Duff v. Alberta (Attorney General) et al., 2010 ABPC 250

• Judge: Rosborough, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: July 15, 2010
• Citations: 2010 ABPC 250;(2010), 497 A.R. 16 (PC)

Duff v. Alta. (A.G.) (2010), 497 A.R. 16 (PC)

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. AU.034

Richard Albert Duff (applicant) v. Attorney General (Alta.)

(respondent) and Attorney General (Can.)

(third party)

(081458952P1; 2010 ABPC 250)

Indexed As: Duff v. Alberta (Attorney General) et al.

Alberta Provincial Court

Rosborough, P.C.J.

July 15, 2010.

Summary:

The accused was charged with driving while having an excessive blood-alcohol level and impaired driving. The accused applied for disclosure or production of the downloadable data from the random access memory of the Intoxilyzer for the period of 30 days pre and post-dating analysis of the accused's breath samples.

The Alberta Provincial Court dismissed the application.

Criminal Law - Topic 129

General principles - Rights of accused - Right to discovery or production (disclosure) - [See first, second and third Criminal Law - Topic 1384.4 ].

Criminal Law - Topic 1384.4

Motor vehicles - Impaired driving - Production of breathalyzer maintenance records or data - The accused was charged with driving while having an excessive blood-alcohol level and impaired driving - The accused applied for disclosure or production of the downloadable data from the random access memory of the Intoxilyzer for the period of 30 days pre and post-dating analysis of the accused's breath samples - The respondent Crown contended that the accused bore the onus of proving on a balance of probabilities that the data sought constituted a first party record - The Alberta Provincial Court stated that "The relevant police agency in this case can be both a 'first party' and a 'third party'. Where the respondent seeks to establish that the records in question are held as third party records, however, it is my view that the burden of persuasion rests with the respondent" - See paragraph 80.

Criminal Law - Topic 1384.4

Motor vehicles - Impaired driving - Production of breathalyzer maintenance records or data - The accused was charged with driving while having an excessive blood-alcohol level and impaired driving - The accused applied for disclosure or production of the downloadable data from the random access memory of the Intoxilyzer for the period of 30 days pre and post-dating analysis of the accused's breath samples - The data sought by the accused did not relate to the police investigation in this case or the taking and analyses of his breath samples - Rather, the accused sought data automatically stored by the Intoxilyzer relating to the investigation of others or, perhaps, use of the Intoxilyzer disconnected from any particular investigation - The Alberta Provincial Court held that the data sought was a third party record and that the procedure in R. v. O'Connor governed the request for disclosure - The court found that the accused failed to prove that the data sought was likely relevant and declined to order its production - The court also stated that "In the event that I am in error in this regard, I would nevertheless conclude that I can see no reasonable possibility of the data assisting the applicant in making full answer and defence to the charges laid against him. I would decline its production as a first party record" - See paragraphs 72 to 157.

Criminal Law - Topic 1384.4

Motor vehicles - Impaired driving - Production of breathalyzer maintenance records or data - The accused was charged with driving while having an excessive blood-alcohol level and impaired driving - The accused applied for disclosure or production of the downloadable data from the random access memory of the Intoxilyzer for the period of 30 days pre and post-dating analysis of the accused's breath samples - The Alberta Provincial Court dismissed the application - With respect to the issue of privacy interests, the court stated that "Where the data pertains to testing of the breath of other individuals, the data will contain information relating not only to the test results but also to the names, dates of birth and sex of those other individuals. ... In McNeil [S.C.C.], the court noted that, as a general rule, privacy interests must yield to the accused's right to make full answer and defence where the information sought is likely relevant (see, para. 42). I agree that privacy interests would be implicated by disclosure of the data but, in the event that the data is later determined to be likely relevant, I would nonetheless order its disclosure. I am confident that personal information could be redacted from the data without harming the applicant's use of that data to make full answer and defence" - See paragraphs 158 to 159.

