Court File and Parties
COURT FILE NO.: 17-20018 DATE: 2019/04/29 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Applicant – and – CASSANDRA AMARELO-GEMUS and SCOTT GIACOMIN Respondents
Counsel: Dallas Mack/Kerry McVey, for the Applicant Crown Lara Malashenko, for the Applicant Ottawa Police Services Vanessa Wynn-Williams, for the Applicant RCMP
Jon Doody, for the Respondents
HEARD: December 6 and 10, 2018 and further written submissions January 11 and 22, 2019 and March 8 and 14, 2019
Reasons for Decision
Beaudoin J.
[1] The RCMP and the Crown brought applications in the matter of R. v. Amarelo-Gemus (Court File no. 17-20018) by way of writ of certiorari to quash a ruling made by Kehoe J. of the Ontario Court of Justice on August 31, 2018, requiring disclosure of certain records, namely DRE rolling logs.
[2] The Ottawa Police Services and the Crown brought similar applications in the matter of R. v. Giacomin (Court File no. 17-2005) to quash the same ruling made by Dumel J. of the Ontario Court of Justice ordering the disclosure of police records namely, DRE rolling logs.
[3] This decision applies to both of these applications.
Background
[4] In R. v. Giacomin, Scott Giacomin was arrested on January 30, 2017, for drug impaired driving. At the Ottawa Police Station, Giacomin submitted to a Drug Recognition Evaluation conducted by Cst. Grison, a Drug Recognition Expert (“DRE”). Cst. Grison concluded that Giacomin was impaired by cannabis and was unable to safely operate a motor vehicle. He demanded that the Applicant provide a urine sample.
[5] A toxicological analysis detected the following drugs in the Applicant’s urine sample: carboxy-THC and pseudoephendrine. Detection of carboxy-THC indicates prior use of cannabis products. Giacomin sought disclosure of the “rolling log” which lists every drug impairment evaluation conducted by the DRE. His application was heard on May 10, 2018. Dumel J. delivered her ruling on June 29, 2018, wherein she adopted the reasoning of the application judge in R. v. Stipo, 2017 ONSC 5208, affirmed by the Ont. C.A., 2019 ONCA 3. As such, she found that the rolling log was first party disclosure and was to be disclosed.
[6] In R. v. Amarelo-Gemus, Cassandra Amarelo-Gemus was charged with being impaired by a drug or drugs while operating a motor vehicle on April 17, 2017. At trial, the Crown intended to call Cst. Denis Milette, a DRE. Prior to trial, Amarelo-Gemus sought disclosure of the DRE rolling log which the Crown refused to provide.
[7] The trial judge, Kehoe J., proceeded to rule on the production motion in the absence of any evidence. In her view, she was entitled to follow the rulings of other Ontario Court of Justice judges on this issue.
The DRE and the Rolling Log
[8] A DRE is a peace officer who is qualified under the regulations to conduct the Drug Recognition Evaluation. The regulations provide that an evaluating officer must be a certified DRE accredited by the International Association of Chiefs of Police. The DRE evaluation is also set out by regulation.
[9] The purpose of a DRE evaluation is to determine if the motorist is impaired by a drug or by a drug and alcohol. The DRE evaluation consists of divided attention tests, eye and other examinations, and measurements of vital signs. The results and measurements are recorded on the DRE’s “Drug Influence Evaluation Report,” more commonly known as a “facesheet.” At the end of the evaluation, the DRE reviews the examination and measurement results with reference to a matrix that lists seven drug categories and their associated indicia of impairment. If the DRE has concluded that the motorist is impaired by a drug, the DRE then determines which category of drug is likely causing the observed impairment.
[10] A DRE is required 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.
[11] The Applicants argued that the rolling log was a third-party record, was not “likely relevant”, and that s. 258.1, of the Criminal Code, R.S.C., 1985, c. C-46 (the “Code”), as it existed at that time, barred the disclosure of the rolling log. In Amarelo-Gemus, the Applicants had further argued that the trial judge breached the rules of natural justice by ruling in the absence of any evidence.
