Her Majesty the Queen et al. v. Stipo

[Indexed as: R. v. Stipo]

Ontario Reports

Court of Appeal for Ontario

MacFarland, Watt and Paciocco JJ.A.

January 7, 2019

144 O.R. (3d) 145 | 2019 ONCA 3

Case Summary

Criminal law — Disclosure — Drug recognition expert's rolling log being subject to first party disclosure regime as it was obviously relevant in challenging reliability of drug recognition expert's conclusion on drug impairment — Disclosure of anonymized rolling log not enjoined under s. 258.1(2) of Criminal Code — Disclosure permitted under exception in s. 258.1(2)(a) of Code — Criminal Code, R.S.C. 1985, c. C-46, s. 258.1(2).

Criminal law — Extraordinary remedies — Certiorari — Crown and Ontario Provincial Police applying for certiorari to quash order of provincial court judge for disclosure of drug recognition expert's rolling log — Certiorari available as applicants alleged that order violated s. 258.1 of Criminal Code — Criminal Code, R.S.C. 1985, c. C-46, s. 258.1.

Facts

The accused was charged with driving while her ability to do so was impaired by a drug. A drug recognition expert ("DRE") conducted a drug recognition evaluation and concluded that the accused's ability to operate a motor vehicle was impaired by a central nervous system depressant. The DRE demanded that the accused provide a urine sample. A toxicological analysis of the sample confirmed the presence of seven drugs. The Crown refused to comply with a defence request for disclosure of the DRE's rolling log of drug influence evaluations. The rolling log showed the DRE's experience with the test including how many times the DRE had conducted it, the drug groups identified and whether toxicological results later confirmed the DRE's opinion from the start of their field training until the time he dealt with the accused. The trial judge ordered that the rolling log be disclosed. The Crown and the Ontario Provincial Police (the DRE's employer) sought certiorari with prohibition in aid to quash the disclosure order. The application was dismissed. The Crown and the OPP appealed.

Held, the appeal should be dismissed.

Although the availability of certiorari is very narrow when a party seeks to review a disclosure order, it was available here as the Crown and the OPP alleged that the disclosure order violated s. 258.1 of the Criminal Code. A failure to observe a mandatory provision of the Criminal Code would amount to jurisdictional error.

The rolling log was not in the possession or control of the Crown; it remained in the possession of the DRE and the OPP. Apart from that portion which related to the investigation of the accused, which had already been disclosed, the rolling log was not part of the fruits of the investigation. However, it was "obviously relevant" in challenging the reliability of the DRE's conclusion on drug impairment such that the police should have provided it to the Crown. Disclosure of the rolling log was therefore governed by the first party disclosure regime.

The motion judge erring by holding that unless the rolling log was admitted into evidence that the evidence of the DRE would be inadmissible. The Criminal Code provided an irrebuttable presumption that a certified DRE is an expert.

The disclosure prohibition in s. 258.1(2) of the Criminal Code did not enjoin disclosure of the DRE's anonymized rolling log. Disclosure was permitted under the exception in s. 258.1(2)(a), which permits use or disclosure for investigations and proceedings for listed offences. Interpreting the Criminal Code in this manner is consistent with an accused's constitutional right to disclosure, while protecting the identities of others who have been tested, which are irrelevant to the accused's trial.

Authorities

Cases Referred to:

Statutes Referred to:

Counsel

James V. Palangio, for appellant Attorney General of Ontario.

Andrea Huckins, for appellant Ontario Provincial Police.

Mark Halfyard and Louie R. Genova, for respondent.

Howard L. Krongold and Chris Sewrattan, for intervenor Criminal Lawyers' Association.

Judgment

The judgment of the court was delivered by WATT J.A.

Background Facts

The Accident

[1] Barbara Stipo had a motor vehicle accident. Her Porsche collided with a Toyota Prius.

[2] Police investigated the accident. An officer charged Ms. Stipo with operating a motor vehicle while her ability to do so was impaired by a drug.

[3] A drug recognition expert ("DRE") conducted a drug recognition evaluation. The DRE demanded that Ms. Stipo provide a sample of urine. Barbara Stipo complied. Later, a toxicological analysis of Ms. Stipo's urine sample confirmed the presence of seven different drugs.

The Disclosure Application

[4] As the trial was about to begin before a judge of the Ontario Court of Justice, Ms. Stipo sought disclosure from the Crown of:

(i) the training manual the DRE used in his training and used or relied on in his dealings with Ms. Stipo;

(ii) a copy of the DRE's rolling log of drug influence evaluations, beginning with his training to obtain certification and continuing until the date of the application, including his dealings with Ms. Stipo and any toxicological corroboration of his analyses;

(iii) a copy of the DRE's training record disclosing the results of his training examinations resulting in his certification and any toxicological corroboration of his training examinations; and

(iv) an updated copy of the DRE's resume and resume review.

[5] The Crown only agreed to disclose item (i). The trial judge ordered disclosure of items (ii)-(iv).

[6] The Ontario Provincial Police ("OPP"), the employer of the DRE, was not a party to the disclosure application at trial. However, the Crown and the OPP together sought certiorari with prohibition in aid to quash the disclosure order made by the trial judge.

[7] A judge of the Superior Court of Justice (the "motion judge") dismissed the application and affirmed the disclosure order made by the trial judge, with reasons reported at R. v. Stipo, 2017 ONSC 5208.

[8] The Crown and the OPP appeal from the decision of the motion judge. These reasons explain why I would dismiss the appeal.

The Background Facts

The Accident

[9] The issues raised require little reference to the circumstances of the alleged offence. On the other hand, some mention of the role of a DRE, the genesis and content of the records sought, and the procedural history of the prosecution is essential to an understanding of the arguments advanced and the decision that follows.

[10] On November 25, 2015, Barbara Stipo's Porsche suffered significant damage when it collided with a Toyota Prius. Officers of the OPP investigated the accident.

The ASD Demand

[11] An officer from the Toronto Police Service ("TPS") arrived at the accident scene as an OPP officer was conducting his investigation. The TPS officer advised his OPP colleague of a report TPS had received about a potential impaired driver. The vehicle involved matched the description of that of Ms. Stipo.

[12] Armed with the information provided by the TPS officer and his own observations of Ms. Stipo's imbalance as she walked, the OPP officer demanded that Ms. Stipo provide a breath sample for an analysis in an approved screening device ("ASD"). She complied. The sample provided registered zero milligrams of alcohol in Ms. Stipo's system.

The DRE Demand

[13] The investigating officer concluded that Barbara Stipo's ability to operate a motor vehicle was impaired by a drug. He arrested her for drug-impaired operation of a motor vehicle. Then, he demanded that she submit to a drug recognition evaluation. Ms. Stipo agreed. The officer took her to an OPP detachment where the evaluation could be conducted.

[14] The DRE concluded that Ms. Stipo's ability to operate a motor vehicle was impaired by a central nervous system ("CNS") depressant and that she was unable to operate a motor vehicle safely.

The Demand for a Sample

[15] After completion of the drug recognition evaluation, the DRE demanded that Ms. Stipo provide a urine sample so that a toxicological analysis could be made to determine whether she had a drug in her body. Ms. Stipo complied. She provided the urine sample.

[16] A toxicological analysis of the urine sample Ms. Stipo provided revealed:

codeine;
diazepam;
diphenhydramine;
nordiazepam;
oxazepam;
temazepam;
trazodone.

The Pre-Trial Disclosure

[17] As part of the pre-trial disclosure, the Crown provided defence counsel with the DRE and toxicology reports relating to Ms. Stipo. The Crown also disclosed a dated copy of the DRE training manual including topics such as:

Curriculum vitae Preparation and Maintenance;
Case Preparation and Testimony;
Transition to Certificate Training.

The Disclosure Application

[18] A brief description of the various items of which trial counsel sought disclosure from the Crown will help to better understand what is in issue.

The Training Manual

[19] Prior to the application to the trial judge, Crown counsel had disclosed the 2010 version of the training manual used to qualify candidates as DREs. The program is administered by the International Association of Chiefs of Police ("IACP"). At the time of the incident, the 2013 version of the manual was in use, but because the Crown had disclosed the 2010 manual it was relied upon during the application.

[20] That manual sets out what is required to achieve certification as a DRE. This includes field evaluation requirements, which consist of at least 12 evaluations. A prospective DRE's opinion must be corroborated by toxicology samples in 75 per cent of the cases. A prospective DRE must encounter three of seven drug categories and have their evaluations witnessed and supervised by a DRE instructor. The manual also describes how drug influence evaluations are to be completed.

[21] As the manual explains, a DRE certification expires after two years. A DRE may be recertified by following the steps required by the manual.

