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Tom Rees | Criminal Defence Lawyer Winnipeg

Production of Maintenance Records for Breath Test Machine

This case involves the charge of operating a motor vehicle while exceeding 80 milligrams of alcohol in 100 millilitres of blood. Often police charge two offences when they arrest people for impaired driving:

  1. Driving while ability is impaired – s. 253(1)(a) of the Criminal Code
  2. Driving while blood/alcohol level over legal limit – s. 253(1)(b) of the Criminal Code

The Alberta Provincial Court gives a list of cases and some explanation about production of maintenance records of breath test machines.

[5]               The decision of R. v. Kilpatrick, supra, has been accepted as precedent for the ordering of production of maintenance records in the following cases:

  • R. v. Khuu,2014 ABPC 30 (CanLII)
  • R. v. Martens,2013 ABPC 349 (CanLII)
  • R. v. Farmer, 2013 Action No. 120416623P1
  • R. v. Grasley, (Unreported) Action No. 120295100P1
  • R. v. Zambrana, (Unreported) Action No. 120037460P1
  • R. v. Baker, 2012 (Unreported) Action No. 090848599P1
  • R. v. Werschke, 2013 (Unreported) Action No. 120868781P1
  • R. v. Linton, 2013 (Unreported) Action No. 111423703P1
  • R. v. Tweety, 2013 (Unreported) Action No. 12167397?P1

[6]               In all these cases the courts have applied Kilpatrick without evidence being called concerning the relevance of the material called.

[7]               In the decisions of R. v. Warren,2014 ABPC 176 (CanLII), R. v. Sutton,2013 ABPC 308 (CanLII) and R. v. Gubbins,2014 ABPC 195 (CanLII), the Provincial Court permitted the calling of evidence concerning the relevance of the material requested.

[8]               Ms. Kristensen acknowledged that in Calgary maintenance records requested are provided to the defence on a without prejudice basis.  No explanation was given why this policy is not followed for Airdrie cases.

[9]               In R. v. Gubbins,supra, Judge Schaffter was faced with a similar application with the Crown calling expert evidence in an attempt to show that the evidence demanded by the accused is “clearly irrelevant”.  I agree with Judge Schaffter’s analysis of Kilpatrick and I too am bound by the statement of law outlined by Justice Graesser in Kilpatrick.  However, like Judge Schaffter I have allowed the Crown to call evidence to show that these records are not relevant and are third party.

[10]           The onus in this application is on the Crown to prove that the records are irrelevant.

Check out the rest of the case by clicking here