[12] At the time that these applications were heard, I was advised that Stipo was under appeal and a decision from the Court of Appeal was imminent. It was originally thought that the Court of Appeal’s decision would be determinative of the issues raised in these applications. That decision was released on January 7, 2019 (see: R. v. Stipo, 2019 ONCA 3, 144 O.R. (3d) 145).
The Appellate Court’s Decision
[13] The Court of Appeal had sought additional submissions on the availability of certiorari in the light of the Supreme Court of Canada’s decisions in R. v. Gubbins, 2018 SCC 44, 76 Alta. L.R. (6th) 213 and R. v. Awashish, 2018 SCC 45, 49 C.R. (7th) 250.
[14] The availability of certiorari is not in issue in these applications. As in Stipo, the Crown alleges that the trial judges upon which these applications are premised failed to observe a mandatory provision of the Code; namely, the prohibition against the use or disclosure of evaluation results. In Stipo, Watt, J.A. agreed that an allegation of this nature was sufficient to place the issue of the provincial court judge’s jurisdiction before the superior court by way of certiorari. Moreover, as third-party record holders, the RCMP and the OPS are able to challenge the trial judge’s jurisdiction on certiorari.
[15] Watt J.A. went on to conclude that the disclosure of the rolling logs was governed by the first party regime of R. v. Stinchcombe, [1995] 1 S.C.R. 754, as the rolling log was “obviously relevant” (Stipo, at paras. 100, 117). Watt J.A. found that disclosure of the rolling log was not prohibited by s. 258.1 of the Code as it was at that time.
[16] The Appeal Court’s finding that the rolling log was “obviously relevant” and subject to the first party disclosure regime focused on the reliability of the DRE’s evidence, as noted at para. 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.
[17] The court further expands on relevancy at paras. 115-132 of the decision.
[18] The conclusion that this information was “obviously relevant” was relied upon in finding that the prohibition found in the former s. 258.1(2) of Code did not preclude disclosure of the rolling log. Watt, J.A. stated the following at paras. 191-193:
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.
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.
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.
Amendments to the Code
[19] On December 18, 2018, Bill C-46 took effect which introduced amendments to the Code that touch on these applications. The impact of these amendments were not argued before me.
[20] On January 11, 2019, the Crown, sought leave to file additional submissions in response to the Court of Appeal’s decision in Stipo, and in light of the amendments to the Code. Responding submissions were received on January 22, 2019.
[21] On February 8, 2019, Dumel J. stayed the charges against Giacomin pursuant to s. 11(b) of the Canadian Charter of Rights and Freedoms. On March 7, 2019, Kehoe J. stayed the charges against Amarelo-Gemus.
[22] On March 6, 2019, counsel agreed that I should release a ruling on the certiorari applications regardless of the s. 11(b) stay entered by Dumel J. since her ruling in Giacomin was under appeal. Counsel further agreed that this would avoid the need to return to me or to another court if the Crown’s appeal is successful. Counsel maintained this agreement despite the stay in the Amarelo-Gemus matter.
[23] On February 28, 2019, Bourgeois J. of the Ontario Court of Justice released her decision in R. v. Sutherland, 2019 ONCJ 113 where she concluded that Stipo is still applicable notwithstanding the amendments to the Code. Counsel provided further submissions in light of that decision.
[24] On March 22, 2019, McKay J. released his decision in R. v. Sukhdeo, 2019 ONCJ 150 where he came to the opposite conclusion. In that case, McKay J. accepted the same arguments that the Crown presents here. Given the fulsome record before me, I did not invite any further written submissions.
Position of the Crown
A. The Amendments to the Code
[25] The Crown submits that the circumstances before the Court of Appeal have been eclipsed by Bill C-46, which changes the legislative scheme. The Crown adds that the record before me includes pertinent evidence that was not before the Court of Appeal.
