Her Majesty the Queen v. Bingley

[Indexed as: R. v. Bingley]

Ontario Reports

Court of Appeal for Ontario,

Cronk, Gillese and Huscroft JJ.A.

June 17, 2015

126 O.R. (3d) 525 | 2015 ONCA 439

Case Summary

Criminal law — Impaired driving — Evidence — Opinion evidence of drug recognition expert admissible to prove offence of drug-impaired driving without necessity of Mohan voir dire.

The accused was charged with impaired driving. A police officer who was a certified drug recognition expert ("DRE") conducted an evaluation of the accused in accordance with the drug evaluation process set out in s. 3 of the Evaluation of Impaired Operation (Drugs and Alcohol) Regulations, SOR/ 2008-196 and concluded that he was under the influence of cannabis, which impaired his ability to drive. Pursuant to s. 254(3.4)(a) of the Criminal Code, R.S.C. 1985, c. C-46, he demanded that the accused provide a urine sample to confirm his opinion as to the cause of the impairment. The trial judge refused to admit the DRE opinion evidence that the accused's ability to operate a motor vehicle was impaired by a drug without holding a Mohan voir dire. After the voir dire was conducted, he declined to admit the evidence. He found that there was no admissible evidence that the accused's impairment was due to a drug. The accused was acquitted. The Summary Conviction Appeal Court judge found that the trial judge erred in excluding the opinion evidence. The accused appealed.

Held, the appeal should be dismissed.

DRE opinion evidence is admissible to prove the offence of drug-impaired driving, without the necessity of a Mohan voir dire, so long as it is established that the witness is a certified DRE as specified in the Regulations. It is not determinative of the ultimate issue, and the accused may cross-examine the DRE regarding the methodology used and how the opinion was reached. Parliament did not intend the DRE's evaluation under s. 254(3.1) of the Code to be used solely as grounds for a bodily fluid sample demand under s. 254(3.4) and, to the extent that the Nova Scotia Court of Appeal appears to have held otherwise in Fogarty, their opinion is not accepted. [page526]

R. v. Fogarty, [2015] N.S.J. No. 21, 2015 NSCA 6, 326 C.R.R. (2d) 281, 73 M.V.R. (6th) 28, 320 C.C.C. (3d) 348, 355 N.S.R. (2d) 103, 120 W.C.B. (2d) 535, consd

Other cases referred to

R. v. Biagi, [2014] O.J. No. 1596, 2014 ONCJ 153, 61 M.V.R. (6th) 307, 113 W.C.B. (2d) 24; R. v. Bingley, [2014] O.J. No. 2468, 2014 ONSC 2432 (S.C.J.); R. v. Dejesus, [2014] O.J. No. 4541, 2014 ONCJ 489; R. v. Graat, 1982 33 (SCC), [1982] 2 S.C.R. 819, [1982] S.C.J. No. 102, 144 D.L.R. (3d) 267, 45 N.R. 451, 2 C.C.C. (3d) 365, 31 C.R. (3d) 289, 18 M.V.R. 287, 9 W.C.B. 21; R. v. McCarthy, [2014] O.J. No. 35, 2014 ONCJ 75, 298 C.R.R. (2d) 298, 63 M.V.R. (6th) 154, 111 W.C.B. (2d) 834; R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9, [1994] S.C.J. No. 36, 114 D.L.R. (4th) 419, 166 N.R. 245, J.E. 94-778, EYB 1994-67655, 71 O.A.C. 241, 89 C.C.C. (3d) 402, 29 C.R. (4th) 243, 23 W.C.B. (2d) 385; R. v. R. (R.) (2008), 90 O.R. (3d) 641, [2008] O.J. No. 2468, 2008 ONCA 497, 238 O.A.C. 242, 59 C.R. (6th) 258, 234 C.C.C. (3d) 463, 78 W.C.B. (2d) 606

Statutes referred to

Canadian Charter of Rights and Freedoms, s. 10(b)

Criminal Code, R.S.C. 1985, c. C-46, ss. 253 [as am.], 254 [as am.], (1), (2)(a), (3.1), (3.4), (a), 839

Rules and regulations referred to

Evaluation of Impaired Operation (Drugs and Alcohol) Regulations, SOR/2008-196, ss. 1, 3

APPEAL by the accused from the decision of McLean J., [2014] O.J. No. 2468, 2014 ONSC 2432 (S.C.J.), allowing the appeal from the acquittal entered by Frazer J., [2013] O.J. No. 6277 (C.J.).

