R. v. Jackson (D.),

• Jurisdiction: Ontario
• Judge: LaForme, Watt and Epstein, JJ.A.
• Neutral Citation: 2015 ONCA 832
• Citation: 2015 ONCA 832,(2015), 342 O.A.C. 284 (CA),128 OR (3d) 161,332 CCC (3d) 466,342 OAC 284,128 O.R. (3d) 161,342 O.A.C. 284,(2015), 342 OAC 284 (CA)
• Date: 02 December 2015
• Court: Court of Appeal (Ontario)

R. v. Jackson (D.) (2015), 342 O.A.C. 284 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. DE.005

Her Majesty the Queen (appellant) and the Ottawa Police Service (appellant) v. David Jackson (respondent)

(C58751; C58754; 2015 ONCA 832)

Indexed As: R. v. Jackson (D.)

Ontario Court of Appeal

LaForme, Watt and Epstein, JJ.A.

December 2, 2015.

Summary:

Following a "fail" reading on an Approved Screening Device, the accused was arrested and given a breathalyzer demand. After speaking with a lawyer, the accused provided breath samples, registering .15 and .13. He was charged with impaired driving and driving while having a blood-alcohol content exceeding the legal limit. The accused applied for disclosure of service records, usage and calibration records and downloaded data of test results before and after his test from the Intoxilyzer 8000C used. The Crown had disclosed the standard information and records normally given to it by the Ottawa Police Service (OPS) in breathalyzer cases. The OPS, the holder of the requested information, did not participate in the application. The trial judge ordered Stinchcombe disclosure (documents in the possession or control of the Crown). The Crown and OPS applied to the Superior Court to quash the disclosure order. That application was dismissed. The requested disclosure was provided by the OPS. The Crown and the OPS appealed, arguing that the trial judge erred in ordering disclosure, in concluding that the requested records fell within the Crown's first party (Stinchcombe) obligations, in concluding that the requested records were relevant, and by violating the principles of fundamental justice. Two preliminary issues arose: (1) the right of the OPS to apply to quash the disclosure order where it did not participate in the hearing of the disclosure application and (2) whether the court should decline to hear the appeal where it was moot (disclosure made).

The Ontario Court of Appeal allowed the appeals. The OPS had a right to seek to quash the disclosure order and the court exercised its discretion to hear the moot appeal. The records sought were third party records in the hands of the OPS subject to disclosure governed by O'Connor, not Stinchcombe. The records failed to meet the "likely relevant" first step in the O'Connor third party records production scheme. The trial judge erred in ordering that the records be produced.

Administrative Law - Topic 5007

Judicial review - Certiorari - When available - Criminal matters - In a typical breathalyzer prosecution, the Ottawa Police Service (OPS) provided records to the Crown for Stinchcombe (first party) disclosure - The accused sought further records in an "O'Connor/ Stinchcombe Application" - The OPS was not mentioned and no subpoena duces tecum was served on it as required by O'Connor - The OPS did not participate in the disclosure application and no proof of service was provided to the judge - Neither party mentioned the absence of the OPS or suggested that it should be represented - The judge ordered production - The OPS and the Crown applied to quash the production order - The motions judge held that the OPS had been properly served with the Notice of Application and was not entitled to a new hearing - However, the failure to appear did not disentitle the OPS to seek to quash the disclosure order - The Ontario Court of Appeal held that the OPS was entitled to apply to quash the disclosure order - This was an O'Connor third party production application, not a Stinchcombe first party application - The accused did not follow the proper procedure for an O'Connor application (no service of subpoena duces tecum on third party record-holder) - As the putative third party record-holder, the OPS was entitled to invoke the extraordinary remedy jurisdiction of the superior court of criminal jurisdiction to quash the order based on either jurisdictional error or error of law on the face of the record - Further, as an unsuccessful applicant before the superior court of criminal jurisdiction, the OPS was entitled to appeal to the Court of Appeal under s. 784(1) of the Criminal Code - See paragraphs 22 to 44.

Courts - Topic 2286

Jurisdiction - Bars - Academic matters or moot issues - In a typical breathalyzer prosecution, the Ottawa Police Service (OPS) provided records to the Crown for Stinchcombe (first party) disclosure - The accused sought further records in an "O'Connor/Stinchcombe Application" - Disclosure was ordered - An application to quash the disclosure order was dismissed - The OPS disclosed the records under the court order - The Crown and the OPS appealed - The accused argued that the appeal was moot and should not be heard - The Ontario Court of Appeal exercised its discretion to hear the moot appeal on the basis of four factors: (1) the issues raised commonly occurred in the prosecution of impaired driving offences; (2) the ruling was interlocutory and thus evasive of appellate review until final adjudication; (3) the parties had a subsisting interest in clarifying which disclosure/production scheme governs these records [O'Connor or Stinchcombe] - Absent a decision, the conflicting decisions of trial courts gave no assistance to record-holders who were left to the vagaries of judicial assignment; and (4) the court had the benefit of full argument from the parties, a third party and another record-holder who had been granted intervenor status, and the record was adequate for the court to make an informed decision on the critical issue in dispute - See paragraphs 45 to 58.