[26] While the Court of Appeal held that s. 258.1(2) of the Code permits disclosure of the DRE rolling log, the Crown submits that provision has been repealed; instead, replaced by s. 320.36, which was enacted on December 18, 2018. Pursuant to s. 33 of Bill C-46, s. 320.36 of the Code is retrospective and now applies to all cases. The Crown asserts that a court no longer has jurisdiction to order disclosure under s. 320.36.
[27] The Crown relies on the approach to statutory interpretation set out by the Supreme Court in Bell ExpressVu Ltd. Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559. As a first step in the interpretation process, the Crown maintains that the two provisions must be compared. First, the Crown says that not only has s. 258.1 of the Code been repealed in whole, but in the new provision, there is a complete absence of any of the wording seized upon in Stipo from s. 258.1(2)(a); namely, “in the course of an investigation of, or in a proceeding for…”. Accordingly, the Crown submits that the provision permitting disclosure has been repealed.
[28] Second, the Crown argues that s. 320.36(2) mimics the language of s. 258.1(2)(b) with the exception of the addition of “federal…Act”.
[29] Third, the Crown maintains that the Court of Appeal, in Stipo, held that s. 258.1(2)(a) requires an order for disclosure to be made “in the course of an investigation or proceeding described in the section.” According to the Crown, that route to disclosure no longer exists. The Crown says that disclosure, for the purposes of enforcement, is narrower than disclosure in the course of a proceeding.
[30] The Crown says that Parliament’s intent, in relation to s. 320.36(2), was to permit the use or disclosure of a person’s own evaluation or bodily substance for the purpose of enforcing a Code charge, but not to permit the production of other person’s evaluations or bodily substances as these are not necessary for enforcement of the Code offence that the Respondents are facing.
[31] The Crown argues that this interpretation is not only consistent with the Parliament’s intent and the plain language meaning of the section, it is also consistent with the scheme of the regime and provision as a whole. The Crown puts forward two arguments:
- That the entire provision, s. 320.36, is aimed at prohibiting use or disclosure and is aimed at tightly controlling access to privacy interests captured by the search and seizure powers granted to the police.
- The need for anonymization of the results reveals that the intent of Parliament was not to permit accused persons to use or have disclosed to them the results of other persons’ evaluations or bodily substances. In s. 320.36(4), Parliament allowed anonymization to control the disclosure and use of this private information and limit it to the “general public” only for research or statistical purposes. The Crown argues that this approach to re-writing a provision in order to accommodate a proposed interpretation was considered and rejected by the Supreme Court in British Columbia v. Philip Morris International Inc., 2018 SCC 36, 424 D.L.R. (4th) 61.
[32] The Crown relies on s. 320.31(5) of the Code, which now deems the DRE’s opinion on both impairment and drug class calls, to be admissible without the need for a voir dire. That provision was enacted in response to the Supreme Court’s decision in R. v. Bingley, 2017 SCC 12, [2017] 1 S.C.R. 170. Section 320.31(5) now provides:
An evaluating officer’s opinion relating to the impairment, by a type of drug that they identified, or by a combination of alcohol and that type of drug, of a person’s ability to operate a conveyance is admissible in evidence without qualifying the evaluating officer as an expert.
[33] The Crown says s. 320.31(5) not only deems the opinion of a DRE to be admissible without a voir dire, but argues further that their evidence is more probative than prejudicial, as well as relevant and necessary. The Crown relies on this passage from the majority decision in Bingley, at para. 25:
My colleague concludes that as s. 254(3.1) and the Regulations do not “clearly designate” DRE opinion evidence admissible in evidence, reliability must be otherwise established. I cannot agree. It is true that s. 254(3.1) and the Regulations do not provide for the automatic admissibility of DRE opinion evidence. But that does not end the inquiry. 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. [Emphasis added.]
[34] While Bingley recognized that DRE’s would be cross examined, the Crown argues that this examination is limited to the DRE’s present evaluation and opinion, but not their reliability at large based on historical calls.