Trevor Brown and Eric Granger, for appellant.

Joan Barrett, for respondent.

The judgment of the court was delivered by

[1] GILLESE J.A.: — This appeal concerns the admissibility of opinion evidence given by a Drug Recognition Expert ("DRE") on whether a person's ability to operate a motor vehicle is impaired by a drug.

[2] Carson Bingley, the appellant, says that such DRE evidence is not admissible. The Crown respondent says it is.

[3] At the centre of the debate is s. 254(3.1) of the Criminal Code, R.S.C. 1985, c. C-46, which gives an officer the right to require a person to submit to an evaluation by a DRE to determine whether the person's ability to operate a motor vehicle is impaired by a drug or a combination of alcohol and a drug. Section 254(3.1) reads as follows:

254(3.1) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under paragraph 253(1)(a) as a result of the consumption [page527] of a drug or of a combination of alcohol and a drug, the peace officer may, by demand made as soon as practicable, require the person to submit, as soon as practicable, to an evaluation conducted by an evaluating officer to determine whether the person's ability to operate a motor vehicle, a vessel, an aircraft or railway equipment is impaired by a drug or by a combination of alcohol and a drug, and to accompany the peace officer for that purpose.

(Emphasis added)

[4] For the reasons that follow, I am of the view that the DRE opinion evidence is admissible, with the result that although I would grant leave to appeal, I would dismiss the appeal.

[5] As I make frequent reference to ss. 253 and 254 of the Criminal Code, those provisions are set out in full in Schedule A to these reasons.

Background in Brief

[6] On the morning of May 7, 2009, a number of people saw Carson Bingley driving erratically. He cut off one driver, then crossed over the centre line and drove into the opposite lane, nearly colliding with oncoming traffic and forcing vehicles to manoeuvre out of the way of his vehicle. After that, Mr. Bingley pulled into the parking lot of an apartment complex and struck another car, whose driver called the police.

[7] Constable Tennant responded to the call. She spoke both with the driver of the car that had been hit and with Mr. Bingley. She noted that Mr. Bingley stumbled when he stood, his zipper was undone and he had difficulty when he attempted to zip it up. She observed that Mr. Bingley was physically uncoordinated, swaying from side to side, and rocking back on his heels in an uncontrolled manner. His eyes were glossy and bloodshot, and his speech slurred. He had trouble focusing, and stared off into the distance even when being questioned.

[8] Constable Tennant believed that Mr. Bingley was impaired. There was no odour of alcohol and the results of a roadside test revealed a blood alcohol concentration of 16 mg of alcohol in 100 ml of blood -- a result well below the legal limit and inconsistent with the observed indicia of impairment. Consequently, Constable Tennant shifted the investigation to determining whether Mr. Bingley was impaired by drugs.

[9] Officer Jellinek is a qualified DRE. He is also a qualified instructor in drug recognition evaluations and a qualified Intoxilyzer technician. His DRE training was directed at the detection of impairment by drugs and alcohol, as well as determining the category of drug(s) associated with observed physical symptoms.

[10] Officer Jellinek joined Constable Tennant at the scene and administered standard field sobriety tests. When Mr. Bingley [page528] failed the sobriety tests, he was arrested for driving while impaired by a drug.

The Trial Evidence

The DRE evidence

[11] After his arrest, pursuant to s. 254(3.1), Officer Jellinek conducted an evaluation of Mr. Bingley. He did so in accordance with the drug evaluation process set out in s. 3 of the Evaluation of Impaired Operation (Drugs and Alcohol) Regulations, SOR/2008-196 (the "Regulations"), which identifies the tests to be conducted and the procedures to be followed during an evaluation under s. 254(3.1) [of the Criminal Code]. The 12-step procedure used in conducting a drug evaluation is summarized in a document called the "DRE 12 Step", which was an exhibit at trial. Section 3 of the Regulations can be found in Schedule B to these reasons, and the DRE 12 Step can be found in Schedule C.

