior to taking a breath sample that may lead to a charge being laid (sometimes referred to as “subject test”). The solution is formulated to produce a reading of 100 mg of alcohol in 100 ml of blood within a range of plus or minus 10 mg. This calibration test mimics a breath test and if the approved instrument detects a problem, it registers a diagnostic fail reading which is printed on a paper record and provided to the accused. If the calibration test indicates a reading of 100 mg of alcohol in 100 ml of blood, the results of the successful calibration test are also printed on a paper record and provided to the accused.
[6] Since the decision in R. v. Boudens, 2009, (OCJ), unreported, it has been policy for the Pembroke Police Service to routinely provide the following information:
i. The actual test results for the approved instrument in question for the last 25 times it was used with any personal identifiers blacked out;
ii. Production of any and all printouts respecting calibration checks, diagnostic checks and internal standard checks performed on that particular instrument during the last 12 month period.
[7] In the case of the present respondents, however, Crown counsel notified defence counsel that this information was “clearly irrelevant” and would not be disclosed. The phrase “clearly irrelevant” is the standard applicable to the Crown’s disclosure obligations established by the decision in R v. Stinchcombe (1991), 1991 45 (SCC), 68 C.C.C., 3d 1 (S.C.C.).
[8] The decision of the Crown not to disclose the above information prompted the defence to make the disclosure application that led to the order now under review.
[9] The presiding application judge articulated the issues raised by the application as follows:
i. Whether or not the accused is entitled to disclosure which might assist the individual accused person in proving that the approved instrument either malfunctioned or was operated improperly as is required by Section 258 of the Criminal Code of Canada, and if so what specific disclosure is the accused entitled to?
ii. Whether the applicants are required to bring an O’Connor application to obtain records relating to any tests performed by the specific Intoxylizer 8000C with respect to previous accused persons;
iii. Whether or not the disclosure sought by the applicants in this case falls within the test for disclosure set out in Stinchcombe.
[10] The disclosure order required the Crown to provide the following items:
a. Certificates of Analyst for the alcohol standard solutions involved;
b. Samples of the alcohol standard solution, if they still exist;
c. The applicants’ test records generated by the approved instrument and the 24 immediately prior subject test records with personal information redacted;
d. Calibration records for the 3 months prior to the subject tests;
e. Maintenance logs and records for the year prior to the subject tests; and
f. Usage logs for the alcohol standard solution since the last calibration prior to the subject tests.
[11] The application judge concluded that a sample of the alcohol standard solution used in the test in question and the usage logs regarding the alcohol standard solution since the last calibration prior to the tests in question ought to be disclosed because they could be relevant if either the specific alcohol standard solution was passed its expiry date or if it had been tampered with or stored improperly. Disclosure of the previous 24 subject tests and 3 months’ of calibration records could be relevant to show that the approved instrument malfunctioned in the past, required service or was not operated properly. Disclosure of maintenance records could be relevant to determine if the approved instrument had been repaired and if any parts had been replaced or modified.
[12] The application judge quoted with approval from the decision in R. v. Gubins 2009 ONCJ 80, [2009] O.J. No. 848 (O.C.J.) as follows:
The test for disclosure as set out in R. v. Stinchcombe.... is that the Crown is required to disclose all relevant information, whether it is inculpatory or exculpatory, and whether or not the Crown intends to introduce it as evidence. This broad duty of disclosure is subject only to a limited discretion to withhold what is “clearly irrelevant”, privileged or beyond the Crown’s control....
The trial judge on a review should be guided by the general principle that the information ought not to be withheld if there is a reasonable possibility that the withholding of information will impair the right of the accused to make full answer and defence unless the non-disclosure is justified by the law of privilege. (para. 13,14)
[13] The application judge held that since the requested disclosure was in the hands of the police, it was therefore within the control of the Crown. The requested disclosure fell within the ambit of Stinchcombe. (para. 14, 16).
[14] On the issue of whether or not the disclosure required an O’Connor application, the application judge concluded that it was not necessary for two reasons. Firstly, the removal of personal identifiers eliminated any privacy concerns. Secondly, the applicants were not seeking disclosure from sources outside the control of the police such as documents from the manufacturer of the approved instrument.
Position of the Parties
[15] The applicants contend that there are two grounds which independently support the request to quash the disclosure order.
