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Supreme Court ruling on breathalyzer maintenance records is bad news for drivers

The Supreme Court of Canada recently ruled that breathalyzer maintenance records do not have to be disclosed unless an accused can show they are likely relevant to their defence.

The ruling is bad news for drivers because it opens the door to significant non-disclosure in impaired-driving cases. In R. v. Gubbins, two cases on appeal from the Court of Appeal of Alberta were heard together because they dealt with the same issue, namely, what records an accused is entitled to when charged with a criminal offence.

Defendants Kevin Gubbins and Darren Vallentgoed were charged separately with the Criminal Code offence of having blood alcohol content (BAC) over 80 mg in 100 ml of blood. They both asked for maintenance records for the breathalyzer devices used to test their BAC as part of their defences. In both cases, Crown Counsel refused, arguing that the records were held by third parties, such as a contractor who maintained one of the devices, and the records weren’t relevant to whether a particular test was accurate.

The question of whether maintenance records are relevant has been previously dealt with by the Courts. In this case, the Court of Appeal of Alberta found maintenance records to be of relevance to the defence. The Crown had appealed against the ordering of a new trial after it had refused to disclose breathalyzer maintenance logs. The appeal court dismissed the Crown’s appeal, allowing the retrial with the new evidence to go ahead. The judge said: “In my view, an appropriate underlying evidentiary record is necessary to ensure that the legal issues can be properly assessed and dealt with. They should not be addressed in an evidentiary or factual vacuum.”

In Mr. Gubbins’ case, the trial judge also saw it this way and ordered the trial stopped until the breathalyzer maintenance records were handed over – a decision an appeal judge later upheld.

Mr. Vallentgoed’s lawyer asked for more information about the repair work of the device used to test his client after receiving partial records showing it had been sent for repair the day after he was charged, and twice more in the previous four months. Crown refused and Mr. Vallentgoed was convicted, however, an appeal judge later ordered the case to go back to trial so that the Crown could disclose the records.

The cases were grouped together and brought before The Court of Appeal of Alberta which found in favour of the Crown, saying breathalyzer maintenance records were “third-party” and therefore did not have to be disclosed.

Third-party and first-party records

The difference between “first-party” and “third-party” records in a criminal case has to do with the evidence’s source. Police records of an investigation would be considered “first-party” records, for instance, and would, therefore, have to be shared with an accused person or their defence counsel if requested, unless it is protected by certain privileges. Some records may be considered “third-party” by courts if they do not belong to the police, such as operation manuals or hospital records. Third-party records do not automatically have to be submitted when the defence requests. The defence often has to show how third-party records would be relevant in order for them to be disclosed.

In its ruling, the Supreme Court found breathalyzer maintenance records fell into the third-party category and therefore didn’t need to be disclosed unless the accused could show they were likely relevant.

What this ruling means for drivers

As we have seen, some courts have previously interpreted breathalyzer maintenance records to be of relevance to an accused person and required them to be disclosed when requested. It is a principle of fundamental justice under the Charter of Rights that we are entitled to a fair trial. In order for this to happen, defence lawyers need all of the evidence in front of them in order to properly deal with the accusations their client is facing. With the Supreme Court decision, they will now be closer to working in an “evidentiary or factual vacuum” than before. This is bad news for drivers because it facilitates the possibility of drivers being convicted due to faulty equipment leading to potential miscarriages of justice.

One of the problems with the argument that the defence needs to show how third-party records are relevant to their case is that often their relevance isn’t apparent straight away. How are lawyers supposed to evaluate the value of evidence if they don’t have access to said evidence? For Mr. Vallentgoed, how would his lawyer have known to ask for more information about repair work to the breathalyzer without already seeing the device had been sent for repair multiple times? This ruling restricts access to information that could be necessary for a fair trial.

What to do if you are charged with a criminal driving offence

Although this ruling would make it seem that the odds are stacked against drivers, all is not lost. With decisions such as these, it is now more crucial than ever that you fight criminal driving charges.

If you are accused of a criminal driving offence, such as driving “over 80”, it is important you hire a lawyer. At Perrin and Parhar Law, we have plenty of experience successfully defending clients at trial. Our lawyers are passionate about defending their clients and they will fight for every shred of evidence to ensure you have the best chance of success.

Call us today for a free consultation on (587) 834-2746.

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