[12] Officer Jellinek testified that the 12-step drug evaluation procedure is comprised of standardized tests used throughout North America and Europe. The tests consist of eye examinations, divided-attention tests and examinations of things such as blood pressure, temperature, pulse, pupil size and muscle tone.

[13] As Officer Jellinek went through the prescribed 12-step procedure, he recorded the results. At the end of the procedure, Officer Jellinek viewed the results with reference to a matrix chart that lists seven categories of drugs and the indicia associated with each category.

[14] Officer Jellinek also considered Mr. Bingley's admission, during his evaluation, that he had smoked marijuana and taken two Xanax in the previous 12 hours. Ultimately, Officer Jellinek concluded that Mr. Bingley was under the influence of cannabis, which impaired his ability to operate a motor vehicle. Pursuant to s. 254(3.4)(a) of the Criminal Code, he demanded that Mr. Bingley provide a urine sample to confirm his opinion as to the cause of impairment.

Other expert evidence

[15] Dr. Daryl Mayers, a forensic toxicologist with the Centre of Forensic Sciences, testified that the urinalysis revealed the presence of carboxy THC, in addition to cocaine and Alprazolam. Carboxy THC is the inactive by-product of THC, which is the major psychoactive component of cannabis. Dr. Mayers stated that the "strongest conclusion" he could draw from the presence of carboxy THC in Mr. Bingley's urine was that, at some time prior to giving the urine sample, Mr. Bingley was exposed to [page529] some type of cannabis. The cannabis exposure could have been recent, but it was also possible that the exposure occurred days or even weeks prior to the urine sample. THC can have an impact on the central nervous system because it acts as a mild hallucinogen. It also has a depressant effect that can have an impact on a person's ability to operate a motor vehicle because it affects reaction time, coordination and judgment.

[16] Dr. Mayers also testified that a combination of THC and Alprazolam will intensify the effects of both drugs. He further testified that poor coordination, slurred speech, swaying, slightly bloodshot eyes and unfocused attention are all indicia consistent with cannabis use, although there are non-toxicological explanations for such symptoms.

Other trial evidence

[17] Mr. Bingley did not testify at trial. However, his statement to Officer Jellinek was admitted. In that statement, it will be recalled, Mr. Bingley admitted to having taken two Xanax and smoking marijuana in the 12 hours before his arrest. Mr. Bingley's response when asked to give a urine sample was also admitted. His response was: "Yes. What happens if I refuse? I'm DUI, so yeah, I'll give you the sample."

Prior Legal Proceedings

Overview

[18] Mr. Bingley was tried for the offence of driving while drug impaired. He was acquitted but a summary conviction appeal led to the acquittal being overturned and a new trial ordered. The basis for overturning the acquittal was that the trial judge had failed to consider the cumulative effect of the evidence.

[19] After the second trial, Mr. Bingley was again acquitted.

[20] And, again, the Crown brought a summary conviction appeal. By order dated May 22, 2014 [[2014] O.J. No. 2468, 2014 ONSC 2432 (S.C.J.)] (the "Order"), the summary conviction appeal judge ("SCAJ") allowed the Crown appeal and ordered yet a third trial.

[21] It is from this Order that the appellant seeks leave to appeal.

The second trial

[22] At both the first and second trials, Officer Jellinek was found to be well qualified and properly trained as a DRE to perform the evaluation referred to in s. 254(3.1) of the Criminal Code, and the tests and procedures set out in s. 3 of the Regulations. [page530]

[23] At Mr. Bingley's second trial, the trial judge found that there was "an abundance of evidence that satisfies the court beyond a reasonable doubt that [Mr. Bingley's] ability to operate his motor vehicle was impaired". However, he refused to admit Officer Jellinek's opinion evidence that Mr. Bingley's ability to operate a motor vehicle was impaired by a drug, without subjecting that evidence to a voir dire in accordance with R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9, [1994] S.C.J. No. 36. This approach differed from that taken by the judge at Mr. Bingley's first trial, who found that the opinion evidence could be received without a Mohan voir dire.

