ONTARIO COURT OF JUSTICE

CITATION: R. v. Sukhdeo, 2019 ONCJ 150

DATE: 2019 03 22

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

BRIAN SUKHDEO

Before Justice A.T. McKay

Application Heard in Kitchener on March 12, 2019

Ruling on an Application for Disclosure released on March 22, 2019

Michael Michaud................................................................................. counsel for the Crown

Karl Toews..................................................... counsel for the defendant Brian Sukhdeo

McKAY J.:

INTRODUCTION

[1] On April 19, 2017, Mr. Sukhdeo was charged with having care and control of a motor vehicle while his ability to do so was impaired by alcohol or drug contrary to section 253(1)(a) of the Criminal Code. On the same date, he was charged with an offence under the Controlled Drugs and Substances Act and an offence under the Liquor Licence Act.

[2] The amendments to the Criminal Code regarding impaired driving offences which came into effect December 18, 2018 maintain much of the scheme contained in previous versions of the Criminal Code. However, there are significant changes. The amendments preserved the concept of a drug recognition evaluation (“DRE”), carried out by a qualified officer (“an evaluating officer”) to assess impairment by drug, or by a combination of alcohol and drugs, of the ability to operate a conveyance. Part of the evaluation involves the officer not only identifying impairment of the ability to operate the conveyance, but also identifying the general classification of the type of drug, and placing that drug into one of seven categories of drugs.

[3] Mr. Sukhdeo has brought an application before trial seeking disclosure of the “rolling logs” of the evaluating officer who conducted the evaluation of Mr. Sukhdeo. The defence takes the position that the issue related to disclosure of that document was settled by the Ontario Court of Appeal in R. v. Stipo, 2019 ONCA 3. The Crown takes the position that the Criminal Code provisions related to impaired driving offences have changed since Stipo was argued, and that the current provisions contain a statutory prohibition on disclosing that document. In addition, the Crown takes the position that rolling logs are inadmissible evidence for a number of reasons, including a lack of relevance, as highlighted by the expert evidence led during this application.

[4] A rolling log is simply a form on which an evaluating officer records certain information related to every evaluation ever conducted by the officer. That information includes an assigned log number, the name of the subject, the occurrence number, the date, the opinion of the evaluating officer at the conclusion of the evaluation, the results of the subsequent urine analysis by the Centre of Forensic Sciences (“CFS”) and any charge laid against the subject. At the heart of the issue is the fact that at times, the opinion of the evaluating officer regarding the cause of any impairment may not align with the results of the urine analysis. Many cases involve the use of more than one category of drug by an accused. At times, one or more of the categories of drug identified by the evaluating officer is not detected by CFS in the urine sample of the subject. The defence wants that information for purposes of cross-examining the evaluating officer, presumably to challenge the reliability of his opinion in the case at hand.

EVIDENCE

Constable Greg Blundell

[5] Constable Blundell has been a member of the Waterloo Regional Police Service since August 2004. He has been a qualified breath technician since 2008. Since March, 2009, he has been a qualified drug recognition evaluator. In January of 2014, he became an instructor for the Drug Recognition Evaluator program.

[6] Constable Blundell provided an overview of the DRE program. He outlined the process by which an evaluating officer would conduct the 12-step drug evaluation and classification program on a subject. He provided an overview of how one becomes an evaluating officer. He testified that candidates to become an evaluating officer begin recording matters in their rolling logs while conducting evaluations during their certification process. He indicated that an evaluating officer must always provide an opinion as to the class of drug which is the cause of impairment in the subject. During the qualification phase, there is an accuracy assessment of the tests conducted by a candidate. If the officer is of the opinion there is one drug involved, the officer must be correct about the category of drug. If the officer is of the opinion that two drugs are involved, the officer must be correct on at least one of the categories. If the officer is of the opinion that three drugs are involved, the officer must be correct as to the categorization of two of the three drugs. The accuracy assessment applies only during the qualification phase, and is not a requirement for continuing recertification.

[7] There are seven general categories of drugs, and many individual drugs which fall within each of those categories. After every evaluation conducted by an evaluating officer, there is a process by which an officer qualified as an instructor for the program reviews the documentation related to the evaluation and gives approval before any urine sample can be sent to CFS for analysis. The rolling log is not part of the documentation reviewed by the instructor at that point. It is considered irrelevant because it is not of any assistance in determining whether the evaluating officer reached an appropriate conclusion in that particular case.

[8] Constable Blundell testified that the purpose of the rolling log is simply to record how many evaluations that any particular evaluating officer has conducted. There is a requirement that an evaluating officer must complete a minimum of five evaluations each year as part of the requirements for maintaining his or her qualifications.