[16] Firstly, they say that the application judge committed a jurisdictional error in concluding that the records were subject to the first party disclosure rules contained in Stinchcombe. They contend that the OPP should have been treated as a third party, thereby entitling the police to make submissions whether, and to what extent, a disclosure order was appropriate. The failure to give notice of the application to the OPP and an opportunity to be heard constituted a denial of natural justice.
[17] Secondly, they state that the application judge made an order that was contrary to the evidence of the only witness, Dr. Langille, who said the requested disclosure did not provide assistance in determining whether the device was an approved instrument and whether it was working properly when it measured the quantity of alcohol in the respondents’ blood. They say a finding that is contrary to the evidence constitutes an error of law on the face of the record.
[18] The respondents contend that the OPP does not have standing to contest the impugned order because the requested records constitute first party disclosure; the Stinchcombe disclosure regime ought to govern this situation. Consequently, there has been no denial of natural justice principles because for disclosure purposes, the OPP is not a third party.
[19] Secondly, the respondents argue that there are aspects of the expert evidence of Dr. Langille that suggest the requested records are sufficiently relevant to support the order that was made.
[20] Thirdly, the respondents emphasize the narrow basis upon which an extraordinary remedy ought to be permitted.
Availability of Certiorari
[21] The present application seeks to quash the order requiring disclosure of information relating to the particular device in question.
[22] There are two applicants, the Crown and the OPP. The presence of the OPP as a co-applicant is significant. It is the owner and operator of the device in question. Although it is affected by the disclosure order, as a stranger to the prosecution it has limited ability to have its position placed before the court.
[23] The remedy available through a writ of certiorari is limited to quashing certain types of decisions made by an inferior statutory tribunal. It is a discretionary remedy and not available to an applicant as of right. In R v. Russell 2001 SCC 53, [2001] 2 S.C.R. 804 McLachlin, C.J. said as follows:
The scope of review on certiorari is very limited. While at certain times in its history the writ of certiorari afforded more extensive review, today certiorari "runs largely to jurisdictional review or surveillance by a superior court of statutory tribunals, the term 'jurisdiction' being given its narrow or technical sense": Skogman v. The Queen, 1984 22 (SCC), [1984] 2 S.C.R. 93, at p. 99. Thus, review on certiorari does not permit a reviewing court to overturn a decision of the statutory tribunal merely because that tribunal committed an error of law or reached a conclusion different from that which the reviewing court would have reached. Rather certiorari permits review "only where it is alleged that the tribunal has acted in excess of its assigned statutory jurisdiction or has acted in breach of the principles of natural justice which, by the authorities, is taken to be an excess of jurisdiction.”
[24] In Dagenais v. Canadian Broadcasting Corp.,1994 39 (SCC), [1994] 3 S.C.R. 835, Lamer. J. acknowledged that provincial superior courts have jurisdiction to hear certiorari applications against provincial court judges for excesses of jurisdiction and for errors of law on the face of the record. In Dagenais, the Canadian Broadcasting Corporation applied for an order quashing a publication ban. Since the order in that case was held to be inconsistent with the principles of the Charter, the publication ban constituted an error on the face of the record (para. 38).
The Jurisdictional Error (What is the Applicable Disclosure Regime?)
[25] The OPP says that the application judge made a jurisdiction error in ordering that the records be disclosed by the Crown. Central to this submission is the need to determine whether the requested records constitute first party disclosure or third party disclosure. This requires a consideration of whether it is proper to regard the police and the Crown as a single disclosing entity (the Stinchcombe disclosure regime) or whether the police should be viewed as a third party distinct from the Crown for disclosure purposes (the O’Connor disclosure regime).
