Court File and Parties
Court File No.: CR-16-S8941 CR-16-S8928 CR-16-A13065
Date: 2018/10/11
Ontario Superior Court of Justice
Between:
Her Majesty the Queen Applicants – and – Ottawa Police Service – and – Kyle Branson Evan Branson Christopher Mansour Respondents
Counsel: Dallas Mack for Her Majesty the Queen Lara Malashenko for the Ottawa Police Service Jon Doody for Kyle Branson and Christopher Mansour Ronald G. Guertin for Evan Branson
Heard: May 18 and July 9, 2018 (at Ottawa)
Reasons for Decision
O’Bonsawin J.
Background
[1] Mr. Kyle Branson, Mr. Christopher Mansour and Mr. Evan Branson (“Respondents”) are charged with impaired operation or care or control, contrary to s. 253(1)(a) of the Criminal Code of Canada, R.S.C. 1985, c. C-46 (“Code”). In each case, the allegation is that the Respondent was impaired by a drug or drugs. At trial, the Crown intends to call a drug recognition expert (“DRE”). It is expected that the DRE would testify in relation to an evaluation performed, pursuant to s. 254(3.1) of the Code, and a bodily substance sample obtained, pursuant to s. 254(3.4) of the Code. The DRE would also provide an opinion, as an “evaluating officer” within the meaning of s. 254 of the Code, on whether the Respondent (in the respective case) was impaired by a drug in his ability to operate a motor vehicle and what class of drug was the cause of his impairment.
[2] The documents at issue in these cases are the DRE Drug Influence Evaluation form commonly referred to as the “face sheet” and the DRE Drug Influence Evaluations – Rolling Log, commonly referred to as the “rolling log”. Face sheets contain significant personal information such as name, age, date of birth, sex, illness, and physical disabilities. The rolling log includes the relevant system number, date, general occurrence number, name of the accused, opinion of the DRE (results of the DRE evaluation of the prior subject, whether the subject was impaired and by what class of drug(s)), the toxicology results (results of the toxicological analysis of the bodily substance (urine) taken of the other subject(s)), and the witness/officer. A rolling log is a record kept by a DRE of prior evaluations performed on other persons and the toxicological analyses of those persons’ bodily substance samples.
[3] Prior to trial, each Respondent sought disclosure of the DRE rolling log. The Crown refused to provide the rolling log as disclosure. It was the Crown’s position that the disclosure was prohibited by s. 258.1 of the Code, or in the alternative, the rolling log was a third party record and not likely relevant.
[4] Each Respondent brought an application seeking an order requiring the Crown to disclose the rolling logs. Their position was that the rolling logs are relevant as a tool that they can use to cross-examine the DRE and challenge his reliability. Thus, by reference to prior cases that appear to be inaccurate, the Respondents can challenge the accuracy of the DRE in the present cases.
[5] In the matter of Kyle Branson, the Ottawa Police Service (“OPS”), the record holder, was not served. Counsel for the OPS appeared. However, Wadden J. denied standing to the OPS.
[6] In the case of Christopher Mansour, the OPS was not served. On day one of the Application, with the OPS in attendance, the Crown asserted that the OPS was entitled to standing. Dorval J. heard submissions from the Respondents and the Crown only on the issue of whether the record was first party or third party. She ruled on that day, March 21, 2018, that the record was third party. The further date April 19, 2018 was set to hear the motion with an Order that OPS be served and have standing.
[7] In the case of Evan Branson, the OPS appeared and made submissions along with the Crown.
[8] At each motion, the Crown called a DRE instructor: DRE Jellinek in the Evan Branson and Kyle Branson matters and DRE Froats in the Christopher Mansour matter. The Crown also filed an affidavit from a Centre of Forensic Sciences (“CFS”) toxicologist and in the case of Evan Branson and Christopher Mansour, led viva voce evidence from that toxicologist. In each case, the Crown advanced the position outlined above.
