



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Jackson, 2015 ONCA 832

DATE: 20151202

DOCKET: C58751 & C58754

LaForme, Watt and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

The Ottawa Police Service

Appellant

and

David Jackson

Respondent

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 Neubauer, for
    the intervener Criminal Lawyers' Association

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

Heard: March 23, 2015

On appeal from the refusal of Justice John M. Johnston of
    the Superior Court of Justice, dated April 7, 2014 to quash the disclosure
    order made by Justice Jack D. Nadelle of the Ontario Court of Justice, dated August
    6, 2013.

Watt J.A.:

[1]

A police officer asked David Jackson to do something. Twice. Nothing
    complicated. Just blow into a device. So David Jackson did. The first time he
    failed. Then he talked to a lawyer. The second time, he provided evidence
    against himself.

[2]

David Jackson was charged with impaired operation of a motor vehicle and
    operation of a motor vehicle having consumed alcohol so that the concentration
    of alcohol in his blood exceeded 80 milligrams of alcohol in 100 millilitres of
    blood.

[3]

David Jackson got the usual disclosure provided by the prosecutor in
    alcohol-driving cases. But David Jackson wanted more. He wanted to find out
    about the history and performance of the device that measured his blood alcohol
    concentration. So he asked the trial judge to require the prosecutor to provide
    the records he sought.

[4]

The trial judge ordered disclosure. A judge of the Superior Court of Justice
    refused to quash the trial judges order. The police service that maintains the
    records and the Crown appeal even though the records have been disclosed.

[5]

These reasons explain why I would allow the appeal and quash the
    disclosure order.

THE BACKGROUND FACTS

[6]

The circumstances that gave rise to the apprehension of David Jackson
    and the demands made upon him by the arresting officer are commonplace in
    alcohol-driving prosecutions and warrant little attention here. For current
    purposes, I assume the applicable legal and constitutional requirements
    relating to the stop, demands and provision of samples were met.

The Apprehension

[7]

A police officer saw a car drift into an adjacent traffic lane three
    times. The driver then slowed down, for no apparent reason. The officer
    signalled the driver to pull over to the side of the road.

[8]

The driver was David Jackson. His eyes were glassy. His breath smelled
    of alcohol.

The ASD Demand

[9]

The officer required David Jackson to provide a sample of his breath to
    enable its analysis by means of an approved screening device (ASD). David
    Jackson complied. He failed.

The
    Breathalyzer Demand

[10]

The
    officer arrested David Jackson and demanded that he provide samples of his
    breath that would enable a proper analysis of it to determine the concentration
    of alcohol in his blood.

[11]

David
    Jackson spoke to a lawyer. He provided samples of his breath into an
    Intoxilyzer 8000C. Both samples revealed blood alcohol concentrations in excess
    of 80 milligrams of alcohol in 100 millilitres of blood.

The Offences Charged

[12]

David
    Jackson was charged with impaired operation of a motor vehicle and operation of
    a motor vehicle with a prohibited blood alcohol concentration. The Crown
    elected to proceed summarily.

The Disclosure Application

[13]

David
    Jackson applied to the designated trial judge before trial for an order
    requiring disclosure of:


i.

service records;


ii.

usage and calibration records; and


iii.

downloaded data bracketing the breath tests of David Jackson

from the Intoxilyzer 8000C used in David Jacksons breath
    tests.

[14]

The
    trial judge reviewed the affidavits and considered the
viva voce
testimony
    of two toxicologists. He heard argument from the Crown and trial counsel for
    David Jackson. The Ottawa Police Service (OPS), the holder of the records
    sought, did not participate in the application.

[15]

The
    trial judge concluded that the records sought were governed by
R. v. Stinchcombe
,
    [1991] 3 S.C.R. 326, and ordered their disclosure.
[1]

The Motion to Quash

[16]

The
    Crown and the OPS asked a judge of the Superior Court of Justice (the motion
    judge) to quash the disclosure order made by the trial judge.

[17]

The
    motion judge rejected the submission that the OPS was not entitled to
    participate in the motion because it had not appeared before the trial judge.
    The motion judge agreed that the
Stinchcombe
regime governed
    disclosure, found that the trial judge had committed no jurisdictional error
    and affirmed the decision ordering disclosure.

The Disclosure of the Records

[18]

In
    accordance with the decisions of the trial and motion judge, the OPS disclosed
    the records to trial counsel for David Jackson.

THE GROUNDS OF APPEAL

[19]

The
    OPS and Crown appeal. They allege that the motion judge erred in law in finding
    that the trial judge did not commit jurisdictional error:


i.

in ordering the requested disclosure;


ii.

by concluding that the requested records fell within the Crowns first
    party (
Stinchcombe
) disclosure obligations;


iii.

by concluding that the requested records were potentially relevant to
    the case against David Jackson; and


iv.

by violating the principles of fundamental justice.
[2]


[20]

The
    Chief Justice gave leave to the Ontario Provincial Police (OPP) and Criminal
    Lawyers Association (CLA) to intervene on the appeal.

THE PRELIMINARY ISSUES

[21]

David
    Jackson (the respondent) raises two preliminary issues that require brief
    consideration. The first has to do with the right of the OPS to appeal the
    decision of the motion judge. The second concerns mootness.

Preliminary Issue #1: The Right of Appeal of the OPS

[22]

A
    brief reminder of the procedural history of the disclosure request will set the
    stage for an assessment of this objection.

The Disclosure
    Motion

[23]

The
    OPS held the records that the respondent sought. Those records formed no part
    of the information provided by the OPS to the Crown for disclosure under
Stinchcombe
.

