Kevin Patrick Gubbins v. Her Majesty the Queen

(Alberta) (Criminal) (By Leave)


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.


Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

The appellant, 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 respondent 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.

Lower Court Rulings

September 5, 2014
Provincial Court of Alberta

140367152P1, 2014 ABPC 195
Stay of proceedings ordered.
March 30, 2015
Court of Queen’s Bench of Alberta

1140367152S1, 2015 ABQB 206
The Crown’s appeal of the stay was dismissed.
November 15, 2016
Court of Appeal of Alberta (Edmonton)

1503-0099-A; 2016 ABCA 358
The Crown’s further appeal was allowed, the stay lifted and the matter sent for trial.