[24] After the voir dire was conducted, the trial judge declined to admit Officer Jellinek's opinion evidence for two reasons. First, he found that although Officer Jellinek was properly trained and qualified to carry out his DRE duties, he was certified to do so for the limited purpose of conducting testing and evaluation to determine whether a further demand could be made to provide a bodily fluid sample, pursuant to s. 254(3.4) of the Criminal Code. Second, the trial judge ruled that Officer Jellinek was not qualified to give the opinion evidence because there was no evidence that the procedures on which he based that opinion were scientifically based and because Officer Jellinek did not have sufficient scientific training to qualify as an expert.

[25] After this ruling, there was an exchange between the court and the Crown about the type of questions that the Crown could put to Officer Jellinek. The Crown agreed to confine her questioning to Officer Jellinek's observations of the appellant's physical state, conduct and demeanour at the relevant time. Thus, while the Crown elicited Officer Jellinek's evidence on his observations of the appellant on the day in question, Officer Jellinek was not asked for his opinion of the basis for the appellant's impairment.

[26] Accordingly, the trial judge found that there was no admissible evidence that Mr. Bingley's impairment was due to a drug and he acquitted him.

[27] The Crown appealed and the second summary conviction appeal then took place.

The second summary conviction appeal

[28] The SCAJ found that the trial judge erred in excluding the opinion evidence. He found that

(1) DRE opinion evidence is admissible under the Criminal Code, which has recognized the expertise of DREs and the [page531] reliability of the science underlying the prescribed drug evaluation, the purpose of which is "to determine" impairment by drugs;

(2) it was an error to have subjected Officer Jellinek's opinion evidence to a Mohan voir dire; and

(3) the opinion evidence was admissible under the principles set out in R. v. Graat, 1982 33 (SCC), [1982] 2 S.C.R. 819, [1982] S.C.J. No. 102.

The Leave Application

[29] Mr. Bingley now applies for leave to appeal the Order to this court. He initially raised four grounds of appeal but abandoned two of them. The first of the abandoned grounds was that the trial judge did not err in excluding the opinion evidence under the Mohan test. The second abandoned ground was that even if the trial judge had erred in excluding the opinion evidence, that evidence would not have changed the result.

[30] The Crown submits that leave to appeal should be granted on the issues of whether the Criminal Code authorizes a DRE to provide opinion evidence of impairment without a Mohan voir dire, and whether the DRE may offer a lay opinion on impairment under Graat.

[31] In light of the two grounds of appeal that the appellant abandoned, the parties are essentially agreed on the issues on which they say leave should be granted.

The Issues

[32] If leave is granted, the appellant will argue that the trial judge correctly excluded the opinion evidence and that the SCAJ erred in finding otherwise. He contends that the SCAJ erred in finding that:

(1) DRE opinion evidence is admissible under the statutory regime in the Criminal Code; and

(2) DRE opinion evidence is admissible pursuant to Graat.

Analysis

Should leave to appeal be granted?

[33] Although leave to appeal pursuant to s. 839 of the Criminal Code should be granted sparingly, leave may be granted where the issues have significance to the administration of justice beyond the particular case: R. v. R. (R.) (2008), 90 O.R. (3d) 641, [2008] O.J. No. 2468, 2008 ONCA 497, at para. 37. [page532]

[34] In my view, the legal issues raised on this appeal are of significance to the administration of justice broadly. The history of this proceeding alone shows the need for this court to clarify the admissibility of DRE opinion evidence on whether a person's ability to operate a motor vehicle is impaired by a drug or a combination of alcohol and a drug.

[35] For that reason, I would grant leave to appeal.

Did the SCAJ err in finding that DRE opinion evidence is admissible under the Criminal Code?

[36] The appellant acknowledges that s. 254(3.1) of the Criminal Code empowers the DRE to conduct an evaluation but submits that the sole purpose of the evaluation is to serve as a precondition to the making of a demand for a bodily fluid sample under s. 254(3.4).