[24]

The
    application to the trial judge was styled 
OConnor
/
Stinchcombe
Application. The style of cause made no reference to the OPS, the record
    holder. No
subpoena duces tecum
was served on the OPS as required by
R.
    v. OConnor
, [1994] 4 S.C.R. 411.

[25]

The
    Notice of Application was left with the Court Liaison section of the OPS. No
    proof of service was provided to the trial judge. The parties differ about the
    practice and effect of the service that occurred here.

[26]

The
    OPS did not participate in the motion before the trial judge. No one mentioned
    their absence. In particular, the Crown did not query the absence of a
subpoena
    duces tecum
or suggest that the record holder should be represented.

The Motion to Quash

[27]

The
    respondent took issue with the right of the OPS to move to quash the disclosure
    order. He contended that the OPS chose not to participate in the motion before
    the trial judge and, accordingly, was disentitled to apply for the
    discretionary remedy it sought before the motion judge.

[28]

The
    motion judge was satisfied that the OPS had been properly served with the Notice
    of Application at trial. The motion judge held that the failure of the trial
    judge to hear submissions from the OPS did not entitle the police service to a
    new hearing before the trial judge. But the failure of the OPS to appear at
    trial did not disentitle it to seek to quash the disclosure order. As a third
    party, the disclosure order was final as far as the OPS was concerned. The OPS
    was therefore entitled to challenge that order by invoking the extraordinary
    remedy jurisdiction of the Superior Court of Justice.

The Positions of the Parties

[29]

The
    respondent contends that little reason exists for entertaining an appeal by the
    OPS. The motion judge found as a fact that the OPS had been properly served
    with the
OConnor
/
Stinchcombe
application. The failure of the
    OPS to attend the hearing of the application was of its own doing. And since
    the motion judge found that the documents sought fell within the first party
    disclosure regime, the OPS complaints about the lack of service of a
subpoena
    duces tecum
are of no consequence.

[30]

The
    respondent points out that the remedy the OPS sought before the motion judge is
    discretionary. Its purpose is to prevent unfairness to a third party who has no
    right of appeal from an order that is final so far as that third party is
    concerned. But there is no scent of unfairness here and thus no basis on which
    to entertain the appeal.

[31]

The
    position of the OPS is straightforward. It was a party before the motion judge,
    a third party record-holder entitled to challenge the jurisdiction of the trial
    judge to make the order by pursuing the extraordinary remedy of
certiorari
.
    The motion was dismissed. Section 784(1) of the
Criminal Code
, R.S.C.,
    1985, c. c-46, authorizes an appeal from a decision refusing the relief sought
    in proceedings by way of
certiorari
. Case closed.

The Governing Principles

[32]

The
    principles that control the disposition of this objection are those that govern
    first instance disputes about disclosure and those that authorize review of
    decisions made at first instance.

[33]

First,
    disputes about disclosure. The initial application before the trial judge
    invoked both
OConnor
and
Stinchcombe
as the basis for the order
    sought.

[34]

Where
    the disclosure dispute relates to information in the possession or control of
    the prosecuting agency, the
Stinchcombe
regime applies and requires
    service of the application and supporting materials on the prosecutor.

[35]

Where
    the disclosure dispute concerns production of materials in the possession or
    control of a third party,
OConnor
requires service of the application
    and supporting materials on the Crown, (where applicable) the person who is the
    subject of the records, the third party record-holder and anyone else
    statutorily entitled to notice. A
subpoena duces tecum
must be served
    on the record-holder:
OConnor
, at paras. 135-36. The purpose of
    service on the record-holder is to provide the record-holder with notice and
    the opportunity to be heard.

[36]

Second,
    reviewability. Appeal routes in criminal proceedings vary depending on whether
    the appeal is being pursued by a party to the proceedings or by a third party.

[37]

The
    parties  the accused and the Crown  must await the end of the trial to appeal
    the orders.

[38]

Not
    so with third parties who can invoke two procedural avenues to appeal court
    orders affecting them before the end of the trial:
L.L.A. v. A.B.
,
    [1995] 4 S.C.R. 536, at para. 23. Where the order is that of a provincial court
    judge, a third party may challenge it through an enlarged writ or an order in
    lieu of
certiorari
. Further appeals to the provincial appellate court
    and Supreme Court of Canada follow the regular channels of our judicial system:
L.L.A. v. A.B.
, at para. 24. Section 784(1) of the
Criminal Code
authorizes
    an appeal to this court from a decision granting or refusing the relief sought
    in proceedings by way of
certiorari
.

[39]

When
    a third party invokes the extraordinary remedy jurisdiction of the superior
    court and seeks an order in lieu of
certiorari
, the scope of review
    includes not only jurisdictional error, but also error of law on the face of
    the record:
Dagenais v. Canadian Broadcasting Corp.
, [1994] 3 S.C.R.
    835, at pp. 864-65;
R. v. Cunningham
, 2010 SCC 10, [2010] 1 S.C.R.
    331, at para. 57;
R. v. N.S.
, 2010 ONCA 670, 262 C.C.C. (3d) 4, affd
    2012 SCC 72, 3 S.C.R. 726, at para. 23.

The Principles Applied

[40]

I
    would not give effect to the respondents submission that we should not
    entertain an appeal by OPS because of its failure to appear before the trial
    judge. I reach this conclusion for four reasons.

[41]

First,
    the original application was styled 
OConnor
/
Stinchcombe
Application
    revealing some uncertainty on the part of the respondent about whether the
    records sought were subject to the first party disclosure regime of
Stinchcombe
or the third party scheme of
OConnor
.

[42]

Second,
    the respondent did not follow the procedure mandated by
OConnor
for
    third party records. The respondent did not serve a
subpoena duces tecum
on the OPS as the third party record-holder. That the OPS chose to regard
    service upon it as deficient is neither here nor there to its status as a third
    party record-holder.