[26] In R v. McNeil [2009] 1 S.C.R. 6, the Supreme Court of Canada dealt with a defence request for production of police disciplinary records and the criminal investigation files relating to a police officer who was the Crown’s main witness against the accused. The issue was whether the Crown (and the police) had an obligation under Stinchcombe to disclose all material pertaining to its investigation of the accused including the requested records, unless they were clearly irrelevant. The competing view was that the disclosure obligation was limited to production of all relevant records in the possession of the Crown and such additional records as may be in the hands of the police pertaining to its investigation of the accused (the so-called “fruits of the investigation”). McNeil stands for the following propositions:
a. The O’Connor regime provides a general mechanism at common law for ordering production of any record beyond the possession or control of the prosecuting Crown. The O’Connor regime is not limited to cases where the third party has an expectation of privacy in the targeted documents;
b. Whether the targeted document is subject to a reasonable expectation of privacy is one of the questions to be determined. It is a factor, not a pre-condition. Privacy is not an all or nothing right. It is a contextual, fact-based inquiry;
c. Records in the possession of one Crown entity are not to be deemed to be in the possession of another. While the police and the Crown may be viewed as one entity for disclosure purposes, the two are separate and independent entities in fact and law. The prosecuting Crown has an obligation to make reasonable inquiries of other Crown entities and other third parties respecting records and information that may be relevant to the case being prosecuted; and,
d. Police disciplinary records and third party criminal investigation files may in appropriate circumstances be sufficiently relevant to the case of the accused that they should form part of the “first party” disclosure package from the police to the Crown, subject to further vetting by the prosecuting Crown. Notice to the subject of the records may be required.
[27] In R. v. Black, 2011 ABCA 349, [2011] A.J. No. 129, 286 C.C.C. (3d) 432 (C.A.) the Alberta Court of Appeal granted an appeal from a decision of a reviewing judge requiring disclosure of the calibration logs for an approved screening device (ASD). An ASD roadside test assists in determining whether a police officer has reasonable and probable grounds to require a breath test. In the first instance the trial judge ordered the production of the calibration logs as first party disclosure, relying in part on three decisions from Ontario.[^1] The Crown and the Chief of Police for the Edmonton Police Service brought a certiorari application. After finding that certiorari was an available remedy, the reviewing judge concluded the trial judge’s decision was correct and dismissed the application. On appeal, K.G. Ritter J.A. considered the role played by the ASD in impaired driving investigations and the relevance of the calibration tests. He concluded that the calibration standards were reasonable and observed that a fail reading does not result in a charge against the accused. He considered the process by which an officer can formulate reasonable and probable grounds and held that logs were irrelevant to any issue respecting charges of impaired driving or driving over .08.
[28] In a dissenting judgment M.B. Bielby J.A. said that in his view the logs ought to be produced as first party disclosure as “fruits of the investigation”. He was unmoved by police claims of increased administrative burdens and additional costs.
[29] Subsequently, in R.v. Kilpatrick, 2013 ABQB 5, [2013] A.J. No. 41 (A.C.Q.B.) R.A.Graesser J., sitting on appeal of the accused’s summary conviction in provincial court, held that it was appropriate to differentiate between ASD records and maintenance logs for approved instruments and found the latter to be subject to first party disclosure rules. Failure to disclose in the first instance resulted in an order for a new trial. Leave to appeal was refused. The judge hearing the application for leave noted that there was a lack of expert evidence relative to the operation of the device and said this interfered with the Crown’s ability to meet the required criteria.
[30] In Ontario, judges of the provincial court have been grappling with the issue of disclosure of Intoxylizer records for several years. Two lines of authorities have emerged. One branch holds that the Crown has the onus of establishing that the records are clearly irrelevant in order to avoid the necessity of producing them.[^2] Within this group, the determination of which categories of records are and are not “clearly irrelevant” is unevenly applied. The cases are often inconsistent with respect to the type of information that is ordered to be disclosed.
[31] A second line of authorities[^3] holds that the defence has the onus of establishing that the records are “likely relevant” in order to compel their production. When this more restrictive approach is employed, accused persons have had difficulty making the case that the requested 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. An example of this is the rejection of the double error concept by A. Tuck-Jackson J. in R. v. Ahmed, [2010] O.J. No. 1500 (C.J.).
[32] In my view the OPP ought to be given an opportunity to be heard on the various aspects of the disclosure issue. Clearly the law in this area is not settled. The interests of the OPP may not be synonymous with the prosecuting Crown. The OPP is an outsider to the defence disclosure request and has limited opportunities to advance its position. Despite the obvious fact that the prosecuting Crown works closely with the police in marshaling evidence, McNeil tells us they are separate entities in fact and law. The OPP possesses the records in question and therefore has direct interest in addressing disclosure issues. Natural justice principles are engaged when a party with a discernible interest in the outcome seeks an opportunity to be heard. (See L.L.A. v. A.B., 1995 52 (SCC), [1995] 4 S.C.R. 536 at para.27, 28)
Error of Law on the Face of the Record
[33] Certiorari is available to quash an order that constitutes an error on the face of the record and this jurisdiction is available to a provincial superior court in relation to provincial court judges (See Dagenais, para. 38).