The Rolling Logs

[22] The IACP requires each DRE to maintain a rolling log, a record that documents every evaluation the DRE has administered or observed prior to and after certification. For each evaluation, the rolling log includes:

(i) the date of the evaluation;

(ii) the name and date of birth of the person evaluated;

(iii) the DRE's opinion of the result of the evaluation; and

(iv) the results of any toxicological tests completed on any samples provided.

The Curriculum Vitae

[23] The curriculum vitae ("CV") of the DRE who completed the drug influence evaluation of Ms. Stipo was not disclosed to defence counsel or proffered for reception at trial.

[24] The IACP requires a DRE candidate to prepare a CV before the candidate has completed field certification training. The CV is to reflect the candidate's training and experience, including some information about the evaluations the candidate has conducted or observed. In an accompanying Commentary, the current version of The International Standards of the Drug Evaluation and Classification Program, a document filed on the hearing of the appeal, the IACP Highway Safety Committee advises:

In order to be accepted as a credible witness, the DRE must be able to document and articulate a body of information concerning training, qualifications, and experience in the field of drug evaluation and classification. Toward this end, candidates are instructed in the importance and proper preparation of a curriculum vitae.

[25] Each individual DRE is to maintain copies of all drug evaluations, evaluation logs, their CV, certification and recertification progress logs and certificates.

The Decision of the Trial Judge

[26] The trial judge was satisfied that the records sought were relevant in that they could assist defence counsel in undermining the DRE's conclusion, impeaching the reliability of his opinion and demonstrating bias. He concluded that the first party disclosure regime of R. v. Stinchcombe governed release of the records to defence counsel.

[27] The trial judge then turned to the submission of the Crown that disclosure of the records sought was prohibited by the provisions of s. 258.1(2) and (5) of the Criminal Code, R.S.C. 1985, c. C-46. These sections provide:

258.1(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 subsection 254(3.1), the results of the analysis of a bodily substance taken under paragraph 254(2)(b), 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.

(5) Every person who contravenes subsection (1) or (2) is guilty of an offence punishable on summary conviction.

[28] On this issue, the trial judge said of these provisions:

This, quite frankly, is incomprehensible to the court. As defence counsel has submitted, it makes no sense. This is hardly a principled analysis of this issue, but the court is unable to unravel the intent and policy considerations at play.

In any event, the court is quite prepared to make an order exempting the participants in this trial matter from being in contravention of this legislation.

[29] In the result, the trial judge ordered the Crown to disclose to the defence:

(i) the training manual used or relied upon by the DRE in carrying out his duties in the investigation of Ms. Stipo;

(ii) the DRE's rolling logs of drug influence evaluations, including any toxicological corroboration of his analyses contained in those logs, from the start of his certification training up to and including his dealings with Ms. Stipo; and

(iii) an updated copy of the DRE's resume, but not a resume review, "whatever that is".

The trial judge declined to order disclosure of the DRE's training records and the results of the DRE's training examinations.

The Decision of the Motion Judge

[30] The Crown sought certiorari with prohibition in aid to quash the decision of the trial judge only in connection with disclosure of the rolling logs. As the record holder, the OPP sought the same relief, although the police force had not been involved in the application at trial. On the return of the motion, the OPP filed a copy of the 2013 DRE training manual that was in force at the time of the evaluation of Ms. Stipo.

[31] The motion judge concluded that the rolling logs were "fruits of the investigation", and thus subject to the first party disclosure regime put in place by Stinchcombe. He wrote:

The rolling logs are created by and in the possession of a police officer involved in the investigation of the respondent and are relevant to the proficiency of his ability to form the opinion the Crown wishes him to testify about in order to prove an essential element of the offence. In my view, the rolling logs clearly meet the definition of "fruits of the investigation" as that term is used in the case law. As a result, the DRE is duty bound to provide them to the Crown, and the Crown is duty bound to obtain them and provide them to the defence, subject to the applicant's submission that such disclosure is prohibited by s. 258.1 of the Criminal Code, which I will address later in these reasons.

[32] The motion judge rejected the submission of the Crown and OPP that disclosure of the rolling logs was barred because it would constitute an offence under s. 258.1(5) of the Criminal Code even if the results of other evaluations were anonymized. He concluded that since the prosecution of Ms. Stipo was a proceeding for a listed offence, disclosure of the results of other drug influence evaluations was not barred by the offence-creating provision of s. 258.1(5) due to the exception in s. 258.1(2).

[33] Even if disclosure of the rolling logs were governed by the third party regime of R. v. O'Connor, the motion judge continued, the logs were "likely relevant", thus producible for inspection and a final decision on disclosure.

[34] Before the motion judge, but not before the trial judge, the Crown and OPP invoked s. 37 of the Canada Evidence Act, R.S.C. 1985, c. C-5 ("CEA") as a bar to disclosure. The section allows the Crown to object to disclosure of information based on a "specified public interest". The specified public interest advanced in this case included:

(i) the interest in respecting parliamentary authority;

(ii) the interest in maintaining a functioning democracy and in Parliament's ability to function as the legislative body;

(iii) the public interest in prosecuting impaired driving cases; and

(iv) the privacy interest of third parties.

The motion judge was satisfied that none of the interests identified by the Crown and OPP fell within the range of "specified public interest" in s. 37 of the CEA and that even if one or more of them did, it did not justify a refusal to order disclosure.

The Grounds of Appeal

[35] The Crown and OPP (the "appellants") raise three grounds of appeal. They contend that the motion judge erred:

(i) in finding that the DRE's rolling log was a record disclosure of which was governed by the first party regime of Stinchcombe, not the third party regime of O'Connor;

(ii) in finding that the DRE's rolling log was relevant to an issue at the respondent's trial; and

(iii) in failing to find that s. 258.1 barred disclosure of the rolling log even if anonymized.

A Preliminary Issue: The Availability of Certiorari

[36] While this judgment was under reserve, the Supreme Court of Canada released its decisions in R. v. Gubbins, 2018 SCC 44 and R. v. Awashish, 2018 SCC 45. We invited and received written submissions from the parties and intervenor on the effect, if any, of those decisions on the issues raised in this appeal. I have considered those submissions, in addition to those contained in the factums and raised in oral argument in reaching my conclusion.

[37] The appellants invoked the extraordinary remedy jurisdiction of the motion judge to challenge the disclosure ruling made by the trial judge. None of the parties made any submissions to the motion judge about the availability of certiorari as a remedy to challenge the correctness of the trial judge's disclosure order. Nor did the parties or intervenor question the appellants' remedy choice in oral argument in this court.

[38] To be faithful to the teachings of Awashish, it becomes necessary to consider first whether the remedy sought by the appellants -- certiorari with prohibition in aid -- could be invoked as a basis on which to set aside the disclosure order made by the trial judge.

The Positions of the Parties

[39] In his written submissions, Crown counsel acknowledged that certiorari was not available to challenge the trial judge's finding that the rolling logs were relevant or that their disclosure was governed by the first party disclosure regime of Stinchcombe. In each instance, the Crown recognizes, even if the trial judge were wrong, the error was an error of law within the jurisdiction of the trial judge, not a jurisdictional error.

[40] On the other hand, the Crown contends, the trial judge's purported "exemption" of the parties from the disclosure prohibition in s. 258.1(2) of the Criminal Code amounts to jurisdictional error. This is because, under Awashish, a failure to follow a mandatory statutory provision is a jurisdictional error.

[41] At all events, the Crown argued, because the OPP had third-party standing to seek certiorari, the Crown was also entitled to advance arguments before the motion judge as a party affected by the decision. The OPP says that as a third party -- the record holder -- it was entitled to invoke certiorari to correct errors of law on the face of the record. Those errors, according to the OPP, consisted of the trial judge's findings that:

(i) the rolling logs were relevant;

(ii) disclosure of the rolling logs was governed by the first party disclosure regime under Stinchcombe; and

(iii) disclosure was not prohibited by the provisions of s. 258.1(2) and (5) of the Criminal Code.

[42] In addition, the OPP continues, the trial judge's refusal to allow the force as the record holder to make submissions about disclosure breached the principles of natural justice. This too permitted the OPP to access certiorari to challenge the trial judge's decision.

[43] The respondent contends that Awashish has no bearing on our determination of this appeal. The disclosure order made at trial was a final order against the OPP, the record holder. And as the record holder, the OPP can invoke certiorari to correct what it alleges to be errors of law on the face of the record, as well as alleged breaches of the principles of natural justice. Here, the record holder and the Crown advance the same arguments about the character of the impugned record and whether it was improperly ordered disclosed. The decision in Awashish does not erect any bar to a decision on the merits.