[43]

Third,
    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 made by the trial judge based on either
    jurisdictional error or error of law on the face of the record.

[44]

Fourth,
    as an unsuccessful applicant before the superior court of criminal
    jurisdiction, the OPS is entitled to invoke s. 784(1) of the
Criminal Code
to appeal to this court.

Preliminary Issue #2: Mootness

The Positions of the Parties

[45]

The
    second threshold issue put in play by the respondent is mootness. The records
    sought and ordered disclosed by the trial judge have been provided. No
lis
    inter partes
remains. No need for a decision.

[46]

In
    brief submissions on the issue, the respondent acknowledges but urges us not to
    exercise our discretion to hear a moot appeal. The issue is bound to arise
    again in another prosecution for an alcohol-driving offence. Prosecutions of
    these offences are commonplace. They occupy a prominent place on dockets of the
    Ontario Court of Justice throughout the province.

[47]

Here,
    the respondents continue, the appellants complain about the adequacy of the
    trial record to afford a proper foundation for a determination of the core
    dispute. What is more, the appeal relates to an interlocutory order that can
    and should await a decision after trial on the merits at which time an appeal
    can be taken by the Crown in the event of an acquittal.

[48]

Further,
    the respondent adds, the appellants have invoked the extraordinary remedy
    jurisdiction of the superior court of criminal jurisdiction. These remedies do
    not issue as of right, but only through the exercise of discretion. All the
    more reason not to decide a moot appeal.

[49]

The
    appellants say the interests of justice warrant a decision despite mootness.
    The root issue concerns the disclosure and relevance of records frequently
    sought from trial courts in alcohol-driving prosecutions. Decisions in the
    trial courts are conflicting. Alcohol-driving prosecutions predominate on trial
    lists in the Ontario Court of Justice. Appellate precedent is lacking, but
    essential for the due administration of justice.

The Governing Principles

[50]

The
    doctrine of mootness, of general but not unyielding application, is an aspect
    of a general policy or practice that a court may decline to decide a case that
    raises a hypothetical or abstract question. The doctrine applies when a courts
    decision will not, in effect, resolve some controversy that affects or may
    affect the rights of the parties. A
lis inter partes
must exist not
    only when the proceedings commence, but also when the court is assigned the
    task of deciding it:
Borowski v. Canada (Attorney General)
, [1989] 1
    S.C.R. 342, at p. 353;
Mental Health Centre Penetanguishene v. Ontario
,
    2010 ONCA 197, 260 O.A.C. 125, at para. 35.

[51]

From
    time to time, the doctrine of mootness surrenders, admitting of a discretion to
    depart from rigid application to permit a court to hear and determine a case in
    which the
lis inter partes
has dissolved:
Borowski
, at p.
    353;
Mental Health Centre
, at para. 36.

[52]

When
    one party urges mootness and seeks to disentitle another party to a hearing or
    decision, a court must determine first whether the essential tangible and
    concrete dispute  the
lis inter partes
 has disappeared and the
    issues have become academic. An affirmative response at this first step
    requires the court to determine next whether it should exercise its discretion
    to hear and decide the case:
Borowski
, at p. 353;
Mental Health
    Centre
, at para. 36.

[53]

To
    decide whether to exercise its discretion to hear and determine an appeal that
    is moot, a court should consider the extent to which each of the three distinct
    rationalia for the mootness doctrine is present:


i.

that a courts competence to resolve legal disputes is rooted in the
    adversary system that helps guarantee that issues are well and fully argued by
    parties who have a stake in the outcome;


ii.

the concern for judicial economy; and


iii.

the need for the court to demonstrate an awareness of its proper law-making
    function and the limits of that function so as to avoid intrusions into the
    role of the legislative branch:
Borowski
, at pp. 358-62.

The Principles
    Applied

[54]

Several
    factors persuade me that, despite its mootness, we should exercise our
    discretion to determine the substantive issues raised by the parties.

[55]

First,
    the issues raised are of common occurrence in the prosecution of
    alcohol-driving offences. Proof that an accuseds blood alcohol concentration
    exceeded 80 milligrams of alcohol in 100 millilitres of blood is an essential
    element in every over 80 prosecution. The usual mode of proof is by
    introduction of a Certificate of Analysis, a document that reports the results
    of an analysis of the accuseds breath by an approved instrument. The
    approved instrument is often, as here, an Intoxilyzer 8000C. In each
    prosecution involving this confluence of approved instrument and Certificate of
    Analysis, a disclosure or production request like that advanced here could be
    made.

[56]

Second,
    the ruling is interlocutory, thus evasive of appellate review at the instance
    of either party  until the final adjudication on the adequacy of the Crowns
    proof.

[57]

Third,
    the third party and intervener have a subsisting interest in clarifying which
    disclosure/production scheme governs these records. In the absence of a
    decision from this court, the conflicting decisions of trial courts afford no
    assistance to the record-holders who are left to the vagaries of judicial
    assignment.

[58]

Fourth,
    we have had the benefit of full argument from the parties, the third party, and
    another record-holder which has been granted intervener status.

[59]

Finally,
    despite some grumblings by the appellants, the record is adequate to make an informed
    decision on the critical issue in dispute.

ISSUES

Issue #1: Are the Records First Party Records Governed by
Stinchcombe
?

[60]

This
    issue requires characterization of the records the respondent sought on the
    disclosure/production motion before the trial judge. A brief description of the
    records and reprise of the conclusions of the trial and motion judge will
    provide a suitable landscape for the discussion that follows.