[9] In the matter of Kyle Branson, Wadden J. ordered the Crown to disclose the rolling log. He held that disclosure was not barred by s. 258.1 of the Code, that s. 258.1(2)(b) permitted disclosure, and that the rolling log was “potentially” relevant and thus subject to disclosure. In relation to the interpretation issue, Wadden J. relied, in part, on R. v. Stipo, 2017 ONSC 5208, 18 M.V.R. (7th) 72.
[10] In the matter of Christopher Mansour, Dorval J. ordered the Crown to disclose the rolling log. She held that it was not barred by s. 258.1 of the Code and that it was likely relevant. In relation to the relevance issue, she relied on Stipo and the principle of judicial comity.
[11] In the matter of Evan Branson, Hoffman J. ordered the Crown to disclose the rolling log and the historical face sheets if they were not “signed off”. He held that it was not barred by s. 258.1 and that both ss. 258.1(2)(a) and (b) permitted disclosure, In addition, the records were likely relevant. In his ruling, Hoffman J. cited and relied upon both Stipo and Wadden J.’s decision in the Kyle Branson matter.
[12] The Crown brings a Certiorari Application in each of the Respondent’s matters and seeks the following:
a) an Order to quash the disclosure orders from Wadden, Dorval and Hoffman JJ.;
b) in the alternative, an Order to quash the disclosure order on the basis that the rolling log is a third party record and not likely relevant; or
c) in the further alternative, an Order in relation to Kyle Branson’s matter that a new hearing be held at which the OPS is to be served and have standing.
Position of the Parties
The Crown
[13] The Crown argues that each of the application judges erred in ordering disclosure of the rolling log (and the face sheets in the case of Evan Branson).
[14] Firstly, the application judges exceeded their jurisdiction in ordering disclosure in contravention of s. 258.1 of the Code. That provision prohibits disclosure or use of the rolling log. The Orders, therefore, were made in excess of the Court’s jurisdiction.
[15] Secondly, the application judges exceeded their jurisdiction in ordering the Crown to disclose a record which is a third party record, not in the possession or control of the Crown, and which was not likely relevant.
[16] In the case of Kyle Branson, Wadden J. also erred in refusing to grant the OPS standing. Consequently, the Crown submits, he breached the principles of natural justice in failing to permit the record holder an opportunity to be heard.
[17] It is the Crown’s position that a certiorari is an available procedure that permits this Court to issue an order to quash the disclosure order made by the application judge (Cunningham v. Lilles, 2010 SCC 10, [2010] 1 S.C.R. 331 at paras. 55-58; R. v. Black, 2011 ABCA 349, 515 A.R. 319 at para. 21; R. v. Oleksiuk, 2013 ONSC 5258, 55 M.V.R. (6th) 107 at paras. 32-36; R. v. Jackson, 2015 ONCA 832, 128 O.R. (3d) 161 at paras. 35, 42-43; A.(L.L.) v. B.(A.), [1995] 4 S.C.R. 536 at paras. 27-28).
OPS
[18] The OPS argues that the application judges committed a jurisdictional error by ordering disclosure of the DRE rolling logs and face sheets which are beyond the control and possession of the Crown. The records are in the possession of the records holder, the OPS. Consequently, they are third party records, not likely relevant, and disclosure is not in the interest of justice.
[19] Wadden J. committed a further jurisdictional error in the matter of Mr. Kyle Branson by breaching the rules of natural justice in failing to order service of the application record upon the OPS, the records holder, pursuant to the O’Connor regime.
[20] Lastly, the OPS submits the application justices exceeded their jurisdiction by ordering the disclosure of the rolling logs and face sheets despite express language to the contrary in s. 258.1 of the Code.
The Respondents
[21] Counsel for Mr. Kyle Branson (“K. Branson”) and Mr. Christopher Mansour (“Mansour”) argue there is a point of clarification required. In each of the three proceedings, the Respondent sought disclosure of an anonymized copy of the DRE rolling log.
[22] Mansour submits all the application justices came to the same result. They all had different reasons. All their reasons are valid, and any of them are sufficient.