Criminal Law - Topic 1384.4

Motor vehicles - Impaired driving - Production of breathalyzer maintenance records or data - The accused was charged with driving while having an excessive blood-alcohol level and impaired driving - The accused applied for disclosure or production of the downloadable data from the random access memory of the Intoxilyzer for the period of 30 days pre and post-dating analysis of the accused's breath samples - The Alberta Provincial Court dismissed the application - The court commented that "Many of the judgments ordering disclosure of data have done so, at least in part, on the basis that Bill C2 has limited the scope of what might otherwise have constituted 'evidence to the contrary'. ... It is not readily apparent why the advent of Bill C2 would change the nature of the 'first versus third party' records analysis prescribed by Alberta courts or render the records relevant today but not in the past. Records which were not 'fruits of the investigation' before the presumption created by s. 258(1)(c) C.C. was amended did not change their character after Bill C2 came into effect. They are created for the same purpose and either do or do not relate to the specific investigation involving the accused. The nature and content of the records have not changed, the same privacy interests are implicated and they have (or do not have) the same link to the applicant and his case. Similarly, if data was irrelevant in a legislative regime with a broader ambit given to the phrase 'evidence to the contrary', it is not clear why it would not be equally irrelevant in a legislative regime with a narrower ambit. With respect, I am unable to conclude that the advent of Bill C2 has had any effect on the characterization of data as a first or third party record or whether that data is likely relevant" - See paragraphs 160 to 161.

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - [See second Criminal Law - Topic 1384.4 ].

Criminal Law - Topic 5372

Evidence and witnesses - Documents and reports - Documents in possession of third parties - [See second Criminal Law - Topic 1384.4 ].

Evidence - Topic 7000.2

Opinion evidence - Expert evidence - General - Expert witness - Disqualification - Bias - The accused was charged with driving while having an excessive blood-alcohol level and impaired driving - The accused applied for disclosure or production of the downloadable data from the random access memory of the Intoxilyzer for the period of 30 days pre and post-dating analysis of the accused's breath samples - The accused sought to have Mayer qualified to give evidence on the theory, use and operation of the Intoxilyzer and the collection, storage and use of data in the memory of that device - The Alberta Provincial Court held that "Mayer had sufficient expertise relating to the areas identified in order to give expert opinion evidence and I am satisfied that the applicant has discharged his burden of proving that threshold issue on a balance of probabilities. The fact that his theory or theories about the utility of data or the prospect of latent, false high readings are disputed does not invalidate that expertise. Even if it could be said that his theories constitute novel science, he is not thereby disqualified from attempting to justify that novel scientific theory using his expertise in the area" - Further "I do not accept the submission that Mayer was deliberately evasive, that his evidence was intentionally misleading or that he exhibited such a lack of objectivity that he should be disqualified from testifying as an expert ... Mayer cannot be disqualified due to bias simply because his views on the efficacy of the data sought are controversial. Ultimately, his views will need to be assessed for admissibility and weight but he is not thereby disqualified from tendering them" - See paragraphs 54 to 59.

Evidence - Topic 7000.4

Opinion evidence - Expert evidence - General - Admissibility - General - The accused was charged with driving while having an excessive blood-alcohol level and impaired driving - The accused applied for disclosure or production of the downloadable data from the random access memory of the Intoxilyzer for the period of 30 days pre and post-dating analysis of the accused's breath samples - The accused sought to have Mayer qualified to give evidence on the theory, use and operation of the Intoxilyzer and the collection, storage and use of data in the memory of that device - Citing R. v. Wood (2007 ABQB), the respondent submitted that the court ought to hear his challenge to the admissibility of Mayer's evidence before determining whether Mayer had the requisite qualifications to give that evidence - The Alberta Provincial Court stated that "In Wood, the court was reviewing a trial judge's decision to admit the opinion of a witness in the area of 'drug recognition evidence' ('DRE') ... In the context of a science as new as DRE, the procedure recommended in Wood, has considerable merit ... The use of approved instruments to analyze breath samples is not a new science in Canada, however. ... For that reason, I ruled that the usual procedure of first assessing qualifications to be followed by hearing the expert opinion evidence should be followed. If I am in error in that determination, I would nevertheless exercise my discretion to follow the usual procedure of qualifying Mayer before hearing his opinion evidence. Counsel have assisted me by providing Mayer's detailed Curriculum Vitae ('CV') before this hearing and, with the exemplification undertaken by counsel for the applicant at the outset of his evidence, I am satisfied that the procedure utilized by the court in Wood was unnecessary in this case" - See paragraphs 35 to 39.

