An end to unmeritorious "disclosure" applications?

David Jackson was arrested by the police. They police believed that his blood alcohol concentration was over the legal limit while he was operating a motor vehicle. Subsequent to arrest he provided breath samples into an approved instrument; the results indicated he was "over 80”. He was charged with “over 80”.

Prior to trial his counsel sought disclosure of (i) service records for the approved instrument; (ii) usage and calibration records; and (iii) downloaded data “bracketing the breath tests” of Jackson. The Crown refused to provide these materials citing their position that the records were third party records and were also clearly irrelevant. In response Jackson brought a disclosure motion before the trial judge.

The trial judge held that the records were subject to disclosure under Stinchcombe. The Crown and the police, the Ottawa Police Service, brought a certiorari application seeking to quash that ruling. That application was dismissed. The Crown appealed to the Ontario Court of Appeal: 2015 ONCA 832.

Several issues were dealt with at the Court of Appeal. Arguably two of the most pertinent ones dealt with the nature of the records and the potential relevance thereof.

With respect to the nature of the records, Watt JA offered the following overview of the governing principles:

First Party (Stinchcombe) Disclosure
Under Stinchcombe, the Crown has a broad duty to disclose all relevant, non-privileged information in its possession or control to persons charged with criminal offences. Disclosure of this information allows the person charged to understand the case she or he has to meet and permits him or her to make full answer and defence to the charges: Stinchcombe, at pp. 336-40; R. v. Quesnelle2014 SCC 46 (CanLII), [2014] 2 S.C.R. 390, at para. 11. The duty is triggered upon request without recourse to a court: McNeil, at para. 17.
For the purposes of first party or Stinchcombe disclosure, the term “the Crown” refers to the prosecuting Crown only, not to all Crown entities, federal and provincial. All other Crown entities, including the police, are third parties: Quesnelle, at para. 11;McNeil, at para. 22. 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 the Stinchcombe disclosure rules: Quesnelle, at para. 11; McNeil, at para. 25.
The assimilation of the police and Crown as a single entity for disclosure purposes is narrowly confined. Apart from the police duty to disclose to the Crown the fruits of the investigation, the two are unquestionably separate and independent entities, not only in fact but also in law. The police investigate. The Crown decides whether, what, whom and how to prosecute: McNeil, at paras. 23, 25. Production of criminal investigation files involving third parties, at least as a general rule, falls to be determined on an O’Connor application. This is so at least in the absence of a nexus between the third party and subject investigation: McNeil, at para. 25.
The Stinchcombe disclosure regime extends only to material relating to the accused’s case in the possession or control of the prosecuting Crown entity. This material is commonly described as the “fruits of the investigation”, that is to say, material gathered during the investigation of the offence with which the accused is charged: McNeil, at para. 23. Relevant information includes not only information related to those matters the Crown intends to adduce in evidence against the accused, but also any information in respect of which there is a reasonable possibility that it may assist the accused in the exercise of the right to make full answer and defence: McNeil, at para. 17; Stinchcombe, at pp. 343-44.
Third Party (O’Connor) Production
A separate disclosure/production scheme exists for records and information in the hands of third parties, strangers to the litigation. This scarcely surprises. After all, third parties are under no obligation and have no duty to assist the parties in litigation or to disclose information to them: O’Connor, at para. 102.
The third party scheme involves two steps or stages. It is initiated by service of a subpoena duces tecum on the third party record-holder, as well as a notice of application and supporting material on the record holder and prosecuting authority: O’Connor, at para. 134. The purpose of the subpoena duces tecum is to have the material requested brought to the trial judge who will determine whether and to what extent the material will be produced. The application sets out the grounds upon which production is sought. The supporting material seeks to establish the relevance of the material to an issue at trial including:
i.               the unfolding of the narrative;
ii.             the credibility of a witness;
iii.           the reliability of other evidence; or
iv.           the competence of a witness to testify: O’Connor, at para. 134; McNeil, at paras. 27, 33.
 For the purposes of this third party production regime, a record-holder need not be a complete stranger to the litigation. Recall that Crown entities, other than the prosecuting Crown, are third parties under this regime: McNeil, at para. 13. And this is so even though some records of the same entity may be subject to the first party disclosure scheme of StinchcombeMcNeil, at para. 15. [Pars 79-85].

Applying those principles Watt JA held that the records sought were third party records. In so concluding Watt JA noted that “[t]wo principal factors determine the disclosure/production regime that will apply”. First, the nature of the information sought; second, the party in possession of the information.

On the first issue, the court offered the following.

With respect to the nature of the information here, Watt JA held that it fell beyond the boundaries of the fruits of the investigation; indeed some of the records were created in relation to other investigations and others were created by the police service for reasons and at times wholly unconnected to the investigation at hand [paras 92-96].

With respect to who was in possession of the records, Watt JA noted that in this case the records were not in the possession of the Crown but were in the possession of a third party, The Ottawa Police Service [paras 97-98].

On the second issue, the court offered the following.

With respect to relevance, Watt JA noted that Jackson had received the usual disclosure package including the following:

A videotape of the respondent providing breath samples. The police officer’s notes. The Intoxilyzer 8000C print out for the respondent’s test. The Certificate of an Analyst attesting to the alcohol standard. The Intoxilyzer instrument log, diagnostic tests and calibration checks. The certificate of the breath technician confirming the test results of 116 and 113 milligrams of alcohol per 100 millilitres of blood. [Para 133].

With this Watt JA noted that the other records sought did not meet the likely relevance threshold.

First, nothing on the face of the typical disclosure package provided to the respondent indicated any problem with the Intoxilyzer 8000C approved instrument or any error by the technician in its operation. No error in the test print outs. A new instrument, not due for its first annual inspection. No annual inspection or maintenance records. In short, nothing to imbue the claim of instrument malfunction or operator error with an air of reality. A fishing expedition. Season closed.
Second, the expert evidence about potential relevance of the record sought failed to ascend above the speculative. In addition, the suggestion of unspecified relevance is contradicted by the report of the Alcohol Test Committee that belies the assistance of the records sought in determining whether the instrument functioned properly for a particular subject test.
Third, the records sought have no relevance to the unfolding of the narrative of material events in this case. Historical data has nothing to say about what gave rise to this prosecution, nor about the credibility of any party involved in the making of demands or the operation of the instrument.
Fourth, the applicable standard in the third party/O’Connor production regime is more demanding than the “whether the information may be useful” criterion for first party/Stinchcombe disclosure. That a more stringent standard applies is consonant with the underlying policy considerations and the gatekeeper function assigned to the trial judge. [Paras 135-138].

Finally, and notably, Watt JA offered a “post-script”:  

It is critical for the efficient operation of trial courts, especially those in which alcohol-driving offences occupy a prominent place on the docket, that they be able to control their process. This includes the authority to discourage unmeritorious third party records applications that devour limited resources. [Emphasis added]; [para 139].