[37] Section 254(3.4) reads as follows:

254(3.4) If, on completion of the evaluation, the evaluating officer has reasonable grounds to believe, based on the evaluation, that the person's ability to operate a motor vehicle, a vessel, an aircraft or railway equipment is impaired by a drug or by a combination of alcohol and a drug, the evaluating officer may, by demand made as soon as practicable, require the person to provide, as soon as practicable,

(a) a sample of either oral fluid or urine that, in the evaluating officer's opinion, will enable a proper analysis to be made to determine whether the person has a drug in their body; or

(b) samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, will enable a proper analysis to be made to determine whether the person has a drug in their body.

(Emphasis added)

[38] I would not accept this submission. In my view, the SCAJ correctly decided this matter. Section 254(3.1) is not merely a step along the path to s. 254(3.4). That is, it is not merely a precondition to the making of a bodily fluid sample demand. Furthermore, a contextual reading of s. 254(3.1) makes it clear that DRE opinion evidence is admissible to prove the offence without the need for a Mohan voir dire.

Section 254(3.1) is not merely a precondition to a demand for a bodily fluid sample

[39] Had Parliament intended the DRE's evaluation under s. 254(3.1) to be used solely as grounds for a bodily fluid sample demand under s. 254(3.4), it could have said so expressly. It did not. In this regard, it is instructive to compare s. 254(3.1) with s. 254(2)(a). [page533]

[40] Under s. 254(2)(a), if an officer has reasonable grounds to suspect a person has alcohol or a drug in their body and that person has, within the preceding three hours, operated a motor vehicle, the officer may require the person to perform certain physical coordination tests "to determine whether a demand may be made under subsection (3) or (3.1)".

[41] The language of s. 254(3.1) stands in stark contrast to that of s. 254(2)(a). Section 254(3.1) does not state that the DRE's evaluation is to enable the DRE to determine whether a demand may be made under s. 254(3.4). Instead, s. 254(3.1) provides that the DRE's evaluation is "to determine whether the person's ability to operate a motor vehicle . . . is impaired by a drug or by a combination of alcohol and a drug".

[42] Furthermore, s. 254(3.4) is permissive, not mandatory. It provides that the DRE "may" require the person to provide an oral fluid, urine, or blood sample. Therefore, the bodily sample demand under s. 254(3.4) is an investigative step that may, but need not, be taken.

[43] It is also significant that s. 254(3.4) provides that the purpose of the bodily sample is "to determine whether the person has a drug in their body". That is, the bodily sample taken pursuant to s. 254(3.4) is to confirm the presence of a drug in the driver's body, and not to determine impairment. By contrast, on a plain reading of s. 254(3.1), its purpose is to authorize the DRE to conduct an evaluation to reach an opinion as to whether an accused person is impaired by reason of a drug or a combination of a drug and alcohol.

DRE opinion evidence is admissible under the Criminal Code

[44] Based on a plain reading of s. 254(3.1) of the Criminal Code, it is my view that DRE opinion evidence is admissible to prove the offence of drug-impaired driving, without the necessity of a Mohan voir dire, so long as it is established that the witness is a certified DRE as specified in the Regulations.

[45] In February 2008, Parliament enacted Bill C-2, the Tackling Violent Crime Act -- of which s. 254(3.1) is a component -- thereby creating a new set of tools for the effective investigation and prosecution of drug-impaired driving. While the offence of impaired driving has existed for decades, prior to the enactment of Bill C-2, there was no compulsory statutory process to test for impairment by drugs. By enacting Bill C-2, Parliament created a science-based regime for the effective testing and determination of whether a driver's ability to operate a motor vehicle was impaired by a drug. Under this regime, Parliament provided for [page534] a screening tool -- the standard field sobriety tests administered under s. 254(2)(a) -- to gather grounds to demand a DRE evaluation under s. 254(3.1).

[46] Under s. 254(3.1), as we have seen, the DRE conducts an evaluation "to determine whether the person's ability to operate a motor vehicle . . . is impaired by a drug or by a combination of alcohol and a drug". While an evaluation under s. 254(3.1) must be completed before the DRE can demand a urine, saliva or blood sample under s. 254(3.4), the sample is simply to confirm the presence of a drug in the driver's body, and not to determine the issue of impairment. Further, as we have seen, the bodily fluid sample demand is an investigative step that may, but need not, occur. Thus, the DRE opinion evidence called for by s. 254(3.1) is not a screening tool but, rather, a determination of impairment and whether impairment is due to a drug or a combination of a drug and alcohol.