The Governing Principles

[44] In Awashish, the parties were at loggerheads over disclosure of documents said to be relevant to the defence against charges, among them impaired operation of a motor vehicle. The documents sought related to the maintenance of the breathalyzer machine used in the investigation. A judge of the Superior Court of Quebec quashed an order of a judge of the trial court requiring the Crown to inquire into the existence of certain documents relating to breathalyzer maintenance. The Quebec Court of Appeal held that although certiorari was available to an accused where a judge acted without jurisdiction, and sometimes, when a judge erred in law in the face of the record, the remedy was not available to the Crown in this case because the decision was made in the exercise of the trial court's jurisdiction. The Crown appealed to the Supreme Court of Canada.

[45] The Supreme Court of Canada dismissed the Crown appeal. In doing so, Rowe J., who delivered the judgment of the unanimous and full court, set out several principles concerning the availability of certiorari to review orders made by provincial court judges on pre-trial applications.

[46] First, extraordinary remedies, among them certiorari, are available to the parties in criminal proceedings only for jurisdictional errors by a provincial court judge: Awashish, at para. 20.

[47] Second, in criminal proceedings, jurisdictional errors occur where a provincial court judge:

(i) fails to observe a mandatory provision of a statute; or

(ii) acts in breach of the principles of natural justice.

See Awashish, at para. 23.

[48] Third, these strict limitations on the availability of certiorari for parties are to prevent the use of extraordinary remedies as an end-run to circumvent the rule against interlocutory appeals: Awashish, at paras. 10-11.

[49] Fourth, certiorari is not available to parties to review the conduct of criminal proceedings on the basis of an alleged error of law on the face of the record: Awashish, at paras. 16-17.

[50] Fifth, the scope of review available on certiorari for third parties is somewhat more expansive. After all, third parties do not have rights of appeal, at least in most cases. Thus, in addition to review of jurisdictional errors, a third party may invoke certiorari to challenge an error of law on the face of the record, provided the order has a final and conclusive effect in relation to that third party: Awashish, at para. 12.

[51] It is uncontroversial that a trial judge has jurisdiction or authority to determine disputes about disclosure. The jurisdiction is engaged upon request of a party, usually the person charged. It necessarily follows from this adjudicative authority that the decision of the trial judge may require a determination about which disclosure regime -- first party or third party -- controls the decision: Gubbins, at para. 29.

[52] A logical consequence of the authority to determine disclosure issues, more particularly to decide which disclosure regime governs what is sought, is that any alleged error, at least as a general rule, would not amount to a jurisdictional error, but only an error of law in the exercise of jurisdiction. And as we have already seen, unless the error were to amount to a failure to observe a mandatory statutory provision or a breach of the principles of natural justice, the error would fall beyond the reach of certiorari at the instance of any party to the proceedings, but not a third party.

The Principles Applied

[53] As I will explain, I am satisfied that the decision in Awashish does not foreclose the appellants' recourse to certiorari to challenge the disclosure order made by the trial judge in this case.

[54] Recall at the outset that no party contested the availability of certiorari as a mechanism to review the disclosure order made by the trial judge. Not before the motion judge. And not in this court, as the appeal was argued.

[55] On the other hand, as Awashish confirms, the availability of certiorari as a mechanism for parties to challenge pre-trial rulings is significantly circumscribed. That neither party challenged its availability cannot overcome those restrictions.

[56] The Crown accepts that it generally cannot invoke certiorari to review a disclosure order made in provincial court proceedings to which it is a party. This shields from interlocutory review the provincial court's determination that the disclosure request is governed by the first party regime of Stinchcombe rather than the third party procedure of O'Connor. A trial judge has the jurisdiction to make these decisions. Jurisdiction is a matter of adjudicative authority, not correctness of the decision rendered.

[57] However, the decision in Awashish does allow a party access to certiorari for jurisdictional error. And jurisdictional error includes failure to observe a mandatory provision of the Criminal Code or a breach of the principles of natural justice. Here, the Crown alleges that the trial judge failed to give effect to the Criminal Code prohibition against the use or disclosure of evaluation results save in exceptional circumstances, a prohibition reinforced by the creation of a summary conviction offence for improper disclosure. The effect of this error, the Crown argues, amounts to a failure to observe a mandatory provision of the Criminal Code, and thus permits access to certiorari in accordance with an exception recognized by Awashish. This allegation is sufficient to place the issue of the provincial court judge's jurisdiction before the superior court by way of certiorari.

[58] As a third party record holder, the OPP was also able to challenge the trial judge's jurisdiction on certiorari. Therefore, I am satisfied that this is not a case in which access to certiorari was foreclosed by the prohibition against interlocutory appeals laid down by Awashish.

Ground #1: The First Party Disclosure Issue

[59] This ground of appeal challenges the correctness of the trial and motion judges' decisions that disclosure of the rolling log is governed by the first party regime of Stinchcombe, not the third party scheme of O'Connor.

[60] To situate the claim of error in its proper environment, a brief refresher about the origins, nature and control of the rolling logs will provide a suitable frame of reference for the discussion that follows.

The Rolling Logs

[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.

[62] The rolling log is historical in that it records evaluations conducted or observed prior to that involving the person charged. But it is also prospective for it includes evaluations conducted or observed after that of the accused up to the time of the DRE's testimony. Among its entries, of course, are the particulars of the DRE's evaluation of the accused, disclosure of which is governed by Stinchcombe and has been made here.

[63] The only connection of the rolling log with the investigation of an individual accused is the entry in the log relating to the DRE's evaluation of that accused and any confirmation or contradiction of the DRE's opinion by toxicological testing.

The Arguments on Appeal

[64] The appellant Crown acknowledges that it has a broad obligation to disclose to an accused charged with an offence all relevant non-privileged information it has in its possession or control unless disclosure of that information is otherwise governed by law. This obligation extends to information in the possession or control of the prosecuting Crown, not to information held by other arms of the state, unless that information falls within the "fruits of the investigation" category. Records in the hands of a third party, including the police, are not subject to the first party disclosure obligation put in place by R. v. Stinchcombe.

[65] It follows, the Crown says, that when an accused seeks records which are not "fruits of the investigation" from the police, as in this case, the accused must seek disclosure from the third party, whether directly or through the prosecuting Crown, or bring a third party records application under R. v. O'Connor. This requires the accused to demonstrate the likely relevance of what is sought.

[66] The Crown accepts that neither it nor the police are permitted a passive or disinterested approach to the production of third party records. When put on notice of the existence of material an accused seeks, the Crown has a duty to inquire and to make reasonable efforts to obtain what is sought. Correspondingly, the police have a duty to provide the Crown with all information that they know has obvious relevance to an accused's case.

[67] Despite these positive obligations, the Crown continues, this does not mean that the records the respondent seeks must be disclosed as part of the Crown's first party disclosure obligation. Upon inquiry by the Crown and refusal by the police to disclose any material which is not part of the "fruits of the investigation", an accused must pursue a third party records application under O'Connor to obtain the material.

[68] The Crown says that it does not have possession or control over the rolling log, which is created, maintained and held by the DRE or the OPP, the DRE's employer. The log is not part of the "fruits of the investigation". Nor is it obviously relevant. The police have no obligation to turn the rolling log over to the Crown for disclosure to the respondent. The judges below were in error in deciding that this case was one of first party disclosure. To obtain what he seeks, the respondent must bring a third party records application in accordance with O'Connor.

[69] The appellant OPP repeats many of the submissions of the Crown.

[70] The OPP points out that the rolling log is a record generated and updated by an officer of the OPP. The log is held by and is kept under the control of the OPP. It contains a one-line summary of every evaluation the DRE performs, together with the corresponding toxicological results. The substantial majority of the information contained in the log consists of historical summaries of evaluations conducted during investigations of persons other than the respondent. These summaries have no association with the respondent's alleged offence or the investigation of it by the OPP. This is not a record in the possession or control of the prosecuting Crown.

[71] In addition, the OPP says that, despite its status as the record holder, it received no notice of the application at trial. It had no opportunity to advocate its position or adduce evidence about the purpose and use of the logs. In particular, the OPP says it had no opportunity to adduce expert evidence to explain why toxicological results may not coincide with DRE evaluations.

[72] The respondent readily acknowledges that rolling logs are not in the possession or control of the prosecuting Crown. But that, the respondent says, does not end the inquiry into the applicable disclosure regime, or rule out first party disclosure as the governing disclosure scheme. This is because of two corollary duties in place to ensure that disclosure is meaningful and that an accused gets the entire "fruits of the investigation".

[73] The first duty, imposed on the police, is to provide all potentially relevant material they have in their possession to the Crown. This includes all material pertaining to its investigation of the accused. The second duty, settled upon the Crown, is to obtain all relevant material of which they become aware, including potentially relevant evidence pertaining to the credibility or reliability of the witnesses in the case.

