Decision on breathalyzers could go to Supreme Court
Alberta’s highest court has ruled that the Crown is not obliged to disclose historical maintenance records of breathalyzer devices to the defence in drunk driving cases.
However, a split ruling in the Court of Appeal of Alberta decision, which was issued Tuesday, but publicly released Wednesday, means the matter will likely be appealed to the Supreme Court.
The Alberta appeal, which combined two separate driving over-. 08 cases in a test case to try to settle the law, dealt with how far back the Crown must go to disclose maintenance records of breathalyzer instruments and what the legal test is for determining relevancy.
Two of the three judges on the Court of Appeal of Alberta panel ruled the historical maintenance records are not fruits of the actual police investigation involved, but are instead subject to the thirdparty disclosure procedure, which means the defence must show why they are likely relevant before disclosure would be ordered.
The two judges also found that the uncontradicted expert evidence by the Crown showed that the historical records are irrelevant to the accused being able to make full answer and defence.
The first case involves Darren Vallentgoed. The Crown disclosed detailed maintenance records and annual inspections for the device going back two years, as well as a maintenance log that revealed the device had been sent out for repair the day after Vallentgoed was charged and twice in the four months before. That led to the defence seeking detailed reports of the work done, however the Crown argued they were not relevant. The trial judge agreed and Vallentgoed was convicted.
However, he appealed and a Court of Queen’s Bench judge sided with the defence, ruling that the Crown had to prove that the records were irrelevant and ordered a new trial. The majority Court of Appeal decision overturned that decision and restored Vallentgoed’s conviction.
The second case involves Kevin Gubbins, a former Edmonton defence lawyer now working in Grande Prairie. The trial judge in his matter stayed the charge after the Crown refused to disclose the maintenance records being sought.
The Crown appealed the stay and the same Court of Queen’s Bench judge that heard the Vallentgoed case ruled the trial judge had made no error in granting the stay.
However, the majority Court of Appeal decision also overturned that decision and lifted the stay and ordered Gubbins to be tried again.
In a dissenting opinion, the third judge on the Court of Appeal panel ruled Vallentgoed was entitled to the further maintenance records he was seeking and the trial judge erred in convicting him, and the Court of Queen’s Bench judge was right to set aside the conviction. As a result, she said she would dismiss the Crown appeal. Regarding the Gubbins case, she directed that he be entitled to use the complete records that were disclosed.