Summary

Keywords

Criminal law - Evidence - Disclosure - Criminal Code offences - Motor vehicles - Impaired driving or driving over the legal limit - Breathalyzer or blood sample demand - Approved instrument or device - Crown refused disclosure of maintenance records for breathalyzer devices to accused charged with driving with blood alcohol level exceeding limit - Whether maintenance records for breathalyzer devices subject to first party disclosure rules, or third party - Whether Court of Appeal erred in holding that Crown and police services are not required to “bridge gap” between first and third party disclosure by disclosing maintenance records for approved instruments - Whether Court of Appeal erred in holding that comments in R. v. St-Onge Lamoureux, 2012 SCC 57, did not bind it to find that maintenance records for approved instruments were subject to first party disclosure - Whether Court of Appeal erred in finding that, since maintenance records sought would not have been of assistance to accused on facts here, records were not subject to disclosure.

Summary

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The appellant, Mr. Vallentgoed, was detained on May 11, 2013. Samples of his breath were analysed, and showed blood alcohol readings of 130 mg/% and 120 mg/%, and he was charged with driving “over 80”. The initial respondent Crown disclosure did not include the maintenance records for the breathalyzer instrument. In addition to the standard disclosure package, Mr. Vallentgoed requested: (i) detailed records of maintenance and annual inspections for the instrument for the previous two years; (ii) maintenance and annual inspection log for the past two years for the external simulator; and (iii) records showing the cumulative uses of the alcohol standard for a one month period before the testing. The Crown voluntarily produced the maintenance log, which disclosed that, in addition to annual maintenance, the machine had been sent out for repair the day after Mr. Vallentgoed was charged, two months before that, and two months before that. The defence requested detailed reports of the work performed on those dates as there was no information in this regard in the maintenance log provided. The Crown took the position that the rest of the maintenance records were third party records, were irrelevant, and would not be voluntarily produced. The Crown called expert evidence on the relevance of the maintenance records. The trial judge followed the decision in R. v. Black, 2011 ABCA 349, and found that since the additional records were not “the fruits of” Mr. Vallentgoed’s prosecution, and were not relevant, they were not subject to first party Stinchcombe disclosure. Mr. Vallentgoed was convicted. Mr. Vallentgoed’s summary conviction appeal was allowed, the matter remitted to the provincial court, the records requested by the defence ordered to be disclosed by the Crown, and a new trial ordered to take place after the disclosure is provided. The Court of Appeal, however, allowed the Crown’s appeal and restored Mr. Vallentgoed’s conviction.

Lower Court Rulings