Criminal Law - Topic 1384.4

Offences against person and reputation - Motor vehicles - Impaired driving - Production of breathalyzer maintenance records or data - [See Criminal Law - Topic 4505 ].

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - In a typical breathalyzer case, the Ottawa Police Service (OPS) provided the Crown with the videotape of the accused providing breath samples, the officer's notes, the printout of the accused's test results, the breathalyzer analyst's certificate, and the breathalyzer instrument log, diagnostic tests and calibration checks (standard disclosure) - At trial, the accused sought additional disclosure, namely service records, usage and calibration records and the results of the 50 previous and 50 subsequent breathalyzer tests conducted by the machine - The records were in the possession of the OPS, a third party record-holder, not the prosecuting Crown - The trial judge ordered the Crown to disclose the records (limited to 25 before and after rather than 50) under the Crown's first party Stinchcombe disclosure obligations - The Ontario Court of Appeal held that the trial judge erred in ordering disclosure - First, the records in the hands of the OPS were third-party records subject to disclosure under O'Connor, not first party records which the Crown had to disclose under Stinchcombe - The court stated that "Apart from the police duty to supply the prosecuting Crown with the fruits of the investigation, records in the hands of third parties, including the police and other Crown entities, are generally not subject to Stinchcombe disclosure rules" - The records here were not "fruits of the investigation" respecting the accused - The accused failed to satisfy the first step in the O'Connor analysis where the records were not "likely relevant" - There was no reasonable possibility that the records were logically probative to a material issue at trial or to the credibility of a witness - This was a fishing expedition where there was no air of reality to a claim of machine malfunction or operator error - See paragraphs 60 to 138.

Criminal Law - Topic 4824

Appeals - Indictable offences - Right of appeal - Of ruling against a third party - [See Administrative Law - Topic 5007 ].

Practice - Topic 8858

Appeals - Bar or loss of right of appeal - Moot issues - [See Courts - Topic 2286 ].

Cases Noticed:

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. 15].

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. 24].

L.L.A. v. Beharriell, [1995] 4 S.C.R. 536; 190 N.R. 329; 88 O.A.C. 241, refd to. [para. 38].

L.L.A. v. A.B. - see L.L.A. v. Beharriell.

Canadian Broadcasting Corp. v. Dagenais et al., [1994] 3 S.C.R. 835; 175 N.R. 1; 76 O.A.C. 81, refd to. [para. 39].

Cunningham v. Lilles et al., [2010] 1 S.C.R. 331; 399 N.R. 326; 283 B.C.A.C. 280; 480 W.A.C. 280; 2010 SCC 10, refd to. [para. 39].

R. v. N.S. et al. (2010), 269 O.A.C. 306; 262 C.C.C.(3d) 4; 2010 ONCA 670, affd. [2012] 3 S.C.R. 726; 437 N.R. 344; 297 O.A.C. 200; 2012 SCC 72, refd to. [para. 39].

Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; 92 N.R. 110; 75 Sask.R. 82, refd to. [para. 50].

Penetanguishene Mental Health Centre v. Ontario (2010), 260 O.A.C. 125; 2010 ONCA 197, refd to. [para. 50].

R. v. St-Onge Lamoureux (A.), [2012] 3 S.C.R. 187; 436 N.R. 199; 2012 SCC 57, refd to. [para. 64].

R. v. McNeil (L.), [2009] 1 S.C.R. 66; 383 N.R. 1; 246 O.A.C. 154; 2009 SCC 3, refd to. [para. 67].

R. v. Quesnelle (V.), [2014] 2 S.C.R. 390; 460 N.R. 27; 320 O.A.C. 38; 2014 SCC 46, refd to. [para. 79].

R. v. Mills (B.J.), [1999] 3 S.C.R. 668; 248 N.R. 101; 244 A.R. 201; 209 W.A.C. 201, refd to. [para. 96, footnote 3].

R. v. Luciano (M.) (2011), 273 O.A.C. 273; 267 C.C.C.(3d) 16; 2011 ONCA 89, refd to. [para. 121].

R. v. Cloutier, [1979] 2 S.C.R. 709; 28 N.R. 1, refd to. [para. 122].

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. 127].

R. v. Durette et al., [1994] 1 S.C.R. 469; 163 N.R. 321; 70 O.A.C. 1, refd to. [para. 128].

Counsel:

Michael Fawcett and Philip Perlmutter, for the appellant, Crown;

Vincent Westwick and Hugh O'Toole, for the appellant, Ottawa Police Service;

Howard L. Krongold, for the respondent, David Jackson;

Paul Burstein, Jonathan Rosenthal and Eric Newbauer, for the intervenor, Criminal Lawyers' Association;

Christopher Diana and Amal Chaudry, for the intervenor, Commissioner of the Ontario Provincial Police.

These appeals were heard on March 23, 2015, before LaForme, Watt and Epstein, JJ.A., of the Ontario Court of Appeal.

On December 2, 2015, Watt, J.A., released the following judgment for the Court of Appeal.