[35] Moreover, the Crown argues that s. 320.31(6) now provides for a presumption of accuracy. The Crown says that this presumption changes the landscape. Together with the automatic admissibility, the Crown maintains that any attack on the reliability of the DRE’s evaluation is not permissible. This is so in the matters at issue in these applications, as the DRE in both cases called cannabis and cannabis was identified in toxicology.
The Different Evidentiary Record
[36] The Crown further seeks to distinguish Stipo since its conclusion was premised on the evidence that was before the court in that case. That evidence did not include evidence from a toxicologist or from a DRE, which is present in Giacomin. The Crown says the evidence in that case reveals that the DRE rolling log is not “obviously relevant”, and it follows that it is not subject to first party disclosure. The Respondents must show likely relevance, which, on this body of evidence, does not exist. The Crown advances a number of arguments in support of this.
[37] First, the court in Stipo noted that toxicology can confirm or contradict the DRE’s opinion. The Crown says that the evidence in this case reveals that toxicology cannot confirm or contradict a DRE’s opinion. Even where a drug found in urine matches the drug class called by the DRE, it is only corroborative, not confirmatory. This is because presence of a drug in urine merely shows prior exposure – not presence of that drug in the urine at the time of the offence.
[38] Further, the Crown asserts that an absence of any drugs of the class called by the DRE does not contradict their opinion either. Toxicology does not test for every drug and some drugs change their physical manifestation over time.
[39] Finally, the Crown argues that, even within the DRE program, an apparent non-match is not necessarily a concern and is not grounds to support decertification.
[40] The Crown says a cross-examination of the DRE on prior contradicted calls should not be allowed. As a first step, the cross-examination would be irrelevant, as the evidence reveals that the DRE rolling log does not, on its face, reveal anything about the accuracy of the DRE.
[41] The Crown asserts that this very issue has been decided by appellate courts who have held that material sought for the purpose of cross-examination of a witness about prior evidence is not subject to disclosure and is prohibited by the collateral evidence. The Crown relies on a number of cases, including; Bruff-Murphy v. Gunawardena, 2017 ONCA 502, at paras. 30-32.
[42] Further, the Crown submits that the Court of Appeal’s conclusion, at para. 24 of Stipo, that the DRE’s CV “is to reflect the candidate’s training and experience, including some information about the evaluations the candidate has conducted or observed” is contradicted by the evidence in this matter. As DRE, Troy Froats, testified, a CV is kept but the evaluations conducted by the DRE are not part of it. They are kept separately, in the rolling log.
[43] Unlike Stipo, the Crown says that the evidence before this Court deems the rolling log to be clearly irrelevant. On its face, it cannot confirm or contradict the DRE call.
[44] The Crown asks this Court to return the matter to the Ontario Court of Justice with an order quashing the orders and an order of mandamus directing the court to dismiss any disclosure request pursuant to s. 320.36.
Position of the Respondents
[45] The Respondents maintain that the decision in Stipo is directly on point to the issues raised in the certiorari applications before this court. The Court of Appeal found that the DRE rolling logs are first party disclosure, are obviously relevant, and the disclosure of them is not barred by s. 258.1 of the Code. The decision is binding on this court. The Respondents submit that Stipo makes it clear that Kehoe and Dumel JJ. made the correct decisions.
[46] The Respondents say that the Crown is in error when it states that Bill C-46 repealed s. 258.1, and submit that the section was simply amended.
[47] They maintain that the new s.320.36 does not prohibit disclosure of the rolling logs and that there is no evidence before this court as to what the evidentiary record was, or was not, before the trial court in Stipo. The Respondents assert that the Court of Appeal’s finding that the DRE rolling logs are “obviously relevant” cannot be changed to that of “not relevant” based on a different evidentiary record. To find as such would not only undermine the decision of the Court of Appeal, but it would also undermine the very notion of disclosure required by Stinchcombe.
[48] Further, the Respondents note that the Crown, in their supplemental submissions, is now, for the first time, asking for “an order of mandamus directing the court to dismiss any disclosure request pursuant to s.320.36.” They maintain that the Applicants cannot now ask for a different remedy than what was sought in the Notices of Application. The Respondents submit that, if granted, the request of the Crown would be in breach of the rules of natural justice as the Crown is asking this court to prohibit the two Ontario Court of Justice judges from hearing a new application under s. 320.36 without a hearing. They submit this court should refuse to grant this remedy.
