“Prosecution Not Req'd To Disclose Manual/testing Procedures?”

York Region yet again, but this time on a request for certiorari to the Ontario Superior Court of Justice in Region of York v. McGuigan (http://www.canlii.org/en/on/onsc/doc/20 ... sc436.html).

In Provincial Offences court, the JP granted a disclosure order for the prosecution to provide a copy of pages from a user manual with testing procedures for a radar device in relation to a speeding trial.

Even though the York Region Prosecutor's Office has a copy of the manual in its possession available for viewing upon request (like other jurisdictions), the Court found that there is no obligation for the prosecution to provide copies of it in disclosure (or copies of certain pages with the testing procedures only) since it's not considered "fruits of the investigation", and the Court found that it is not a first party (Prosecutor/Crown) request.

In making this decision, the Superior Court of Justice analyzed previous case law on disclosure, i.e. Stinchcombe and O'Connor, regarding first party (prosecutor/Crown) and third party disclosure (other); the Court must consider the nature of the request and who is in possession or in control of that information.

For first party requests (prosecutor/Crown), disclosure should be related to the "fruits of the investigation" - "the disclosure regime only extends to material relating to the accuseds case in the possession or control of the prosecuting Crown entity" - "material gathered during the investigation of the offence with which the accused is charged".

I still need to read it all, but that is interesting decision because I am currently working on how to get certain items that are 3rd party and would fall under the O'Connor request anyways.

This is quite a set back for defendants, especially those that are self-representing and know nothing of the court process. They will now not even be able to get the testing pages without doing an O'Connor request which of course they will have no clue how to do!

Even if the prosecution has a copy of the manual in their possession, there is no real way to know if it is the proper manual. The request for manual and certtificate of accuracy should be made as 3rd party request directly to police. I would previously of argued that the manual was Obviously Relevant and therfore fell under 1st party disclosure even though it was 3rd party, but this new decision seems to have made the decision that the manual is fully 3rd party and not obviously relevant.

R. v. Jackson, 2015 ONCA 832 http://canlii.ca/t/gmblf does a really good job of explaining the difference between a 1st Party Stinchcombe request (relevant), a 3rd Party Stinchombe request (obviously relevant) and a 3rd Party O'Connor request (likely relevant). I had recently gone thru this case, so this is what I see in the Jackson case:

R. v. Jackson, 2015 ONCA 832 http://canlii.ca/t/gmblf

[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.

[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.

[82] ... 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.

[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.

[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.

[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.

[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.

[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.

[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.

I agree that even if the prosecutor has a copy of the manual in its possession to be viewed upon request, it may not be up-to-date. The York Region Prosecutor's Office said in the court decision that York Regional Police only voluntarily gives them a copy of the manual and it is just assumed that it's the latest one.

But the Court believes that just having the manual available for viewing does not limit a defendant's ability to prepare a defence and make full answer. But in one of the earlier decisions referenced by the Court, one of the parties in the previous decision successfully argued that the defendant would not be able to view it at his "leisure" as he would be able if a copy of the manual (or testing pages) were made available in disclosure. I guess that because there were conflicting lower court decisions, this decision is to provide clarification on that matter.

The Court also said that if more information was required or a full copy of the manual was required, then a third party subpoena duces tecum request could be made. There was an argument that the courts would be overloaded with these third party subpoena duces tecum requests, but the Superior Court in this decision said that it didn't think this would be the case because the York Region Prosecutor's Office has a copy of the manual for viewing upon request and a third party subpoena duces tecum request would not be necessary for general speeding offences.

Anyways, this definitely changes the landscape for speeding offences. It becomes just that more difficult to dispute in court, especially without testing procedures or manuals. Usually on cross-examination, that's the way to find a problem with what the officer did.

@whenaxis Do you have the caselaw for this: "There was an argument that the courts would be overloaded with these third party subpoena duces tecum requests, but the Superior Court in this decision said that it didn't think this would be the case"

On a side note, my argument about radar manuals is that you should get the manual that was provided with the unit when it was manufactured. So if a radar unit was manufactured in 2009, then the 2008 manual and NOT the 2010 manual is the correct one. The newer manual reflects changes to the hardware/software in the newer manufactured device and should not apply to the older device.

Other 3rd party request items that people should consider askin for are:

- the Certificate of Accuracy from the manufacturer that is provided with each new unit. This confirms the actual accuracy of each unit at the time it shipped. Some manuals (Decatur) state that their devices are 100% accuarate (which is impossible in the world of electronics), however the certificates of accuracy will confirm that is not true and I have seen them with variances up to +/- 2 mph. If the unit (proven otherwise to be working correctly) could be reading 2 mph high, then that is 3.2 km/h high which means the reading on the screen could be as much as 4 km/h high.

- the TAC Technical Acceptance Certificate for Microwave Radar units (not required for LIDAR). I will be posting more on this soon as this applies to the Radiocommunications Act.

That was in this decision before the Superior Court, lines 34 and 35:

[34] The position taken by the respondent is that any ruling that results in agents being required to commence an OConnor application every time the testing procedure is sought would impair access to justice and clog up the courts with needless third party record applications, especially given the fact that the charge of speeding is the most common charge laid by the YRP. This submission disregards the fact that, in this region and others throughout the province, as is apparent from the case law, the disclosure sought is readily available for review at the prosecutors office. There is no impediment to an accused making full answer and defence. From a practical point of view, an OConnor application is not needed in this region. If more significant portions of the manual are sought, then it may be appropriate to bring an OConnor application so that the court can consider the grounds upon which production is sought from the YRP as a third party, and the relevance of the material to an issue at trial.

[35] Also from a practical point of view, the YRP is not likely to change its practice of providing a copy of the manual to the prosecutors office, so as not to be inundated with OConnor applications solely to obtain the portions pertaining to the testing procedures.

In response to your side note, interestingly in this case, the manual was updated in 2010 and provided by the police department to the prosecutor's office, but nothing since then:

[9] The portion of the 2008 GHD manual dealing with testing is approximately three pages in length. It is not particularly technical. It describes how a self-test check can be carried out by simply pressing the TEST button, and describes the tracking history to be carried out by an officer when using the GHD. In 2010, the manufacturer changed the testing portion of the manual by removing the tracking history and adding that the operator self-test must be completed by the officer prior to enforcement and at the conclusion of the officers tour of duty if enforcement action was taken. The prosecution office received a copy of the updated manual from the YRP. Mr. Saamen is not aware of any further updates to the GHD manual since 2010, and the prosecutors office does not have a means of knowing if and when the manuals are updated unless advised by the YRP.

Whenaxis wrote:That was in this decision before the Superior Court, lines 34 and 35:

Okay thanks... I have only gotten part way thru it so did not realize it was in there.