[74] The rolling log, the respondent contends, is relevant to the credibility of the DRE and the reliability of the DRE's evidence on the issue of impairment. This triggers the Crown's duty to seek and obtain a copy of the log from the OPP and the duty of the OPP to disclose that log to the Crown without prompting. And so it is that the log forms part of first party disclosure under Stinchcombe. This issue is not controlled by the decision in R. v. Jackson, 2015 ONCA 832. In that decision, the court decided that certain records relating to breathalyzer devices were not likely relevant, but the rolling log at issue here plays a significant role in the respondent's prosecution.

[75] The respondent likens the rolling log to an expert's CV. Each reflects the witness' qualifications to testify as an expert. No one would gainsay that a CV is first party disclosure. The same result should apply to the rolling log, an essential component of the DRE's CV.

[76] The intervenor, the Criminal Lawyers' Association ("CLA"), contends that the test for disclosure is simply relevance, whether under the Stinchcombe or the O'Connor framework. The only difference between the two frameworks is that under O'Connor it is the accused who must bear the burden of establishing relevance in an application. The choice between the two frameworks is largely a matter of policy that should be informed by whether it would be justified and efficient to require a full-blown O'Connor hearing in each case. For rolling logs, it is an inefficient use of court resources and unjustified to shift to an accused the burden of bringing an application to obtain disclosure of this obviously relevant information. The nature of the rolling logs and their relationship to the weight to be assigned to the DRE's expert opinion on impairment engages the Crown's duty to inquire and the related police duty to provide in accordance with the Stinchcombe disclosure regime.

The Governing Principles

[77] Despite the novelty of its subject matter, a DRE's rolling log, this disclosure issue reduces in the main to the application of settled principles intermingled with a tincture of statutory prohibition.

The Disclosure Regimes

[78] It is commonplace that two different regimes govern disclosure in criminal cases.

[79] The first party disclosure regime originated in Stinchcombe and was supplemented by duties imposed on the Crown and the investigating police in R. v. McNeil, 2009 SCC 3. This requires disclosure of all relevant information upon request. If the Crown refuses disclosure, the Crown bears the burden of establishing that the information is privileged from disclosure or "clearly irrelevant": Gubbins, at para. 29.

[80] The third party disclosure regime has its genesis in O'Connor and requires an application to the court for records that fall outside the first party disclosure scheme. In these cases, the defence bears the initial burden of showing that the records sought are "likely relevant": Gubbins, at para. 29.

[81] Each disclosure regime has as its purpose the protection of an accused's right to make full answer and defence to the offences charged. At the same time, each scheme recognizes the need to place limits on disclosure when required, including limits to avoid fishing expeditions: Gubbins, at para. 29.

[82] To determine which disclosure regime controls a disclosure dispute, a court should pose and answer two questions:

(1) Is the information sought in the possession or control of the prosecuting Crown?

(2) 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?

The answer to the second question will be yes if the information sought qualifies as part of the "fruits of the investigation" or as "obviously relevant": Gubbins, at para. 33.

[83] Where either question yields an affirmative answer, the first party disclosure regime applies, at least in the absence of any applicable statutory regime. In any other case, the third party scheme governs: Gubbins, at para. 33.

[84] The term "fruits of the investigation" refers to police investigative files, not to operational records or background information. In other words, the term describes information generated or acquired during or as a result of the specific investigation into the charges against the accused. This information may relate to the unfolding of the narrative of material events, the credibility of witnesses or to the reliability of evidence that may form part of the case an accused is required to meet: Gubbins, at para. 22; Jackson, at paras. 92-93.

[85] In addition to information that falls within the "fruits of the investigation", the police should disclose to the prosecuting Crown any additional information that is "obviously relevant" to an accused's case. The term "obviously relevant" describes information that is not within the investigative file, but that would nonetheless be required to be disclosed under Stinchcombe because it relates to the accused's ability to meet the case for the Crown, to raise or advance a defence, or otherwise consider the conduct of the defence. Under McNeil, the police are required to turn this information over to the Crown: Gubbins, at paras. 23 and 36.

[86] The Supreme Court has stressed that "obviously relevant" does not create a new standard or degree of relevance: Gubbins, at paras. 23 and 36. Nevertheless, the term should be understood with reference to the stage of the process at which the relevance inquiry takes place. Unlike in the second step of the O'Connor application, the court will not have the records before it for examination. Therefore, the relevance of the records must be "obvious" without such examination.

[87] No one suggests that every police record is subject to the first party disclosure regime of Stinchcombe: see, for example, McNeil, at para. 59. It follows that the third party disclosure regime of O'Connor occupies a vital role for disclosure of records which are neither part of the investigative file nor obviously relevant and thus fall outside the first party disclosure regime: Gubbins, at para. 24.

[88] Third party disclosure requires an accused to apply to a court to obtain that disclosure. The procedure involves two steps. The first requires that the accused satisfy the judge that the record sought is "likely relevant". This burden is met where the accused demonstrates a reasonable possibility that the information sought is logically probative of an issue at trial or the competency of witnesses to testify. Information in respect of which there is a reasonable possibility that it may assist the accused in the exercise of the right to make full answer and defence meets this threshold: Gubbins, at para. 27; McNeil, at para. 44; O'Connor, at paras. 21-22.

[89] Where an accused has demonstrated likely relevance, the documents are produced to the judge for examination and determination of whether, and to what extent, the documents should be disclosed to the defence. This step involves a determination of actual (rather than likely) relevance and a consideration of competing interests: McNeil, at para. 39; Gubbins, at para. 27.

The DRE

[90] Under s. 254(1) of the Criminal Code, an "evaluating officer" is a peace officer qualified under the regulations to conduct evaluations to determine whether a person's ability to operate a conveyance such as a motor vehicle is impaired by a drug or a combination of alcohol and a drug. Whether the results of the evaluation cause the evaluating officer to have a reasonably grounded belief that the accused's ability to operate a motor vehicle is impaired by a drug or a drug in combination with alcohol will determine whether a further demand for a sample of bodily substances will be made: Criminal Code, s. 254(3.4).

[91] In 2008, Parliament put in place a regime to test for drug impairment: a 12-point evaluation established by the Regulations based upon the procedure set out by the IACP. The evaluations are carried out by police officers accredited by the IACP. These officers, known as DREs, carry out the functions assigned to an "evaluating officer" as defined in s. 254(1) of the Criminal Code.

The Admissibility of DRE Evidence

[92] Unlike in prosecutions for alcohol-impaired operation of a conveyance, the Criminal Code contains no provisions governing the admissibility of the evidence of DREs about drug impairment. The applicable principles are those governing the admissibility of expert opinion evidence. This familiar analysis is divided into two steps:

(i) the threshold requirement; and

(ii) the cost benefit analysis.

See White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23.

[93] At the first step, the evidence must satisfy the four requirements of R. v. Mohan, among them that the witness have expertise in the subject matter of his or her evidence that extends beyond the experience and knowledge of the trier of fact about that subject: R. v. Bingley, 2017 SCC 12, at paras. 14, 15 and 19; Mohan, at p. 25 S.C.R.

[94] Parliament has established that a DRE has special expertise outside the experience and knowledge of the trier of fact. Said in another way, the DRE is an expert for the purpose of applying the 12-step evaluation and determining whether that evaluation indicates drug impairment for the purposes of s. 254(3.1). Parliament has conclusively and irrebuttably established the DRE's expertise: Bingley, at para. 27.

[95] The statutory framework Parliament has enacted does not undermine the trial judge's gatekeeper function which enables the trial judge to safeguard the trial process and to ensure that it is not disturbed by improper expert opinion evidence. Focusing the analysis on the DRE's administration of the evaluation may persuade the trial judge that the prejudicial effect of the evidence outweighs its probative value and warrants its exclusion: Bingley, at para. 30.

[96] Parliament has established the reliability of the 12-step drug evaluation test. But it has not determined or said that the conclusion drawn by the DRE is dispositive of guilt. The DRE determines whether the evaluation indicates drug impairment. This opinion is neither more nor less than a piece of evidence for the trier of fact to consider in deciding whether the Crown has proven that the ability of the person charged to operate a conveyance was impaired by a drug. No presumption of guilt follows from the conclusion expressed by the DRE: Bingley, at para. 31.

[97] The statutory recognition of the reliability of the 12-step drug evaluation erects no barrier to the authority of the trier of fact to critically assess a DRE's conclusion about impairment, or to the right of an accused to challenge that evidence. Cross-examination may undermine the DRE's conclusion. Unearth a bias. Demonstrate a failure to follow required steps. Or reveal the questionable nature of the DRE's inferences. Evidence of bodily sample analysis or testimony from lay witnesses or experts may rebut or discredit the DRE's assessment: Bingley, at para. 32.

[98] And in the end, as with any item of evidence adduced in a criminal trial, it will be open for an accused to challenge and for the trier of fact to assess the weight to be assigned to the DRE's opinion about impairment: Bingley, at para. 32.

