Canadian Underwriter
News

Can motorists raise doubts about accuracy of a breathalyzer test?


January 31, 2018   by Greg Meckbach


Print this page Share

When a motorist is charged with impaired driving, the Crown attorney should not automatically have to gather and turn over to the defendant all maintenance records on the breathalyzer that was used in the case, the Ontario government suggests.

The Ontario attorney general’s department has intervener status in an appeal to the Supreme Court of Canada from two Alberta motorists who were charged in separate incidents with drunk driving and demanded maintenance records. The Ontario government is arguing that a finding of the 2015 Court of Appeal for Ontario ruling – R. v. Jackson – should apply nationwide.

Kevin Gubbins and Darren Vallentgoed are appealing Court of Appeal of Alberta decision released Nov. 15, 2016. That ruling was indexed as R. v. Vallentgoed.

The Supreme Court of Canada announced Monday that it will hear Gubbins’ and Vallentgoed’s appeals Feb. 6. In essence, the defendants are arguing that a motorist accused of impaired driving has the right to raise doubts about the accuracy of a breathalyzer test.

Requests for historical records “continue to plague drinking and driving prosecutions,” Ontario crown attorneys Philip Perlmutter and Michael Fawcett wrote in the Attorney General of Ontario’s intervener argument into the upcoming scheduled hearing.

The Alberta government argued that breathalyzers are “specifically designed so that the proper functioning of the approved instrument is tested prior to each subject test and the results of that testing is recorded in the records made at the time of testing.”

The central issue in the appeal is whether certain police records relating to the past maintenance of a breathalyzer “constitute first-party disclosure such that the Crown must disclose them as a matter of routine in every case in which breath samples were taken,” Perlmutter and Fawcett wrote.

“For decades, those accused of drinking and driving introduced specious evidence to undermine the evidentiary validity of their breath test results,” the two Crown attorneys wrote in the intervener argument. “Today, breath samples are conclusive proof of the accused’s blood alcohol content at the time of the alleged offence in the absence of evidence tending to show that the approved instrument used to analyze those samples malfunctioned or was operated improperly.”

Vallentgoed was initially convicted but then a Court of Queen’s Bench judge ruled that he “had been denied an opportunity to rebut the presumption of accuracy” of the breathalyzer. A new trial was ordered in 2015 for Vallentgoed. The Court of Appeal of Alberta restored his conviction and the Supreme Court of Canada will hear Vallentgoed’s appeal Feb. 6.

When Gubbins was brought before a provincial court, a judge stayed the charges because the judge found that in refusing to disclose breathalyzer maintenance records, the Crown violated Gubbins’ right to a fair trial. The Court of Appeal of Alberta ordered that the stay on the drunk driving charges against Gubbins be lifted and that Gubbins be tried on that charge.

Case law holds that a crown attorney has a “broad obligation” to turn over to a defendant “all relevant, non-privileged information in its possession or control unless the disclosure is otherwise governed by law,” Perlmutter and Fawcett wrote.

One issue in Gubbins and Vallentgoed is the difference between the crown’s obligation to disclose information in its control, on the one hand, and information in the control of third parties, on the other hand.

In Jackson, the Court of Appeal for Ontario quashed a 2013 Ontario Court of Justice disclosure order made for breathalyzer maintenance records. The Court of Appeal for Ontario ruled that historical records requested by David Jackson (charged by Ottawa police with impaired driving) had “no association with the offence with which” the defendant was charged.