[49] The Respondents further argue that the Crown’s suggestion that “obviously relevant” disclosure could ever become not relevant simply based on a different evidentiary record flies in the face of the entire jurisprudence surrounding the Crown’s disclosure obligations following Stinchcombe. According to the Respondents, if the Crown’s proposition was true, it would mean that they could refuse to provide “obviously relevant” disclosure and demand an evidentiary hearing to determine its relevance in the context of that particular case.
[50] The Respondents argue that newly created s. 320.36 is a combination of s. 258.1(2)(a) and (b). The important aspect of this section is that the exception is “for the purpose of the administration or enforcement of a federal or provincial Act related to drugs and/or alcohol and/or to the operation of a motor vehicle.”
[51] The Respondents note that Stipo was released on January 7th, 2019, after Bill C-46 became law. They assert that the only conclusion that can be drawn from the fact that Stipo was released after Bill C-46 became law is that the Ontario Court of Appeal was aware of this issue and determined it did not impact their decision. The Respondents rely on the principle of stare decisis and reiterate their position that Stipo is a binding decision.
Disposition
[52] In Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, at paras. 38, 44, McLachlin C.J., as she then was, stated the following:
Certainty in the law requires that courts follow and apply authoritative precedents. Indeed, this is the foundational principle upon which the common law relies.
… a lower court is not entitled to ignore binding precedent, and the threshold for revisiting a matter is not an easy one to reach. In my view, as discussed above, this threshold is met when a new legal issue is raised, or if there is a significant change in the circumstances or evidence. This balances the need for finality and stability with the recognition that when an appropriate case arises for revisiting precedent, a lower court must be able to perform its full role. [Emphasis added.]
I am satisfied that the amendments to the Code present a significant change in circumstances. Stipo was argued before the Court of Appeal on May 15, 2018. The recent amendments to the Code came into effect on December 18, 2018. As previously noted, the decision in Stipo was released on January 7, 2019.
[53] Much is made of a footnote that appears in Stipo that provides: “These provisions were repealed by S.C. 2018, c. 21, s. 14. In somewhat different form, the provisions are now ss. 320.36(2) and (4).” The reference to a footnote was relied upon by Bourgeois J. in Sutherland. In my view, the footnote is not determinative. The arguments in Stipo occurred in May 2018 and it is reasonable that the parties did not anticipate the release of the reasons occurring after December 18, 2018. Watt J.A. carefully set out the submissions of the parties and there is no evidence they turned their minds to the legislative changes. In fact, no one addressed this issue before me even though the coming into force of the new provisions was imminent.
[54] I agree with the Crown’s submission that a court cannot purport to interpret a new provision, worded differently, through simple reference thereto in a footnote. Paciocco J. rejected a similar notion in R. v. Roberts, 2018 ONCA 411, 47 C.R. (7th) 405, at para. 44, where he found an issue “too complex and important” to address in a footnote.
[55] The Legislative Summary of Bill C-46 sets out the purposes of the Bill and of amendments to the Code:
1.1 Purposes of the Bill and Principal Amendments
Part 1 of the bill amends the Criminal Code (the Code) to strengthen the legislative provisions relating to driving while impaired by drugs, including cannabis. These amendments stem from the government’s plan to allow regulated access to cannabis, as set out in Bill C-45, An Act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts, which was introduced the same day as Bill C-46.
The primary measure in Part 1 consists of the introduction of new offences relating to driving while impaired by drugs, and of new tools for police to screen for the presence of drugs in a driver’s body. More precisely, the bill provides for the roadside use of oral fluid drug screening devices (or approved drug screening equipment) by police officers when they have reasonable grounds to suspect that a driver has a drug in his or her body.
