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  • Devon Molloy (law student)

Six Feet Under: The Benefits and Misgivings of Allowing the Crown to Withhold Breathalyzer Maintenan

Topic Overview

Thee Supreme Court of Canada’s (SCC) October 26, 2018 decision (an 8-1 ruling) in R v Gubbins, held that the Crown is not obliged to provide breathalyser maintenance records in impaired driving cases as they will be subject to the third-party disclose regime. The descision has defence lawyers across Canada reeling at the potential injustice this precedent could set in establishing the standards for what case-pertinent documentation can be requested from government bodies by defence council. Conversely, Crown attorneys and police departments are praising the decision for eliminating another avenue for defence lawyers to leave them buried under six feet of paper and administrative work. This Note will analyze both the prospective advantages and disadvantages of this decision for future cases (NB: R v Gubbins is a joint case where the SCC heard the pleadings of both Kevin Patrick Gubbins, and Darren John Chip Vallentgoed. Vallentgoed’s case was not herein discussed.)

Case Summary (R v Gubbins)

Mr. Kevin Patrick Gubbins was charged (in Alberta) with impaired driving after breathalyser results showed a blood alcohol concentration above the legal limit of 80mg per 100ml. After Gubbins was refused the requested maintenance records for the breathalyser used prior to his arrest he applied for a stay of proceedings on the grounds that his rights had been breached under “Legal Rights” in s. 7 of the Canadian Charter of Rights and Freedoms – “the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”.

While the Alberta Court of Queen’s Bench upheld Gubbins’ stay of proceedings on the grounds that maintenance records are first party records that should be disclosed by the Crown, the Alberta Court of Appeal held that maintenance records are third party records that are not to be disclosed routinely (after an appeal from the Crown). Ultimately, the SCC decided on the matter, in accordance with the Alberta Court of Appeal, in that breathalyser records need not be disclosed by the Crown. This lead to a dismissal of the appeal and remittance of the case for a new trial.

Misgivings Towards the Decision in R v Gubbins

One of the most compelling points brought forward by Justice Suzanne Cote in her dissent is that the maintenance records are a strong avenue for establishing whether the breathalyser was functioning properly; and furthermore, that this is guaranteed by the Criminal Code under s. 258(1) (c) which states that breathalyser tests are conclusive proof of blood-alcohol levels unless “the approved instrument was malfunctioning or was operated improperly”. The issue with this ruling is that it has effectively nullified a clear stipulation of the Criminal Code by removing one of the primary mechanisms (the maintenance records) for evaluating whether the breathalyser was functioning properly.

Aside from contradicting existing legislation, the decision is also impractical in that it shifts the burden for disclosure to criminal defendants who tend to have lower access to resources than the federal government. Instead of being able to quickly acquire the records directly from the Crown the challenge for defendants will now be to establish relevance, subpoena the record holders, and then await a ruling from a judge on whether they are relevant. For the average defendant, this has created an impractical and unrealistic mechanism for acquiring the necessary documentation to establish a valid defense.

Benefits of the Decision in R v Gubbins

The Majority decision makes three clear distinctions that highlight the overarching rationality of their ruling: first, that the records are not actually in the possession of the Crown; second, that the added difficulty in establishing a defence does not nullify the ability to successfully elect the defence; and third, that it will practically discourage fishing expeditions by defence council.

From a logistical point of view, the Crown does not physically house the maintenance logs for breathalysers – rather, they are held by local police precincts, the RCMP, and a third-party working in conjunction with both groups. Because of the nature of where the records are held, and the fact that there are only a few relevant cases where the validity of the instrument is suspect, it is reasonable for the court to apply third-party rules to the maintenance records.

Future defence council have not had their ability to make a valid defence stripped from them by placing breathalyser maintenance records under a third-party disclosure regime. If there is suspicion of the validity of the instrument’s results, then it is possible to acquire the records and determine whether it should have been functioning properly. The added steps ensure the legitimacy of the defence’s intent to make an argument that device was malfunctioning which holds defendants accountable and prevents burying the crown in unnecessary paper work.

This discouragement of engaging in fishing expeditions by the defense has two important policy considerations: first, that this will limit their ability to unnecessarily delay a trial; and second, that it protects the Crown’s time and resources (which are covered by taxpayers) against malevolent tactics employed by the defence. Ultimately, the SCC has allowed breathalyser maintenance records to fall subject to a regime which helps ensure that they are only requested and used by honest defendants – avoiding unnecessary wasted labor for the Crown.

The Controversial Element

It is best left to one’s own determination whether the SCC decision was made both in keeping with their own prior judgments and for the future benefit of Canadians. One case that the SCC referenced in their decision was R v St-Onge Lamoureux as it is expressly different in its approach to maintenance logs; despite the Court's efforts in drawing a distinction between the cases one can judge for themselves whether the Gubbins decision is diverging from the following quote in St-Onge Lamoureux:

“The accused can request the disclosure of any relevant evidence that is reasonably available in order to be able to present a real defence… In short, the accused might rely, for example, on a maintenance log that shows that the instrument was not maintained properly.”

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