Access to breathalyzer logs critical to the defence

Article originally appeared in: Advocate Daily
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Access to breathalyzer logs critical to the defence

A recent Supreme Court judgment that places limits on when the accused can have access to breathalyzer maintenance logs is disappointing, Calgary criminal lawyer Greg Dunn tells AdvocateDaily.com.

“We live in an era in which the criminal justice system place enormous faith in the accuracy and appropriate functions of these instruments,” says Dunn, principal of Dunn & Associates. “When you blow into them, in some respects they are acting as judge, jury and executor since the courts regard them as infallible.”

In its near-majority decision last October, the court ruled that breathalyzer maintenance logs are third-party evidence, and therefore do not have to be disclosed to the defence in the same way first-party evidence is mandated.

“The Crown used to have to justify the non-disclosure of these records, showing whether the machines have been maintained and updated properly,” Dunn says.

“Now, the defence has to prove that these records are ‘obviously relevant’ before the Crown is obliged to disclose them. But how does anyone know if the documents are ‘obviously relevant’ if we don’t have access to the documents?” he asks.

Dunn says the ruling results in a system that makes these devices “legally infallible, without the necessity of them being factually correct. When the state is relying on a machine to procure evidence to convict someone of a criminal offence, flipping the burden to prove that it is operating improperly is simply wrong-headed.”

The court ruled that the controlled testing these instruments conduct each time they are used is good enough to show they are working accurately.

“The only question that must be answered is whether the machines were operating properly at the time of the test — not before or after,” Justice Malcolm Rowe wrote for the majority. “The time-of-test records directly deal with this. The maintenance records, according to the expert evidence, do not.”

Dunn says this “expert evidence” was provided by the Canadian Society of Forensic Science Alcohol Test Committee, but that counter evidence was not called or heard.

The court’s judgment notes that in 2012, the committee recommended that the self-control tests these devices run on themselves every time they are used are all that is needed to prove their reliability.

“While a failure to adhere to such quality assurance measures could lead to instrument malfunction, this occurrence will be detectable by the quality control tests done during the breath test procedure,” reads a committee statement in the court judgment.

Dunn says this reliance on self-tests for breathalyzers is an “assault of our civil liberties and an abrogation to a full defence. If the state wants to rely so heavily on an instrument in criminal matters, it should be the state’s obligation to show that the machine is operating correctly.

“Only that will maintain public confidence in those instruments, and the administration of justice,” he says.

A Global News story questions if the Supreme Court will soon be asked to make a similar ruling about roadside devices used to detect drivers who are high.

Dunn says it is too early to tell, as that “depends on how reliable the experts say these machines are. However, this case may be an example of what will happen with the pot devices.”