Law Times

Law Times • September 23, 2013 Page 5 NEWS Court, lawyers call for added guidance on breathalyzer disclosure applications as defence lawyers seek to prove there's a problem with the machine. Even before that, Stilman s defence counsel continue to adapt to found acquittals were becoming the elimination of the difficult to come by. The opporso-called two-beer de- tunity for the defence is to demfence, lawyers and the court are onstrate a malfunction in the opcalling for additional guidance eration of the machine. The result, on what disclosure is relevant however, requires a well-funded when it comes to assessing the re- defence and can take days of court time in pursuit of liability of breathadisclosure. lyzer machines. In Neville, O'Dea Defence lawgave the defence yers say the proa chance to "recess suffers from a ally look under the lack of consistency, hood" of the instruparticularly when ments, says Stilit comes to the difman. "There's likely ferent court juristo be a high degree dictions. But earlier of deference to this this month, Justice decision" because Michael O'Dea of the Ontario Court 'There is an unprecedented amount it offers something of Justice released of time being spent in court litigat- of a disclosure template, he suggests. a lengthy decision ing this issue,' says Marcy Segal. But because it's in R. v. Neville on a disclosure application in which he a trial-level decision, there could outlined what the Crown should still be disparate rulings in other disclose in impaired-driving cases courts. And that's what Toronto and provided a checklist of sorts. criminal lawyer Marcy Segal But, he added, there's plenty of sees as the problem. "Jurisdictions aren't being room for a higher court to clarify consistent," she says. "So you're the requirements. "On the whole, I am of the actually spending a lot of time view the court's specific refer- litigating issues that have been ences to disclosure are general litigated since 2008." She suggests a unified Crown and do not venture far beyond the general maintenance and op- prosecutors' policy would be erational information now being helpful. Some sort of provincedisclosed in most jurisdictions. wide approach might eliminate Until the court specifically ad- some of the litigation and save dresses the perimeters of what it court time, she suggests. While the Supreme Court considers to be 'relevant evidence that is reasonably available,' many upheld key aspects of the 2008 issues that have been raised since amendments in R. v. St-Onge 2008 and in this particular appli- Lamoureux last year, it did find cation remain unaddressed at the that breathalyzer machines aren't infallible. But the top court appellate level," wrote O'Dea. O'Dea found the Crown didn't specify what disclosure should disclose the inspection and the Crown should provide to maintenance logs for the instru- defence lawyers trying to determent and accessories since the mine if the machine made a misdate of purchase. He also provided take. And that's inevitably where an outline of what the information lawyers have focused much of should contain and responded their efforts in impaired cases. "There is an unprecedented to each of the demands of the accused. In addition, he agreed that amount of time being spent in access to the inspection and main- court litigating this issue," says Segal. tenance manuals is essential. In making the request for disBeyond that, he ordered disclosure of all directives, policies, closure before O'Dea, Windsor, and qualification demands for Ont., criminal lawyer Patrick technicians from the manufactur- Ducharme said he relied upon er involving the machine's main- the list created through the alcotenance, including those related hol test committee. He figures he currently has to replacement parts. And he orupwards of 20 impaired cases dered the company servicing the parts to disclose the checklist used pending in southern Ontario courts and this month filed for by a technician. "It is in the interests of justice to appeal on another. "I have made this a bit of a know whether maintenance promission," he says. "This is a live cedures exist," wrote O'Dea. The decision, says Jacob Stil- issue. This issue I don't think is man, a criminal lawyer and part- going to be resolved for years." Ducharme is skeptical about ner at Lo Greco Stilman LLP, "puts the maintenance of the machines the fire to the feet of the Crown." Impaired-driving cases have and questions if authorities really become more difficult to defend are keeping logs. For the courts and more technical over the years to accept the instruments, he as the introduction of Bill C-2 in adds, the Crown should provide 2008 limited the defences avail- evidence of their proper mainteable and left the breathalyzer and nance and use and that there was its operation as the only remaining no user error. "We said to the proseculines of attack. The change opened the floodgates for disclosure tors, 'Well, provide us with this BY MARG. BRUINEMAN For Law Times A information.' We're finding great resistance to that," he says. The Ministry of the Attorney General's position is that when it comes to over-80 cases, Crowns routinely disclose police notes and breathalyzer test records. The Neville case was different because of the additional material sought. The Crown is still reviewing the decision to determine if it will take the matter further. LT The Advocates' Society Arbitration and Mediation Advocacy Practice Group will honour Yves Fortier, C.C., O.Q., Q.C. with The Roger Fisher Lifetime Achievement Award in ADR Thursday, October 24th, 2013 The Ritz-Carlton, Toronto 181 Wellington Street West Reception and Dinner beginning at 6:30 p.m. Dress: Business Attire Tribute Speakers: V. V. Veeder, Q.C., Essex Court Chambers, London Pierre Bienvenu, Ad. E., Norton Rose Fulbright, Montreal Judge Stephen M. Schwebel, Essex Court Chambers, London For more information, contact Rachel Stewart (416) 597-0243 ext. 129 or rachel@advocates.ca Generously sponsored by: Premier Sponsor Media Sponsor Wine Sponsor Supported by: AdvocateSociety_LT_Sep23_13.indd 1 13-09-19 10:57 AM Director, CLE Programs Osgoode Professional Development (Osgoode PD), the life-long learning arm of Osgoode Hall Law School, is one of the world's leading law school providers of continuing legal education. Osgoode PD's high quality and diverse offerings include conferences, short courses, webinars, certificate programs, and the highly esteemed Professional Master of Laws programs. Osgoode PD serves lawyers and other professionals and executives throughout Canada, as well as a rapidly growing international audience. Due to continuing growth, Osgoode PD is seeking a Director for its Continuing Legal Education Programs, which include non-credit live and on-line seminars, conferences, webinars, and certificate programs. Offering over 300 days of live programs per year plus multiple on-line offerings, Osgoode PD is one of Canada's leading CLE providers. The Director, CLE Programs is a new senior leadership role within Osgoode PD. Working with a team of Program Lawyers, marketers, finance, media and IT professionals, as well as a strong support staff, you will develop new formats and delivery channels while ensuring timely and high quality content. You will provide overall strategic planning and day-to-day management of the CLE team. Reporting to the Assistant Dean and Executive Director, you will be a key member of the Osgoode PD management team, and will participate in strategic decision-making on degree, technology and international initiatives. You are a leader with a track record of working with others, internally and externally, to create and deliver thoughtful and practical CLE or other adult education programs. You are creative, have good business judgment and networking skills, and have a breadth of experience in the legal services industry. This position requires a LLB/JD and a minimum of 5 years' legal practice, together with 5 years' CLE or other adult education experience. This is a rare opportunity to take your CLE career to the next level, with the power of a successful team and an outstanding and innovative law school behind you. osgoodepd.ca Location: Downtown Toronto – Yonge & Dundas A WORLD LEADER IN LAW SCHOOL LIFELONG LEARNING For more details visit www.yorku.ca/jobs Please send your CV and a cover letter to: wcurrie-mills@osgoode.yorku.ca no later than October 15, 2013. We thank all applicants, however, only those selected for an interview will be contacted. York University is committed to Employment Equity and encourages applications from all qualified candidates. www.lawtimesnews.com Untitled-1 1 13-09-18 12:58 PM

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