Section 657.3 of the Criminal Code

[99] Section 657.3 of the Criminal Code enacts notice and disclosure requirements when expert opinion evidence will be tendered for admission in a criminal trial. Among other things, s. 657.3(3)(a) requires a party to provide disclosure of a "statement of the qualifications of the proposed witness as an expert" to the other party or parties.

The Principles Applied

[100] As I will explain, I would not accede to this ground of appeal. I agree with the conclusion of the trial and motion judges that disclosure of the rolling log is governed by the first party disclosure regime of Stinchcombe, not the third party scheme of O'Connor. However, as will become apparent, I reach my conclusion for reasons that differ from those of the trial and motion judges.

[101] The touchstone of disclosure is relevance. No one has a right to disclosure of information or material which lacks logical relevance. And no one has a duty to disclose information or material which lacks logical relevance.

[102] In this case, the Crown must prove beyond a reasonable doubt that, at the time alleged, the respondent's ability to operate a motor vehicle was impaired by a drug or a combination of a drug and alcohol. As part of its proof, the Crown may tender as evidence the opinion of the DRE who conducted the drug recognition evaluation of the respondent.

[103] In the absence of any statutory provisions displacing them, the common law rules governing the exceptional admission of expert opinion evidence apply in prosecutions for drug-impaired operation. In the result, the admissibility of expert opinion evidence requires a two-stage analysis.

[104] The first stage considers whether the proposed evidence satisfies the four Mohan factors including that the proposed witness have special expertise beyond the knowledge and experience of the trier of fact. Evidence that fails to meet the Mohan threshold requirements will be excluded.

[105] The second stage involves the application of the general exclusionary rule, which assesses whether the benefits of admitting the evidence outweigh any potential harm its reception occasions to the trial process.

[106] At the second stage of the admissibility analysis, it is open to defence counsel to endeavour to show that the prejudicial effect of the evidence exceeds its probative value. This analysis focuses on the DRE's administration of the evaluation. It may involve exposing limitations, such as the absence of a standardized approach to weighing the various tests in reaching a determination of drug impairment. Or the failure of the DRE to explain how she drew the inference of drug impairment on the basis of the 12-step evaluation. Cross-examination of the DRE on the admissibility inquiry may expose these deficiencies and persuade the trial judge to exclude the evidence on the basis of the cost benefit analysis.

The Relevance of the Rolling Log

[107] When Crown counsel tenders as evidence the opinion of a DRE formed from conducting the 12-step evaluation test, counsel is of necessity asserting that the DRE's conclusion affords reliable evidence of drug impairment of an accused's ability to operate a motor vehicle. It follows that any evidence that has a tendency to cast doubt on the reliability of the DRE's conclusion is relevant. Evidence of the DRE's prior experience in conducting drug recognition evaluations would seem relevant on this basis.

[108] Apart altogether from the statutory requirements of s. 657.3(3)(a) of the Criminal Code, disclosure of a proposed expert witness' CV has been commonplace. This is because the CV is relevant to the witness' qualifications to give expert opinion evidence and the weight to be assigned to any evidence the witness is permitted to give. Indeed, in this case, the DRE's CV seems to have been eventually provided. Recall that the CV is a document in which the IACP requires the DRE to include some of the same details about evaluations as are recorded in the rolling log.

[109] This is not a case governed by Jackson or Gubbins. In those cases, the accused sought disclosure of historical records relating to the performance of an approved instrument on other occasions. But the material issue in each case had nothing to do with the instrument's performance on other occasions. The material issue in those cases was how the approved instrument worked when it measured Jackson's and Gubbins' blood alcohol levels. Expert evidence confirmed that the historical data could say nothing about that. And expert evidence was necessary because persons of ordinary experience could not establish or negate the link between past performance and present functionality. That is not this case. A trier of fact needs no expert evidence to opine on the relevance of prior experience in assessing current reliability.

[110] As a result, I am satisfied that the rolling log is relevant material or information for disclosure purposes.

The Applicable Disclosure Regime

[111] Determining which regime governs disclosure of the DRE's rolling log requires consideration of two questions:

(1) is the information that is sought in the possession or control of the prosecuting Crown; and

(2) 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?

Unless some other statutory scheme interferes, an affirmative answer to either question settles disclosure under the first party regime of Stinchcombe.

Possession or Control of the Log

[112] In this case, the rolling log is created, and its currency is maintained by the DRE. The log is not in the possession or control of the prosecuting Crown. It remains in the possession of the DRE, and the police force which employs the DRE, in this case, the OPP. Therefore, the question becomes whether the entries on the log constitute "fruits of the investigation" or are otherwise "obviously relevant" such that the OPP has an obligation to disclose them to the Crown.

The Log as "Fruits of the Investigation"

[113] The term "fruits of the investigation" refers to the investigative files of the police, not to operational records or background information. This is information generated or acquired during or as a result of the specific investigation into the charge against the respondent. The term posits a relationship between the information sought and the investigation that led to the charges against the respondent.

[114] Apart from that portion of the rolling log which relates to the investigation of the respondent and has already been disclosed, the historical portions of the log were generated or acquired during or as a result of unrelated investigations. It follows that the portion of the logs sought is not part of the "fruits of the investigation". To the extent that the trial and motion judges grounded their finding that the first party disclosure regime governed on the basis that the log was part of the "fruits of the investigation", they, without the benefit of the decision in Gubbins, erred in so holding.

The Log as "Obviously Relevant"

[115] The opinion of the DRE that the respondent's ability to operate a motor vehicle was impaired by a drug is part of the case for the Crown on the issue of drug impairment. While not dispositive, the opinion is nonetheless relevant, material and potentially admissible. It also provides a gateway to the admission of the results of the toxicological analysis of the respondent's urine. Tender of the DRE's opinion on drug impairment of necessity amounts to a representation by the Crown that the opinion is a reliable indicator of drug impairment. This in turn is an implicit claim that the DRE followed the 12-step evaluation and did so properly. Any evidence that has a logical tendency to cast doubt on that claim is therefore relevant.

[116] Recall that in Bingley, the court recognized that despite Parliament's statutory approval of the reliability of the 12-step drug evaluation, an accused retained the right to test the evidence. The trier of fact also retained the ability to critically assess the DRE's conclusion. Among the methods of testing, the court mentioned:

(i) cross-examination of the DRE to undermine the conclusion of drug impairment;

(ii) evidence of bias;

(iii) evidence of failure to conduct the evaluation in accordance with the DRE's training;

(iv) questioning the DRE's inference-drawing from observations; and

(v) refutation of the conclusion by bodily sample evidence collected under s. 254(3.4).

[117] In the end, this issue reduces to whether the rolling log is relevant in challenging the Crown's necessary and implicit claim that the DRE's conclusion on drug impairment is reliable.

[118] In my view, evidence of the rolling log meets the requirement of "obviously relevant" for the purposes of the first party disclosure regime. I reach this conclusion for four reasons.

First: The Relevance Requirement Itself

[119] First, the relevance requirement itself.

[120] The term "obviously relevant" represents a comment on the obvious nature of the relevance of the record in the case. What the term does not do is describe a higher standard or degree of relevance. It describes information that is not within the investigative file but relates to the accused's ability to meet the case for the Crown, to raise a defence or to make decisions about the conduct of the case for the defence. For disclosure purposes, relevance is not determined by whether the information sought is decisive in the case, rather by its logical relevance. This is not a stringent standard.

[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.

Second: Prior Experience and Present Reliability

[122] Second, prior experience and present reliability.

[123] In the law of evidence, we recognize that how an individual acted on prior occasions is relevant in deciding whether or how they acted at a material time. Although admissibility rules rooted in policy considerations may exclude this evidence in some circumstances, as for example when tendered by the Crown, exclusion is not based on lack of relevance. In a similar way, we test the reliability of current information from a confidential informer by examination of the track record (or the absence of a track record) of that informer.

Third: The Impact of the DRE's Evidence

[124] Third, the impact of the DRE's evidence.

[125] As we have seen, the DRE's opinion on drug impairment, formed by inference from the results of the 12-step evaluation, is not dispositive on the issue of drug impairment. For the DRE cannot describe the effect of any drugs found through toxicological analysis on the mental or physical ability of an accused to operate a motor vehicle. The DRE's opinion on drug impairment is a link in the Crown's chain of proof. Like other links in that chain, it is open to challenge.

[126] The appellant's analogy to Jackson and Gubbins is misplaced. There, the appellants sought disclosure of historical records about the performance of the approved instrument on other occasions. The material issue in each case was not of course how the approved instrument had performed on those prior occasions, but how it actually worked when the appellants' breath was tested. Expert evidence confirmed that historical data could tell nothing of that. And there were also several pre-test steps, mechanisms to ensure that the instrument would only function if operating properly. But that is not this case. No expertise is required to establish the relevance of prior experience to current reliability.

