Court File and Parties

Court File No.: Halton 121111003505 Date: 2014-01-06 Ontario Court of Justice

Between: Her Majesty the Queen — and — Katherine McCarthy

Before: Justice R. J. LeDressay

Heard: November 6, 7 & December 4, 2013

Reasons for ruling released: January 6, 2014

Counsel:

• Arish Khoorshed, for the Crown
• Gordon Norsworthy, for the defendant Katherine McCarthy

Reasons for Ruling

LeDRESSAY J.:

[1] Application Regarding Evaluating Officer Evidence

[1] This is a ruling on an application by the Crown concerning the admissibility of evidence proffered by a properly qualified "Evaluating Officer" as defined in section 254 of the Criminal Code.

[2] Crown's Position

[2] The Crown seeks to have the evaluating officer testify regarding his opinion concerning whether the accused's ability to operate a motor vehicle was impaired by a drug without the officer being qualified to provide expert opinion evidence as per the criteria set out in R. v. Mohan, [1994] S.C.J. 36 and R. v. J.-L.J. 2000 SCC 51, [2000] S.C.J. 52.

[3] Accused's Position

[3] The accused argues that the evaluating officer may testify as to the evaluation conducted pursuant to s. 254(3.1) of the Criminal Code, describing the evaluation tests and procedures as set out in Regulation 2008-196. In addition, the evaluating officer may testify that a demand was made pursuant to s. 254(3.4) of the Criminal Code, and the grounds for that demand. However the accused argues that any opinion by the evaluating officer as to impairment by drug, other than for the purpose of making a demand pursuant to s. 254(3.4) of the Criminal Code, will not carry the weight of expert opinion, unless the criteria in R. v. Mohan and R. v. J.-L.J. have been met.

[4] Relevant Criminal Code Provisions

[4] The relevant provisions of the Criminal Code are as follows (emphasis added):

Operation while impaired

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.

For greater certainty

(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.

Definitions

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.

Testing for presence of alcohol or a drug

(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

(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.

Video recording

(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).

Samples of breath or blood

(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.

Evaluation

(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.

Video recording

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

Testing for presence of alcohol

(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.

Samples of bodily substances

(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.

Condition

(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.

Failure or refusal to comply with demand

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

Only one determination of guilt

(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.

[5] Applicable Regulation

[5] The applicable Regulation that applies to this section reads as follows (emphasis added):

Evaluation of Impaired Operation (Drugs and Alcohol) Regulations

SOR/2008-196

CRIMINAL CODE

Registration 2008-06-11

Evaluation of Impaired Operation (Drugs and Alcohol) Regulations

P.C. 2008-1033 2008-06-11

Her Excellency the Governor General in Council, on the recommendation of the Minister of Justice, pursuant to section 254.1 of the Criminal Code, hereby makes the annexed Evaluation of Impaired Operation (Drugs and Alcohol) Regulations.

QUALIFICATION REQUIRED OF EVALUATING OFFICER

1. An evaluating officer must be a certified drug recognition expert accredited by the International Association of Chiefs of Police.

PHYSICAL COORDINATION TESTS

2. The physical coordination tests to be conducted under paragraph 254(2)(a) of the Criminal Code are the following standard field sobriety tests:

(a) the horizontal gaze nystagmus test;

(b) the walk-and-turn test; and

(c) the one-leg stand test.

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;

(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.

COMING INTO FORCE

4. These Regulations come into force on July 2, 2008.

[6] Statutory Interpretation Principles

[6] In the case of R. v. Briggs, [2001] O.J. No. 3339 the Ontario Court of Appeal indicated the following regarding statutory interpretation at paragraph 7:

The basic principle of statutory interpretation is 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." (E.A. Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983) at 87, as applied in R. v. Araujo (2000), 2000 SCC 65, 149 C.C.C. (3d) 449 (S.C.C.) at 463).