[9] Constable Blundell was of the view that if he received a report from CFS showing nonalignment between his evaluation of the category of the drug causing impairment and the urine sample, that would allow him to contact the toxicologist and potentially request testing for a specific drug within the category that he identified.

[10] Constable Blundell was not the qualified instructor who reviewed the evaluation of Mr. Sukhdeo prior to the urine sample being sent to CFS. However, he reviewed the documentation and testified that he would have signed off on the officer’s evaluation had he been involved in the case at that stage.

[11] In cross-examination, he agreed that poly drug use is complicated. He also agreed that it is optimal to complete the evaluation as near in time to the driving as possible. He agreed that the rolling log is submitted to the body that re-certifies an evaluating officer each time the officer is required to recertify his qualifications. He rejected the suggestion that nonalignment between the classification of the cause of impairment and the results of the urine testing is an indication of an increased likelihood that the evaluating officer made an incorrect evaluation.

Jean-Paul Palmentier

[12] Mr. Palmentier has worked at CFS for more than 18 years as a forensic scientist in toxicology. He was qualified as an expert to provide testimony in relation to the absorption, distribution and elimination of alcohol and drugs in the human body, the pharmacological and toxicological effects of alcohol and drugs on the central nervous system, and the isolation, detection and quantitation of alcohol and drugs from biological and non-biological samples.

[13] Mr. Palmentier is not qualified as an evaluating officer, but he is familiar with the DRE program. He does have training in standard field sobriety testing and the drug evaluation classification program beginning in 2008, and then continuing on periodically with additional workshops. He testified that the purpose of the DRE program is to have police officers identify the presence of drugs in a suspect’s body, to categorize those drugs, and to determine whether presence of those drugs have caused impairment of the ability to operate a motor vehicle. There are seven categories of drugs in the drug evaluation and classification program.

[14] In his experience, the evaluating officer’s classification of the category of drug usually aligns with the toxicological results from the urine sample. In less than five percent of cases, there is a discrepancy, or nonalignment between the evaluating officer’s classification, and toxicology findings. There are a number of reasons for that lack of alignment.

[15] Mr. Palmentier testified that it is possible that an evaluating officer may classify a drug incorrectly. However, there are many variables to consider when the results of toxicological analysis are not in alignment with the opinion of the evaluating officer. For example, drug effects may vary between individuals, and are dependent upon dose, tolerance, method of administration and time elapsed since the last use. The specific effects of some drugs may not be fully characterized. Drug effects may also vary dependent on their interactions with other drugs. Some drugs have a two-phase effect. For example, a stimulant speeds up brain function, and can have that effect for between 5-90 minutes before it wears off. When the stimulant wears off, the user enters the crash phase, and at that point the drug may more resemble a depressant than a stimulant. In addition, given the process of drug elimination from the body, drug concentrations in the body change over time. Drugs present earlier may not be present or detectable at the time of sample collection. Some drugs are more volatile, and may be eliminated from the body very quickly, before a toxicological sample has been gathered. The situation depends upon the drug, the concentration of that drug, and the type of sample collected from the subject. Some drugs are not eliminated from the body through urine. The longer the period of time between the incident and sample collection, the more likely these effects are to be present.

[16] Mr. Palmentier testified that once collected, drug concentrations in samples can change over time. The potential for this occurrence is dependent upon the type of drug, and may be minimized by use of the appropriate forensic practices. However, the concentration of a drug may decrease between the time of collection of the sample and the time that the analysis was performed. In addition, while CFS has extensive analytical capabilities, it is not possible for any lab to detect all drugs. Scientifically validated methods testing for specific drugs may not be available at the time of testing. Screening methods for some drugs may not be sufficiently sensitive at the time of testing. In addition, the type and volume of the sample may limit possible analyses.

[17] There are limitations on the toxicological analysis conducted by CFS. In terms of methodology, CFS is unable to conduct an analysis for every existing drug. A standard solution is used to conduct a standard test for certain drugs. That testing does not identify all drugs present in the subject’s body. For example, there are hundreds of synthetic cannabinoids in existence. CFS can only test for five or six of those synthetic cannabinoids. Many of them may be eliminated quickly from the body, but CFS simply does not know anything about the pharmacology of those drugs. CFS is always playing catch-up in the attempt to identify new drugs which arrive on scene. Synthetic drugs manufactured in clandestine labs contribute hundreds of new street drugs every year. In order to test for those drugs, CFS needs validated standards for the testing. CFS can test for the presence of several hundred drugs, but there are many new drugs that it does not have the ability to test for.

[18] In addition, poly drug use complicates the task of the evaluating officer to classify all drugs present in the subject’s body. In terms of observations, a stimulant and a depressant may effectively cancel each other out in terms of some of the symptomology. Some drugs are eliminated more quickly than others, so it becomes an issue of which drug is dominant at the point that the evaluation is conducted.