The Records Sought

[61]

The
    disclosure package initially provided to the respondent included records of the
    series of tests and checks executed by the Intoxilyzer 8000C to ensure that the
    instrument was in proper working order. The process includes:


i.

testing the ambient air for the presence of alcohol;


ii.

evaluating the integrity of the internal components of the instruments;


iii.

checking the calibration of the instrument against a standard alcohol
    solution; and


iv.

purging any lingering vapours.

Unless each quality control measure is completed
    successfully, the instrument will not permit a breath sample to be taken. The
    machine notifies the qualified technician conducting the breath test of any
    error. The problem must be resolved before a sample can be taken and reading
    provided.

[62]

At
    trial, the respondent sought additional disclosure/production of:


i.

service records;


ii.

usage and calibration records; and


iii.

COBRA data  the results of previously and subsequently executed
    functions  relating to the 50 tests preceding and following the breath tests
    administered to the respondent.

These documents are not part of the initial disclosure
    package provided to those charged with alcohol-driving offences in which the
    Crown will be tendering a Certificate of Analysis as proof of an accuseds
    blood-alcohol concentration at the time of the offence.

The Decision of the Trial Judge

[63]

The
    trial judge received affidavit and
viva voce
evidence from two
    toxicologists, and submissions from trial counsel for the respondent and Crown.
    The OPS did not participate in this hearing.

[64]

The
    trial judge concluded that production/disclosure of the records sought was
    governed by the first party disclosure regime of
Stinchcombe
. The
    trial judge, relying on passages in
R. v. St-Onge Lamoureux
, 2012 SCC
    57, [2012] 3 S.C.R. 187, found that the approved instrument  the Intoxilyzer
    8000C  was under the control of the Crown, which also maintained control over
    those who maintained and operated the instrument. Disclosure of the data
    requested was essential for the respondent to be able to challenge the
    Certificate of Analysis by adducing evidence to show a malfunction of the
    instrument or its improper operation. The respondent did not need to
    demonstrate a specific use of the records to obtain production/disclosure.

The Decision of the Motion Judge

[65]

The
    motion judge affirmed the conclusion of the trial judge that
    production/disclosure of the records sought was governed by the first party
    disclosure regime of
Stinchcombe
. The motion judge considered
    production/disclosure necessary to permit the respondent to make full answer
    and defence for a variety of reasons, including to ensure that those in charge
    of the instrument were following best practices. The judge said that the
    records of tests administered to others could reasonably impact on the case
    against the respondent.

[66]

The
    motion judge was also satisfied that the records sought were likely relevant
    although, having found them to be governed by
Stinchcombe
, he
    recognized that it was not necessary for him to consider, much less to find,
    likely relevance to confirm the trial judges order. The motion judge also
    rejected an argument advanced by the OPS that the resources impact of the trial
    judges decision was a relevant factor in determining the character of the
    records.

The Arguments on Appeal

[67]

The
    appellants, supported by the intervener OPP, say that the trial judge and
    motion judge erred in characterizing the records sought as first party records
    subject to the disclosure regime put in place by
Stinchcombe
. They
    contend that the records should have been characterized as third party records
    governed by
OConnor
and
R. v. McNeil
, 2009 SCC 3, [2009] 1
    S.C.R. 66.

[68]

The
    Crown contends that the first party disclosure obligations imposed by
Stinchcombe
require that the information sought be in the possession or control of the
    Crown. By the Crown it is meant the Crown who prosecutes the case. All other state
    authorities, for these purposes at least, are third parties. This includes the
    police. Here, the records are in the possession of the police, thus not the
    Crown for the purposes of
Stinchcombe
. These are third party records
    governed by
OConnor
.

[69]

Further,
    the Crown says, the records sought would not fall within the Crowns
Stinchcombe
disclosure obligations even if they (the records) were in the Crowns
    possession or control. These records are
not
fruits of the
    investigation of the respondent. The records were not created or produced in
    connection with the investigation of the respondent or his offence. Neither the
    investigating officer, who apprehended the respondent and made the ASD and
    approved instrument demands, nor the qualified technician, who administered the
    Intoxilyzer, created, consulted or even had access to the records. Indeed, some
    of the records were created during the investigation of others for offences
    similar to those allegedly committed by the respondent, but otherwise
    unconnected with them.

[70]

In
    addition, the Crown points out, the motion judge applied the wrong standard in
    determining the nexus between the records sought and the malfunctioning or
    improper operation of the approved instrument when the tests were administered
    to the respondent. The standard was
not
whether the records could
    reasonably impact on the case against the respondent, the test applied by the
    motion judge, but whether the records were obviously relevant to that issue.

[71]

The
    OPS characterizes the records sought as administrative records in the
    possession or control of a third party, not first party records in the
    possession of the prosecuting Crown. No correlative duty is imposed upon the
    OPS to deliver these records to the prosecuting Crown for disclosure because
    the records are not obviously relevant to the defence case. The mere fact that
    the records are in the possession of the OPS does
not
establish obvious
    relevance.  Nor can any analogy to police misconduct records assist the
    respondent.

[72]

The
    OPP adds that which disclosure/production regime governs should be decided based
    on principle, not expediency or wishful thinking about the utility of the
    information sought.

[73]

The
    respondent, supported by the intervener CLA, resists any suggestion of error in
    the conclusion reached or reasoning undertaken by the trial and motion judges.
    The records sought are first party records governed by
Stinchcombe
.
    And that is the beginning and end of it.

[74]

The
    respondent says that the first party disclosure regime applies to relevant
    non-privileged and otherwise disclosable information in the possession or
    control of the prosecuting Crown. In
St-Onge Lamoureux
, the Supreme
    Court of Canada held that the approved instrument, as well as the persons who
    maintain it, are under the
control
of the prosecuting Crown. It
    follows, according to the respondent, that records relating to the maintenance
    and operation of the improved instrument are also under the control of the
    prosecuting Crown. And so it is that the first party disclosure scheme of
Stinchcombe
governs, as the trial and motion judge correctly held.

