RULING ON CHARTER APPLICATION FOR DISCLOSURE OF DRE ROLLING LOGS

Ontario Court of Justice

Date: March 8, 2018

Court File No.: Ottawa 16-3250; 16-8941

Between:

Her Majesty the Queen

— and —

Kyle A. Branson

Before: Justice Robert Wadden

Heard on: January 16, 2018

Reasons released on: March 8, 2018

Counsel:

• Hart Shouldice, for the Crown
• Jon Doody, for the defendant

WADDEN J.:

[1] Kyle Branson is charged with operating a motor vehicle while impaired by a drug, contrary to s. 253(1)(a) of the Criminal Code. He has brought this application for disclosure of a copy of the "rolling logs" kept by the Drug Recognition Expert ("DRE"), Cst. Jean Benoit of the Ottawa Police. Mr. Branson brings this application pursuant to s. 7 of the Charter of Rights and Freedoms, taking the position that the rolling logs are in the possession of a Crown witness and must be provided to the defence as Stinchcombe disclosure. The Crown opposes disclosure, taking the position that the records are third party records that are not in the possession of the Crown, and ought not to be disclosed.

[2] For the reasons set out below, the Application is granted and the Crown must disclose the DRE rolling logs.

Legislative Context

[3] The authorizing legislation for Drug Recognition Experts is found in s. 254(3.1) of the Code. The details of the DRE regime as approved for use in Canada are set out in the Evaluation of Impaired Operation (Drugs and Alcohol) Regulations. The Regulations are central to the DRE regime. In R. v. Bingley, 2017 SCC 12, McLachlin C.J. summarized the structure as follows (at para. 9):

To meet the need to enforce the law against drug-impaired driving, Parliament set up a regime to test for drug impairment in 2008. The centrepiece of the regime is a 12-part evaluation for drug impairment, established by the Regulations, to be administered by police officers called DREs. [Footnote:] The Regulations are based on the procedure set out by the International Association of Chiefs of Police ("IACP"), and DREs must be accredited by that organization: Regulations, s. 1. The procedure set out by the IACP was referred to in legislative debates that led to the adoption of s. 254(3.1) of the Criminal Code as the intended drug evaluation scheme

[4] The Supreme Court upheld the admissibility of DRE opinion evidence, making it clear that the reliability of the DRE regime depends on the International Association of Chiefs of Police (IACP) structure that has been adopted in Canadian law by way of the Regulations. It is this IACP structure that Parliament determined was appropriate.

The IACP International Standards

[5] The IACP is the international accrediting body for DREs. Section 1 of the Regulations states that "An evaluating officer must be a certified drug recognition expert accredited by the International Association of Chiefs of Police."

[6] The IACP has published "The International Standards of the Drug Evaluation and Classification Program" (DEC Program Technical Advisory Panel, Revised October 2016). DRE trained officers in Canada must meet the training and qualification standards set out in this document to be accredited by the IACP.

[7] The IACP International Standards recognize the importance of a standardized approach to drug recognition evaluation, training and presentation of evidence. It is clear from the International Standards that adherence to them is what gives credibility to the DRE program.

Rolling Logs As Part of the International Standards

[8] According to the evidence of Cst. T.J. Jellinek, a DRE and DRE Instructor with the Ottawa Police Service who testified on this Application, a rolling log consists of information about all tests a DRE has performed, including the suspect's name, name of witnessing officer, date, opinion of the DRE and information of whether the DRE opinion was confirmed by a toxicological sample. Cst. Jellinek testified that maintenance of the rolling log is a requirement of the IACP. He testified that, "If the IACP didn't require it, we would not maintain it."

[9] The IACP International Standards stress the importance of rolling logs. Every participating police agency "must maintain accurate and timely records of (1) the date of arrest, (2) gender, (3) date of birth, (4) the DRE's opinion, (5) the result of the toxicology sample, and (6) the name of the evaluator. (Part VI, s. 6.5). The Commentary to that requirement states that "In addition to evaluation purposes, the records may prove beneficial in establishing program validity for court purposes." (Emphasis added)

[10] According to Part III, s. 3.1 of the International Standards, each DRE is required to maintain, among other things, evaluation logs (another term for rolling logs), and the Commentary to that section states that "Guidelines for the retention of pertinent records concerning the program operation help to ensure integrity and provide valuable information for purposes of statistics and court verification of training." (Emphasis added)

[11] The International Standards specifically state that the rolling log must be part of the curriculum vitae of the DRE. Part I, s. 1.14 states:

1.14 By the time the candidate DRE has completed field certification training, he shall have prepared a curriculum vitae, which shall reflect his training and experience. The curriculum vitae shall include a complete log of all evaluations in which the candidate has conducted or observed. (Emphasis added)

Commentary: In order to be accepted as a credible witness, the DRE must be able to document and articulate a body of information concerning training, qualifications, and experience in the field of drug evaluation and classification. Toward this end, candidates are instructed in the importance and proper preparation of a curriculum vitae. (Emphasis added)

[12] The International Standards are unequivocal that the rolling log must form part of the DRE's curriculum vitae, and it is anticipated the logs would be available to the court and might play a role in the court's evaluation of the DRE as a witness.

