Ontario Court of Justice

Between: Her Majesty the Queen — and — Maxime Lecomte

Before: Justice C. Kehoe

Ruling Regarding Mohan Voir Dire released on March 21, 2014

Counsel: Ms. S. Fountain for the Crown Mr. R. Stewart for the accused Maxime Lecomte

KEHOE, J.:

[1] Mr. Maxime Lecomte is charged that on December 12, 2012, he was operating a motor vehicle while his ability to operate the motor vehicle was impaired by a drug.

[2] This is a ruling on whether or not the Drug Recognition Officer is qualified to provide an expert opinion concerning whether or not Mr. Lecomte's ability to operate a motor vehicle was impaired by a drug at the time that the Drug Recognition Expert conducts the second set of drug recognition tests, or whether the Crown must enter a Mohan voir dire to qualify the DRE as an expert qualified to provide that opinion.

[3] Mr. Ross Stewart, on behalf of Mr. Lecomte, admits that the DRE can provide evidence on the officer's observations and the tests administered, but questions the science that forms the basis of the opinion. He submits that the opinion as to whether or not Mr. Lecomte's ability to operate a motor vehicle was impaired by alcohol or a drug or both at the time of the testing cannot be offered unless the Crown calls expert evidence that proves the science that forms the basis of the tests and the resulting opinion.

[4] Ms. Fountain, on behalf of the Crown, submits that in passing the amendments to the Criminal Code, section 253, Parliament held its own voir dire as to the reliability of the science and there is no requirement for a Mohan voir dire. Ms. Fountain submits that as per the amendments to the Criminal Code, as long as the Drug Recognition Officer is accredited by the IACP, as per Regulation SOR/2008-196, the DRE can testify about the evaluation conducted pursuant to section 254(3.1), particularly describing the tests and procedures, that a demand was made pursuant to section 254(3.4) and describe the grounds for that demand, including an opinion about impairment by drugs at the time the testing/demand is done.

[5] The Crown submits that the officer's opinion merely forms part of all of the evidence the Court can consider in making a decision on the ultimate issue.

[6] I have reviewed the submissions of Counsel, the cases referred to by Counsel as well as the Hansard transcripts of the Standing Committee on Justice and Human Rights, Number 72, 77, 78, 1st Session, 39th Parliament (May 14, June 14 and June 19, 2007) and the Hansard, Legislative Committee on Bill C-2, Number 003, 2nd Session, 39th Parliament (October 31, 2007).

[7] The decisions on this issue support both the Crown's position, R. v. Kuzian, [2012] OJ No 6049 (ONCJ), R. v. Bois, 2010 ONCJ 420, R. v. Bingley, [2010] OJ No. 6268 (ONCJ), [R. v. Bingley 2012 OJ No 739 (ONSCJ) (appeal of acquittal not Mohan voir dire issue), as well as the position taken by the Defence, Bingley (unreported ONCJ) July 15, 2013 (re-trial), R. v. Thomas, 2010 CarswellBC2006 (expert opinion re impairment not necessary and usurped function of trier of fact), R. v. MacDonald, 2012 CarswellNS, R. v. Conron, 2012 ONCJ 171, R. v. Wakwich, 2010 ONCJ 86.

[8] The exact issue was raised in R. v. MacDonald, 2012 CarswellNS 229. Addressing all of the issues raised by Mr. Stewart in the case before the Court, Justice Laurel Halfpenny MacQuarrie thoroughly reviews the issues, case law and the evidence of the toxicologist, whose qualifications as an expert in the area were admitted, concerning the science underlying the subject testing, reliability, the training and qualification of the Drug Recognition "Expert" officers.

[9] The case was included in Mr. Stewart's casebook for the principle that the Mohan voir dire must be held prior to qualifying a DRE officer as an "expert" notwithstanding section 254(3.1). Justice MacQuarrie agrees, see paragraph 62. However, Mr. Stewart's challenges the science that forms the basis of the testing and its reliability in determining whether an accused is impaired by a drug.

[10] Justice MacQuarrie concludes, at paragraphs 63 to 70, that the Mohan criteria, relevance, necessity and absence of any exclusionary rule, are met and the DRE officer is permitted to provide an opinion as to whether or not the accused's ability to operate a motor vehicle was impaired by a drug, but the evidentiary value of the opinion is a matter of weight.

[11] I disagree that, in each impaired driving case that involves a drug recognition officer, a Mohan voir dire must be held to qualify the officer as an expert prior to opinion evidence being given concerning the observations, testing procedures, testing and concerning the officer's opinion on whether at the time of the testing and the section 254(3.4) demand, the subject's ability to operate a motor vehicle was impaired by a drug, as long as it is proved that the officer is properly accredited pursuant to the Regulations referred to above.

[12] I agree that Parliament has legislated who is qualified to perform the testing and found the science to be sufficiently reliable. If there is a challenge to the science, a constitutional question should be brought.

[13] Therefore, if Cst. Miller meets the criteria set out in the regulation, he is qualified as a Drug Recognition Expert and can provide an opinion as to whether the accused's ability to operate a motor vehicle at the time of the evaluation was impaired by a drug or by a combination of alcohol and a drug as the officer must, in order to make the demand for the sample of either an oral fluid or urine in order to determine whether the person has a drug in their body.

Released: March 21, 2014

The Honourable Justice C. Kehoe