[34] More difficult, however, is a definition of what actually constitutes an error of law on the face of the record. Counsel for the OPP says it is an error that is “apparent from the record” and that any order that is “inconsistent with the governing law” is an error of law on the face of the record. In particular, “the failure to consider a relevant factor or alternative measure may also be characterized as an error of law on the face of the record”. (OPP factum, para. 44).
[35] Spies, J. in R. v. J.M., 2012 ONSC 2910, [2012] O.J. No. 2199 (S.C.J.) observed at para. 28 that:
Despite the able assistance of my law clerk, I have found no principled explanation or comprehensive definition of what constitutes such errors in the criminal law context. Instead, courts seem to have taken a case-by-case approach in determining whether an error is an error of law on the face of the record.
[36] In Skogman v. The Queen, 1984 22 (SCC), [1984] 2 S.C.R. 93, Estey, J. discussed the remedy in these terms:
In the result, certiorari, or the newer term of judicial review, runs largely to jurisdictional review or surveillance by a superior court of statutory tribunals, the term 'jurisdiction' being given its narrow or technical sense. In the absence of a privative clause, the Court may also review for error of law on the face of the record. However, even then, under the most recent authorities, the error must assume a jurisdictional dimension. These authorities and the development and Darwin-like elimination of sub-doctrines are reviewed in Douglas Aircraft Company of Canada Ltd. v. McConnell, 1979 51 (SCC), [1980] 1 S.C.R. 245, particularly at pp. 265-78. It is clear, however, that certiorari remains available to the courts for the review of the functioning of the preliminary hearing tribunal only where it is alleged that the tribunal has acted in excess of its assigned statutory jurisdiction or has acted in breach of the principles of natural justice which, by the authorities, is taken to be an excess of jurisdiction (see Forsythe v. The Queen, 1980 15 (SCC), [1980] 2 S.C.R. 268). It need only be added by way of emphasis that such certiorari review does not authorize a superior court to reach inside the functioning of the statutory tribunal for the purpose of challenging a decision reached by that tribunal within its assigned jurisdiction on the ground that the tribunal committed an error of law in reaching that decision, or reached a conclusion different from that which the reviewing tribunal might have reached.
[37] I am not prepared to quash the order on the basis of an error of law on the face of the record for the following reasons:
i. Certiorari is an extraordinary remedy and should be used sparingly;
ii. A decision respecting whether an order ought to be quashed is discretionary;
iii. The impugned order is consistent with a line of authorities emanating from the same court;
iv. The OPP has been granted redress that will result in a rehearing. A remedy such as certiorari should not be more intrusive than necessary; and,
v. I am not convinced that the impugned order amounts to an error on the face of the record.
Disposition
[38] An order shall issue quashing the order of Radley-Walters J. dated January 23 2013 and remitting the matter to the Ontario Court of Justice for reconsideration of the issue of whether or not the records sought by the respondents are third party records.
[39] It is further ordered that the OPP shall be provided the opportunity to call evidence and make submissions on the issue of whether the records sought by the respondents are third party records.
Honourable Justice Martin James
Released: October 9, 2013
COURT FILE NO.: CR-12-1078 and CR-12-891
DATE: 2013-10-09
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN and ONTARIO PROVINCIAL POLICE
Co-Applicants
- and –
KERSTI OLEKSIUK and ERIC THOMPSON
Respondents
REASONS FOR CERTIORARI APPLICATION
JAMES J.
Released: October 9, 2013
[^1]: R. v. Gubins, 2009 ONCJ 80; R. v. Pfaller, 2009 ONCJ 216; R. v. Robertson, 2009 ONCJ 388.
[^2]: In addition to Gubins, Pfaller and Robertson, see also R. v. Jemmett, 2009 ONCJ 741, R. v. George, 2009 ONCJ 470 and R. v. Dionne, 2009 ONCJ 609.
[^3]: See R. v. Bensette, [2011] O.J. No. 403 (C.J.); R. v. Ahmed, [2010] O.J. No. 1500 (C.J.); R. v. Batenchuk, [2010] O.J. No. 2302 (C.J.); R. v. Lenti, [2010] O.J. No. 5081 (C.J.); R. v. Carriveau [2011] O.J. No. 4318 (C.J.) and R. v. Da Costa [2011] O.J. No. 3942 (C.J.)