Fourth: The Curriculum Vitae

[127] Fourth, the curriculum vitae.

[128] A threshold requirement for the admissibility of expert opinion evidence is a properly qualified expert. It is commonplace for those proposed as experts to record their qualifications in a CV. Further, it is the practice for the proponent of the evidence to utilize the CV to establish the proposed witness' qualifications in a defined subject-matter. The same document is often used by opposing counsel to limit the fields of expertise or to disqualify the witness entirely in the proposed area of expertise.

[129] Section 657.3(3)(a)(iii) of the Criminal Code requires a party who intends to call an expert witness to disclose to the other parties in the proceedings "a statement of the qualifications of the proposed witness as an expert". Section 657.3(3)(a) describes the time periods within which this disclosure is to be provided for the purpose of promoting the fair, orderly and efficient presentation of the testimony of the witnesses. A compendious equivalent for the statutory language "a statement of the qualifications of the proposed witness as an expert" would be the witness' curriculum vitae, or CV.

[130] It is worth notice that disclosure of the CV under s. 657.3(3)(a)(iii) imposes a duty on the proponent of the evidence and a correlative right on the opponent. No application for disclosure is necessary. In short, the CV is "obviously relevant".

[131] The rolling log is obviously relevant for the same reasons as the CV. Both documents describe the DRE's experience and are relevant to establishing and delineating the DRE's area of expertise. Therefore, both should be subject to the same, not different disclosure schemes.

[132] In the result, I am satisfied that disclosure of the rolling log is governed by the first party disclosure regime of Stinchcombe, not the third party scheme of O'Connor.

Ground #2: The Relevance of the Rolling Log

[133] The second ground of appeal challenges the finding of the motion judge that the rolling log of the DRE is relevant for disclosure purposes.

[134] As I have already explained in connection with the first ground of appeal, the touchstone of disclosure is relevance. My determination that the rolling log of the DRE is "obviously relevant" for disclosure purposes, and thereby subject to the first party disclosure regime, allows for a rejection of this ground of appeal without further discussion.

[135] Nevertheless, two passages in the motion judge's discussion of relevance require clarification.

The Reasons of the Motion Judge

[136] The motion judge described the role of the rolling log in the qualification of the DRE to give expert opinion evidence about drug impairment, at para. 25 of his reasons:

In my view, while the applicants' argument has some superficial attraction, it does not withstand scrutiny. It is true that the rolling logs were not created during the investigation and that they relate to the investigations of other people for unrelated offences. However, it cannot be said that they "played no role in the acquisition of any evidence available for proffer in the prosecution". To the contrary, for reasons I will explain, the creation and maintenance of the rolling log is an important part of the DRE's qualification to provide an opinion as to the respondent's ability to operate a motor vehicle. Without the rolling log, the DRE would not be entitled to provide an opinion and his testimony would have no utility.

[137] The motion judge also considered the rolling log as a measure of the DRE's proficiency. He wrote, at para. 30:

Second, the probative value of the rolling log does not arise from the verification of any single opinion of the DRE but, rather, from the overall verification rate. While the lack of verification may be explainable with respect to any particular opinion, where a large number of opinions are not verified, this may cause a trier of fact to attach less weight to a DRE's opinion. The IACP's requirement for 75% verification rate is likely due to a recognition that there may be some instances where a DRE's opinion, although formed in accordance with the requisite standards, may not be verified for some reason. Otherwise, the required rate would be 100%. However, where the DRE's opinion is not verified more than 25% of the time, the IACP apparently concludes that the DRE is not sufficiently proficient to maintain his or her accreditation.

The Arguments on Appeal

[138] The appellants take issue with both excerpted passages.

[139] The appellants say that the rolling log and its contents have nothing to do with whether a DRE is qualified to give expert opinion evidence on drug impairment. What controls is that, at the time of the evaluation of the accused, the DRE was actually trained and certified as a DRE by the IACP. It is the certification, not the rolling log, that permits the officer to conduct the 12-step evaluation, reach a conclusion about drug impairment and testify as an expert about that conclusion at an accused's trial.

[140] The appellants also contend that the motion judge relied on an erroneous understanding about what the DREs need in order to maintain their certification. It is not the case that a DRE's rolling log needs to reflect a 75 per cent rate of toxicological verification for that purpose. What is required for maintaining certification is:

(i) performance of at least four acceptable evaluations since the last certification, all of which are reviewed and approved by a certified DRE instructor and one of which is witnessed by a certified DRE instructor;

(ii) completion of at least eight hours of recertification training since the last certification; and

(iii) presentation of an updated CV and rolling log for review by the appropriate DRE coordinator.

The Governing Principles

[141] Two brief points of principle inform the decision on this ground. The first has to do with what qualifies a DRE to give expert opinion evidence and defines the scope of that expertise. The second relates to the requirements for recertification.

[142] First, the expertise of a DRE for the purpose of applying the 12-step evaluation and determining whether that evaluation indicates drug impairment for the purposes of s. 254(3.1) of the Criminal Code has been conclusively and irrebuttably established by Parliament: Bingley, at para. 27. Once certified as a DRE, the candidate becomes an "evaluating officer" within s. 254(1) of the Criminal Code for the purpose of the 12-step evaluation and the inferences of drug impairment arising from it.

[143] Second, the verification rate and the requirements for recertification.

[144] To obtain certification as a DRE, a candidate must have 75 per cent of his or her conclusions about the category of drugs present be confirmed by toxicological testing. There is no such requirement for recertification.

The Principles Applied

[145] As I will briefly explain, I am satisfied that the motion judge erred in connection with both issues raised by the appellants.

[146] A two-stage process governs the admissibility of expert opinion evidence in criminal proceedings. Among the requirements at the first stage is that the witness who is tendered to give the evidence must be a qualified expert. In the usual course, the qualifications of the witness to give opinion evidence as an expert are established by evidence given on a voir dire before the trial judge.

[147] Parliament has relieved the prosecutor of the obligation of demonstrating the qualification of the DRE on a voir dire. It has done so by conclusively and irrebuttably establishing the expertise. A DRE is an expert. Not because a DRE creates and maintains a rolling log, but because a DRE is a DRE.

[148] To obtain certification as a DRE, among other things, a candidate's drug impairment evaluations must be verified at least 75 per cent of the time by toxicological testing. Certification lasts for two years. A DRE may be recertified by meeting IACP standards for recertification. The standards do not require that the drug impairment evaluations be verified in at least 75 per cent of the cases by toxicological testing for recertification.

[149] In the result, I am satisfied that the motion judge erred in holding that without the rolling log the DRE would not be entitled to provide an opinion on drug impairment and that absent a 75 per cent verification rate a DRE would not maintain his or her certification. However, neither error had an impact on the ultimate conclusion that the motion judge reached about the regime that governs disclosure of the rolling log.

Ground #3: The Disclosure Prohibition

[150] The final ground of appeal requires consideration of the meaning to be assigned to a statutory provision which restricts the use and disclosure of drug recognition evaluations conducted under s. 254(3.1) and toxicological analysis of oral fluid or urine performed under s. 254(3.4). More specifically, what requires determination is whether the restriction has the effect of foreclosing disclosure of the rolling log of the DRE who conducted the drug recognition evaluation of the respondent.

The Decision of the Trial Judge

[151] The trial judge expressed frustration with the drafting of the restriction in s. 258.1(2) of the Criminal Code. He found that the section was inscrutable, incapable of interpretation. In the end, he decided that, if necessary, he would grant a constitutional exemption to permit disclosure of the rolling log. Yet no one seems to have sought such an exemption.

The Decision of the Motion Judge

[152] The motion judge considered that the purpose underlying the enactment of s. 258.1(2) was to protect the privacy of those who are subject to the various testing procedures described in the section. But, the motion judge observed, the protection was not absolute. The results of each individual evaluation would be disclosed in open court in proceedings against the accused to whom the evaluation related. The exception in s. 258.1(4) authorized disclosure of anonymized results to others for statistical or research purposes.

[153] The motion judge concluded that s. 258.1(2) did not bar disclosure of an anonymized rolling log. He reached his conclusion for four reasons:

(i) the respondent's trial was for a listed offence and anonymized disclosure was consistent with the purpose of the section to protect the privacy of the persons evaluated;

(ii) a plain reading of the section, especially the use of the indefinite articles "a" and "an", rather than the definite article "the", in relation to both "investigation" and "proceeding", supported the conclusion that use and disclosure of results were not limited to the proceeding or investigation in which the evaluation was conducted;

(iii) limiting use and disclosure to proceedings against the person to whom they related would render the exception in s. 258.1(4) redundant; and

(iv) since the "obvious relevance" of the rolling log renders them disclosable under the first party regime, the contrary interpretation would violate the respondent's right to disclosure and to make full answer and defence.

