Suspected drunk drivers in parts of Alberta are being let off the hook without a trial.
A directive from the Alberta Crown Prosecution Service sent to staff on Tuesday orders all charges that relied on breathalyzer machines maintained by a company called Davtech be stayed.
Police services in Calgary and Edmonton handle their maintenance in-house, but most rural areas work with Davtech, an Ottawa-based company used by most RCMP detachments.
Though police have been ordered by the courts to hand over the records, Davtech has not been keeping proper maintenance logs, according to Tim Foster, a defence lawyer who specializes in impaired law.
"This appears to be a direct result of the decisions we've been able to win in Alberta, which require the Crown to disclose the maintenance records," Foster said.
17 charges withdrawn
The government confirms that 17 charges have been withdrawn in the three days since the directive was issued.
"The Alberta Crown Prosecution Service (ACPS) is working with the RCMP to resolve the disclosure issues as quickly as possibly," said a statement from spokesman Peter Teasdale.
"These charge withdraws are only in areas of RCMP jurisdiction, due to disclosure issues regarding the maintenance records of the devices."
Teasdale's statement goes on to say "most" charges based on breathalyzer results — referred to as .08 charges — are accompanied by impaired driving charges, which are based on observation. The impaired driving charges will not be withdrawn he says.
However, of the 17 charges tossed this week, only two are proceeding with prosecution.
It's a battle Foster has led for years. He's had success with several Alberta judges dismissing cases because Crown prosecutors have refused to hand over the logs, which are key evidence.
"They have been withdrawing charges for lack of disclosure of maintenance records for the last several years, ever since we got the [Queen's Bench] decisions in our favour," Foster said. "However, there was no province-wide policy to do so, and in some jurisdictions they kept trying to win the over .08 cases anyways."
A breathalyzer test reads a person's blood alcohol level and tells police whether a driver has been drinking.
The results are powerful evidence, and one of the only means for defence lawyers to discredit its findings is through maintenance logs for the machine.
Despite recent court decisions supporting Foster's position, including at the Supreme Court of Canada, in certain areas of the province prosecutors refused to provide the logs, forcing further action.
"The Crown has fought this tooth and nail," Foster said, "but the Supreme Court of Canada has been very clear that the prosecution is required to disclose the maintenance records."
In Tuesday's directive, prosecutors were ordered to withdraw charges no more than three days before a matter is booked for trial.
That means if someone is charged where a machine in question was used, they might plead guilty in docket court before the matter goes to trial, not knowing about the new order.
There is a specific list of documents that are created when maintenance is done on the machines. However, Foster says, when defence lawyers request them they're not always provided all of the logs.
A memo sent out by RCMP in the last couple of years alerted lawyers that Davtech has been destroying — or at least failing to preserve — the documents.
After that memo was sent out, Foster says, he started getting some of the files that were supposedly destroyed. But those files were showing up without signatures.
On some of those unsigned documents a technician had, instead, certified he or she did the maintenance, but Foster says often the name of the technician on the document was different from the one certifying the record.
And some of the documents produced for defence lawyers said "test aborted."
Breathalyzers are tested prior to each use and it's long been the Crown's position that these self-tests are the only ones that matter.
On Wednesday, two of Foster's clients had their impaired driving charges stayed in Fort McMurray as a direct result of the directive.