Evidence - Topic 7001

Opinion evidence - Expert evidence - General - Qualifications and declaration that a witness is an expert - [See Evidence - Topic 7000.2 and Evidence - Topic 7000.4 ].

Evidence - Topic 7002

Opinion evidence - Expert evidence - General - Acceptance, rejection and weight to be given to expert opinion - The accused was charged with driving while having an excessive blood-alcohol level and impaired driving - The accused applied for disclosure or production of the downloadable data from the random access memory of the Intoxilyzer for the period of 30 days pre and post-dating analysis of the accused's breath samples - Mayer was qualified to give evidence for the accused on the theory, use and operation of the Intoxilyzer and the collection, storage and use of data in the memory of that device - Mayer gave evidence about the potential utility of data and possible ways in which an Intoxilyzer could falsely report a high blood-alcohol concentration - The Alberta Provincial Court stated that the weight to be accorded to Mayer's evidence was compromised on several levels - His evidence was, at times, exaggerated or over broad, it was inconsistent with evidence of other experts, and was either confusing or internally inconsistent at times - There was nothing in his evidence to indicate that data from days prior to or after the testing in this case could signal a malfunction of the Intoxilyzer during the course of testing the accused's breath samples - The court stated that "The respondent has challenged Mayer's theories relating to latent, falsely high readings as being novel science or a novel scientific technique and I tend to agree. These theories could be, but have not been tested, they have not been subjected to peer review or otherwise published, there is no evidence of the potential frailty or error rate of those theories or the existence of standards utilized to measure them and they have certainly not been generally accepted in the scientific community. They would have the potential to confuse or, perhaps, 'dazzle' the trier of fact. I would find them inadmissible for this reason alone. ... Even if Mayer's evidence were admissible, however, I would accord it little weight" - See paragraphs 143 to 157.

Evidence - Topic 7010.1

Opinion evidence - Expert evidence - General - Evidence of new medical or scientific doctrines - [See Evidence - Topic 7002 ].

Police - Topic 2212

Duties - General duties - Disclosure of information - [See second Criminal Law - Topic 1384.4 ].

Cases Noticed:

R. v. J.-L.J., [2000] 2 S.C.R. 600; 261 N.R. 111, refd to. [para. 7].

R. v. McNeil (L.) (2009), 383 N.R. 1; 246 O.A.C. 154; 2009 SCC 3, refd to. [para. 8].

R. v. Gubins, [2009] O.J. No. 848 (C.J.), not folld. [para. 13].

R. v. Black (W.J.) (2010), 498 A.R. 229; 2010 ABQB 461, refd to. [para. 13].

R. v. Coopsammy (D.O.) (2008), 445 A.R. 160; 2008 ABQB 266, folld. [para. 17].

R. v. Dionne, [2009] O.J. No. 5285 (C.J.), refd to. [para. 32].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241, refd to. [para. 34].

R. v. Wood (S.L.) (2007), 426 A.R. 335; 2007 ABQB 503, refd to. [para. 35].

R. v. N.O. (2009), 448 A.R. 253; 447 W.A.C. 253; 2009 ABCA 75, refd to. [para. 52].

R. v. L.S. (1999), 125 O.A.C. 173 (C.A.), refd to. [para. 52].

R. v. Wade (W.) (1994), 69 O.A.C. 321; 89 C.C.C.(3d) 39 (C.A.), revd. in part [1995] 2 S.C.R. 737; 182 N.R. 387; 82 O.A.C. 182, refd to. [para. 53].

R. v. B.M. (1998), 115 O.A.C. 117; 130 C.C.C.(3d) 353 (C.A.), refd to. [para. 53].

R. v. Ahmed, [2010] O.J. No. 1500 (C.J.), refd to. [para. 58].

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161, refd to. [para. 60].

R. v. Gingras (1992), 120 A.R. 300; 8 W.A.C. 300; 71 C.C.C.(3d) 53 (C.A.), refd to. [para. 62].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1, refd to. [para. 64].

