The Quebec Court of Appeal ruled in the Micheline Paradis judge to order the Director of Criminal and Penal Prosecutions (DCPP) providing data on the memory of the alcohol detection device in the blood, RBT-IV in Justine Awashish folder.
In a 14-page decision, the France Thibeault judge dismissed two previous decisions of the judges Louis Dionne and Manon Lavoie of the Quebec Superior Court, who accepted the Crown certiorari requests to prevent the delivery of this information .
August 31, 2012, Justine Awashish, represented by Jean-Marc Fradette, stopped in the judicial district of Roberval as she drove her car with a blood alcohol level over the legal limit of .08.
Initially, the defense obtained the DCPP, police report, certificate of qualified, the certificate of analysis, the printed sheets of the device, all the maintenance records and the records of use.
But the prosecutor refused to hand over the data on the device memory. The defense asked to obtain them.
Although Judge Paradis said that the accused did not establish the merits of its application for disclosure, it considered that the information should be given to him in order to have the evidence necessary for his defense.
Before this decision, the Crown spoke to the Superior Court and won the case.
A few months later, the defense returned to the charge and request the disclosure of information as part of McNeil type of request (impaired records). Judge Paradis sided with the complainant and ordered back to DCPP to provide information.
A new application for certiorari was filed by the DCPP, who won the case in January 2016 in this case.
“The judge Paradis committed no reviewable error on certiorari to this stage of the case. It had before it a request type McNeil. I have to remember that the duty of the prosecution is to reasonably assist the defense when it reported it the possibility that relevant evidence is in the hands of a third party, “wrote the judge of the Court of Appeal Quebec.
“The conduct of this case aptly illustrates the vicissitudes of the thesis that opens certiorari to the prosecution in the case of interlocutory order. The arrest dates back nearly four years and the parties are still at a preliminary stage, “said the judge in allowing the appeal, in setting aside the trial judgment and rejecting the application for certiorari.
Mr. Fradette welcomes this decision, because it places the DCPP on the same footing as defense, in the sense that he has no privilege because of his role.
“This means that the Crown can not be in a class by itself. Requests of this kind can be at the end of the proceedings through the Court of Appeal, “says criminologist.
“The information on the camera’s memory are important because they show whether the device has failed at one time or another. This is the crux of the war to see if it is reliable or not, if he saw a drift in the past, “adds Mr. Fradette.
The folder will return to the trial judge. The Crown has 30 days to submit information to the defense, otherwise there could be a stay of proceedings.
Unless the DCPP decides to ask the Supreme Court to rule on the case.