[7] Objective of the Criminal Code

[7] One of the objectives of the Criminal Code was also noted in the Briggs case as being, "in the interests of everyone that serious crime be effectively investigated and prosecuted." Driving a motor vehicle while impaired by a drug is a serious crime that often causes injury and sometimes death to many innocent people. On multiple occasions the courts have commented on the scourge of impaired driving. Drug impaired driving surely qualifies as a serious crime that should be effectively investigated and prosecuted.

[8] Parliamentary Intent

[8] The object and intention of Parliament can also be determined by the heading of the applicable Regulation which states "Evaluation of Impaired Operation (Drugs or Alcohol) Regulations".

[9] Comprehensive Procedure for Drug Impaired Driving

[9] Parliament with these relatively recent amendments to the Criminal Code has introduced measures to combat drug impaired driving with a comprehensive procedure based on the requisite reasonable and probable grounds standard to require a suspected drug impaired driver to submit 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."

[10] Parliamentary Intent Regarding Evaluating Officer Opinion

[10] The key words regarding the object and intention of Parliament are in bold. Read in context and in their grammatical and ordinary sense, those words in that passage clearly indicate that Parliament envisioned a procedure whereby, when the appropriate reasonable and probable grounds have been established, a person must submit to an evaluation by an evaluating officer. The clear purpose of the person being required to do this was for the evaluating officer "to determine" whether the person's ability to operate a motor vehicle was impaired by a drug or by a combination of alcohol or a drug. The evaluating officer, if he/she has the necessary reasonable grounds to believe, may require the person to provide a sample of oral fluid, urine or blood. This latter evidence is of value only as being some corroborative evidence of the evaluating officer's opinion regarding the person being impaired by a drug or by a combination of alcohol or a drug. The legislation would be rendered impotent if the only objective achieved by the evaluation process conducted by a qualified evaluating officer was the evaluating officer's ability to demand a sample of oral fluid, urine or blood. Parliament's clear intention with this legislative amendment was to put in place an appropriate, fair, definitive and efficient procedure to detect drug impaired drivers. Parliament was clearly satisfied that this was accomplished by having a properly certified drug recognition expert evaluate a suspected drug impaired driver by administering a prescribed set of tests and procedures as specified in the Regulations. Although not specifically stated the clear inference is that the evaluating officer was expected to provide the court with his/her expert opinion regarding whether the suspected drug impaired driver was in the opinion of the evaluating officer, based on the prescribed tests, impaired by drug or by a combination of alcohol and a drug.

[11] Support from R. v. Bingley

[11] This conclusion finds support in the case of R. V. Bingley [2010] O.J. No. 6268. In that case Fontana J. concluded the following:

It is clear, on a reading of section 1 of the regulation that parliament intended the accredited officer to testify as a drug evaluation expert in impaired operation cases without the necessity of a formal voir dire or examination of credentials. As Mr. Brown has rightly pointed out, this may not be all together clear in the wording of section 1 but it is obvious that that is its intent.

[12] Analogy to Qualified Technicians

[12] Fontana J. went on to note a further argument in support of his conclusion when he said:

In R. v. Nethery [ph], [2004] A.J. No. 1248, Provincial Court Judge Allan drew the distinction, in which I concur by the way, that a qualified breathalyzer technician, for example, is an expert who must be qualified in the usual way, the way, for purposes other, and I emphasize other, than a section 253 prosecution. The same reasoning applies here, in my view, for so long as regulation section 1 stands.

[13] Supporting Authority

[13] This conclusion reached in Bingley is supported by the decision in Re Criminal Code of Canada, Sections 222, 224, 224A, [1971] N.B.J. No. 31 and the following passage in R. v. Frerichs [1981] A.J. No. 617:

The technician had been duly designated as qualified for the purposes of s. 237. That is not disputed. Nevertheless, the Crown chose to call him as a witness-in-chief and purported to qualify him by his oral testimony as an expert in the use and operation of a Borkenstein Breathalyzer. The Provincial Court judge accepted him as such. This would appear to be an act of supererogation, since the Criminal Code itself specifies who is to be the arbiter of a technician's qualification for these purposes, and the technician had been accordingly so designated. I adopt this observation by Limerick, J.A., in Reference re ss. 222, 224 and 224A of the Criminal Code (1971), 3 N.B.R. (2d) 511; 3 C.C.C. (2d) 243, at 254:

The designation by the Attorney General of New Brunswick of the technician, as being qualified to operate an approved instrument, categorizes him in the class of an expert witness competent to give opinion evidence in relation to matters pertaining to the analysis of the breath, the approved instrument, and the substances and procedures used in the making of a test and of the conclusion to be drawn from such a test, ...