R. v. Szczerba (K.M.) et al. (2002), 321 A.R. 102; 2002 ABQB 660, refd to. [para. 68].

R. v. R.L.F. (2003), 350 A.R. 310; 2003 ABPC 196, refd to. [para. 68].

R. v. Kiersted (J.P.) et al., [2004] A.R. Uned. 472; 2004 ABQB 491, folld. [para. 68].

R. v. Lee (T.R.) et al. (2007), 426 A.R. 315; 2007 ABQB 454, refd to. [para. 68].

R. v. Smith (M.G.) (2007), 419 A.R. 179; 2007 ABQB 172; 2007 ABQB 187, refd to. [para. 68].

R. v. McCarthy (R.M.R.) et al. (2008), 439 A.R. 321; 2008 ABQB 14, refd to. [para. 68].

R. v. Scurr (J.L.) et al. (2008), 441 A.R. 203; 2008 ABQB 127, folld. [para. 68].

R. v. Powder (M.M.) (2008), 455 A.R. 84; 2008 ABQB 407, refd to. [para. 68].

R. v. Roquebrune (J.) (2008), 459 A.R. 298; 2008 ABPC 276, refd to. [para. 68].

R. v. McNutt (J.B.), [2010] A.R. Uned. 525; 2010 ABPC 190, refd to. [para. 68].

R. v. Hoeving (J.L.), [2007] A.R. Uned. 506; 2007 ABQB 561, refd to. [para. 68].

R. v. Klug (K.W.) (2010), 500 A.R. 293; 2010 ABPC 88, refd to. [para. 68].

R. v. Bone (J.M.) - see R. v. Perreault (M.D.).

R. v. Perreault (M.D.) (2010), 491 A.R. 72; 2010 ABPC 104, refd to. [para. 68].

R. v. Van de Veen, [2003] A.J. No. 1212 (Prov. Ct.), refd to. [para. 68].

R. v. Steele (K.) (2010), 488 A.R. 296; 2010 ABQB 39, refd to. [para. 70].

R. v. Polny (2009), 488 A.R. 253 (Q.B.), refd to. [para. 70].

R. v. Letourneau (P.N.) (2008), 447 A.R. 218; 2008 ABPC 192, refd to. [para. 70].

R. v. Collins (P.) et al. (2010), 492 A.R. 199; 2010 ABPC 19, refd to. [para. 70].

R. v. Chaplin (D.A.) et al., [1995] 1 S.C.R. 727; 178 N.R. 118; 162 A.R. 272; 83 W.A.C. 272, refd to. [para. 78].

R. v. Kwas (R.G.) (2009), 483 A.R. 359; 2009 ABPC 334, refd to. [para. 90].

R. v. U.P.M., [2010] 1 S.C.R. 253; 399 N.R. 200; 346 Sask.R. 1; 477 W.A.C. 1; 2010 SCC 8, refd to. [para. 103].

R. v. Harrington, [2008] O.J. No. 3888 (Sup. Ct.), refd to. [para. 116].

R. v. Mousseau, [2008] O.J. No. 4428 (C.J.), refd to. [para. 116].

R. v. Mellor, [2008] O.J. No. 5457 (C.J.), refd to. [para. 116].

R. v. Anderson, [2009] O.J. No. 912 (C.J.), refd to. [para. 116].

R. v. Pierre, [2009] O.J. No. 3329 (C.J.), refd to. [para. 116].

R. v. Ament, [2009] O.J. No. 1361 (C.J.), refd to. [para. 116].

R. v. McKenna (T.G.) (2009), 339 Sask.R. 58 (Q.B.), refd to. [para. 116].

R. v. Clark, [2009] O.J. No. 3656 (C.J.), refd to. [para. 116].

R. v. Pfaller, [2009] O.J. No. 1999 (C.J.), refd to. [para. 116].

R. v. Jemmett, [2009] O.J. No. 3180 (C.J.), refd to. [para. 116].

R. v. Balfour, [2009] O.J. No. 2730 (C.J.), refd to. [para. 116].

R. v. Deonanan, [2009] O.J. No. 2766 (C.J.), refd to. [para. 116].

R. v. Lo, [2009] O.J. No. 2728 (C.J.), refd to. [para. 116].

R. v. Emm, [2009] O.J. No. 4080 (C.J.), refd to. [para. 116].

R. v. Latchmansingh, [2009] O.J. No. 4185 (C.J.), refd to. [para. 116].

R. v. Robertson, [2009] O.J. No. 3483 (C.J.), refd to. [para. 116].

R. v. Hoover, [2009] O.J. No. 3320 (C.J.), refd to. [para. 116].

