R v Jackson

R. v. Jackson

2015 ONCA 832
Court of Appeal for Ontario — LaForme, Watt and Epstein JJ.A. | December 2, 2015

Background

David Jackson was pulled over after his car drifted into adjacent traffic lanes three times and slowed down for no apparent reason. The officer noticed Jackson's glassy eyes and the smell of alcohol on his breath. Jackson failed a roadside screening test, was arrested, and after speaking to a lawyer, provided two breath samples on an Intoxilyzer 8000C machine. Both readings showed blood alcohol concentrations over 80 milligrams.

Jackson received the usual disclosure package — the videotape of him providing samples, officer's notes, the Intoxilyzer printout, certificates, and diagnostic test results. But Jackson wanted more. He applied to the trial judge for additional records from the Ottawa Police Service: service records, usage and calibration records, and "COBRA data" showing the results of 25 breath tests before and after his own test on the same machine.

Issues

1. Are breathalyzer maintenance and historical usage records "first party" records that the Crown must disclose under Stinchcombe, or "third party" records requiring an O'Connor application?
2. Do such records meet the "likely relevant" threshold required for third party production?

The Disclosure Divide

The trial judge ordered disclosure, treating the records as "first party" Stinchcombe disclosure — meaning the Crown had to hand them over automatically. The motion judge upheld this decision. But the Court of Appeal reversed, drawing a crucial distinction between what the "prosecuting Crown" controls versus what police agencies control.

The court emphasized that under McNeil, "the Crown" for disclosure purposes means only the prosecuting Crown — not all government entities. Police services are "third parties" for disclosure purposes, even though they're part of the same government. The historical records Jackson wanted weren't "fruits of the investigation" of his specific case — much of the data came from investigating other people's drunk driving charges at different times and places, completely unrelated to Jackson's arrest.

The "Likely Relevant" Standard

Since these were third party records, Jackson needed to meet the higher "likely relevant" standard under O'Connor. The court found he failed this test. The typical disclosure package showed no problems with the Intoxilyzer 8000C or operator error. The machine was new, not due for annual inspection, with no maintenance issues. Jackson's expert evidence about potential relevance was "speculative" and contradicted by forensic science reports confirming the reliability of properly operated breath testing equipment.

The court noted this was essentially a "fishing expedition" — Jackson was hoping to find something useful in historical data about other people's tests, without any evidence suggesting the machine malfunctioned during his specific test.

Key Takeaway

You can't get breathalyzer maintenance records just by asking — you need evidence suggesting the machine actually malfunctioned during your test.

The court made clear that routine requests for historical breathalyzer data without specific evidence of malfunction won't meet the "likely relevant" threshold. If your disclosure package shows no obvious problems with the machine or operator, courts will treat further record requests as speculative fishing expeditions.