[23] K. Branson concedes that Wadden J. erred in not granting the OPS standing. He notes, however, the submissions of the OPS in both the Evan Branson and Christopher Mansour matters, and in this Court, did not differ in any way from the submissions of the Crown. The OPS has not made any submission in any of the other two proceedings that were not made before Wadden J. in the Kyle Branson matter. Even if the OPS had a submission to make that has not already been made, they have standing before this Court and can make it now.
[24] K. Branson submits the decision to have these three proceedings heard together was made, in part, to have one ruling that governed all three proceedings, and to move all three proceedings along expeditiously with concerns for each respondent’s s. 11(b) right. Sending Kyle Branson back before Wadden J. to allow submissions by the OPS would disregard the purpose of this combined hearing. Nor would it be in keeping with the recommendation of the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, to avoid inefficient practices.
[25] K. Branson argues this issue was first before this Court in R. v. Stipo, at which time Schreck J. ordered the disclosure of the rolling logs. Therefore, the principle of judicial comity applies and the application judges in these matters were required to follow Schreck J.’s decision.
[26] Lastly, K. Branson argues the rolling logs are relevant to whether the DRE officer’s opinion should be accepted by the trial judge. In addition, s. 258.1 of the Code does not prohibit disclosure.
[27] With regards to Evan Branson (“E. Branson”), he makes the same arguments as Mansour.
Analysis
The DRE and the Regime Surrounding Rolling Logs
[28] Before I begin my analysis, I must note that I was advised on the first date of the hearing that the appeal in the Stipo matter proceeded before the Court of Appeal during the same week the parties appeared before me. In addition, the three decisions in this matter were provided to the Court of Appeal, however, the Court has yet to release its decision.
[29] It is important to explain the role of a DRE and the regime surrounding the rolling logs. The Drug Evaluation and Classification Program (“DECP”), also commonly referred to as the “DRE program”, has been in existence for over three decades, tracing its routes back to Los Angeles, California, in the 1970s. In the 1980s, the International Association of Chiefs of Police (“IACP”) was tasked with developing a system of accepted standards that led to the International Standards of the DECP. The Executive Summary of the DEC Program Technical Advisory Panel of the IACP Highway Safety Committee states “[t]hese standards, when adopted by other countries, will be administered pursuant to their political structure” (The DEC Program Technical Advisory Panel of the IACP Highway Safety Committee, “International Standards of the Drug Evaluation and Classification Program” Executive Summary (Revised October 2016) at p. 5).
[30] In 2008, the Canadian Parliament enacted Bill C-2, An Act to amend the Criminal Code and to make consequential amendments to other Acts, 2nd Sess., 39th Parl., 2007, (assented to 28 February 2008), SC 2008, c. 6. The Bill included amendments to Code provisions and led to the creation of the Evaluation of Impaired Operation (Drugs and Alcohol) Regulations, SOR/2008-196 (“Regulations”), related to drug impaired driving. The Regulations include a 12-step evaluation and the identification of evaluating officers as certified DREs accredited by the IACP. McLachlin C.J. provided the following in R. v. Bingley, 2017 SCC 12, [2017] 1 S.C.R. 170 at paras. 9, 24-27, regarding the DRE structure:
9 To meet the need to enforce the law against drug-impaired driving, Parliament set up a regime to test for drug impairment in 2008. The centrepiece of the regime is a 12-part evaluation for drug impairment, established by the Regulations, to be administered by police officers called DREs. 1 DREs receive special training and certification. Section 254(3.1) of the Criminal Code provides law enforcement, for the first time, with the power to compel a person to submit to a drug recognition evaluation when there are reasonable grounds to believe that a person has driven while impaired by drugs or by a combination of drugs and alcohol. If the 12-step evaluation administered by a DRE provides him or her with reasonable grounds to believe that the person is impaired by a drug, s. 254(3.4) allows the police to take tests of oral fluid, urine or blood, to determine whether the person in fact has drugs in his or her body.
24 In this case, the reliability of the 12-step evaluation comes from the statutory framework itself. Parliament has determined that the 12-step evaluation performed by a trained DRE constitutes evidence of drug impairment. It may not be conclusive, but it is evidence beyond the experience and knowledge of the trier of fact.
