Ontario Court of Justice
Court File No.: Toronto
Between:
Her Majesty the Queen
— and —
Van Nguyen
Before: Justice S. Nakatsuru
Heard on: June 11, 2014
Reasons for Judgment released on: June 13, 2014
Counsel:
- E. McNamara, for the Crown
- J. Christie, for the defendant Nguyen
NAKATSURU J.:
[1]
Mr. Nguyen is charged with one count of operating a motor vehicle while his ability to do so was impaired by a drug. The Crown has called P.C. Brett Fogg to give opinion evidence as a Drug Recognition Expert (henceforth "DRE") pursuant to s. 254(3.1) of the Criminal Code.
[2]
The issue is whether P.C. Fogg is giving "expert" opinion evidence, needs to be formally qualified in doing so, and the limits of that opinion. I find for the following reasons that P.C. Fogg is not giving expert opinion evidence, does not need to be qualified beyond what is required by regulation, and his opinion must be limited to the tests and procedures permitted by regulation and the issue of whether Mr. Nguyen's ability to operate a motor vehicle was impaired by a drug.
A. SUMMARY OF THE FACTS
[3]
The evidence can be briefly summarized to give context to the ruling. On March 13, 2013, the police stopped Mr. Nguyen early on the Sunday morning in a motor vehicle in downtown Toronto. The accused and some friends had been walking in the vicinity of an after-hours club when spotted by the officer. The officer observed them enter into the vehicle with Mr. Nguyen driving. The police officer stopped the vehicle to conduct an investigation for potential driving infractions. The officer did not smell any alcohol on the accused's breath. However, the officer observed certain physical indicia that lead him to suspect Mr. Nguyen was impaired on some form of illicit drug. Mr. Nguyen was asked to do some roadside physical coordination tests. On the basis of these tests, Mr. Nguyen was arrested for operating a motor vehicle while his ability to do so was impaired by drugs.
[4]
The accused was taken to a police station. At the station, P.C. Fogg, who is a DRE, performed a number of tests and procedures on the accused in order to determine whether he was impaired and whether a urinalysis would be required.
[5]
P.C. Fogg commenced his testimony. His curriculum vitae was filed as an exhibit. P.C. Fogg testified that he has taken a number of courses on drug recognition and evaluation and has been certified as a DRE by the International Association of Chiefs of Police. He testified that he has been involved in approximately 24 cases involving drug evaluation but has not yet testified in court on the issue.
[6]
As the Crown was going through his experience, I inquired whether it was necessary for me to rule that P.C. Fogg was qualified to give expert opinion evidence.
[7]
The Crown argued that no such ruling was necessary. The recent and binding decision of R. v. Bingley, 2014 ONSC 2432 stands for the proposition that a voir dire pursuant to the case of R. v. Mohan, [1994] 2 S.C.R. 9 is not necessary. The Crown submitted that P.C. Fogg is not giving expert testimony and as a result no ruling from the Court was required. She submitted that P.C. Fogg should just give his evidence in the normal course just as a breathalyzer technician does. In addition, she argues that P.C. Fogg is permitted to give lay opinion evidence with respect to whether Mr. Nguyen's ability to operate a motor vehicle was impaired by a drug.
B. ANALYSIS
[8]
Justice McLean in Bingley, sitting as a summary appeal court, settles the question of whether a voir dire is required. It is not. The provisions of s. 254(3.1) permits the evaluating officer to opine on the issue of whether the accused's ability to operate a motor vehicle is impaired by a drug or by a combination of alcohol and a drug.
[9]
It is not necessary that the trial judge make a formal ruling that the evaluating officer be permitted to give opinion evidence. The statute permits the officer to do so. It is immaterial whether this opinion is classified as "expert" opinion evidence or "lay" opinion evidence since s. 254(3.1) provides the route for its admissibility. In some ways, the characterization of the police officer as a Drug Recognition "Expert" does nothing more than sow confusion. As the legislator is entitled to, absent constitutional concerns, it has paved the path for admission of this opinion evidence through these Code provisions and the relevant regulations.
[10]
The only qualification for the witness is found in s. 254(1) which states:
"evaluating officer" means a peace officer who is qualified under the regulations to conduct evaluations under subsection (3.1)
[11]
The relevant regulation, the Evaluation of Impaired Operation (Drugs and Alcohol) Regulations, S.O.R./2008-196 mandates:
An evaluating officer must be a certified drug recognition expert accredited by the International Association of Chiefs of Police.
[12]
In this case, P.C. Fogg has been so accredited. Therefore he has the qualifications in order to give his opinion in this case. Nothing further is required before that opinion is receivable. Of course, the weight to be given his evidence is a different matter and may well depend on what such certification and accreditation means.
[13]
While qualification is a simple and straightforward matter, P.C. Fogg or any other evaluating officer does not have carte blanche in offering opinion evidence. First of all, that opinion must be based upon the evaluation tests and procedures that have been prescribed by regulation. Section 254.1(1)(c) permits such regulations to be enacted. They are found in section 3 of the Evaluation of Impaired Operation (Drugs and Alcohol) Regulations, S.O.R./2008-196 and referred to in Bingley. For ease of reference, they are the following:
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 consist of measuring the blood pressure, temperature and pulse;
(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 consist 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.
[14]
The officer should be able to explain the reasons why he came to the opinion about any impairment of the accused's ability to operate a motor vehicle by drugs or a combination of alcohol and drugs, but those reasons must be limited to the tests and procedures that are sanctioned by the regulation. Reference to other tests, procedures, or extraneous factors should not be permitted. Given that Parliament has expressly regulated the types of tests and procedures that it considers to be valid and appropriate for the evaluating officer to consider, it would be wrong for the officer to base his opinion on other matters.
[15]
In addition, if admissibility is intended under s. 254(3.1), the opinion must be confined to that issue of impairment and no other opinion should be given. Should the officer stray into other areas not authorized by Parliament, then he must meet the common law tests for the admissibility of opinion evidence. If the opinion being offered requires meeting the test for the admissibility of expert opinion evidence, then the threshold test set out in Mohan must be satisfied. An example of this would be the pharmacological effects of certain types of drugs. P.C. Fogg should not testify about that unless he is properly qualified as an expert in that field.
[16]
In my opinion, the provisions regarding the evaluation of suspected drug impaired drivers was intended to provide a simple and efficient means to investigate and prosecute the offences. In some ways, the process was designed to track the breathalyzer provisions. That said, given the subjective nature of the testing and the opinion being offered, it will remain to be seen whether the reality of such investigations and prosecutions will be able to achieve that intention. It is obvious that an evaluating officer's opinion regarding impairment is qualitatively different than an Intoxilizer reading.
[17]
Finally, as Bingley has confirmed, even aside from the statutory route for admissibility under s. 254(3.1), P.C. Fogg may provide his opinion regarding the impairment of the accused's ability to operate a motor vehicle by a drug or a combination of alcohol and drug as "lay opinion". Such an opinion is simply a more succinct, accurate, and effective expression of a constellation of facts observed by the witness. It is a "compendious statement of facts" exception to the opinion rule: see R. v. Graat, [1982] 2 S.C.R. 819. Given this route of admissibility, P.C. Fogg's opinion need not be limited to the tests and procedures found within the regulation. It can be based upon other facts he has observed so long as it does not tread into the area of true expert opinion. With this form of lay opinion, as noted in Graat, is the caveat that such opinions should not attract any more weight on the basis that P.C. Fogg is a police officer with more extensive experience with impaired drivers than similar expressions of lay opinion by non-police witnesses.
Released: June 13, 2014
Signed: Justice S. Nakatsuru