Relevance

[13] Rolling logs include information about whether a DRE's opinion was confirmed by a toxicology test. This is used as a benchmark by the IACP in certifying DREs. In order to receive their initial certification, the opinion of a candidate DRE must be confirmed by a positive toxicology test 75% of the time. To maintain certification, DREs must keep logs of all tests, although there is no fixed confirmation rate required for recertification.

[14] Cst. Jellinek testified that rolling logs would have limited value in assessing the competence of a DRE. According to Cst. Jellinek, there are a wide variety of reasons why a DRE might form an opinion of impairment by drug that is not confirmed by toxicological testing. Certain drugs, such as inhalants, are not prone to confirmation by way of toxicological testing. An opinion of impairment might well have been valid in those circumstances even though confirmation is absent. A DRE might, by happenstance, deal with a number of individuals who are intoxicated by a drug for which confirmation is not possible, thereby skewing that DRE's statistics.

[15] Given these issues relating to toxicological confirmation, it may be that courts determine that rolling logs have limited weight other than 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. But as the IACP International Standards indicate that the rolling log may be relevant to a court's evaluation of a DRE's evidence, and the International Standards have been adopted as part of the Canadian DRE regime, I cannot find that the rolling logs are irrelevant.

[16] It is worth noting that the Supreme Court, in upholding the admissibility of DRE opinion evidence, made it clear that the evidence is subject to the same assessment for credibility and reliability as any other evidence. As stated at para. 32 of R. v. Bingley, the fact "[t]hat Parliament has established the reliability of the 12-step drug evaluation by statute does not hinder the trier of fact's ability to critically assess a DRE's conclusion of impairment or an accused person's right to test that evidence. Cross-examination of the DRE may undermine his or her conclusion. Evidence of bias may raise doubt about the officer's conclusion. The officer may fail to conduct the drug recognition evaluation in accordance with his or her training. A DRE may draw questionable inferences from his or her observations. Bodily sample evidence obtained under s. 254(3.4) may refute the DRE's assessment, as may evidence of bystanders or other experts. It will always be for the trier of fact to determine what weight to give a DRE's opinion. Any weight given to a DRE's evidence will necessarily respect the scope of the DRE's expertise and the fact that it is not conclusive of impairment."

[17] The IACP International Standards indicate that the rolling log is relevant for court purposes. It is, therefore, "potentially relevant evidence pertaining to the credibility or reliability" of the DRE, which brings it within the scope of disclosable material contemplated in R. v. McNeil, 2009 SCC 3 at para. 50. The question then arises as to whether there is any prohibition on disclosure of the rolling log.

Compliance with s. 258.1 of the Criminal Code

[18] Cst. Jellinek testified that Canadian DREs could not comply with the requirement to include rolling logs in their curriculum vitae because doing so would be contrary to s. 258.1 of the Criminal Code.

[19] Section 258.1 states, in part:

(2) Subject to subsections (3) and (4), no person shall use, disclose or allow the disclosure of […] the results of an evaluation under subsection 254(3.1), […] except

(a) in the course of an investigation of, or in a proceeding for, an offence under any of sections 220, 221, 236 and 249 to 255, […]; or

(b) for the purpose of the administration or enforcement of the law of a province.

[20] There is no evidence on this Application that the police rely on a formal legal opinion for their interpretation that s. 258.1 prohibits the disclosure of the rolling logs. Cst. Jellinek testified that he relies on conversations he has had with lawyers of the Crown Law Office, Criminal and an understanding that the International Standards may be applied differently in accordance with local law.

[21] It is clear that the International Standards anticipate variation among jurisdictions. The Executive Summary concludes that "These standards, when adopted by other countries, will be administered pursuant to their political structure." Some of that international variance has been written into the International Standards. For example, Part I, s. 1.10.01 provides an exception in training requirements for the Province of Quebec, due to language issues. Notably, though, no exception has been made exempting Canadian DREs from the requirement to include rolling logs as part of the curriculum vitae.