[47] By requiring the DRE "to determine" whether the driver is drug-impaired, s. 254(3.1) requires the DRE to reach a conclusion -- that is, to form an opinion -- as to impairment. It is implicit that the DRE opinion evidence as to impairment is admissible without the need for a Mohan voir dire, and that the court may consider that opinion evidence when determining whether the offence has been made out. No further statutory provision is required for the DRE opinion evidence to be admitted. This conclusion flows from the wording of s. 254(3.1) and is harmonious with the object and scheme of the legislative provisions and Parliament's intention.

[48] The detailed scheme in the relevant legislative provisions and the Regulations provides further support for this conclusion. Not all peace officers are entitled to perform drug evaluations under s. 254(3.1). Instead, only peace officers "who [are] qualified under the [R]egulations" are allowed to perform the evaluations (s. 254(1)). Under s. 1 of the Regulations, the evaluating officer "must be a certified drug recognition expert accredited by the International Association of Chiefs of Police". Furthermore, s. 3 of the Regulations specifies precisely which tests the DRE must perform in conducting the evaluation under s. 254(3.1). By creating this detailed regulatory regime, Parliament has shown that it is satisfied of the science underlying the drug evaluations.

[49] However, this is not to say that the DRE's opinion regarding impairment is determinative of the ultimate issue. It is for the court to decide what weight to give the DRE's opinion evidence: R. v. Dejesus, [2014] O.J. No. 4541, 2014 ONCJ 489, at para. 8; R. v. McCarthy, [2014] O.J. No. 35, 2014 ONCJ 75, 63 M.V.R. (6th) 154, at para. 20; [page535] R. v. Biagi, [2014] O.J. No. 1596, 2014 ONCJ 153, 61 M.V.R. (6th) 307, at paras. 177-179. As the appellant indicates, there is necessarily some subjectivity to the DRE's opinion because the Regulations do not specify how the results of the prescribed tests can be used to reach a conclusion on impairment. It is open to the accused to cross-examine the DRE on the methodology that was used and on how the DRE reached his or her conclusion: McCarthy, at para. 20.

[50] As it has been suggested that the Nova Scotia Court of Appeal may have taken a different view of s. 254(3.1) in R. v. Fogarty, [2015] N.S.J. No. 21, 2015 NSCA 6, 355 N.S.R. (2d) 103, a word on that case is in order.

[51] In Fogarty, pursuant to s. 254(3.1), an officer required the accused to submit to an evaluation by a DRE. Before the evaluation was conducted, the officer informed the accused of his right to consult counsel, and the accused spoke with counsel. Following the evaluation, the officer demanded a blood sample under s. 254(3.4). The accused was not given the opportunity to consult again with counsel before the blood sample was taken. The issue on appeal was whether the failure to provide the accused with an opportunity to re-consult with counsel violated his rights under s. 10(b) of the Canadian Charter of Rights and Freedoms.

[52] The Nova Scotia Court of Appeal held that there was no violation of s. 10(b). For the purposes of this appeal, the relevant part of its reasons is paras. 47-48:

The point of the [drug recognition evaluation] is to determine whether to demand a fluids sample. That is clear from s. 254(3.4): "If, on completion of the evaluation, the evaluating officer has reasonable grounds to believe, based on the evaluation, that the person's ability to operate a motor vehicle . . . is impaired by a drug . . . the evaluating officer may . . . demand" a sample of saliva, urine or blood.

The [drug recognition evaluation] and blood demand are not disjunctive investigative techniques. Rather, the [drug recognition evaluation] culminates in the fluids demand. That linear progression is apparent from the plain words of ss. 254(3.1) and (3.4), with which competent counsel would be familiar. During the [drug recognition evaluation] consultation with the client, competent counsel would expect that a failed [drug recognition evaluation] likely would trigger a demand for blood, urine or saliva, and would advise the client respecting that eventuality.

[53] Fogarty, as is readily apparent, is directed at a very different issue from that under consideration in this appeal. Rather than determining whether DRE opinion evidence is admissible, in Fogarty the court was deciding whether, after an evaluation is conducted under s. 254(3.1), s. 10(b) of the Charter requires that [page536] the driver be given the opportunity to re-consult with counsel before a sample is taken pursuant to s. 254(3.4).

