R v Khemraj

R. v. Khemraj

2010 ONCJ 36
Ontario Court of Justice — Justice Kathleen J. Caldwell | January 19, 2010

Background

Tarique Khemraj was charged with impaired driving and driving over 80mg. During the trial, partway through the arresting officer's testimony, defence counsel David Rose discovered something that caught everyone off guard — the officer had administered standardized field sobriety tests, not just basic roadside coordination checks. Both Crown and defence lawyers admitted they had no idea these technical tests had been used. The officer's notes only contained a "fleeting reference" to roadside testing that nobody had interpreted as referring to the newer, more sophisticated standardized tests.

Rose immediately brought a Stinchcombe application demanding disclosure of all materials related to these tests — training manuals, protocols, the officer's qualifications, success criteria, everything. The Crown fought back on three fronts: the materials might not exist, they could be protected by copyright, and they weren't relevant anyway.

Issues

1. Was the defence entitled to disclosure of standardized field sobriety test materials that weren't previously disclosed?
2. Could copyright protection or lack of relevance defeat the disclosure request?

The Disclosure Battle

Justice Caldwell systematically dismantled each of the Crown's objections. First, when pressed by the judge, the officer confirmed that training manuals did exist — game over on the "no materials" argument. Second, the copyright claim got torpedoed by precedent from R. v. McCracken, where another judge ruled that when breathalyzer machines get approved for legal use, manufacturers can't hide behind copyright to prevent defence lawyers from examining how they work.

The relevance argument was the Crown's strongest card, but it still lost. The officer had testified that the field sobriety tests helped form his reasonable suspicion to demand a roadside breath test. The defence wanted to challenge both the subjective belief and objective reasonableness of those grounds. Justice Caldwell applied the Supreme Court's guidance from R. v. McNeil that disclosure has a "wide and generous connotation" — if there's a reasonable possibility the information could help the defence, it must be disclosed.

The judge found it would be nearly impossible for defence counsel to properly challenge the officer's conclusions about impairment without knowing exactly what training he received, what the tests were supposed to measure, and what constituted passing or failing performance.

Key Takeaway

When police use technical testing procedures to build their case against you, you have the right to see their instruction manual.

This case shows that disclosure obligations extend beyond basic police notes to include training materials for any technical procedures that contributed to the officer's grounds for arrest. The threshold for relevance is deliberately low to protect your right to make full answer and defence.