R. v. Worden (S.), (2014) 452 Sask.R. 1 (PC)

• Judge: Kalmakoff, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: August 14, 2014
• Jurisdiction: Saskatchewan
• Citations: (2014), 452 Sask.R. 1 (PC);2014 SKPC 143

R. v. Worden (S.) (2014), 452 Sask.R. 1 (PC)

MLB headnote and full text

Temp. Cite: [2014] Sask.R. TBEd. AU.028

Her Majesty the Queen v. Scott Worden

(Information No.: 24409098; 2014 SKPC 143)

Indexed As: R. v. Worden (S.)

Saskatchewan Provincial Court

Kalmakoff, P.C.J.

August 14, 2014.

Summary:

The accused was charged with impaired driving and driving while having a blood-alcohol content over the legal limit. The accused sought disclosure of several documents that related to the operation and maintenance of the breathalyzer machine. The Crown disclosed some of the requested documents, but refused to provide others on the basis that they were not the fruits of the investigation, or did not otherwise meet a standard of relevance that would compel their disclosure. The accused applied for a remedy under s. 24(1) of the Charter, arguing that the Crown's refusal to disclose the documents violated his s. 7 rights.

The Saskatchewan Provincial Court dismissed the application.

Criminal Law - Topic 129

General principles - Rights of accused - Right to discovery or production (disclosure) - Worden was charged with impaired driving offences - The Crown disclosed, inter alia, the following breathalyzer instrument records: (1) the last annual maintenance performed on the instrument prior to Worden's tests; (2) the last Supervisor Test done prior to and the next Supervisor Test done after Worden's tests; and (3) the Alcohol Standard (Wet Bath) Change Form regarding the last alcohol standard solution change prior to Worden's tests - The Crown refused to disclose other records that Worden sought, including maintenance logs, instrument usage logs, alcohol standard change logs, simulator annual certificates, and information bulletins from the time the breathalyzer first went into service, up to and including its next yearly maintenance after the date of Worden's tests - Worden argued that these were first party records - The Saskatchewan Provincial Court held that the requested records were third party records - The documents were not the fruits of the investigation - Nor were they sufficiently related to the investigation or prosecution against Worden to become first party records on the basis of "deemed indivisibility" - Accordingly, the onus was on Worden to show that the records he sought were likely relevant - See paragraphs 43 to 75.

Criminal Law - Topic 129

General principles - Rights of accused - Right to discovery or production (disclosure) - Worden was charged with impaired driving offences - The Crown disclosed, inter alia, the following breathalyzer instrument records: (1) the last annual maintenance performed on the instrument prior to Worden's tests; (2) the last Supervisor Test done prior to and the next Supervisor Test done after Worden's tests; and (3) the Alcohol Standard (Wet Bath) Change Form regarding the last alcohol standard solution change prior to Worden's tests - The Crown refused to disclose other records that Worden sought, including maintenance logs, instrument usage logs, alcohol standard change logs, simulator annual certificates, and information bulletins from the time the breathalyzer first went into service, up to and including its next yearly maintenance after the date of Worden's tests - The Saskatchewan Provincial Court held that the Crown was not obligated to disclose these additional records because they were not "likely relevant" - They had no possible bearing on the accuracy of the tests performed on Worden, or whether the breathalyzer was functioning properly or operated properly at that time - The only records which might assist in making that determination had already been disclosed - See paragraphs 76 to 83.

Criminal Law - Topic 1384.4

Motor vehicles - Impaired driving - Production of breathalyzer maintenance records or data - Worden was charged with impaired driving offences - The Crown disclosed, inter alia, the following breathalyzer instrument records: (1) the last annual maintenance performed on the instrument prior to Worden's tests; (2) the last Supervisor Test done prior to and the next Supervisor Test done after Worden's tests; and (3) the Alcohol Standard (Wet Bath) Change Form regarding the last alcohol standard solution change prior to Worden's tests - The Crown refused to disclose other records that Worden sought, including maintenance logs, instrument usage logs, alcohol standard change logs, simulator annual certificates, and information bulletins from the time the breathalyzer first went into service, up to and including its next yearly maintenance after the date of Worden's tests - Worden argued that these were first party records - The Saskatchewan Provincial Court held that the requested records were third party records - The documents were not the fruits of the investigation - Nor were they sufficiently related to the investigation or prosecution against Worden to become first party records on the basis of "deemed indivisibility" - Accordingly, the onus was on Worden to show that the records he sought were likely relevant - See paragraphs 43 to 75.

Criminal Law - Topic 1384.4

Motor vehicles - Impaired driving - Production of breathalyzer maintenance records or data - Worden was charged with impaired driving offences - The Crown disclosed, inter alia, the following breathalyzer instrument records: (1) the last annual maintenance performed on the instrument prior to Worden's tests; (2) the last Supervisor Test done prior to and the next Supervisor Test done after Worden's tests; and (3) the Alcohol Standard (Wet Bath) Change Form regarding the last alcohol standard solution change prior to Worden's tests - The Crown refused to disclose other records that Worden sought, including maintenance logs, instrument usage logs, alcohol standard change logs, simulator annual certificates, and information bulletins from the time the breathalyzer first went into service, up to and including its next yearly maintenance after the date of Worden's tests - The Saskatchewan Provincial Court held that the Crown was not obligated to disclose these additional records because they were not "likely relevant" - They had no possible bearing on the accuracy of the tests performed on Worden, or whether the breathalyzer was functioning properly or operated properly at that time - The only records which might assist in making that determination had already been disclosed - See paragraphs 76 to 83.

