Supreme Advocacy
Issue #61
Friday, October 26, 2018
SCC Today: 3 Appeals

Supreme One-Liners


R. v. Gubbins, 2018 SCC 44 (37395) (37403)
Maintenance records of breathalyzers subject to third party disclosure regime.
R. v. Awashish, 2018 SCC 45 (37207)
Certiorari an extraordinary remedy, available only in narrow circumstances.

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Criminal Law: DUI; Disclosure

R. v. Gubbins, 2018 SCC 44 (37395) (37403)

Two appeals in one joint judgment.
"V and G were each charged with impaired driving and with driving “over 80”. Their breath samples were obtained and analyzed using approved instruments and standard procedures. At each step of the process, the breathalyzers performed internal and external diagnostic tests to ensure accuracy of the results and generated printed results. The printouts indicated that the instruments functioned properly. The Crown disclosed a standard package of documents related to the process. Both V and G requested additional disclosure, namely of the maintenance records for the breathalyzers used to obtain their breath samples. The Crown produced a basic maintenance log to V but otherwise refused to provide the requested disclosure. V applied for an order compelling disclosure and G applied for a stay of proceedings on the basis that his rights under s. 7  of the Canadian Charter of Rights and Freedoms  had been breached. V’s application was dismissed and he was subsequently convicted of both charges, but G was granted a stay of proceedings. The Court of Queen’s Bench jointly heard appeals by V and by the Crown in G’s case. It held that maintenance records are first party records and should have been disclosed by the Crown, and upheld G’s stay of proceedings and ordered a new trial for V. A majority of the Court of Appeal allowed the Crown’s appeals, holding that the maintenance records are third party records that are not to be disclosed routinely. It reinstated V’s conviction, and set aside G’s stay of proceedings and remitted his case for a new trial."


The S.C.C. (8:1) dismissed the appeals.

Justice Rowe wrote as follows (at paras. 1-2, 52-53, 58):


"These appeals deal with the scope of the Crown’s disclosure obligations with respect to maintenance records of breathalyzer instruments. These instruments are used to determine the blood alcohol content of suspected drunk drivers. It is important that these instruments provide accurate results. These cases deal with what information is relevant to assessing the reliability of these instruments. Are the maintenance records part of first party disclosure, subject to inclusion in the Crown’s standard disclosure package? Or, are these records third party records, which require the defence to demonstrate their likely relevance before an order for disclosure can be made?

Courts have provided inconsistent answers to the foregoing questions. These reasons deal with two appeals in which the two trial judges came to different conclusions as to whether breathalyzer maintenance records should be disclosed by the Crown. For the reasons that follow, I find that such records are subject to third party (rather than first party) disclosure. On the evidence in both cases, the defence failed to show that the maintenance records meet the requisite threshold for third party disclosure. Accordingly, I would dismiss the appeals.

...I conclude that the requested records are not part of first party disclosure. They are not in the possession or control of the prosecuting Crown. They do not form part of the “fruits of the investigation”; and the evidence in this case is that the maintenance records are not “obviously relevant” to the cases of the accused Mr. Gubbins and Mr. Vallentgoed. It follows that the standard to be met is that set out in O’Connor; the maintenance records are subject to the third party disclosure regime.

This conclusion is consistent with the purpose of the overall disclosure regime, which is to provide the accused with relevant information while preventing fishing expeditions and other dilatory requests for information. The companion case to this appeal, R. v. Awashish, 2018 SCC 45, originally involved a defence request for 50 additional pieces of disclosure. My colleague’s reasons do little to address these problems.  The implication of this would be that fishing expeditions would continue. In many other cases, the accused has obtained a stay of proceedings on the basis of the Crown’s refusal to disclose maintenance records, even though the accused blew “over 80” and the breathalyzer instrument did not register a fail. Such a result fails to respect the intention of Parliament to create a statutory presumption of accuracy in the instruments.


One final argument raised by the accused should be addressed. My conclusion that the maintenance records are subject to third party disclosure does not put the constitutionality of s. 258(1) (c) in jeopardy, as my colleague argues. As indicated in St-Onge Lamoureux, a defence is not illusory simply because accused persons will rarely succeed in raising a reasonable doubt by using it: para 79. There are records that are obviously relevant to the malfunctioning of the instrument ― the “time-of-test” records. These, along with testimony from the technician or the officer involved, are evidence that the accused may use to rebut the presumption of accuracy. As well, as indicated above, maintenance records may be available to the defence, where it can show that such records are likely relevant to a material issue in the case. The majority of this Court in St-Onge Lamoureux was aware of the possibility that such records might be obtained by way of an O’Connor application (St-Onge Lamoureux, at para. 78). This did not affect the constitutionality of the provision."


Full Decision


Criminal Law: DUI; Disclosure; Certiorari

R. v. Awashish, 2018 SCC 45 (37207)
" The accused was charged with impaired driving and driving “over 80”. She successfully brought an application before the Court of Québec to compel the Crown to inquire into the existence of certain documents relating to breathalyzer maintenance. The Crown then sought certiorari to quash the order, which was granted by the Superior Court. The accused appealed. The Court of Appeal allowed the appeal, holding that certiorari is available to an accused where a judge acts without jurisdiction and, in certain circumstances, when a judge makes an error of law on the face of the record. In this case, it was of the view that certiorari should not have been granted as the decision was made in the exercise of the Court of Québec’s jurisdiction."


The S.C.C. (9:0) dismissed the appeal.

Justice Rowe wrote as follows (at paras. 1-2, 17):


"This case was heard shortly after R. v. Gubbins, 2018 SCC 44 and arises from a similar context. However, it raises a distinct procedural issue, one that warrants separate reasons. The respondent, Ms. Justine Awashish, was charged with impaired driving and driving “over 80”. She sought to obtain additional disclosure from the Crown. The provincial court judge ordered the requested additional disclosure. The Crown successfully petitioned the Superior Court for certiorari to quash the order on the basis that the relevance of the records sought had not been established. Ms. Awashish then sought information relating to the same documents in order to prepare a second disclosure application. The provincial court judge granted this application in part. The Crown again applied for certiorari, which was again granted. Ms. Awashish appealed. The Court of Appeal reinstated the provincial court judge’s second order on the grounds that certiorari should not be granted in these circumstances, as to do so would circumvent the general prohibition against interlocutory appeals in criminal matters.

Certiorari is an extraordinary remedy that is available only in narrow circumstances. Allowing parties to use it to challenge interlocutory rulings, including evidentiary matters, risks gravely slowing the criminal justice system. For similar reasons to those set out by the Court of Appeal, I would dismiss the Crown’s appeal.


Permitting parties access to certiorari review for an error of law ― even one that “immediately and finally disposes of a legal right” ― risks fragmenting criminal trials, thereby introducing inefficiency, delay, and the determination of issues on an incomplete record. Such a rule would be in direct tension with the approach set out in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, to achieve prompt justice in criminal cases.  For these reasons, I would not adopt the wider view taken by the Quebec Court of Appeal at para. 29 where it suggested that certiorari would be available to parties to correct errors of law on the face of the record (see above, at para. 14)."


Full Decision

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