The new offences vary with the level of drugs (or a combination of drugs and alcohol) in the blood. These levels will be established by regulation. However, the government has stated that, in the case of cannabis, the proposed levels would be as follows:
In response to the Supreme Court of Canada’s decision in R. v. Bingley, Part 1 of the bill also makes the opinion of the evaluating officer (or drug recognition expert) admissible as evidence without qualifying that person as an expert.
[56] The following new changes are significant: s. 320.12(d) now provides:
It is recognized and declared that,
(d) an evaluation conducted by an evaluating officer is a reliable method of determining whether a person’s ability to operate a conveyance is impaired by a drug or by a combination of alcohol and a drug.
[57] This is followed by the automatic admissibility of the DRE’s opinion at s. 320.31(5) and the presumption found at s. 320.31(6). That provision is significant:
(6) If the analysis of a sample provided under subsection 320.28(4) demonstrates that the person has a drug in their body that is of a type that the evaluating officer has identified as impairing the person’s ability to operate a conveyance, that drug — or, if the person has also consumed alcohol, the combination of alcohol and that drug — is presumed, in the absence of evidence to the contrary, to be the drug, or the combination of alcohol and that drug, that was present in the person’s body at the time when the person operated the conveyance and, on proof of the person’s impairment, to have been the cause of that impairment.[Emphasis added]
[58] While the presumption found at s. 320.31(6) is not a presumption of guilt, it provides a presumption of accuracy of the DRE’s call when it is corroborated by a toxicological analysis, as it was in the matters in issue in these applications, as the DRE in both cases called cannabis – and cannabis was identified in toxicology.
[59] In my view, the rolling log is no longer relevant to challenge the DRE’s opinion in these circumstances. Expert evidence would be required to challenge the analysis of the sample provided or defence could lead evidence in accordance with s. 320.14(6) of the Code:
(6) No person commits an offence under paragraph (1)(c) or subsection (4) if
(a) they consumed the drug after ceasing to operate the conveyance; and
(b) after ceasing to operate the conveyance, they had no reasonable expectation that they would be required to provide a sample of a bodily substance
[60] However, there is no presumption of accuracy where the DRE’s opinion is not confirmed by the analysis of the sample. Section 320.12(d) of the Code confirms the reliability of the evaluation method and s. 320.31(5) provides:
(5) An evaluating officer’s opinion relating to the impairment, by a type of drug that they identified, or by a combination of alcohol and that type of drug, of a person’s ability to operate a conveyance is admissible in evidence without qualifying the evaluating officer as an expert.
[61] These amendments are a response to the Supreme Court’s decision in Bingley. The Court of Appeal made repeated references to that decision in assessing the relevance of the rolling log. While Watt, J.A. referred to the previous provisions of the Code; his observations at paras. 96-98 are equally applicable to the legislative scheme:
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.
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.
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. [Citations omitted.]
[62] I conclude that the amendments to the Code do not change the result in Stipo, save and except where the DRE’s call is confirmed by the toxicological results.
The Different Evidentiary Record
[63] I have the evidence of DRE, Troy Froats, and it is clear that toxicology cannot confirm or contradict a DRE’s opinion and, that there are many reasons for this:
- Even where the drugs as found in urine matches the drug class called by the DRE, it is only corroborative, not confirmatory. This is because presence of a drug in urine merely shows prior exposure and not presence of that drug in the urine at the time of the offence.
- An absence of any drugs of the class called by the DRE does not contradict their opinion either. There are many reasons why this is so, including that toxicology does not test for every drug and some drugs change their physical manifestation over time (such as cocaine which begins its life as a stimulant but in the “crash” phase displays as a depressant).
- Even within the DRE program, an apparent non-match is not necessarily a concern and is not grounds to support decertification, if the DRE call is otherwise peer-reviewed and deemed acceptable.[Emphasis added]
[64] There is no clear picture of the evidentiary record that was before the trial judge in Stipo. There is no reference to the evidence of the DRE. The motion judge was nevertheless aware that toxicological results might not be corroborative where he said, at para.15:
It is important to note that while a toxicological analysis may confirm a DRE’s opinion that an individual has ingested a particular type of drug, the analysis may not be able to determine when the drug was ingested or what effect it had on the accused. In many, if not most cases, the Crown must rely on the opinion of the DRE to prove that the accused’s ability to operate a motor vehicle was impaired.