25 … The Regulations set out a uniform evaluative framework that a DRE must follow in order to reach a conclusion regarding drug impairment for the purposes of s. 254(3.1). Parliament is entitled to establish such a framework, and in doing so, establish that the 12-step drug evaluation is sufficiently reliable for the purposes of determining impairment. No further evaluation of the reliability of the steps mandated by the Regulations is required. Any challenge to the underlying effectiveness of the evaluation would require a challenge to the legislative framework itself.
26 … Parliament has established, through the adoption of the Regulations, that the 12-step drug evaluation is sufficiently reliable for the purpose of a DRE's determination of impairment under s. 254(3.1). The scope of a DRE’s expertise is limited to that determination, and it is only for the purpose of making that determination that Parliament has established the 12-step drug evaluation’s reliability.
27 … The DRE is established by Parliament to possess special expertise outside the experience and knowledge of the trier of fact. He is thus 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). His expertise has been conclusively and irrebuttably established by Parliament.
[31] For further clarification, McLachlin C.J. added the following as a footnote to para. 9 of her decision:
The Regulations are based on the procedure set out by the International Association of Chiefs of Police (“IACP”), and DREs must be accredited by that organization: Regulations, s. 1. The procedure set out by the IACP was referred to in legislative debates that led to the adoption of s. 254(3.1) of the Criminal Code as the intended drug evaluation scheme: see House of Commons, Standing Committee on Justice and Human Rights, Evidence, No. 72, 1st Sess., 39th Parl., May 30, 2007, at pp. 1-2; House of Commons, Legislative Committee on Bill C-2, Evidence, No. 3, 2nd Sess., 39th Parl., October 31, 2007, at pp. 7-8.
[32] According to my review of Bill C-2, the Crown properly argued that Parliament did not adopt the IACP standards. They are not set out in Canadian legislation. Parliament expressly created provisions that distinguish the Canadian regime from the IACP regime, by creating the 12-step test in s. 1 of the Regulations and s. 258.1 of the Code. The 12-step test in the Code is different, albeit with minor variations, from the IACP 12-step test.
[33] Per s. 254(1) of the Code, an “evaluating officer” means a peace officer who is qualified under the regulations to conduct evaluations under subsection (3.1). Sub-section 254(3.1) permits evaluating officers to perform evaluations when they have reasonable grounds to believe a person is committing, or has committed within the previous three hours, an offence under s. 253(1)(a), due to the consumption of a drug or alcohol. Sub-section 254(3.4) provides that, upon completion of the evaluation, if the DRE has reasonable grounds to believe the person is impaired by a drug and/or alcohol, he/she may demand and obtain a bodily sample (I was advised that in Ottawa, it is urine) for the purpose of determining whether the person has a drug in his/her body.
[34] Section 1 of the Regulations states that “[a]n evaluating officer must be a certified drug recognition expert accredited by the International Association of Chiefs of Police”. Section 3 of the Regulations sets out the 12-step test to be conducted during an evaluation under subsection 254(3.1) of the Code. The DREs follow the 12-step procedure to determine which category of drugs is causing the driver to be impaired.
[35] In order to become certified as a DRE, he/she “must satisfactorily complete a minimum of 12 evaluations, identifying subjects under the influence of at least three drug categories. All three must also act as the evaluator for at least six evaluations” (Drug Recognition Expert Rolling Logs, Constable Tommy Jellinek, p. 2). The DRE can only be certified where the opinion regarding the drug category is supported by toxicology results 75% of the time or in at least seven of the nine samples submitted for certification. After certification, the DRE must complete a face sheet and narrative report that are sent to the DRE Instructor/Supervisor who then reviews and signs off on it.