[22] Therefore, if the rolling log is prima facie relevant, and the International Standards mandate its disclosure as part of the DRE's curriculum vitae, the issue to be determined on this Application is whether s. 258.1 prohibits disclosure of the rolling logs, justifying a departure from the IACP requirements.

Analysis

[23] It must be kept in mind that the disclosure sought in this case is an anonymized copy of the rolling log. The Applicant does not seek the names or any identifying information about the subjects the DRE may have previously tested. He seeks the information that the DRE is otherwise required to maintain in the logs, pursuant to the IACP International Standards.

[24] The applicability of s. 258.1 to the issue of disclosure of rolling logs was considered by Schreck J. in R. v. Stipo, 2017 ONSC 5208, [2017] O.J. No 4648. In addressing this same argument, he stated: "The issue here is one of statutory interpretation. The correct approach to statutory interpretation requires the court to read 'the words of an Act … 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 … [citations omitted]'" (at para. 41). Justice Schreck noted that the purpose of s. 258.1 is to protect the privacy interests of individuals who are subject to breath or drug tests.

[25] In applying the principles of statutory interpretation, it is my view that s. 258.1 does not prohibit the disclosure of an anonymized copy of the rolling logs as part of the DRE's curriculum vitae. Such disclosure would not violate the letter of the law or the purpose of the section.

[26] Section 258.1(2)(b) allows an exception for disclosure "for the purpose of the administration or enforcement of the law of a province." This exception would apply to the disclosure of the rolling logs as part of the DRE's curriculum vitae, as the DRE is compelled to testify in court and, in doing so, she is required, in compliance with the International Standards, to provide a curriculum vitae that includes her rolling logs. The DRE's legal obligation to testify, and requirement to comply with the International Standards, fall within the wording of the exception in s. 258.1(2)(b) because they are done "for the purpose of the administration or enforcement" of the criminal law. Provided that the information about previous subjects is given in an anonymous format, with the name and date of birth removed, its disclosure would not violate the purpose of the section, which is to protect the privacy of individuals.

[27] To hold otherwise would be to impose a meaning on s. 258.1 that is unnecessarily restrictive and ignores a clear exception set out in the section. Reading s. 258.1 in a manner that prohibits disclosure of an anonymized copy of the rolling log would result in an undue restriction on the Applicant's Charter right to make full answer and defence, in that it would withhold material that the DRE's accrediting body deems relevant for court purposes. I am in agreement with Schreck J. who wrote, at para. 47 of R. v. Stipo, that "[w]here a statutory provision is subject to differing, but equally plausible, interpretations, the provision should be interpreted 'harmoniously with the constitutional norms enshrined in the Charter': R. v. Mabior, 2012 SCC 47 at para. 44; R. v. Clarke, 2014 SCC 28 at paras. 12-15." In this case, the statutory interpretation consistent with the Charter is one that allows for disclosure of the rolling logs for the purpose of administration or enforcement of the law.

[28] Finally, it would be incongruous to find that s. 258.1 prohibits the disclosure of anonymous data in a DRE's rolling log when there is a separate, broader exception in s. 258.1(4), which would allow the same information to be disclosed "to any other person if the results are made anonymous and the disclosure is made for statistical or other research purposes." This exception highlights that the legislative intent of the section is to protect individual privacy rights, and release of anonymized data is not contrary to this purpose.

[29] Therefore, I find that s. 258.1 does not prohibit the disclosure of the DRE's rolling log, provided that personal identifying information of prior subjects is removed.

Conclusion

[30] Based on the evidence heard on this Application, a requirement to disclose the rolling log would not place an undue burden on the police or the Crown. The rolling log would not have to be created or compiled on a case by case basis. Each DRE is in possession of his or her rolling log, as required by the IACP International Standards. The DRE's rolling log is directly related to his or her ongoing qualification under IACP International Standards. The only additional work that would be required in disclosing it would be redaction of identifying information about prior subjects.

[31] The International Standards suggest the rolling log is relevant for court purposes. Its inclusion as part of the DRE's curriculum vitae is mandated by the IACP. Section 258.1 of the Criminal Code does not prohibit disclosure of the rolling log. Therefore, the Crown is required to provide an anonymized copy of the DRE's rolling log.

Order

[32] The Application is granted. The Crown is required to disclose a copy of the rolling log of the DRE, provided that any identifying information of previous subjects is made anonymous.

Released: March 8, 2018

Signed: "Justice Robert Wadden"