R. v. Sutherland, 2019 ONCJ 113

ONTARIO COURT OF JUSTICE

CITATION: R. v. Sutherland, 2019 ONCJ 113 DATE: 2019 02 28 COURT FILE No.: Ottawa 18-A9079

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

JAMES SUTHERLAND

Before Justice Julie I. Bourgeois

Ruling re Disclosure Motion

Mr. Dallas Mack……………………………………………...counsel for the Crown Mr. Pierre Luc Fréchette.............................................counsel for the applicant

BOURGEOIS J.:

1Mr. James Sutherland was charged that on December 17, 2017 he operated a motor vehicle while his abilities were impaired by a drug, pursuant to s. 253(1)(a) and punishable pursuant to s. 255 of the Criminal Code.

2On March 15, 2018, counsel, on his behalf, requested from the Crown as part of the disclosure, a copy of the DRE rolling log. The disclosure request was denied on March 23, 2018 and on January 8, 2019, a disclosure application, pursuant to s. 7 of Charter of Rights and Freedoms, was filed on his behalf. The application was heard on January 18 and February 11, 2019. The trial is scheduled for March 6, 2019.

3On consent, the parties filed and rely on the evidentiary record in R. v. Mansour, dated April 19, 2018, before my sister Dorval, J.

4Counsel for Mr. Sutherland ultimately argues that the recent decision R. v. Stipo, 2019 ONCA 3, settles the issue. The Crown, on the other hand, resists disclosure of the DRE rolling log, notwithstanding Stipo, for reasons stated at paragraph 7 of its Factum:

a. The statutory provision which permitted disclosure, s.258.1(2)(a), was part of a legislative scheme that is otherwise an absolute prohibition on the use and disclosure of the DRE rolling log. Section 258.1 has been repealed, as of 18 December, 2018. In its place s.320.36 was enacted. It is retrospective in its application pursuant to s.33 Bill C-46. It follows that s.320.36 governs the present request. That provision enacts a similar absolute prohibition on the use and disclosure of the DRE rolling log (as did s.258.1). Notably, however, an equivalent of s.258.1(2)(a) was not enacted under Bill C-46. Put differently, the provision relied upon in Stipo to permit disclosure no longer exists. The current statutory regime acts as a prohibition of use or disclosure.

b. Putting that provision aside, in Stipo, the Court held that the DRE rolling log was “obviously relevant” and while in the hands of a third party state agent, was subject to first party disclosure pursuant to McNeil. In Stipo no evidence was called. Before this Court is a body of evidence that exists which illustrates that the DRE rolling log is not relevant. The evidence and statutory regime in the present case establishes:

i. The DRE rolling log, on its face, is not factually relevant to challenge the reliability of the DRE. Apparent discrepancies are not obvious discrepancies at all – further examination is required.

ii. It is legally impermissible to cross-examine the DRE on prior opinions; and

iii. The new statutory scheme deems the DRE opinion automatically admissible, it follows cross-examination of the DRE on their reliability for admissibility purposes is impermissible.

1- Was sec. 258.1(2)(a) of the Criminal Code completely repealed?

5Yes. Here is how: Chapter 21 of Bill C-46 - An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts (hereafter referred to as “the Act”) was assented to on June 21, 2018. Its summary reads as follows:

SUMMARY

Part 1 amends the provisions of the Criminal Code that deal with offences and procedures relating to drug-impaired driving. Among other things, the amendments

(a) enact new criminal offences for driving with a blood drug concentration that is equal to or higher than the permitted concentration;

(b) authorize the Governor in Council to establish blood drug concentrations; and (c) authorize peace officers who suspect a driver has a drug in their body to demand that the driver provide a sample of a bodily substance for analysis by drug screening equipment that is approved by the Attorney General of Canada.