[75]

The
    respondent argues that the availability of these records as first party
    disclosure was integral to the decision in
St-Onge Lamoureux
upholding
    the statutory scheme that had been challenged as unconstitutional. The relevant
    passage is not
obiter
as the appellants suggest. The court held that
    an accused could request disclosure of any relevant evidence reasonably
    available to present a real defence. The illustration of relevant evidence
    given by the court was the maintenance log for the approved instrument.

[76]

Further,
    the respondent adds, the decisions of the trial and motion judges
    characterizing what was sought as first party records are consistent with the
    decision in
McNeil
. That decision requires the police and Crown to
    obtain and disclose information that meets the
Stinchcombe
standard
    once put on notice of its relevance, as was the case here. The material need
    not be obviously relevant for no such category exists. The term obviously
    relevant in
McNeil
was used to describe the relevance of the records
    sought there, not to impose a more stringent standard than would be the case
    with third party records.

[77]

The
    intervener, CLA, supports the conclusions reached by the trial and motion judges.
    First party records are not limited to the fruits of the investigation or to
    records created by the investigating police agency. These records satisfy the
    relevance standard for disclosure purposes and are under the control of the
    prosecuting Crown. And that is enough to make them disclosable under
Stinchcombe
.

The Governing Principles

[78]

To
    determine the applicable disclosure/production scheme depends on an application
    of the principles associated with each regime, as well as an examination of the
    impact, if any, of
St-Onge Lamoureux
on those disclosure or production
    regimes.

First Party (Stinchcombe)
    Disclosure

[79]

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. Quesnelle
, 2014 SCC 46, [2014] 2 S.C.R. 390, at para. 11. The duty is
    triggered upon request without recourse to a court:
McNeil
, at para.
    17.

[80]

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.

[81]

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
OConnor
application. This is so at least in the absence of a nexus between the third
    party and subject investigation:
McNeil
, at para. 25.

[82]

The
Stinchcombe
disclosure regime extends only to material relating to the
    accuseds 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 (OConnor) Production

[83]

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:
OConnor
, at
    para. 102.

[84]

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:
OConnor
, 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:
OConnor
, at para. 134;
McNeil
, at paras. 27, 33.

[85]

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
Stinchcombe
:
McNeil
,
    at para. 15.

The Decision in R. v. St-Onge Lamoureux

[86]

At
    issue in
St-Onge Lamoureux
was the constitutional validity of certain  amendments
    to
Criminal Code
provisions. Those amendments limited the evidence
    that could be adduced to rebut, or attempt to rebut, the presumptions of
    accuracy and integrity in connection with readings of blood alcohol
    concentrations contained in Certificates of Analysis tendered by the Crown to
    establish an essential element of an alcohol-driving offence.

[87]

The
    amendments were enacted to fill what was perceived as a
lacuna
created
    by a previous decision that permitted an accused to adduce evidence of actual
    alcohol consumption, coupled with the expert opinion of a toxicologist about
    the implications of that consumption for the accuseds blood alcohol
    concentration. This evidence was relied upon to rebut the presumptions of identity
    and accuracy.

[88]

The
    amendments required the accused:


i.

to raise a doubt that the instrument was functioning and was operated
    properly;


ii.

to show that the malfunction or improper operation of the instrument
    resulted in the determination that the accuseds blood alcohol level exceeded
    the legal limit; and


iii.

to show that the accuseds blood alcohol level would not in fact have
    exceeded that limit at the time of the alleged offence:
St-Onge Lamoureux
,
    at para. 17

[89]

The
    nature and scope of the evidence that might be considered relevant in rebuttal
    was not argued on the appeal in
St-Onge Lamoureux
. The court
    considered it inappropriate to rule on the specific limits of that evidence,
    but did suggest several pieces of evidence that could be provided to a person
    charged with operating or having the care or control of a motor vehicle with a
    prohibited blood alcohol concentration, including:


i.

the breathalyzer readings;


ii.

the qualified technicians certificate; and


iii.

the analysts certificate concerning the sample of the alcohol standard:
St-Onge Lamoureux
, at para. 42.

The Principles Applied

[90]

As
    I will explain, I would give effect to this ground of appeal. The records
    sought are third party records. Their production/disclosure is governed by
OConnor
.
    They do not fall within the first party disclosure scheme of
Stinchcombe
.
    The reasoning that leads me to this conclusion involves several steps.

Factors Determining the
    Disclosure/Production Regime


[91]

Two
    principal factors determine the disclosure/production regime that will apply
    when an accused seeks disclosure of something the Crown has not provided. The
    first has to do with the nature of the information of which
    disclosure/production is sought. The second concerns who is in possession or
    control of that information.

[92]

Turning
    first to the nature of the information. The descriptive fruits of the investigation
    accurately captures the subject-matter of first party/
Stinchcombe
disclosure. The term embraces relevant, non-privileged information related to
    the matters the Crown intends to adduce in evidence against an accused, as well
    as any information in respect of which there is a reasonable possibility that
    it may assist an accused in the exercise of the right to make full answer and
    defence. The information may relate to the unfolding of the narrative of
    material events, to the credibility of witnesses or the reliability of evidence
    that may form part of the case to meet.

[93]

In
    its normal, natural everyday sense the phrase fruits of the investigation
    posits a relationship between the subject-matter sought and the investigation
    that leads to the charges against an accused. It refers to information acquired
    by means and in consequence of that investigation. The information includes,
    but is not co-extensive with, evidence, much less admissible evidence.