Purvis, J., referred to this and to a number of additional judgments to the like effect. I will not labour further in pursuit of the obvious.

[14] Summary Conviction Appeal in Bingley

[14] In the summary conviction appeal of Bingley [2012] O.J. No. 739, Ratushny J., although not specifically addressing the issue, referred to the evidence of the evaluating officer in that case as "expert evidence" in paragraphs 11 and 15 apparently taking as a given that Fontana J.'s ruling at trial that the evaluating officer could testify as an expert regarding his opinion concerning impairment without the necessity of a Mohan voir dire.

[15] Consistent Judicial Approach

[15] Baldwin J. in R. v. Kuzian [2012] O.J. No. 6049 came to the same conclusion as Fontana J. in the Bingley trial decision. Similarly, in R. v. Bois [2010] O.J. No. 3945 the evaluating officer was allowed to give opinion evidence with respect to whether someone's ability to operate a motor vehicle was impaired by a drug. In R. v. Agostino [2010] O.J. No. 6267 the court held that the evaluating officer is someone who is qualified to conduct the tests as set out in the Regulations and was able to offer assistance to the court in interpreting the testing. The court then considered the evaluating officer's evidence regarding drug impairment based on the accused's performance on the evaluation tests set out in the Regulations.

[16] Distinguishing R. v. Woods

[16] I have considered the decision in R. v. Woods [2007] A.J. No. 895 but I am of the view that this case is distinguishable because it was decided prior to the amendments to the Criminal Code and the new Regulations as set out in this judgment which were proclaimed in force on July 2, 2008. This case rejected the evidence of the drug recognition expert in large part because it was based on novel science. Parliament has effectively pronounced on this issue by the enactment and Regulations referred to in this case. It must be inferred that Parliament was satisfied that this was no longer novel science when Parliament decided to enact this legislation.

[17] Disagreement with R. v. Wakewich

[17] I have also considered the case of R. v. Wakewich [2010] O.J. No. 1128 but I respectfully disagree with the court's analysis. I prefer the reasoning in the cases of Bingley, Nethery and Frerichs and I find the conclusion that the drug impaired legislation and the applicable Regulations are analogous to the expert opinion offered by Qualified Technicians in alcohol impaired driving cases involving breath testing.

[18] R. v. Steeves

[18] Finally, I have considered the case of R. v. Steeves but note that it was overturned on appeal in the New Brunswick Court of Appeal due to the trial judge failing to hear submissions from the Crown on the opinion evidence issue. The case was sent back for a new trial without the Court of Appeal deciding the opinion evidence issue or commenting on it. Therefore, it is not of assistance in deciding this case.

[19] Ruling on Admissibility

[19] Therefore the Crown may elicit the expert opinion of the certified drug recognition expert regarding the accused's ability to operate a motor vehicle being impaired by drug without the necessity of a Mohan voir dire so long as it is established that the witness is a certified drug recognition expert accredited by the International Association of Chiefs of Police as specified in s. 1 of the Regulations.

[20] Weight of Expert Evidence

[20] This does not mean that the evaluating officer's opinion is determinative of the ultimate issue. As in the case of any expert evidence the evaluating officer's methodology and/or the underlying factual basis of the opinion may be challenged as well as the evaluating officer's conclusion regarding drug impairment. It is the court that must evaluate the strength of the expert evidence proffered by an evaluating officer. As noted by Fontana J in R. v. Bingley [2010] O.J. No. 6268 at paragraph 6:

I point out that it is not to be taken to mean that the opinion itself carries the sanctity of conclusiveness. The regulation section 1 does not imply that. That is a question of weight at all times which the Crown may explore in chief and the defence may challenge on cross-examination.