Part 2 repeals the provisions of the Criminal Code that deal with offences and procedures relating to conveyances, including those provisions enacted by Part 1, and replaces them with provisions in a new Part of the Criminal Code that, among other things,

(a) re-enact and modernize offences and procedures relating to conveyances;

(b) authorize mandatory roadside screening for alcohol;

(c) establish the requirements to prove a person’s blood alcohol concentration; and

(d) increase certain maximum penalties and certain minimum fines.

Part 3 contains coordinating amendments and the coming into force provision.

[emphasis added]

Para. 8(2) of the Act, under Part 1 – Offences Relating to Transportation – Drugs, reads:

(2) The portion of subsection 258.1(2) of the Act before paragraph (a) is replaced by the following:

Unauthorized use or disclosure of results

(2) Subject to subsections (3) and (4), no person shall use, disclose or allow the disclosure of the results of physical coordination tests under paragraph 254(2)(a), the results of an evaluation under paragraph 254(3.1)(a), the results of the analysis of a bodily substance taken under paragraph 254(2)(b) or (c), subsection 254(3), (3.3) or (3.4) or section 256 or with the consent of the person from whom it was taken after a request by a peace officer, or the results of the analysis of medical samples that are provided by consent and subsequently seized under a warrant, except

Then, s. 14 of the Act, under Part 2 – Offences Relating to Conveyances – Alcohol and Drugs reads:

14 The heading before section 249 and sections 249 to 261 of the Act are repealed.

The Act itself is then amended by s. 15, by the addition of Part VIII.1 – Offences Relating to Conveyances, the new scheme. This is where we find s. 320.36 under the heading - General Provisions:

Unauthorized use of bodily substance

320.36 (1) No person shall use a bodily substance obtained under this Part for any purpose other than for an analysis under this Part.

Unauthorized use or disclosure of results

(2) No person shall use, disclose or allow the disclosure of the results obtained under this Part of any evaluation, physical coordination test or analysis of a bodily substance, except for the purpose of the administration or enforcement of a federal or provincial Act related to drugs and/or alcohol and/or to the operation of a motor vehicle, vessel, aircraft or railway equipment.

Exception

(3) The results of an evaluation, test or analysis referred to in subsection (2) may be disclosed to the person to whom they relate, and may be disclosed to any other person if the results are made anonymous and the disclosure is made for statistical or research purposes.

Offence

(4) Everyone who contravenes subsection (1) or (2) commits an offence punishable on summary conviction.

Finally, when considering Part 3 – Coordinating Amendments and Coming into Force, s. 52 reads:

Sections 12 to 50 of this Act come into force on the 180th day after the day on which this Act receives royal assent.

6In the end, when reading the Act, I conclude s. 258.1(2) of the Criminal Code was amended by para. 8(2) of the Act on June 21, 2018 but not paragraph (a). However, sections 249 to 261 of the Criminal Code were indeed repealed by s. 14 of the Act and replaced by the new scheme described at s. 15 of the Act on December 18, 2018 – on the 180th day after its assented date of June 21, 2018.

7Indeed, the electronic version of the Criminal Code (R.S.C., 1985, c. C-46) posted on the Government of Canada, Justice Laws Website posting the Act current to 2018-12-18 and last amended on 2018-12-18 shows the new regime under Part VIII.1 – Offences related to Conveyances (s. 320.11 to 320.36), and clearly, the inexistence of, amongst others, s. 253 to 261.

8Also, Watt, J. in Stipo, includes a footnote 1 acknowledging “[t]hese provisions (referring to s. 258.1(2)(a) and (5) of the Criminal Code) were repealed by S.C. 2018, c. 21, s. 14.”

9In short, s. 258.1(2)(a) has been repealed since December 18, 2018.

10Section 320.36 therefore applies to this case as s. 33 of the Act makes it retrospective as it reads:

Section 320.36 of the Criminal Code, as enacted by section 15 of this Act, applies to bodily substances obtained under section 254 of that Act, as it read from time to time before the day on which that section 15 comes into force, and to results of any evaluation, physical coordination test or analysis of bodily substances obtained under that section 254, as it read from time to time before that day.

2- Does s. 320.36 create an absolute prohibition on disclosure of DRE rolling logs?