[94]

The
    disclosure/production sought in this case falls beyond the boundaries of
    fruits of the investigation.

[95]

In
    this case, a substantial component of the information sought consists of
    historical records of the operation of the same approved instrument during the
    investigation of others for similar offences. These records have no association
    with the offence with which the respondent was charged and for which he faced
    trial. The information was not created, produced or even located during the
    investigation of the respondent and his alleged offences. The records played no
    role in the acquisition of any evidence available for proffer in the
    prosecution of the respondent. Indeed, much of it originates in the
    investigation of others for offences they are alleged to have committed at
    times and in places unrelated to the investigation of the respondent.

[96]

Some
    support for this view that records created in investigations other than that
    relating to the offence charged are not fruits of the investigation may be
    found in
Quesnelle
. There, a police occurrence report not directly
    related to the charges against Quesnelle but involving the same complainant was
    held to be subject to the statutory third party records scheme known as the
Mills
[3]
regime.

[97]

Next,
    it is necessary to determine
who
was in possession or control of the
    records.

[98]

In
    this case, the records sought were
not
in the possession of the
    prosecuting Crown. The evidence is unequivocal. The records were generated by
    and in the exclusive control of the OPS. The OPS is a third party for these
    purposes. Their possession and control of the records sought does not engage
    the first party disclosure scheme of
Stinchcombe
.

The Impact of St-Onge
    Lamoureux

[99]

The
    decision in
St-Onge Lamoureux
relied upon by the respondent and the
    intervener CLA does not mandate a different result. I reach this conclusion for
    several reasons.

[100]

First, while it
    is fair to say that the
St-Onge Lamoureux
court considered the
    availability of additional disclosure about the reliability of the approved
    instrument as a relevant factor in its constitutional analysis, the court
    eschewed consideration of the nature and scope of evidence that might be
    considered in rebuttal and thus could be the subject of a disclosure request.
    Said in another way,
St-Onge Lamoureux
was not about disclosure.

[101]

Second,
St-Onge
    Lamoureux
makes no reference to
McNeil
and thus to its clear
    distinction between information in the possession and control of the
    prosecuting Crown, which is critical to trigger the first party disclosure
    obligation, and information in the possession of other Crown entities that are
    third parties for disclosure purposes.

[102]

Third, the paragraph
    of
St-Onge Lamoureux
upon which the respondents rely does not compel a
    finding that the records sought constitute first party disclosure. That passage
    states:

[48] The prosecution gains a clear, albeit limited, advantage
    from the requirement, since evidence to the contrary is limited to the real
    issue: whether the test results are reliable. The evidence to be tendered
    relates directly to
an instrument that is under the prosecutions control
.
    The prosecution must of course disclose certain information concerning the
    maintenance and operation of the instrument, but it is free to establish
    procedures for tracking how such instruments are maintained and operated. Moreover,
    the
prosecution has control over the people who maintain and operate the
    instruments
. [Emphasis added.]

[103]

The underscored
    portions, which assign control over the approved instrument and those who
    operate and maintain it, do not sit comfortably with the distinction made in
    the disclosure context in
McNeil
, at para. 13, that Crown entities
    other than the prosecuting Crown are third parties under the
OConnor
production regime.

[104]

What is more,
    the conclusion expressed in paragraph 48 of
St-Onge Lamoureux
is
    flatly contradicted by the evidence in this case. Here, the records are in the
    exclusive possession and control of the OPS and
not
furnished to the
    Crown for disclosure or other purposes.

[105]

Fourth, in a
    later passage in
St-Onge Lamoureux
, the court referred to
OConnor
,
    the progenitor of the third party production regime, as the procedure to invoke
    to obtain remedies for non-disclosure:

[78] Although Parliament now requires evidence tending to
    establish a deficiency in the functioning or operation of the instrument, this
    does not mean that there are limits on the evidence that can reasonably be used
    by the accused to raise a doubt in this regard. The accused can request the
    disclosure of any relevant evidence that is reasonably available in order to be
    able to present a real defence. If the prosecution denies such a request, the
    accused can invoke the rules on non-disclosure and the available remedies for
    non-disclosure (see
R. v. OConnor
, [1995] 4 S.C.R. 411). In short,
    the accused might rely, for example, on a maintenance log that shows that the
    instrument was not maintained properly or on admissions by the technician that
    there had been erratic results, or he or she might argue that health problems
    had affected the functioning of the instrument (see
R. v. Kasim
, 2011
    ABCA 336, 515 A.R. 254).

[106]

Finally, in its
    later decision in
Quesnelle
, the Supreme Court of Canada made it clear
    that for the purposes of first party disclosure, the term the Crown refers
    to the prosecuting Crown. All other Crown entities, including police, are
    third parties for disclosure purposes.

Issue #2: Are the Records Obviously or Likely Relevant?

[107]

It is
    acknowledged that, as the trial and motion judges erred in their
    characterization of the records sought as first party rather than third party
    records, limited consideration was given to the likely relevance of the
    records in question. Nevertheless, it is important to consider whether what was
    sought was likely relevant, and thus capable of satisfying the first step of
    the
OConnor
regime in warranting production to the trial judge.

[108]

Satisfaction of
    the first step of
OConnor
would not of course automatically entitle
    the respondent to production. Whether production would follow would depend on
    the trial judges assessment at the second stage of that test. And in this
    case, the issue of whether production would have been ordered on application of
    the
OConnor
regime is moot since the respondent obtained the records,
    albeit erroneously, under
Stinchcombe
.

[109]

Despite the
    mootness of the issue, the parties acknowledge the conflicting state of the
    authorities in first instance courts and the desirability of some guidance on
    the disclosure/production issue to avoid needless protraction of proceedings
    that should be expeditious.