[54] In my view, the comments at paras. 47-48 of Fogarty are best understood as explaining the connection between the evaluation under s. 254(3.1) and the bodily sample demand under s. 254(3.4): because s. 254(3.1) and (3.4) are closely related, there is no need to permit the accused to re-consult with counsel before a bodily fluid sample is taken under s. 254(3.4).

[55] I agree that the two provisions are not disjunctive investigative techniques. I also agree that the evaluation must be completed prior to a bodily fluid sample demand being made under s. 254(3.4). However, to the extent that Fogarty can be read as suggesting that the sole purpose of the evaluation is to determine whether a bodily fluids sample can be demanded under s. 254(3.4), I respectfully disagree, for the reasons given above.

[56] Accordingly, I would dismiss this ground of appeal.

Did the SCAJ err in finding that DRE opinion evidence is admissible pursuant to Graat?

[57] Having concluded that the Criminal Code provides the basis for admitting the DRE opinion evidence, it is not necessary to address this ground of appeal.

Disposition

[58] Accordingly, I would grant leave to appeal but I would dismiss the appeal.

Appeal dismissed.

SCHEDULE A

Criminal Code, R.S.C. 1985, c. C-46, ss. 253 and 254:

253(1) Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not,

(a) while the person's ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug; or

(b) having consumed alcohol in such a quantity that the concentration in the person's blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood.

(2) For greater certainty, the reference to impairment by alcohol or a drug in paragraph (1)(a) includes impairment by a combination of alcohol and a drug.

. . . . . [page537]

254(1) In this section and sections 254.1 to 258.1,

"analyst" means a person designated by the Attorney General as an analyst for the purposes of section 258;

"approved container" means

(a) in respect of breath samples, a container of a kind that is designed to receive a sample of the breath of a person for analysis and is approved as suitable for the purposes of section 258 by order of the Attorney General of Canada, and

(b) in respect of blood samples, a container of a kind that is designed to receive a sample of the blood of a person for analysis and is approved as suitable for the purposes of section 258 by order of the Attorney General of Canada;

"approved instrument" means an instrument of a kind that is designed to receive and make an analysis of a sample of the breath of a person in order to measure the concentration of alcohol in the blood of that person and is approved as suitable for the purposes of section 258 by order of the Attorney General of Canada;

"approved screening device" means a device of a kind that is designed to ascertain the presence of alcohol in the blood of a person and that is approved for the purposes of this section by order of the Attorney General of Canada;

"evaluating officer" means a peace officer who is qualified under the regulations to conduct evaluations under subsection (3.1);

"qualified medical practitioner" means a person duly qualified by provincial law to practise medicine;

"qualified technician" means,

(a) in respect of breath samples, a person designated by the Attorney General as being qualified to operate an approved instrument, and

(b) in respect of blood samples, any person or person of a class of persons designated by the Attorney General as being qualified to take samples of blood for the purposes of this section and sections 256 and 258.

(2) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment or had the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officer may, by demand, require the person to comply with paragraph (a), in the case of a drug, or with either or both of paragraphs (a) and (b), in the case of alcohol:

(a) to perform forthwith physical coordination tests prescribed by regulation to enable the peace officer to determine whether a demand may be made under subsection (3) or (3.1) and, if necessary, to accompany the peace officer for that purpose; and [page538]

(b) to provide forthwith a sample of breath that, in the peace officer's opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose.

(2.1) For greater certainty, a peace officer may make a video recording of a performance of the physical coordination tests referred to in paragraph (2)(a).

(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person

(a) to provide, as soon as practicable,

(i) samples of breath that, in a qualified technician's opinion, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person's blood, or

(ii) if the peace officer has reasonable grounds to believe that, because of their physical condition, the person may be incapable of providing a sample of breath or it would be impracticable to obtain a sample of breath, samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person's blood; and

(b) if necessary, to accompany the peace officer for that purpose.