11The Crown takes the position that s. 320.36(2) was enacted without the exception found at paragraph 258.1(2)(a) and relied upon in Stipo, permitting such disclosure. In other words, the position of the Crown is that the new regime creates an absolute prohibition on the disclosure of the DRE rolling logs.

12When Watt, J. delivered the decision on January 7, 2019, s. 33 of the Act was making it clear that the governing law was s. 320.36. Of course, the panel was quite aware s. 258.1(2)(a) had been repealed. As indicated earlier, Watt, J. specified it in footnote 1. Watt, J. also adds, in that short footnote, “[…] In somewhat different form, the provisions are now ss. 320.36(2) and (4).” Also noteworthy, the word “conveyance”, new terminology from the new scheme, is used on a few occasions throughout the decision.

13I agree with the Crown, a footnote alone is not determinative of such an important question as legislative interpretation. Nonetheless, it drew attention that Watt, J. qualified, in footnote 1, the new provisions, ss. 320.36(2) and (4) of “somewhat different form” of the repealed ss. 258.1(2)(a) and (5).

14In partial support of its position, that s. 320.36 prohibits disclosure, the Crown points to s. 320.36(4) as it creates a criminal offence to contravene that prohibition on use and disclosure. However, s. 258.1(5), as it then was, also created the same criminal offence, punishable on summary conviction. The wording of the two paragraphs is almost identical.

15But more importantly, s. 320.36(2) does contain an exception to the use or disclosure of the results described therein.

16Again, for ease of reference here is s. 320.36(2):

Unauthorized use or disclosure of results

(2) No person shall use, disclose or allow the disclosure of the results obtained under this Part of any evaluation, physical coordination test or analysis of a bodily substance, except for the purpose of the administration or enforcement of a federal or provincial Act related to drugs and/or alcohol and/or to the operation of a motor vehicle, vessel, aircraft or railway equipment.

[emphasis added]

Paragraph 258.1(2) included exceptions in subparagraphs (a) and (b)

Unauthorized use or disclosure of results

(2) Subject to subsections (3) and (4), no person shall use, disclose or allow the disclosure of the results of physical coordination tests under paragraph 254(2)(a), the results of an evaluation under paragraph 254(3.1)(a), the results of the analysis of a bodily substance taken under paragraph 254(2)(b) or (c), subsection 254(3), (3.3) or (3.4) or section 256 or with the consent of the person from whom it was taken after a request by a peace officer, or the results of the analysis of medical samples that are provided by consent and subsequently seized under a warrant, except

(a) in the course of an investigation of, or in a proceeding for, an offence under any of sections 220, 221, 236 and 249 to 255, an offence under Part I of the Aeronautics Act, or an offence under the Railway Safety Act in respect of a contravention of a rule or regulation made under that Act respecting the use of alcohol or a drug; or

(b) for the purpose of the administration or enforcement of the law of a province.

17The two specific Acts referred to in subparagraph (a) are federal Acts and subparagraph (b) refers to the law of a province.

18Indeed, the new regime enacts a similar prohibition on the use and disclosure of results obtained under the new Part. It is not in a separate subparagraph and it does not list specific offences or federal Acts as it did under the old scheme but its equivalent is certainly encompassed in the new scheme, directly in paragraph 320.36(2). This is perhaps what Watt, J. meant in footnote 1 when he commented that provisions 258.1(2)(a) and (5) were repealed by Bill C-46 and found in “somewhat different form” under the new provisions ss. 320.36(2) and (4).

19Paragraph 258.1(3) was also not reproduced or re-enacted in the new scheme under s. 320.36. It used to read:

Exception

(3) Subsections (1) and (2) do not apply to persons who for medical purposes use samples or use or disclose the results of tests, taken for medical purposes, that are subsequently seized under a warrant.