[36] In Bingley, the Supreme Court concluded that s. 254(3.1) of the Code provides for the admissibility at trial of opinion evidence of the DRE (paras. 28-29). DREs are properly qualified experts as per R. v. Mohan, [1994] 2 S.C.R. 9, subject to the other criteria being met: relevance, necessity, and absence of any other exclusionary rule (at para. 17). DREs are permitted, based on their evaluation, to provide an opinion as an expert in court on whether a person’s ability to operate a motor vehicle is impaired by alcohol or a drug (Bingley at paras. 28-31).
[37] It is clear from Bingley at para. 32, that the DRE can be cross-examined regarding his/her opinion. The Defence can test and challenge the DRE’s opinion and the judge will then determine the appropriate weight to be given to the DRE’s evidence. The Supreme Court in Bingley wrote:
32 That Parliament has established the reliability of the 12-step drug evaluation by statute does not hinder the trier of fact’s ability to critically assess a DRE’s conclusion of impairment or an accused person's right to test that evidence. Cross-examination of the DRE may undermine his or her conclusion. Evidence of bias may raise doubt about the officer’s conclusion. The officer may fail to conduct the drug recognition evaluation in accordance with his or her training. A DRE may draw questionable inferences from his or her observations. Bodily sample evidence obtained under s. 254(3.4) may refute the DRE’s assessment, as may evidence of bystanders or other experts. It will always be for the trier of fact to determine what weight to give a DRE’s opinion. Any weight given to a DRE’s evidence will necessarily respect the scope of the DRE’s expertise and the fact that it is not conclusive of impairment.
[38] In addition, the urine obtained by the DRE is sent to the CFS and the toxicologist normally testifies about the results of the urine tests.
Certiorari
[39] Certiorari is available to the Crown and permits this Court to issue an order to quash the disclosure order made by the application judge. The Respondents did not disagree that a certiorari is an available avenue in these matters.
[40] With regards to third parties, they “can invoke two procedural avenues to appeal court orders affecting them before the end of the trial…a third party may challenge [an order of a provincial court judge] through an enlarged writ or an order in lieu of certiorari” (Jackson at para. 38).
[41] With respect to the scope of a certiorari, the Alberta and the Ontario Courts of Appeal have concluded that the Crown can seek the discretionary order of certiorari for both errors of jurisdiction and errors of law on the face of the record (R. v. Black, 2011 ABCA 349, [2011] A.J. No. 1291 at paras. 22-28; Jackson at para. 39).
[42] In R. v. Mullings, 2012 ONSC 2910, [2012] O.J. No. 2199 at para. 29, Spies J. reviewed what constitutes an error on the face of the record. He provided three general principles derived from the case law on this issue:
The error does not need to be merely technical in nature …
The error does not need to be blatant on the face of the record. The failure to consider a relevant factor or alternative measure is not apparent on the face of the record (since they are omissions), but it may nevertheless be characterized as an error of law on the face of the record …
The issuance of an order that is inconsistent with the governing law constitutes an error of law on the face of the record.
Interpretation of Section 258.1 of the Code
[43] I will review the structure of s. 258.1 of the Code. This section reads as follows:
Unauthorized use of bodily substance
258.1 (1) Subject to subsections 258(4) and (5) and subsection (3), no person shall use 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 medical samples that are provided by consent and subsequently seized under a warrant, except for the purpose of an analysis that is referred to in that provision or for which the consent is given.
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 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.
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.
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.
Offence
(5) Every person who contravenes subsection (1) or (2) is guilty of an offence punishable on summary conviction.
[44] Section 258.1 in French reads as follows:
Utilisation des substances corporelles
258.1 (1) Sous réserve du paragraphe (3) et des paragraphes 258(4) et (5), il est interdit d’utiliser les substances corporelles prélevées sur une personne au titre des alinéas 254(2)b) ou c), des paragraphes 254(3), (3.1), (3.3) ou (3.4) ou de l’article 256 ou prélevées avec son consentement à la demande d’un agent de la paix ou les échantillons médicaux prélevés avec son consentement et subséquemment saisis en vertu d’un mandat à d’autres fins que celles des analyses qui sont prévues par ces dispositions ou celles auxquelles elle a consenti.