R. v. Payne, [2009] O.J. No. 5615 (C.J.), refd to. [para. 116].

R. v. Dufour, 2009 JCCQ 7790, refd to. [para. 116].

R. v. George, [2009] O.J. No. 4074 (C.J.), refd to. [para. 116].

R. v. Kazmer, [2009] O.J. No. 5083 (C.J.), refd to. [para. 116].

R. v. Muzuva, [2009] O.J. No. 5164 (C.J.), refd to. [para. 116].

R. v. Murray, [2010] O.J. No. 1752 (C.J.), refd to. [para. 116].

R. v. Armitage, [2010] O.J. No. 1749 (C.J.), refd to. [para. 116].

R. v. Speckner, [2010] O.J. No. 2151 (C.J.), refd to. [para. 116].

R. v. Hay, [2010] O.J. No. 1662 (C.J.), refd to. [para. 116].

R. v. Phagura (P.S.), [2010] B.C.T.C. Uned. 944; 2010 BCSC 944, overruling in part [2009] B.C.J. No. 2039 (C.J.), refd to. [para. 116].

R. v. Gillis (E.J.) (1994), 149 A.R. 395; 63 W.A.C. 395 (C.A.), refd to. [para. 131].

R. v. Lefebvre (1988), 90 A.R. 334 (Q.B.), refd to. [para. 131].

R. v. Fadden (1987), 9 M.V.R.(2d) 309 (Alta. Q.B.), refd to. [para. 131].

R. v. Lindsay (P.A.) et al., [1997] A.R. Uned. 239 (Prov. Ct.), refd to. [para. 131].

R. v. Trochym (S.J.), [2007] 1 S.C.R. 239; 357 N.R. 201; 221 O.A.C. 281, 2007 SCC 6, refd to. [para. 155].

Authors and Works Noticed:

Anderson, Glenn R., Expert Evidence (2nd Ed. 2009), pp. 335 to 447 [para. 56].

Blake, Kerry Lynne, The Alberta Gazette, Part 1, No. 2 (January 30, 1999), pp. 111, 112 [para. 151].

Canadian Society of Forensic Science, Recommended Standards and Procedures of the Canadian Society of Forensic Science Alcohol Test Committee (2003), 30 Can. Soc. Forens. Sci. J. (No. 3), p. 101 [para. 19].

Finley, C., Production Requests: The Crown's Duty to Provide, 21 M.V.R.(2d) 65, generally [para. 131].

Libman, R., Breathalyzer Testing and Requests For Production: An Update, 17 M.V.R.(2d) 256, generally [para. 131].

Libman, R., Fishing or Angling for a View, 27 M.V.R.(2d) 183, generally [para. 131].

Moreau, P., R. v. Gillis: Case Comment, 7 J.M.V.L. 68, generally [para. 131].

Paciocco, David M., and Stuesser, Lee, The Law of Evidence (5th Ed. 2008), p. 203 [para. 51].

Paciocco, David M., Filling the Seam between Stinchcombe and O'Connor: The "McNeil" Disclosure Application (2007), 53 Crim. L.Q. 161, p. 173 [para. 63].

Palser, Robert John Donald, The Alberta Gazette, Part I (March 15, 2004), p. 810 [para. 151].

Rafferty, J., Disclosure and Production in Drinking Driving Cases, 2 M.V.R.(5th) 32, generally [para. 131].

Sopinka, John, Lederman, Sidney N., and Bryant, Alan W., The Law of Evidence in Canada (3rd Ed.1999), p. 821 [para. 51].

Watt's Manual of Criminal Evidence (Online Ed.), s. 3 [para. 137].

Counsel:

Kevin M. Sproule, for the applicant;

Anders N. Quist, for the respondent;

Kerry E.S. Boyd, for the third party.

This application was heard on May 28, 31, June 3-4, 2010, by Rosborough, P.C.J., of the Alberta Provincial Court, who filed the following decision in Red Deer, Alberta, on July 15, 2010.