The Arguments on Appeal

[154] The appellants begin with the proposition that first party disclosure is not absolute. It recognizes exceptions, even for material in the possession or control of the prosecuting Crown. There is no duty to disclose or right to receive material or information which is irrelevant, privileged or subject to another disclosure regime.

[155] In this case, the appellants continue, s. 258.1(2) is a statutory disclosure regime, albeit not one as detailed as some others, for example s. 278.1. Nonetheless, s. 258.1(2) is a self-contained exhaustive regime governing use or disclosure of, among other things, the results of drug recognition evaluations and analyses of bodily samples. As such, depending on the interpretation of the sweep of the provision, this may influence the nature and extent of the Crown's disclosure obligations in connection with rolling logs.

[156] The modern approach to statutory interpretation, the appellants say, requires that the provisions be read in their entire context, in their grammatical and ordinary sense and harmoniously with the scheme and object of the Act and the intention of Parliament. Although the motion judge stated this principle of statutory interpretation, he failed to apply it properly to the provision in issue.

[157] The appellants submit that s. 258.1(2) is an integral part of an elaborate and comprehensive scheme to combat the scourge of impaired operation of various conveyances, among them automobiles. The scheme includes various provisions for effective detection, investigation and prosecution of those suspected of impaired operation. The principal objective of s. 258.1 is to restrict use and disclosure of the results of enumerated tests and procedures to the purpose for which they were obtained. And that purpose is the detection, investigation and prosecution of the individual charged with an offence to which those tests and procedures relate.

[158] According to the appellants, it is a reasonable inference that Parliament sought to create a scheme that linked use and disclosure of evidence gathered by specific means to the prosecution of those to whom the evidence relates. To permit more widespread dissemination of the results is not only incompatible with this investigation-prosecution nexus, but also implicates significant privacy concerns of others in unrelated cases, which Parliament clearly had in mind in curtailing dissemination.

[159] The appellants say that the motion judge's conclusion that Parliament's objective in enacting s. 258.1 -- to protect personal privacy -- could be achieved by redacting personal identifiers from the log is an exercise in statutory nullification, not statutory interpretation. This interpretation is contrary to the very words of the provision Parliament has enacted.

[160] The motion judge's "plain reading" interpretation, the appellants submit, is also flawed. The real issue is what Parliament sought to achieve by the enactment, not whether it used an indefinite rather than a definite article. In addition, an analysis of the corresponding French text reveals the use of a definite article and supports the appellant's position that use and disclosure of the results of a DRE evaluation and toxicological analysis are limited to proceedings against the person tested. Such an interpretation has the added advantage of being consistent with the objective of the provision.

[161] The appellants also take issue with the motion judge's conclusion that their suggested interpretation, limiting disclosure of results to the person tested, would render the exception in s. 258.1(4) redundant. Not so, say the appellants. The results may reveal that no further investigation is required. That no offence was committed or that the results are inconclusive. Far from being redundant, s. 258.1(4) authorizes disclosure to the person evaluated in these circumstances.

[162] The final point the appellants make has to do with the motion judge's conclusion that any ambiguity in s. 258.1 must be resolved in favour of disclosure in light of the respondent's right to disclosure, an essential feature of the right to make full answer and defence. The appellants say that, properly interpreted, the section is not ambiguous and Canadian Charter of Rights and Freedoms values cannot be used to create an ambiguity where none exists.

[163] The respondent and intervenor support the conclusion of the motion judge that s. 258.1(2) does not bar disclosure of the rolling log, as anonymized, to an accused charged with drug-impaired operation.

[164] The respondent agrees, as she did in the courts below, that the purpose of s. 258.1(1) and (2) is to protect the personal privacy of persons who have been evaluated by a DRE or their bodily samples analyzed by a toxicologist. But she argues that the protection of personal privacy is not absolute. The evaluation and test results and samples are taken for use in open court. The information collected may be disclosed to provincial bodies who enforce and regulate highway traffic laws and for others for statistical or research purposes.

[165] According to the respondent, the fundamental divide between the parties is the extent to which s. 258.1(2) limits the right to disclosure to safeguard personal privacy. The respondent says that the section permits disclosure for any impaired operation proceeding but restricts disclosure for collateral uses outside the court system. The limitation is scarcely a statutory disclosure regime; rather, it is a specific prohibition on the use of samples and the disclosure of the results of analyses.

[166] The respondent contends that the motion judge's interpretation did not amount to statutory nullification. His interpretation that the section permitted disclosure in any enumerated impaired operation proceedings, but not incidental or outside disclosure, was grounded on the purpose and context of the provision, not that Parliament's privacy concerns could be side-stepped by redaction.

[167] In the respondent's submission, the motion judge's interpretation of the English language version of s. 258.1 was correct and not undermined by the text of the French language version, which formed no part of the submissions or analysis below. The principles of bilingual statutory interpretation involve two steps. The first involves an examination of the provisions to determine whether a discordance exists between them. If the sections can be read harmoniously, the harmonious interpretation prevails. On the other hand, where the different linguistic meanings cannot be reconciled, a court must rely on other statutory interpretation principles, at the same time keeping in mind that Canadian courts favour a purposive and contextual approach.

[168] When the sections are read as a whole in both official languages, no discordance arises. But even if there were ambiguity, the respondent contends, other principles of statutory interpretation support the broad meaning she advances. Principles like the presumption against absurd consequences, such as frustration of other parts of the DRE regime, as for example the obligation of a DRE to disclose the log to IACP every two years to maintain certification. Like the need for clear and unambiguous language to displace common law rules, for example an accused's right to disclosure of "obviously relevant" information. To adopt the appellant's interpretation would compromise this right, as the motion judge properly concluded.

The Governing Principles

[169] The issue here is one of statutory interpretation. What must be decided is whether disclosure of the rolling log is barred by the prohibition against disclosure of DRE evaluations in s. 258.1(2), or permitted by the exception in s. 258.1(2)(a).

The Statutory Provision

[170] Section 258.1(2) is described in the marginal note that accompanies it as "Unauthorized use or disclosure of results":

[171] Further exceptions to the prohibition in s. 258.1(2) appear in s. 258.1(3) and (4).

[172] A person who contravenes s. 258.1(2) commits a summary conviction offence under s. 258.1(5).

[173] Similar statutory schemes are found elsewhere in the Criminal Code for the results of analysis of bodily samples in connection with probation orders (s. 732.11(2) and (3)), conditional sentence orders (s. 742.31(2) and (3)) and peace bonds (s. 810.4(2) and (3)).

Disclosure Rights and Duties

[174] As we have already seen, even for material in the possession or control of the prosecuting Crown, an accused's right to disclosure and the reciprocal duty of the prosecuting Crown to disclose are not absolute. No accused is entitled to receive and no Crown required to disclose material or information which is irrelevant, privileged, or subject to a separate or discrete disclosure regime: R. v. Stinchcombe, supra, at pp. 336-40 S.C.R.; R. v. Dixon, at para. 20; Gubbins, at para. 18.

The Principles of Statutory Interpretation

[175] It is well settled that statutory interpretation cannot be founded on the wording of the legislation alone. Instead, the approach is that advocated by Elmer Driedger in his Construction of Statutes (2nd ed., 1983):

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

See Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, at para. 26; Rizzo & Rizzo Shoes Ltd. (Re), at para. 21; Wilson v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 47, at para. 18.

[176] This preferred approach recognizes the significant role that context must play when courts construe the written words of a statute. No statutory provision is an island in itself. Its words take their colour from their surroundings: Bell ExpressVu, at para. 27. All issues of statutory interpretation involve the fundamental question of what Parliament intended. To discover what Parliament intended, we look at the words of the provision, informed by its history, context and purpose: R. v. Mabior, 2012 SCC 47, at para. 20.

[177] It is also a well-established principle of statutory interpretation that the legislature, in this case Parliament, does not intend to produce absurd consequences. Absurdity occurs if the interpretation:

(i) leads to ridiculous or frivolous consequences;

(ii) is extremely unreasonable or inequitable;

(iii) is illogical or incoherent;

(iv) is incompatible with other provisions or with the object of the enactment; or

(v) defeats the purpose of the statute or renders some aspect of it pointless or futile.

See Rizzo, at para. 27.

[178] Other principles of statutory interpretation, such as the Charter values presumption, are only applied when the meaning of the provision is ambiguous. An ambiguity must be real in that the words of the provision, considered in their context, must be reasonably capable of more than one meaning. These meanings must be plausible, each equally in accord with the intentions of the statute: Bell ExpressVu, at paras. 28 and 29.