Utilisation ou communication des résultats
(2) Sous réserve des paragraphes (3) et (4), il est interdit d’utiliser, ou de communiquer ou de laisser communiquer, les résultats des épreuves de coordination des mouvements effectuées au titre de l’alinéa 254(2)a), les résultats de l’évaluation effectuée au titre de l’ alinéa 254(3.1)a), les résultats de l’analyse de substances corporelles prélevées sur une personne au titre des alinéas 254(2)b) ou c), des paragraphes 254(3), (3.3) ou (3.4) ou de l’article 256 ou prélevées avec son consentement à la demande d’un agent de la paix ou les résultats de l’analyse des échantillons médicaux prélevés avec son consentement et subséquemment saisis en vertu d’un mandat, sauf:
a) dans le cadre de l’enquête relative à une infraction prévue soit à l’un des articles 220, 221, 236 et 249 à 255, soit à la partie I de la Loi sur l’aéronautique, soit à la Loi sur la sécurité ferroviaire pour violation des règles ou règlements concernant la consommation d’alcool ou de drogue, ou lors de poursuites intentées à l’égard d’une telle infraction;
b) en vue de l’application ou du contrôle d’application d’une loi provinciale.
Exception
(3) Les paragraphes (1) et (2) ne s’appliquent pas aux personnes qui, à des fins médicales, utilisent des échantillons, ou utilisent ou communiquent des résultats d’analyses effectuées à des fins médicales, qui sont subséquemment saisis en vertu d’un mandat.
Exception
(4) Les résultats des épreuves, de l’évaluation ou de l’analyse mentionnées au paragraphe (2) peuvent être communiqués à la personne en cause et, s’ils sont dépersonnalisés, à toute autre personne à des fins de recherche ou statistique.
Infraction
(5) Quiconque contrevient aux paragraphes (1) ou (2) est coupable d’une infraction punissable sur déclaration de culpabilité par procédure sommaire.
[45] In R. v. Alex, 2017 SCC 37, [2017] 1 S.C.R. 967 at para. 24, the Supreme Court of Canada confirmed the modern approach to statutory interpretation. The Court stated:
The modern approach to statutory interpretation is now well established. It requires that the words of a provision 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”: Bell ExpressVu Ltd. Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26, quoting E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87.
[46] In Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, the Supreme Court confirmed that “the legislature does not intend to produce absurd consequences” (at para. 27). For example, if the interpretation leads to ridiculous or frivolous consequences, if it is extremely unreasonable or inequitable, if it is illogical or incoherent, or if it is incompatible with other provisions or with the object of the legislative enactment, it can be deemed absurd. The Supreme Court also agreed that 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” (at para. 21).
[47] In addition, Schreck J. notes in Stipo that “[w]here a statutory provision is subject to differing, but equally plausible, interpretations, the provision should be interpreted ‘harmoniously with the constitutional norms enshrined in the Charter’”: R. v. Mabior, 2012 SCC 47 (S.C.C.) at para. 44; R. v. Clarke, 2014 SCC 28 (S.C.C.) at paras.12-15” (Stipo at para. 47).
[48] Firstly, I agree with the Crown that the text and language in ss. 258.1(2)(b), (3) and (4) are not available to the Respondents in this matter. In these matters, the rolling logs cannot be disclosed “for the purpose of the administration or enforcement of the law of a province”, the Respondents are not “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” and they are not “for statistical or other research purposes”.
[49] However, the meaning of the language in s. 258.1(2)(a) differs. The bodily substance taken cannot be provided without the consent of the person except “in a proceeding”. In French, it is “lors de poursuites intentées”. In English, the text does not state “in the proceeding” thus referring to the person listed in ss. 258(2). The same can be said for the French version, it does not state “lors de la poursuite intentée”. Of the three application judges, Dorval J. is the only one who reviewed both the English and French versions of s. 258.1. I agree with Dorval J.’s interpretation in the Mansour matter about the use of the plural in “poursuites” which denotes more than one proceeding (at para. 20). If Parliament had intended for the “poursuite” to be directly related to “une personne” in s. 258.1(2), it would have made the noun “poursuite” rather than the plural “poursuites”.