(3.1) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under paragraph 253(1)(a) as a result of the consumption of a drug or of a combination of alcohol and a drug, the peace officer may, by demand made as soon as practicable, require the person to submit, as soon as practicable, to an evaluation conducted by an evaluating officer to determine whether the person's ability to operate a motor vehicle, a vessel, an aircraft or railway equipment is impaired by a drug or by a combination of alcohol and a drug, and to accompany the peace officer for that purpose.

(3.2) For greater certainty, a peace officer may make a video recording of an evaluation referred to in subsection (3.1).

(3.3) If the evaluating officer has reasonable grounds to suspect that the person has alcohol in their body and if a demand was not made under paragraph (2)(b) or subsection (3), the evaluating officer may, by demand made as soon as practicable, require the person to provide, as soon as practicable, a sample of breath that, in the evaluating officer's opinion, will enable a proper analysis to be made by means of an approved instrument.

(3.4) If, on completion of the evaluation, the evaluating officer has reasonable grounds to believe, based on the evaluation, that the person's ability to operate a motor vehicle, a vessel, an aircraft or railway equipment is impaired by a drug or by a combination of alcohol and a drug, the evaluating officer may, by demand made as soon as practicable, require the person to provide, as soon as practicable, [page539]

(a) a sample of either oral fluid or urine that, in the evaluating officer's opinion, will enable a proper analysis to be made to determine whether the person has a drug in their body; or

(b) samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, will enable a proper analysis to be made to determine whether the person has a drug in their body.

(4) Samples of blood may be taken from a person under subsection (3) or (3.4) only by or under the direction of a qualified medical practitioner who is satisfied that taking the samples would not endanger the person's life or health.

(5) Everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made under this section.

(6) A person who is convicted of an offence under subsection (5) for a failure or refusal to comply with a demand may not be convicted of another offence under that subsection in respect of the same transaction.

SCHEDULE B

Evaluation of Impaired Operation (Drugs and Alcohol) Regulations, SOR/2008-196, s. 3:

EVALUATION TESTS AND PROCEDURES

3. The tests to be conducted and the procedures to be followed during an evaluation under subsection 254(3.1) of the Criminal Code are

(a) a preliminary examination, which consists of measuring the pulse and determining that the pupils are the same size and that the eyes track an object equally;

(b) eye examinations, which consist of

(i) the horizontal gaze nystagmus test,

(ii) the vertical gaze nystagmus test, and

(iii) the lack-of-convergence test;

(c) divided-attention tests, which consist of

(i) the Romberg balance test,

(ii) the walk-and-turn test referred to in paragraph 2(b),

(iii) the one-leg stand test referred to in paragraph 2(c), and

(iv) the finger-to-nose test, which includes the test subject tilting the head back and touching the tip of their index finger to the tip of their nose in a specified manner while keeping their eyes closed;

(d) an examination, which consists of measuring the blood pressure, temperature and pulse; [page540]

(e) an examination of pupil sizes under light levels of ambient light, near total darkness and direct light and an examination of the nasal and oral cavities;

(f) an examination, which consists of checking the muscle tone and pulse; and

(g) a visual examination of the arms, neck and, if exposed, the legs for evidence of injection sites.

SCHEDULE C

DRE 12 STEP

Drug Evaluation & Classification Program

1. Breath alcohol test

2. Interview of Arresting Officer

3. Preliminary examination (Should include but not limited to first pulse, an initial estimate of angle of onset, and initial estimation of pupil size)

4. Eye exams (chk. both eyes/equal)

A. Horizontal Gaze Nystagmus

-- smooth pursuit

-- maximum deviation

-- angle of onset

B. Vertical Gaze Nystagmus

C. Lack of convergence

5. Divided attention tests

A. Romberg

-- body sway

-- 30 second internal clock

B. Walk and turn

-- 9 steps / 9 steps

C. One leg stand (30 sec. each leg)

-- left leg then right leg

D. Finger to nose

-- left/right/left/right/right/left

6. Vital signs and second pulse

7. Dark room checks of pupil size (90 seconds) and ingestion examination

8. Check for muscle tone [page541]

9. Check for injection marks and third pulse

10. Interrogation, statements, and other observations

11. Opinion of evaluation

12. Toxicological examination

End of Document