[179] Courts are also required to interpret legislation harmoniously with the constitutional norms enshrined in the Charter. For Charter values are always relevant to the interpretation of a disputed provision of the Criminal Code: Mabior, at para. 44; R. v. Rodgers, 2006 SCC 15, at paras. 18-19.

[180] The rules of bilingual statutory interpretation prescribe an approach that favours the common meaning that emerges from the two versions of the enactment. Where a discrepancy exists between two versions of the same text because one version is ambiguous but the other is not, the common meaning between the two is preferred. And where one version is broader than the other, the common meaning favours the more restricted or limited meaning: R. v. Daoust, 2004 SCC 6, at paras. 2, 26; Schreiber v. Canada (Attorney General), 2002 SCC 62, at para. 56.

[181] In interpreting bilingual statutes, we follow a two-step procedure.

[182] First, it is necessary to determine whether there is a discordance between the two versions. Where the two versions are irreconcilable, we invoke other principles to settle the meaning, favouring a contextual and purposive approach. We must determine whether there is an ambiguity in that either or both versions are reasonably capable of more than one meaning. Where one but not the other is ambiguous, we look to a meaning common to both in order to reconcile the two versions. If a common meaning can be found, it is this common meaning that is the version that is plain and not ambiguous. If neither or both of the two versions are ambiguous, the common meaning is usually the narrower version: Daoust, at paras. 27-29.

[183] Second, we must determine whether the common or dominant meaning, according to the ordinary rules of statutory interpretation, is consistent with Parliament's intent: Daoust, at para. 30.

The Principles Applied

[184] For reasons that follow, I would not give effect to this ground of appeal. I agree with the motion judge that the disclosure prohibition in s. 258.1(2) does not enjoin disclosure of the DRE's anonymized rolling log, which the respondent seeks in this case. In my respectful view, disclosure is permitted under the exception of s. 258.1(2)(a).

[185] The determination of whether s. 258.1(2) prohibits disclosure or whether s. 258.1(2)(a) authorizes it depends on the interpretation to be accorded to those provisions. That interpretation requires me to read the words Parliament has used in their entire context and in their grammatical and ordinary sense, harmoniously with the scheme and object of the legislation and the intention of Parliament.

[186] Section 258.1 is one of several provisions in Part VIII of the Criminal Code collected together under the heading "Motor Vehicles, Vessels and Aircraft". The sections create and punish offences involving conveyances. They authorize various investigative procedures to gather evidence and to assist in proof of those offences. They include provisions that permit the introduction of evidence collected by the authorized investigative procedures and, in some instances at least, state the effect of that evidence in proof of various offences. They authorize imposition of ancillary orders.

[187] Section 258.1(2) limits and defines the circumstances in which the results of drug evaluation tests conducted by a DRE may be used or disclosed. The section achieves this by enacting a general prohibition against use or disclosure and excepting certain use or disclosure from that prohibition. In s. 258.1(2)(a), the exception permits use or disclosure for investigations and proceedings for listed offences. In this respect, the provision is broader than the exception in 258.1(4), which allows for the results to be disclosed to "the person to whom they relate". While these provisions show that Parliament intended to safeguard the privacy of those who are subject to the tests, they also demonstrate that Parliament did not intend for privacy concerns to hamstring legal proceedings connected to these offences.

[188] The English text of s. 258.1(2)(a) begins with "in the course of an investigation of, or in a proceeding for, an offence" under a listed section of the Criminal Code. On its face, the words of the section do not limit the exception to the specific investigation or proceeding in relation to which the test results were first obtained. In this case, for instance, the section appears to permit disclosure not only of the respondent's own test results, but also those relating to others. What is required is only that the disclosure be made in the course of an investigation or proceeding described in the section. This ensures that the use or disclosure is offence-specific and does not extend to other unrelated crimes.

[189] The English text of s. 258.1(2)(a) refers to "an investigation" or "a proceeding" for "an offence". The French version refers to "dans le cadre de l'enquête relative à une infraction" and later "ou lors de poursuites intentées à l'égard d'une telle infraction". Although the French text uses the definite article -- "l'enquête" -- it also includes the indefinite article -- "une infraction" -- and the plural "poursuites", rather the singular "poursuite". In addition, it uses "de" rather than "des" with "poursuites", which refers to non-specified proceedings. Likewise, "telle infraction", rather than "cette infraction".

[190] As it appears to me, there is no discordance or incompatibility between the English and French text of the section. Neither limits use or disclosure of the results of a drug recognition evaluation to the specific case in which the evaluation was conducted. Therefore, the meaning common to both versions of the statute prevails: test results can be disclosed in any investigation or proceeding described in s. 258.1(2)(a). No provision of the Criminal Code prevents the disclosure of the rolling log.

[191] Moreover, as a person charged with an indictable offence, the respondent is entitled to disclosure of material and information in the possession or control of the prosecuting Crown, as well as "obviously relevant" information in the hands of other Crown entities. As we have already seen, the rolling log falls into this disclosure basket. This right to disclosure and reciprocal duty to disclose relevant, non-privileged information is an integral part of the respondent's right to make full answer and defence, a right that is constitutionally grounded. It is true that a statutory disclosure regime can displace the process laid down by Stinchcombe, but such a "regime" would require more than a bare prohibition on disclosure.

[192] The conclusion I have reached about the interpretation of s. 258.1(2)(a) is one that ensures that the provision is consistent with the constitutionally protected right of an accused to disclosure, an incident of the right to make full answer and defence. In absence of a statutory prohibition on the disclosure of the rolling log, the Crown can comply with its constitutional obligation to disclose the log to the respondent as part of first party disclosure.

[193] The obligation is to disclose relevant information. The identities of others who have been tested are not relevant. The Crown is therefore entitled to edit those identities before disclosing the rolling logs.

Conclusion

[194] For these reasons, I would dismiss the appeals.

Appeal dismissed.

Notes

1 These provisions were repealed by S.C. 2018, c. 21, s. 14. In somewhat different form, the provisions are now s. 320.36(2) and (4).

2 However, the scope of permissible arguments on certiorari may have been more limited than was allowed by the motion judge in this case. A third party record-holder is generally entitled to challenge the disclosure order even for errors of law on the face of the record within the trial judge's jurisdiction. However, the interests of the OPP in this case are closely aligned with those of the Crown, as evidenced by the fact that the OPP has relied heavily on the Crown's arguments in this appeal. Whether a third party whose interests are well represented by a first party should also have expanded access to certiorari was not an issue argued before this court. I would only note that, as a practical matter, the OPP's expanded third-party standing has allowed the Crown to fully relitigate the trial judge's ruling on the rolling log before the superior court, even on non-jurisdictional issues. Had the Crown prevailed before the trial judge, the accused would not have had a similar opportunity. For the present purposes, I assume, without deciding, that the OPP was able to invoke certiorari in this way.

End of Document

Her Majesty the Queen et al. v. Stipo

Case Summary

Facts

Authorities

Counsel

Judgment

Background Facts

The Accident

The Disclosure Application

The Background Facts

The Accident

The ASD Demand

The DRE Demand

The Demand for a Sample

The Pre-Trial Disclosure

The Disclosure Application

The Training Manual

The Rolling Logs

The Curriculum Vitae

The Decision of the Trial Judge

The Decision of the Motion Judge

The Grounds of Appeal

A Preliminary Issue: The Availability of Certiorari

The Positions of the Parties

The Governing Principles

The Principles Applied

Ground #1: The First Party Disclosure Issue

The Rolling Logs

The Arguments on Appeal

The Governing Principles

The Disclosure Regimes

The DRE

The Admissibility of DRE Evidence

Section 657.3 of the Criminal Code

The Principles Applied

The Relevance of the Rolling Log

The Applicable Disclosure Regime

Possession or Control of the Log

The Log as "Fruits of the Investigation"

The Log as "Obviously Relevant"

First: The Relevance Requirement Itself

Second: Prior Experience and Present Reliability

Third: The Impact of the DRE's Evidence

Fourth: The Curriculum Vitae

Ground #2: The Relevance of the Rolling Log

The Reasons of the Motion Judge

The Arguments on Appeal

The Governing Principles

The Principles Applied

Ground #3: The Disclosure Prohibition

The Decision of the Trial Judge

The Decision of the Motion Judge

The Arguments on Appeal

The Governing Principles

The Statutory Provision

Disclosure Rights and Duties

The Principles of Statutory Interpretation

The Principles Applied

Conclusion

Notes

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R. v. T.S., 2021 ONCJ 299

Rusinek & Associates Inc. v. Arachchilage, 2021 ONCA 112

R. v. Navaratnam, 2021 ONCJ 28

R. v. Mansour, 2019 ONSC 4150

R. v. Amarelo-Gemus, 2019 ONSC 2675

Judges

Counsel

Parties

Areas of Law