[50] In addition, I agree with Dorval J. that the use of “telle infraction” and “such an offence” cannot be interpreted as “cette infraction” or “this offence”. I also concur with Dorval J.’s following finding:
The former is an adjective associating matters of a similar nature, whereas the latter is demonstrative adjective referring to the word it qualifies. The word cette would therefore have been used if the legislator had wanted to specify the proceeding related to that investigation. The wording of the French version of the section is therefore consistent with the interpretation of both Justice Schreck and Justice Wadden (at para. 21).
[51] After the hearing, the Crown brought to my attention the very recent Supreme Court decision in British Columbia v. Philip Morris International, Inc., 2018 SCC 36, 11 B.C.L.R. (6th) 1. This matter relates to whether or not anonymized disclosure of certain health care records and documents are compellable. This matter involves a claim by the province of British Columbia against tobacco manufacturers to recover the costs of health care benefits related to disease caused or contributed to by exposure to a tobacco product. I agree with the Respondents that this decision is not relevant to the certiorari applications before me. The legislation in question is a provincial legislation creating a unique and novel cause of action for civil liability. As correctly noted by the Respondents, the Charter protected rights of being able to make full answer and defence do not apply to trials in civil actions as per this provincial statute. Therefore, provincial legislation permitting a civil action for the recovery of costs related to health care benefits is not analogous to the Code.
[52] Recalling the Supreme Court’s comments about legislative interpretation, s. 258.1 must be read in context and harmoniously with the scheme of the Code and with the constitutional norms enshrined in the Charter. As we are aware, there is a presumption of the Respondents’ innocence. These Respondents must be permitted to make full answer and defence. The Code must be interpreted in this spirit. To hold that s. 258.1 as a whole is a complete bar to the disclosure of the rolling logs and face sheets would be contrary to the spirit of the Code.
First or Third Party Records
[53] The next issue to be reviewed is whether the rolling logs and face sheets are first or third party records. Watt J. in Jackson provides guidance on this issue. Watt J. explained that the first party Stinchcombe disclosure regime relates only to material regarding the accused’s case in the possession or control of the prosecuting Crown entity. This material is commonly known as the “fruits of the investigation” (Jackson at para. 82). As Watt J. noted, “[i]n its normal, natural everyday sense the phrase ‘fruits of the investigation’ posits a relationship between the subject-matter sought and the investigation that leads to the charges against an accused. It refers to information acquired by means and in consequence of that investigation” (Jackson at para. 93).
[54] Watt J. further describes the third party O’Connor production regime. “[T]hird parties are under no obligation and have no duty to assist the parties in litigation or to disclose information to them” (Jackson at para. 83). There are two stages to the third party regime. First, it is initiated by the service of a subpoena duces tecum on the third party who has custody of the records in addition to a notice of application and supporting material on the record holder and the Crown. Second, the supporting material must establish the relevance of the requested material including: “i. the unfolding of the narrative; ii. the credibility of a witness; iii. the reliability of other evidence; or iv. the competence of a witness to testify” (Jackson at para. 84).
[55] In these cases, it is clear that the rolling logs and the face sheets are not first party records; they are third party records in the custody and control of the OPS. The rolling logs and face sheets are created by the DRE in relation to other persons/accused. They are not related to the investigation of the Respondents in these matters. As noted by Watt J., these third party records “have no association with the offence with which the respondent was charged and for which he faced trial” (Jackson at para. 95).
[56] The last issue is whether or not the rolling logs and face sheets that I have deemed as third party records are “likely relevant” and capable of satisfying the O’Connor regime. As the Court of Appeal stated in Jackson:
Relevance is relative … Relevance is also contextual. It is assessed in the context of the entire case and the positions of counsel. Relevance demands a determination of whether, as a matter of human experience and logic, the existence of a particular fact directly or indirectly, makes the existence or non-existence of another fact more probable than it would be otherwise (at paras. 121-122).