20Applying the modern approach to the statutory interpretation as set out in R. v. Alex, 2017 SCC 37 (paragraph 24), along with the phrase used in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 (paragraph 27), that “the legislature does not intend to produce absurd consequences”, it seems clear that Parliament meant s. 320.36 to be similar to s. 258.1, but “[i]n somewhat different form,” as expressed by Watt, J. Otherwise, samples obtained for medical reasons following a collision involving a conveyance, for example, could not be used in the enforcement of this federal Act, in relation to drug-impairment operation of a motor vehicle. Therefore, this situation is obviously intended to be covered by s. 320.36(2) – “except for the purpose of the administration or enforcement of a federal or provincial Act related to drugs and/or alcohol and/or to the operation of a motor vehicle, vessel, aircraft or railway equipment.”

21This wording also covers other types of prosecution related to drugs and/or to the operation of a motor vehicle. Offences in the previous exceptions included in subparagraph 258.1(2)(a) listed sections 220, 221, 236 and 249 to 255 of the Criminal Code. The new regime is much wider than the older one. It is not restricted to provincial Acts or to listed offences, but now encompasses the administration or enforcement of both federal and provincial Acts related to drug and/or alcohol and/or the operation of a motor vehicle, vessel, aircraft or railway equipment, regardless of the Act or a specific section under which its enforcement is covered.

22However, the Crown argues that the “enforcement” of this federal Act must be interpreted in a much narrower way than the “course of an investigation of, or in a proceeding for” as it existed in subparagraph 258.1(2)(a). This, the Crown argues, is based on the modern approach set out in Bell ExpressVu Ltd. Partnership v. Rex, 2002 SCC 42. This interpretation cannot be correct for the following reasons:

231- Even though it is the police and the Crown administering or enforcing this federal Act, they are still required to comply with their duties associated to the administration or enforcement of the Act. It is in this context that rolling logs are created by the DRE, in compliance with his or her professional obligations, from certification to recertification, including the confirmation of peer-review (or reviewed by an instructor upon completion of an evaluation) – See tab 2 of the Crown’s Book of Materials: testimony of Cst. Troy Froats and summarized by Watt, J. in Stipo at paragraph 61:

The rolling log is a document created and maintained as part of a DRE’s professional obligations. It records the tests and evaluations the DRE conducts or observes from the beginning of training, which culminates in certification as a DRE, up to the time the DRE testifies at trial. For each evaluation, the log includes:

i. the name and date of birth of the person who is evaluated;

ii. the date of the evaluation;

iii. the DRE’s conclusion about drug impairment; and

iv. the results of toxicological testing as corroborative or contradictive of the DRE’s evaluation.

24Crown counsel takes the position that Watt, J. did not have the evidentiary basis we have on this motion from CFS expert explaining that the toxicological testing cannot confirm or contradict the DRE call, but rather is limited to corroborate it or not. This position is elaborated in more details and will be discussed later but at this stage, it is noteworthy that the evidentiary basis on this motion also refers to the same language in connecting the DRE rolling logs and the toxicological testing as Watt, J. summarized. Indeed, at p. 52 (tab 2) of the transcript, Cst. Froats, in explaining the certification process, testifies that:

So every evaluation, a toxicological sample is taken from the subject that’s coming in to assist with the training. Of such, 75 per cent of those six needs to be confirmed by the toxicological sample that’s provided by that subject. There could be a case where the tox comes back negative, so there is no tox result, and in that case there’s a procedure which we can use to deem that evaluation a good evaluation.

[emphasis added]

25In the end, it is part of the administration and enforcement of the Act that rolling logs are created and kept.

26The Crown is required to call evidence to prove the offence of drug-impaired driving and part of its case is the DRE’s evidence. The enforcement of the Act is the prosecution of a person charged as a result of the investigation, including the DRE’s evaluation. “Enforcement”, in the context of s. 320.36 is specifically for the purpose of the prosecution of an offence “under this Part” and for which the results were “obtained under this Part”. There can be no ambiguity that “enforcement” in this context refers to the prosecution of a related offence.