[21] Weight Remains with Trial Judge

[21] A similar observation was made by the court in Re Criminal Code of Canada, Sections 222, 224, 224A, [1971] N.B.J. No. 31 when the court noted:

The weight to be given to any opinion is always a matter for the consideration of the trial judge.

[22] Expert Evidence Must Not Usurp Fact-Finding Function

[22] In the case of R. v. Abbey, Justice Doherty made it clear that judges should be vigilant with respect to expert evidence and to be careful not to allow expert evidence to "swallow whole the fact-finding function of the court." He noted the following at paragraph 71:

It is fundamental to the adversary process that witnesses testify to what they saw, heard, felt or did, and the trier of fact, using that evidentiary raw material, determines the facts. Expert opinion evidence is different. Experts take information accumulated from their own work and experience, combine it with evidence offered by other witnesses, and present an opinion as to a factual inference that should be drawn from that material. The trier of fact must then decide whether to accept or reject the expert's opinion as to the appropriate factual inference. Expert evidence has the real potential to swallow whole the fact-finding function of the court, especially in jury cases.

[23] Second Issue

[23] This brings us to the second issue that must now be decided.

[24] Crown's Intention to Call Expert Evidence

[24] Parliament has approved Regulation SOR/2008-196 which sets out, in section 3, the evaluation tests and procedures that a certified drug recognition expert is to follow during an evaluation under s. 254(3.1) of the Criminal Code. The Crown intends to call a certified drug recognition expert at this trial to testify regarding the tests and procedures conducted on the accused, to provide his reasonable and probable grounds to demand a urine sample and to give his expert opinion regarding whether the accused's ability to operate a motor vehicle was impaired by drug.

[25] Accused's Expert Evidence

[25] The accused will be challenging this conclusion by calling an expert witness, Dr. David Rosenbloom, who according to the report filed as an exhibit on this application, will provide expert opinion evidence that the tests administered by the certified drug recognition expert, and which are approved by Parliament, are not scientifically valid for drugs other than alcohol. It is Dr. Rosenbloom's expert opinion that the scientific basis for the testing itself and then the link between decrement in performance on testing and driving impairment are tenuous at best.

[26] Crown's Constitutional Challenge Argument

[26] The Crown contends that this is a constitutional challenge to the legislation based on the Charter and therefore the notice requirement under the rules of the Ontario Court of Justice and S. 109 of the Courts of Justice Act must be complied with.

[27] Accused's Defence Strategy

[27] While this legislation could be challenged constitutionally the accused has opted not to do so in this case and the accused should not be restricted regarding the method of defence during the course of a trial. Parliament did not stipulate the conclusions that must be reached once a certain result was obtained on the evaluation tests for impairment by drug. There are no presumptions included in this part of the legislation like there is in the sections related to over 80 charges where a breathalyser test is administered and results are achieved.

[28] Challenging Expert Evidence Without Constitutional Challenge

[28] The fact that this legislation could be challenged constitutionally under s 7 of the Charter does not bar the approach taken by the accused in this case. The accused does not seek to declare the legislation invalid but seeks to challenge the expert evidence provided by the certified drug recognition expert in the way that expert evidence is often attacked, that is by challenging the underlying factual basis of the expert opinion and by challenging the expert opinion on impairment by drug reached by the certified drug recognition expert on the basis of the conclusions reached not being scientifically valid. The accused does not seek to have the legislation or the Regulations declared invalid. The defence challenges the opinion of the certified drug recognition expert based on the scientific validity of the tests used. This seems to me to be exactly what the court had in mind in the Bingley case quoted above.

[29] Ruling on Expert Evidence Notice

[29] Therefore the accused may call the expert evidence proposed without giving further notice other than complying with the notice requirement set out in s. 657.3 of the Criminal Code.

Released: January 6, 2014

Richard LeDressay

Signed: "Justice R.J LeDressay"