[57] The Crown raises a number of issues with the findings of relevance by the application judges. The Crown argues that the rolling logs do not reveal anything about the historical accuracy of the DRE calls. The apparent discrepancies may be explained in many ways. I agree with the Respondents that while any one discrepancy can be explained, the rolling logs’ overall verification serve as a measure of proficiency. In Stipo, Schreck J. addressed this very issue:
[t]he 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 (at para. 30).
[58] In their decisions, Dorval and Hoffman JJ. support this finding by Schreck J. Relevance does not arise from any single entry on the rolling log, but rather from the rolling logs viewed as a whole.
[59] Furthermore, I agree with Schreck J.’s comments at para. 33:
It must be noted that the potential relevance of the rolling logs does not necessarily benefit only the defence. For example, if a DRE’s rolling log demonstrates that his opinion was verified by toxicological analyses 95% of the time, it would be open to the Crown to invite the court to rely on this in determining what weight to give to the DRE’s opinion.
[60] This “measure of proficiency” is but one justification for the relevancy of the rolling logs. It is also clearly relevant because the IACP requires that the rolling log be maintained as part of the DRE’s curriculum vitae because it is a measure of his/her credibility. This was one of the factors of relevance relied upon by Wadden and Dorval JJ.
[61] The second issue raised by the Crown in its arguments is that to assess whether the DRE was “accurate” or not in the prior call, the judge would need to assess the entire record in the prior matter. The Respondents submit that this is simply not so. I disagree with the Crown’s position. The “measure of proficiency” relevancy is upon the rolling logs as a whole. I agree with the Respondents that the Court should not allow for a mini-trial on each previous call. The record as a whole has value as a measure of proficiency.
[62] The third issue raised by the Crown is that the information on the rolling log is not probative of the DRE’s current call. The assessment of the current call falls to a consideration of the information available about the current matter. The Respondents submit this is not so. They refer me to Bingley at para. 32 which is quoted above.
[63] I agree with the Respondents’ submission that in Bingley, the Supreme Court made it clear that any number of issues may impact the judge’s assessment of the accused. Schreck J. in Stipo and Blacklock J. in R. v. Mohan, 2018 ONSC 4227, have found that the measure of proficiency offered by the rolling logs is an issue that is relevant.
[64] The Crown also argues that Wadden J.’s use of the phrase “potentially relevant evidence pertaining to the credibility or reliability” demonstrates that he used the wrong standard in considering the third party record. However, while Wadden J. does not quote para. 50 of R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66, he does cite this paragraph reference.
[65] Wadden J. held that since the DRE rolling logs are relevant to the credibility and reliability of the DRE, the Crown has a duty to inquire. I agree with the Respondents’ submission that Wadden J. did not limit the relevancy of the rolling logs to simply being “potentially relevant” as suggested by the Crown. Rather, Wadden J. states that since the DRE rolling logs are relevant they also clearly meet the lower “potentially relevant” standard indicated in McNeil. It is clear that Wadden J. found that the rolling logs were third party records that ought to be disclosed through the normal first party disclosure methods as per McNeil.
[66] Dorval J. also granted disclosure as third party documents. Hoffman J. found that the Crown was obligated to disclose them as per its Stinchcombe obligations.
Conclusion
[67] Based on the preceding reasons, I conclude that the application judges did not exceed their jurisdiction and they were not barred from ordering the disclosure of the rolling logs and face sheets as per s. 258.1 of the Code. Furthermore, I find that the rolling logs and face sheets are third party records and they are relevant. Consequently, I do not quash the disclosure orders of Wadden, Dorval and Hoffman JJ. as requested by the Crown.
[68] Lastly, it was conceded by the Respondents that Wadden J. committed an error when he refused to grant standing to the OPS. In Jordan, the Supreme Court found that we should avoid inefficient practices. It is not an appropriate use of judicial resources to order a new hearing to be held which the OPS is to be served and have standing, especially in light of the 11b) implications in these matters. The result would be the same. Therefore, I do not order a new hearing as requested by the Crown.
Justice M. O’Bonsawin