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - Worden was charged with impaired driving offences - The Crown disclosed, inter alia, the following breathalyzer instrument records: (1) the last annual maintenance performed on the instrument prior to Worden's tests; (2) the last Supervisor Test done prior to and the next Supervisor Test done after Worden's tests; and (3) the Alcohol Standard (Wet Bath) Change Form regarding the last alcohol standard solution change prior to Worden's tests - The Crown refused to disclose other records that Worden sought, including maintenance logs, instrument usage logs, alcohol standard change logs, simulator annual certificates, and information bulletins from the time the breathalyzer first went into service, up to and including its next yearly maintenance after the date of Worden's tests - Worden argued that these were first party records - The Saskatchewan Provincial Court held that the requested records were third party records - The documents were not the fruits of the investigation - Nor were they sufficiently related to the investigation or prosecution against Worden to become first party records on the basis of "deemed indivisibility" - Accordingly, the onus was on Worden to show that the records he sought were likely relevant - See paragraphs 43 to 75.

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - Worden was charged with impaired driving offences - The Crown disclosed, inter alia, the following breathalyzer instrument records: (1) the last annual maintenance performed on the instrument prior to Worden's tests; (2) the last Supervisor Test done prior to and the next Supervisor Test done after Worden's tests; and (3) the Alcohol Standard (Wet Bath) Change Form regarding the last alcohol standard solution change prior to Worden's tests - The Crown refused to disclose other records that Worden sought, including maintenance logs, instrument usage logs, alcohol standard change logs, simulator annual certificates, and information bulletins from the time the breathalyzer first went into service, up to and including its next yearly maintenance after the date of Worden's tests - The Saskatchewan Provincial Court held that the Crown was not obligated to disclose these additional records because they were not "likely relevant" - They had no possible bearing on the accuracy of the tests performed on Worden, or whether the breathalyzer was functioning properly or operated properly at that time - The only records which might assist in making that determination had already been disclosed - See paragraphs 76 to 83.

Cases Noticed:

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. 38].

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. 38].

R. v. Spackman (K.) (2012), 300 O.A.C. 14; 2012 ONCA 905, refd to. [para. 38].

R. v. Anderson (T.) (2013), 423 Sask.R. 61; 588 W.A.C. 61; 2012 SKCA 92, refd to. [para. 39].

R. v. Egger (J.H.), [1993] 2 S.C.R. 451; 153 N.R. 272; 141 A.R. 81; 46 W.A.C. 81, refd to. [para. 39].

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. 41].

R. v. Darrach (A.S.), [2000] 2 S.C.R. 443; 259 N.R. 336; 137 O.A.C. 91; 2000 SCC 46, refd to. [para. 42].

R. v. West (W.F.) (2010), 288 N.S.R.(2d) 293; 914 A.P.R. 293; 2010 NSCA 16, refd to. [para. 42].

R. v. Arp (B.), [1998] 3 S.C.R. 339; 232 N.R. 317; 114 B.C.A.C. 1; 186 W.A.C. 1, refd to. [para. 42].

R. v. Quesnelle (V.) (2014), 460 N.R. 27; 320 O.A.C. 37; 2014 SCC 46, refd to. [para. 47].

R. v. St-Onge Lamoureux (A.) (2012), 436 N.R. 199; 2012 SCC 57, refd to. [para. 52].

R. v. Dineley (S.) (2012), 436 N.R. 59; 297 O.A.C. 50; 2012 SCC 58, refd to. [para. 52].

R. v. Ahmed (2010) 253 C.C.C.(3d) 378; 2010 ONCJ 130, refd. to. [para. 58].

R. v. Lalic, 2010 ONCJ 564, refd to. [para. 58].

R. v. Lenti, 2010 ONCJ 554, refd to. [para. 58].

R. v. Batenchuk, 2010 ONCJ 192, refd to. [para. 58].

R. v. Catley, [2010] O.J. No. 6173, refd to. [para. 58].

R. v. Da Costa, [2011] O.J. No. 3942 (C.J.), refd to. [para. 58].

R. v. Bensette, 2010 ONCJ 30, refd to. [para. 58].

R. v. Sutton (T.A.) (2013), 576 A.R. 14; 2013 ABPC 308, refd to. [para. 58].

R. v. Coughlin, [2013] O.J. No. 6073 (C.J.), refd to. [para. 58].

R. v. McIvor, 2013 ONCJ 757, refd to. [para. 59].

R. v. Carriveau, 2011 ONCJ 837, refd to. [para. 59].

R. v. Kilpatrick (D.K.) (2013), 555 A.R. 110; 2013 ABQB 5, leave to appeal denied [2013] A.R. Uned. 160; 2013 ABCA 168, not folld. [paras. 60, 64].

R. v. Pankiw (J.K.) (2013), 416 Sask.R. 206; 2013 SKPC 47, not folld. [para. 60].

R. v. Jackson, 2014 ONSC 1880, not folld. [para. 60]; dist. [para. 65].

R. v. Oleksiuk, 2014 ONCJ 313, not folld. [para. 60]; dist. [para. 65].

R. v. Hudye (F.R.) (2013), 425 Sask.R. 302; 2013 SKPC 122, not folld. [para. 61].

Matthews v. Saskatchewan (Attorney General) et al. (2013), 428 Sask.R. 155; 2013 SKQB 302, refd to. [para. 79].

R. v. Morris, [1983] 2 S.C.R. 190; 48 N.R. 341, refd to. [para. 80].

R. v. Seaboyer and Gayme, [1991] 2 S.C.R. 577; 128 N.R. 81; 48 O.A.C. 81, refd to. [para. 80].

Counsel:

Anthony Gerein, for the Crown;

Bob Hrycan, for the accused.

This application was heard at Regina, Saskatchewan, before Kalmakoff, P.C.J., of the Saskatchewan Provincial Court, who delivered the following judgment on August 14, 2014.