Kevin Patrick Gubbins v. Her Majesty the Queen
(Alberta) (Criminal) (By Leave)
Criminal law - Evidence, Disclosure, Motor vehicles.
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Criminal law — Evidence — Disclosure — Criminal Code offences — Motor vehicles — Impaired driving or driving over the legal limit — Breathalyzer or blood sample demand — Approved instrument or device — Crown refused disclosure of maintenance records for breathalyzer devices to accused charged with driving with blood alcohol level exceeding limit — Whether maintenance records for breathalyzer devices subject to first party disclosure rules, or third party.
The applicant, Mr. Gubbins, was detained on March 10, 2014. Samples of his breath were analysed, which showed two blood alcohol readings of 120 mg/%, and he was charged with driving “over 80”. The Crown provided the standard breathalyzer disclosure package, and Mr. Gubbins then demanded the maintenance records for the approved instrument since it was imported into Canada and first put into use. The Crown took the view that these records were not in the possession of the Crown, or even the police, but were actually held by the third party contractor that maintained the equipment. A voir dire was held, in which the Crown called expert evidence to demonstrate that the requested records were irrelevant to making full answer and defence. The trial judge concluded that she was bound by R. v Kilpatrick, 2013 ABQB 5, and that the records were subject to first party Stinchcombe disclosure. She entered a stay. The Crown’s appeal of the stay was dismissed. The Court of Appeal, however, allowed the Crown’s further appeal, lifted the stay and sent the matter for trial.
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