The rules of disclosure for these records would depend on which disclosure regime the Court deems to apply. These can be the law of disclosure under the Crown’s obligation to disclose, or the common law rules.
In cases dealing with radar evidence, the leading case is from the BC Supreme Court in R v Khadikin, [1999] BCJ No 2575. In that case, the Court stated there must be:
- Evidence that the officer was a qualified radar operator;
- Evidence that he was operating a radar unit; and
- Evidence that the unit was tested and found to be working correctly.
Case law in BC suggests that (maintenance, service, and calibration records are considered disclosure relevant to the accuracy of the speed measuring device. These items affect the Crown being able to establish evidence that the unit was tested and found to be working correctly.
In other words, these records fall under Stinchcombe first party disclosure rules because they relates to the Crown’s onus of establishing beyond a reasonable doubt whether the device was performing accurately.
There is case law interpreting this. For example, R. v. Melrose, [2013] BCSC 526 was an appeal by the accused from a speeding conviction on the basis on non-disclosure as one of the grounds.
The accused sought “the information on the speed measuring device” which appeared to be “the calibration and repair history.” The court ordered a new trial on the basis that there was a reasonable possibility that non-disclosure of the requested information would impair the right of the Appellant to make full answer and defence.
R. v. Scherbey, [2017] BCSC 1638 affirms the conclusion in Melrose that “the scope of disclosure being confined to “evidence gathered” is not accurate. The Crown is also obliged to provide evidence relevant to the accuracy of the device used.
While it agreed with the court’s conclusion in Melrose, the court said the question raised in this case was different. At issue in this case was the disclosure of the operating manual, which the defence argued it needed to adequately determine if proper testing of the radar equipment had been performed.
The court granted the appeal and ordered a new trial, but NOT on the basis of the disclosure issue.
Disclosure of manuals of speed measurement devices has been more contentious. In these cases, courts will go through an analysis of whether the Stinchecombe rules or O’Connor rules for third-party disclosure apply. The latter applies where the disclosure sought is not fruits of the investigation.
Impaired driving case law can provide some guidance on the distinction. For example, R. v. Gubbins, [2018] 3 S.C.R. 35 was a case that had to consider which disclosure regime applied to maintenance records of breathalyzer instruments and decide whether the requisite threshold for disclosure was met.
Where records are neither part of the investigative file nor obviously relevant (ie, not first party disclosure), then they are dealt with using the O’Connor third party disclosure regime.
So how should the courts determine whether a record in the possession or control of a state entity is subject to first party or third party disclosure? Relevance alone is not determinative. A record may be relevant to the case against an accused and still be a third party disclosure.
To determine which regime is applicable, one should consider the following factors:
- is the information in the possession or control of the prosecuting Crown?
- Is the nature of the information sought such that the police or another Crown entity in possession or control of the information ought to have supplied it to the prosecuting Crown?
- Is the information part of the fruits of the investigation?
- Is the information obviously relevant?
Yes to either of these questions will call for the application of the first party disclosure regime; otherwise, third party disclosure regime applies.
Other relevant information in possession of the prosecuting Crown could still be deemed first party disclosure. McNeil recognizes that even where the Crown obtains information that is simply relevant to the prosecution of a case, let alone obviously relevant, the Crown must make first party disclosure of that information to the defence.
So ultimately most of this information is disclosable, but not all of the information you might seek on your speed measurement is required to be disclosed without a specific application to the court.