27There is no confusion either when considering the French version:

Utilisation ou communication non autorisées des résultats

(2) Il est interdit d’utiliser, de communiquer ou de laisser communiquer les résultats obtenus dans le cadre de la présente partie des évaluations, des épreuves de coordination des mouvements, ainsi que des analyses de substances corporelles, sauf en vue de l’exécution ou du contrôle d’application d’une loi fédérale ou provinciale en matière de drogue ou d’alcool ou relative à la conduite d’un véhicule à moteur, d’un bateau, d’un aéronef ou de matériel ferroviaire.

[emphasis added]

28“L’exécution (…) d’une loi fédérale” cannot be anything else than what it purports to be in this context – the prosecution of an individual charged with an offence under a federal Act – in this case the Criminal Code.

292- As correctly noted by the Crown, at paragraph 20 of its Factum:

(…) when considering the meaning of a provision and the words contained therein, “every word of a statute is presumed to have a role in achieving the objective of the Act. No word or provision should be interpreted so as to render it mere surplusage.”:

R. v. Katigbak, 2011 SCC 48 (S.C.C.) at paragraph 50

R. v. Proulx, 2000 SCC 5 at paragraph 28

30The word “disclosure” in this context makes it clear that it is referring to the disclosure to an accused person in the context of a prosecution. The word “use” is obviously intended for the administration of the Act, allowing, for example, DRE officers to create and maintain rolling logs. Authorities are therefore authorized to use the evaluations for statistical purposes, as referred to by Cst. Froats, at p. 44 (tab 2 of the Crown’s material) when describing the information inputted in a rolling log:

(…) my control number that I use in here would be the year, so specifically we’ll use 2018. I have a legend at the bottom that assists me in determining, so if it’s an operational evaluation, then it would be 2018-O for operational, and then I’ll put actually what evaluation it was for that year, and it continues to rotate, so I know how many DRE evaluations I reviewed during that time for statistical purposes for reporting and whatnot. We know how many were done in 2018, basically is what it is.

The “use (…) of the results obtained under this Part of any evaluation” is allowed through the exception covered by the same para. 320.36(2). In the same way, the “disclosure (…) of the results obtained under this Part of any evaluation” is permitted through that exception “for the purpose of the (…) enforcement of a federal (…) Act related to drugs and (…) the operation of a motor vehicle”.

313- The Crown also relies, in part, on the structure of section 320.36 where paragraph (3) reads:

Exception

(3) The results of an evaluation, test or analysis referred to in subsection (2) may be disclosed to the person to whom they relate, and may be disclosed to any other person if the results are made anonymous and the disclosure is made for statistical or research purposes.

However, s. 258.1(4) reads:

Exception

(4) The results of physical coordination tests, an evaluation or an analysis referred to in subsection (2) may be disclosed to the person to whom they relate, and may be disclosed to any other person if the results are made anonymous and the disclosure is made for statistical or other research purposes.

32These paragraphs are almost identical. It is difficult to conclude Parliament intended a different result as what was in place prior to the enactment of this new regime, through this structure or wording. A person not accused or not charged and therefore not captured by the prosecutorial process is also not captured by the Charter’s right to disclosure. The disclosure process is one that is well established, including the vetting of the information disclosed for the purpose of making full answer and defence. This paragraph only captures the other situations not related to or not involved in the administration or enforcement of a federal or provincial Act.

33In the end, upon closer scrutiny of s. 320.36, even though the new Part VIII.1 creates different approaches or procedures, for example in the sections under the “Investigative Matters” or the “Evidentiary Matters” of the Act, and s. 258.1 was repealed by the Act, that provision, s. 258.1, is found, “in somewhat different form”, under s. 320.36.

34To answer this question: Does s. 320.36 create an absolute prohibition on disclosure of DRE rolling logs? The answer is no.

3- Is Stipo still applicable to this case?

35Notwithstanding the legislative regime or its interpretation, the Crown further argues that the evidentiary basis in this case establishes that the DRE rolling log is not factually relevant to challenge the reliability of the DRE. It is the position of the Crown that the panel from the Court of Appeal in Stipo did not have that evidentiary basis before them and therefore the analysis on the issue of relevancy cannot be followed here.