[110]

The analysis
    below should also shed light on the role of the phrase obviously relevant
    within the disclosure context, a topic that was the subject of some
    disagreement in this appeal.

The Arguments on Appeal

[111]

The appellants
    and the OPP say that motion judge applied the wrong standard to bring the
    records sought within the first party disclosure regime of
Stinchcombe
.
    To trigger the police duty to disclose to the Crown and the correlative
    obligation of the Crown to disclose to the defence, the records must have been
    obviously relevant to the respondents case. That such records could
    reasonably impact on the case against the respondent does
not
engage
    the first party disclosure obligations of the police and Crown.

[112]

Further, the
    appellants and OPP submit that the records sought do not meet the likely
    relevance threshold under the
OConnor
third party production regime.
    The respondent has failed to establish any reasonable possibility that the
    records sought are logically probative to an issue at trial or to the
    competence of a witness to testify. The records have nothing to say about the
    unfolding of events, the credibility of any witness or the reliability of other
    evidence. Nothing said in
St-Onge Lamoureux
supports the conclusion
    that the records sought are likely relevant. And the report of the Alcohol
    Test Committee of the Canadian Society for Forensic Science, which ensures that
    all breath-testing equipment in Canada meets rigid specifications, makes it
    clear that what was disclosed, coupled with proper operation of the instrument,
    is conclusive evidence of a persons blood alcohol concentration at the time of
    testing.

[113]

The respondent
    and the CLA contend that the appropriate standard for first party disclosure is
    relevance. The phrase obviously relevant does not set a new, more demanding
    standard in relation to first party disclosure. To do so would make no sense
    since the standard would exceed the likely relevance standard at the first
    step of the third party production regime.

[114]

The respondent
    and the CLA say that what was before the trial judge and motion judge provided
    a sufficient basis for each to find that what was sought was relevant. After
    all,
St-Onge Lamoureux
makes it clear that improper maintenance of an
    approved instrument, irrespective of its effect of the result, is sufficient to
    prove a malfunction or improper operation of the instrument. Evidence to this
    effect satisfies the likely relevant threshold and should be produced.

The Governing Principles

[115]

The term
    relevant is sprinkled throughout the disclosure/production context.

[116]

In first party/
Stinchcombe
disclosure, relevant is characteristic of the material to be provided to an
    accused as fruits of the investigation. In addition, although it may not fall
    fairly within the ordinary sweep of fruits of the investigation, material
    that is obviously relevant to the defence case may need to be rustled up by
    the police, provided to the Crown and disclosed to the defence. Like the
    discipline records in
McNeil
. See
McNeil
, at para. 59.

[117]

In the third
    party/
OConnor
production setting, the phrase likely relevant
    designates the standard or threshold to be met at the first stage or step.
    Satisfaction of it entitles the applicant to have the records produced for
    review by the trial judge. Production to the applicant follows only where and
    to the extent that the trial judge considers it warranted after balancing
    several competing factors.

[118]

A logical
    beginning is a consideration of the meaning of the terms relevant and
    relevance. And then its use in the disclosure/production schemes that control
    here.

The Meaning of Relevant and Relevance

[119]

The terms
    relevant and relevance are old friends of the law of evidence. Familiar
    faces. Constant companions. We know them well enough to say several things
    about them without being critical in any way.

[120]

Relevance is not
    a legal concept. It is a matter of everyday experience and common sense. It is
    not an inherent characteristic of any item of evidence. Some have it. Others
    lack it.

[121]

Relevance is
    relative. It posits a relationship between an item of evidence and the
    proposition of fact the proponent of the evidence seeks to prove (or disprove)
    by its introduction. There is no relevance in the air:
R. v. Luciano
,
    2011 ONCA 89, 267 C.C.C. (3d) 16, at paras. 204-5.

[122]

Relevance is
    also contextual. It is assessed in the context of the entire case and the positions
    of counsel. Relevance demands a determination of whether, as a matter of human
    experience and logic, the existence of a particular fact, directly or
    indirectly, makes the existence or non-existence of another fact more probable
    than it would be otherwise:
R. v. Cloutier
, [1979] 2 S.C.R. 709, at p.
    731.

[123]

The law of
    evidence knows no degrees of relevance, despite the frequent appearance of
    descriptives like minimally, marginally or doubtfully, tangentially and
    highly that tag along for the ride from time to time.

First Party Disclosure and Obviously
    Relevant

[124]

The
McNeil
court uses the term obviously relevant to describe information that would not
    fall within the compass of fruits of the investigation, but would be of
    importance to the defence case. In
McNeil
, this information was police
    disciplinary records in the possession of a third party, the police department.
    Since it was obviously relevant to the credibility of the arresting officer
    and the reliability of his evidence, which was central to the prosecutions
    case,
McNeil
imposed an obligation on the police to obtain these
    records and provide them to the prosecuting Crown. It imposed a correlative
    duty on the Crown to disclose them to the defence as part of the Crowns
Stinchcombe
disclosure duty.

[125]

It is difficult
    to tease out of the phrase obviously relevant a new standard or degree of
    relevance. A better fit would seem to be that the phrase represents a comment
    on the obvious nature of the relevance of the record in the case to the witness
    credibility.

Third Party Records and Likely Relevant

[126]

In the third
    party/
OConnor
production landscape, likely relevant occupies a
    prominent place. The term designates the standard or burden an applicant must
    meet to have the trial judge review the records to determine whether or to what
    extent production will be ordered.

