R v Gubbins

R. v. Gubbins

2018 SCC 44
Supreme Court of Canada — Rowe J. (Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Brown and Martin JJ. concurring), Côté J. (dissenting) | October 26, 2018

Background

Kevin Gubbins and Darren Vallentgoed were each charged with impaired driving and driving over 80mg under s. 253(1) of the Criminal Code. Both provided breath samples that were analyzed using approved breathalyzer instruments — Vallentgoed's readings were 130 mg/% and 120 mg/%, while Gubbins' were both 120 mg/%. The machines performed all their internal diagnostic tests properly and generated clean printouts showing no malfunctions.

The Crown disclosed standard documents like test records, calibration logs, and certificates. But both accused wanted more — specifically, the maintenance records for the breathalyzer machines themselves. The Crown refused, saying these were third-party records that weren't automatically disclosable. Vallentgoed applied for disclosure and was denied; Gubbins applied for a stay of proceedings arguing his Charter rights were breached. The trial results split: Vallentgoed was convicted, Gubbins got his stay.

Issues

1. Are breathalyzer maintenance records subject to automatic first-party disclosure under Stinchcombe, or do they require a third-party disclosure application under O'Connor?
2. If they're third-party records, did the accused meet the "likely relevant" threshold for disclosure?

The Disclosure Divide

The Supreme Court majority ruled that maintenance records are third-party records subject to the O'Connor regime, not automatic Stinchcombe disclosure. Here's why that matters: under Stinchcombe, the Crown must hand over all relevant evidence in their possession without being asked. Under O'Connor, you need to make a court application and prove the records are "likely relevant" before you can even see them.

The Court applied a two-part test: (1) Are the records in the Crown's possession or control? (2) Should the police have supplied them to the Crown as either "fruits of the investigation" or "obviously relevant" evidence? The maintenance records failed both tests — they were held by the RCMP and third-party repair companies, weren't created for any specific investigation, and crucially, expert evidence showed they weren't "obviously relevant" to whether the machine was working properly during the actual breath test.

The Court emphasized that the Alcohol Test Committee had updated its position since the earlier St-Onge Lamoureux case, now stating that "records relating to periodic maintenance or inspections cannot address the working status of an [approved instrument] at the time of a breath test procedure." The built-in diagnostic tests during the actual breath sample collection were considered sufficient to detect any malfunctions.

Key Takeaway

Breathalyzer maintenance records aren't automatically disclosed — you need to prove they're likely relevant to get them.

For self-represented defendants facing impaired driving charges, this means you can't just demand maintenance records and expect to get them. You'll need to file an O'Connor application with compelling evidence about why those specific records might show the machine was malfunctioning during your test — and that's a much higher bar to clear than simply asking for disclosure.