Law Times

Law Times • December 14, 2015 Page 11 www.lawtimesnews.com Appeal court overturns lower court rulings Intoxylizer performance falls outside the 'fruits of the investigation' BY SHANNON KARI For Law Times he Ontario Court of Appeal has issued a decision that will make it more difficult for individuals fac- ing impaired driving charges to try to challenge the accuracy of intoxilyzer devices. e court found, in a unanimous 3-0 decision in R v. Jackson, that requests for general information about the past per- formance of a specific device, including its service record, falls under the third- party process rather than a first-party re- quest for disclosure. e decision, written by Justice Da- vid Watt and issued Dec. 2, also urges trial judges "to discourage unmeritori- ous third-party records applications that devour limited resources" because of the number of impaired driving cases in pro- vincial courts. In its ruling, the Court of Appeal overturned lower court decisions, which found that this information fell under the disclosure regime set out by the Supreme Court of Canada in R. v. Stinchcombe, instead of the third-party test set out by the court in R. v. O'Connor. ere has been a lack of consistency in how the issue has been interpreted across the province, noted the Ontario Provin- cial Police, which was granted intervener status. "e resulting uncertainty has consequences for the effective and effi- cient administration of justice in Ontario and for the OPP," stated OPP lawyer Chris Diana in written arguments filed with the court. e provincial police agency joined the Ottawa police in successfully appealing the lower court decisions. e Court of Appeal agreed with their arguments and concluded that general information about the performance of an intoxilyzer is not part of the "fruits of the investigation" category that would trigger Stinchcombe and require disclosure un- less the information was clearly irrelevant. "In its normal, natural everyday sense the phrase 'fruits of the investigation' posits a relationship between the subject- matter sought and the investigation that leads to the charges against an accused," wrote Watt, with Justices Gloria Epstein and Harry LaForme concurring. e general intoxilyzer information that was requested by the defence in this case "was not created, produced or even located during the investigation of the re- spondent and his alleged offences," Watt added. "Much of it originates in the in- vestigation of others for offences they are alleged to have committed at times and in places unrelated to the investigation of the respondent," he wrote. Classifying the Crown and the police as a single entity is "narrowly confined" as it applies to disclosure, said the court. "Apart from the police duty to disclose to the Crown the fruits of the investiga- tion, the two are unquestionably separate and independent entities, not only in fact but also in law. e police investigate. e Crown decides whether, what, whom and how to prosecute," wrote Watt. Requiring a defendant to meet the "likely relevance" standard to obtain gen- eral information about an intoxilyzer is a "significant but not an onerous burden," said Watt. Among the lower court decisions that came to a different conclusion is one is- sued earlier this year by Provincial Court Justice David Paciocco. e former crimi- nal law professor concluded in R v. Fitts that the legal issue is "more subtle" than simply stating that the information is not first-party disclosure because it is not the fruits of the investigation. Since intoxilyz- ers are presumed to be accurate unless the defence can raise credible information the machine was malfunctioning, "the implication of the rebuttable presump- tion is that accused persons will have access to relevant information to enable them to do so," wrote Paciocco. e Court of Appeal decision in Jack- son is binding on lower courts in Ontario, and Howard Krongold, who represents the defendant, says it will likely result in fewer applications for intoxilyzer infor- mation. But he says this is a legitimate issue for people facing impaired charges. "e concern is that this ruling will preclude counsel from being able to dis- cover problems with an instrument that could affect its functioning," says Kron- gold, a partner at Abergel Goldstein & Partners LLP in Ottawa. "Rules that apply to the third-party records of a witness fit awkwardly when applied to a machine. You can investigate a witness or question a witness's evidence to find out if there may be problems with the witness's evidence lurking below the surface," Krongold ex- plains. "With a machine all you have is a computer printout. If the printout does not disclose an obvious problem, this rul- ing creates a serious barrier to obtaining any further information," he adds. No decision has been made yet on whether to seek leave to the Supreme Court of Canada. Lawyers for the OPP and the Ottawa Police Service declined comment as the case is in an appeal period. e Criminal Lawyers' Association was also an intervener. e lawyers who acted for the organization at the Court of Appeal were unavailable for comment. LT FOCUS Ruling means there will be fewer applications for intoxylizer information, says Howard Krongold. T In January, BTZ will welcome Michael Lacy & Joseph Wilkinson to our criminal law section. With more than 35 years of trial and appellate advocacy including more than 140 appellate decisions, how could we not?! 151 Yonge Street, Suite 1800 Toronto, Ontario M5C 2W7; Tel: 416-362-4567; Fax: 416-362-8410 We've added 2 more heavyweights mlacy@btzlaw.ca jwilkinson@btzlaw.ca BrautiThorning_LT_Dec14_15.indd 1 2015-12-10 4:08 PM

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