[65] The motion judge concluded that the rolling log was relevant and was subject to disclosure notwithstanding the prohibition found in the former s. 258.1 of the Code. While the Court of Appeal disagreed with the motion judge’s reasons, it concluded that this had no impact on its ultimate conclusion.
[66] I am satisfied that the change the evidentiary record illustrates does not impact the right to challenge the DRE’s ultimate reliability based on an alleged mistaken drug class call in the rolling log when that call has not been corroborated by toxicological testing.
[67] In those circumstances, the DRE’s opinion continues to be open to challenge, as noted by the Court of Appeal in Stipo, at para. 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).
[68] That any challenge to the DRE’s ultimate reliability through introduction of the rolling log might be prohibited as legally impermissible cross-examination or as collateral evidence was recognized by Wadden J. in R. v. Branson, 2018 ONCJ 163, 407 C.R.R. (2d) 294, at para. 15, where he said:
Given these issues relating to toxicological confirmation, it may be that courts determine that rolling logs have limited weight other that as an indication of how much experience the DRE has in the field. Trial courts would not want to be in the position of re-litigating prior tests conducted by the DRE. There is a risk that the details within the rolling logs will raise collateral issues, irrelevant to the case at hand. It would be the responsibility of the trial judge to control the process in this regard.
[69] The rolling log is relevant and, just like any other piece of evidence, it may be given limited weight.
[70] The Crown sought a writ of certiorari to quash the decision in Branson (see: R. v. Branson, 2018 ONSC 6014). I agree with the decision of the motion judge, O’Bonsawin, J., who concluded at para. 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.
The Prohibition on Disclosure
[71] In Stipo, Watt, J.A. summarized the principles of statutory interpretation at length at paras. 175 – 178:
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.
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. 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.
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 i. defeats the purpose of the statute or renders some aspect of it pointless or futile.
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. [Citations omitted.]
[72] Section 320.26 is not the same as s. 258.1(2)(a). The perplexing language is gone. The new section now provides:
320.36 (1) No person shall use a bodily substance obtained under this Part for any purpose other than for an analysis under this Part.
(2) No person shall use, disclose or allow the disclosure of the results obtained under this Part of any evaluation, physical coordination test or analysis of a bodily substance, except for the purpose of the administration or enforcement of a federal or provincial Act related to drugs and/or alcohol and/or to the operation of a motor vehicle, vessel, aircraft or railway equipment.
[73] Section 320.36(3) creates exceptions to the prohibition on disclosure as follows.
(3) The results of an evaluation, test or analysis referred to in subsection (2) may be disclosed to the person to whom they relate, and may be disclosed to any other person if the results are made anonymous and the disclosure is made for statistical or research purposes.
[74] The exception is not materially different from the previous provision found in s. 258.1(4). The new regime is broader in scope. It is not restricted to provincial Acts or to listed offences, but now encompasses the administration or enforcement of both federal and provincial Acts related to drug and/or alcohol and/or the operation of a motor vehicle, vessel, aircraft or railway equipment; including the Code. The new provision abandons the reference to “a proceeding” that was the focus of the debate in the Court of Appeal. In my view, the new language is a simpler restatement of the previous prohibition.
[75] I conclude that the rolling log is still relevant in the absence of the presumption in s 320.31(6). The new s. 320.36(2) does not provide anything more than a bare prohibition on disclosure that the Court of Appeal determined was necessary in Stipo.
[76] If the Crown is successful in its appeals of the stay of these proceedings, I would quash the orders of Dumel and Kehoe JJ. because the results of the analyses of the bodily substances in these matters corroborated the DRE’s calls. I decline to grant the request for an order in the nature of a mandamus sought by the Crown.
Mr. Justice Robert N. Beaudoin
Released: April 29, 2019