[127]

The standard
    likely relevant imposes a significant, but not an onerous, burden on an
    applicant:
OConnor
, at para. 24;
McNeil
, at para. 29. This
    threshold plays a meaningful role in screening applications to prevent the
    defence from engaging in speculative, fanciful, disruptive, unmeritorious,
    obstructive and time-consuming requests for production:
R. v. Chaplin
,
    [1995] 1 S.C.R. 727, at para. 32;
OConnor
, at para. 24;
McNeil
,
    at para. 29.

[128]

The likely
    relevant threshold is not onerous because an applicant cannot be required, as
    a condition of accessing information that may assist in making full answer and
    defence, to demonstrate the specific use to which they might put information
    that they have not seen:
R. v. Durette
, [1994] 1 S.C.R. 469, at p.
    499;
OConnor
, at para. 25;
McNeil
, at para. 29. The trial
    judge does
not
balance competing interests to determine whether the
    likely relevant threshold has been met under
OConnor
:
McNeil
,
    at para. 32.

[129]

Under the third
    party/
OConnor
production regime, likely relevant means that there
    is a reasonable possibility that the information is logically probative to an
    issue at trial or to the competence of a witness to testify:
OConnor
,
    at para. 22;
McNeil
, at para. 33. An issue at trial includes not
    only material issues concerning the unfolding of the events which form the
    subject-matter of the proceedings, but also evidence relating to the
    credibility of witnesses and the reliability of other evidence:
OConnor
,
    at para. 22;
McNeil
, at para. 33.

[130]

Under
OConnor
,
    an applicant who satisfies the likely relevance standard is entitled to have
    the records sought produced to the trial judge for inspection to determine
    whether, or to what extent, the records will be produced to the applicant:
McNeil
,
    at para. 34.

[131]

The statutory
    scheme that was enacted after
OConnor
also includes a provision that
    lists claims that do not, on their own, satisfy the likely relevant standard
    for issues at trial or the competence of a witness to testify. Section
    278.3(4) of the
Criminal Code
, in its current form, is this:

(4) Any one or more of the following assertions by
    the accused are not sufficient on their own to establish that the record is
    likely relevant to an issue at trial or to the competence of a witness to
    testify:

(a) that the record exists;

(b) that the record relates to medical or
    psychiatric treatment, therapy or counselling that the complainant or witness
    has received or is receiving;

(c) that the record relates to the incident that
    is the subject-matter of the proceedings;

(d) that the record may disclose a prior
    inconsistent statement of the complainant or witness;

(e) that the record may relate to the credibility
    of the complainant or witness;

(f) that the record may relate to the reliability
    of the testimony of the complainant or witness merely because the complainant
    or witness has received or is receiving psychiatric treatment, therapy or
    counselling;

(g) that the record may reveal allegations of
    sexual abuse of the complainant by a person other than the accused;

(h) that the record relates to the sexual activity
    of the complainant with any person, including the accused;

(i) that the record relates to the presence or
    absence of a recent complaint;

(j) that the record relates to the complainants
    sexual reputation; or

(k) that the record was made close in time to a
    complaint or to the activity that forms the subject-matter of the charge against
    the accused.

The Principles Applied

[132]

The issues
    raised here emerge in a thoroughly unremarkable alcohol-driving prosecution.
    Aberrant driving. Physical signs of alcohol consumption. An ASD demand. A
    failure. A breathalyzer demand. Legal advice. Provision of breath samples. A
    blood alcohol concentration in excess of 80 milligrams of alcohol in 100
    millilitres of blood. One count of impaired operation. Another of operation
    with a prohibited blood alcohol concentration. About as routine as it gets.

[133]

Prior to trial,
    the respondent received the disclosure package typically provided to those
    charged in similar circumstances. A videotape of the respondent providing
    breath samples. The police officers notes. The Intoxilyzer 8000C print out for
    the respondents 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.

[134]

In my respectful
    view, as I will explain, the respondent has failed to meet the likely
    relevant standard required as the first step in the third party/
OConnor
production
    scheme.

[135]

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.

[136]

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.

[137]

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.

[138]

Fourth, the
    applicable standard in the third party/
OConnor
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.

A Post-script

[139]

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. A
    principled approach to the issue, akin to that enacted in the current s.
    278.3(4) of the
Criminal Code
, may be of some assistance to trial
    judges confronted with applications such as the present:

Any one or more of the following assertions by the
    accused are not sufficient on their own to establish that the record is likely
    relevant to the issue of whether the approved instrument was malfunctioning or
    was operated improperly, within the meaning of s. 258(1)(c)(iv) of the
Code
:

(a) that the record exists;

(b) that the record relates to the instrument used
    in the incident that is the subject-matter of the proceedings;

(c) that the record relates to the qualified
    breath technician involved in the incident that is the subject-matter of the
    proceedings;

(d) that the record may disclose a prior
    malfunctioning of the instrument; or

(e) that the record may relate to the credibility
    of the operator of the instrument.

CONCLUSION

[140]

For these
    reasons, I am satisfied that the motion judge erred in law in failing to quash
    the first party/
Stinchcombe
disclosure order made by the trial judge
    for want of jurisdiction or error of law on the face of the record. I would
    allow the appeal and quash the disclosure order made and approved below.

Released: December 2, 2015 (HSL)

David
    Watt J.A.

I
    agree H.S. LaForme J.A.

I
    agree Gloria Epstein J.A.





[1]
The trial judge reduced the request for downloaded data from 50 tests before
    and after the tests on David Jackson to 25 tests before and after.



[2]
The OPS particularizes this violation as a failure to hear the OPS on the
    motion. It also alleges error in the motion judges finding that the OPS was
    properly served at trial and his failure to properly consider the resources
    implication argument advanced by the OPS.



[3]

R. v. Mills
, [1999] 3 S.C.R.
    668.