36The applicant takes the position that Stipo is still determinative of the motion.

37I agree with the applicant for the following reasons:

38The evidentiary body in this case discusses the testing procedure and its limitation, including the interpretation available from it to draw conclusions. More specifically, about urine samples for example, Mrs. Betty Chow, from CFS explains at p. 18 and 19 how drug detection in such samples could only inform as to prior drug administration and not potential impairment. She also explains how limited the conclusion of impairment can be even with a blood sample. This is but one reason why this determination needs to be made by the trial judge on each case rather than applied at large at the disclosure analysis.

39But the Crown’s argument presumes that the DRE rolling log can or would only be used for the limited purpose of comparing discrepancies between the DRE’s opinion and the toxicological testing. There are other uses to the rolling logs, as mentioned by Watt, J. in paragraph 121:

A rolling log reflects the DRE’s experience with the 12-step evaluation test to determine drug impairment. It shows how many times the DRE has conducted the test. The drug groups identified. The toxicological results, whether confirmatory or contradictory of the DRE’s opinion.

40Of course the admissibility of the evidence of a DRE as expert opinion evidence has been directly addressed by s. 320.31, more specifically, paragraph 320.31(5) of the new scheme, since Stipo. As such, that portion of the discussion in Stipo is of limited assistance, if any. But this is true only in relation to the discussion about the admissibility of such evidence, through the application of common law principles rather than Criminal Code provisions (see paragraphs 92 to 95 and 103 to 106).

41The parties agree that paragraph 320.31(6) has not created a presumption of guilt, but rather one of accuracy. However, the issue of admissibility and ultimate reliability are two distinct issues. As such, the discussion found, for example, at paragraphs 96 to 98 of Stipo, is still applicable and useful in this context. The trial judge will still have to consider all of the evidence, including the opinion of the DRE. Through this assessment of the evidence, the trial judge will have to weigh the evidence of the DRE, as such, as discussed by Watt, J. at paragraphs 107 to 109, “the DRE’s prior experience in conducting drug recognition evaluations would seem relevant on this basis.” (paragraph 107). In other words, how many times a DRE performed an evaluation, for example, is relevant to the person facing such a charge in the preparation of its cross-examination of the expert. This is also discussed at paragraphs 115 to 128 of Stipo.

42As indicated, the new regime specifically addresses the admissibility of the DRE’s evidence, but the discussion in relation to relevance and materiality of the opinion remains intact. Nothing in the new scheme renders DRE rolling logs clearly irrelevant to an accused person.

43Returning to the issue of the evidence of the CFS expert in relation to the DRE’s opinion and the toxicological analysis of urine samples more specifically. It is difficult to reconcile the Crown’s position and the evidence, both of the CFS expert and of the DRE expert as it relates to the confirmation or contradiction of the opinion of the DRE. On the one hand, the Crown takes the position that CFS toxicological testing could not confirm or contradict the DRE’s opinion, while on the other hand, the DRE’s evidence is that, as part of the process for certification, 75 per cent of six toxicological samples taken from subjects need to be “confirmed” by the toxicological testing (see p. 52 of the transcript, tab 2 of the Crown’s material). This part was also understood by Watt, J. in Stipo.

44This issue only seems to serve the conclusion that it is a case by case situation that needs to be presented to and addressed by the trial judge but not one that renders the DRE rolling logs irrelevant altogether.

45In the end, for all these reasons, it is difficult to conclude that the DRE rolling log is not “obviously relevant” as determined by the panel in Stipo.

Conclusion

46Despite s. 258.1 being repealed, the enactment of s. 320.36 is not an absolute prohibition on the disclosure of DRE rolling logs. The conclusion reached in R. v. Stipo, 2019 ONCA 3 is still available and applicable to such disclosure.

47I grant the application and order the disclosure of a vetted/anonymized version of the DRE rolling log of Cst. Jean Benoit of the Ottawa Police Service.