[19] In Mr. Palmentier’s opinion, the fact that there is nonalignment between an evaluating officer’s opinion and the toxicology findings does not in any way mean that the evaluation is not reliable. In addition, examples of nonalignment from a rolling log are not contradictory. In order to find a contradiction, you would need much more information about every case in which the evaluating officer conducted evaluations. There is no scientific method available to apply any of the information in the rolling log to any particular case before the court.

[20] As part of the toxicology testing in this case, Mr. Palmentier reviewed the face sheet and evaluation report of the evaluating officer who conducted the evaluation on Mr. Sukhdeo. He noted the officer’s opinion that Mr. Sukhdeo’s ability to operate a motor vehicle was impaired by a central nervous system depressant (alcohol and cannabis), and a central nervous system stimulant. In order to determine whether he should test for any specific drugs, he reviewed the synopsis, which suggested that cocaine, traces of cannabis and alcohol were found in Mr. Sukhdeo’s vehicle.

[21] He processed the urine sample and produced a report which outlined the toxicology findings related to the presence of drugs or the metabolites of drugs. In the case of Mr. Sukhdeo, ethanol, a by-product of alcohol, was present. Cocaine was detected, as was Benzoylecgonine, which is an inactive breakdown product of cocaine that can form both in the body and in collection tubes during storage. In addition, Cocaethylene was detected. It is a metabolite of cocaine that is formed in the liver when alcohol is present. Levamisole was also detected. It is a drug used in the treatment of parasitic infections which is no longer medically used in Canada. It has been detected in illicit cocaine preparations. Two other drugs which were unlikely to produce impairment of an individual’s ability to operate a motor vehicle were also found in the sample.

[22] In comparing his toxicology findings with the opinion of the evaluating officer, he noted that the toxicology findings supported two of the three categorizations of the officer, specifically alcohol and cocaine. Cannabis was not detected. Therefore, two of the three “calls” made by the evaluating officer were supported by the toxicology findings. Both alcohol and cocaine or a combination of two can impair the ability to operate a motor vehicle.

POSITIONS OF THE PARTIES

The Crown

[23] The Crown submits that the amendments to the Criminal Code which came into effect December 18, 2018, specifically section 320.36, prohibit disclosure of the rolling log, and in fact make it a criminal offence to disclose the document.

[24] In addition, the Crown submits that the contents of the rolling log are irrelevant to the matter before the court. The application in R. v. Stipo, supra, was brought on the day of trial. There was no evidence called with respect to the relevancy of the rolling logs and therefore neither the trial judge nor the Court of Appeal had that type of evidence available in determining relevance. Finally, the Crown submits that the use of the rolling logs to cross-examine the evaluating officer about his or her qualifications, credibility or reliability is legally impermissible.

The Defence

[25] The defence submits that the decision of the Ontario Court of Appeal R. v. Stipo is directly on point and is binding authority on this court. In that decision, the court held that the rolling log includes particulars of the evaluating officer’s evaluation of the accused, disclosure of which is governed by R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326. In addition, the court held that the rolling log meets the requirement of “obviously relevant” for the purpose of the first party disclosure regime.

APPLICABLE LEGAL PRINCIPLES

[26] R. v. Stipo was argued before the Court of Appeal on May 15, 2018. The recent amendments to the Criminal Code came into effect on December 18, 2018. The decision in Stipo was released January 7, 2019.

[27] The court in Stipo reviewed the relevance of the rolling log and determined that the rolling log was obviously relevant for disclosure purposes, and therefore subject to the first party disclosure regime. The court stated the following at paragraphs 116 through 118:

“Recall that in Bingley, the court recognized that despite Parliament’s statutory approval of the reliability of the 12 step drug evaluation, and accused retains the right to test the evidence. The trier of fact also retained the ability to critically assess the DRE’s conclusion. Among the methods of testing, the court mentioned:

i. cross-examination of the DRE to undermine the conclusion of drug impairment;

ii. evidence of bias;

iii. evidence of failure to conduct the evaluation in accordance with the DRE’S training;

iv. questioning the DRE’s inference-drawing from observations; and

v. refutation of the conclusion of bodily sample evidence collected under section 254(3.4)

In the end, this issue reduces to whether the rolling log is relevant in challenging Crown’s necessary and implicit claim that the DRE’s conclusion on drug impairment as reliable.

In my view, evidence of the rolling meets the requirement of “obviously relevant” for the purposes of the first party disclosure. I reach this conclusion for four reasons.”

[28] The court also rejected the argument that an analogy could be drawn to the decisions in R. v. Gubbins, 2018 SCC 44, and R. v. Jackson, 2015 ONCA 832, indicating the following at paragraph 109:

“This is not a case governed by Jackson or Gubbins. In those cases, the accused sought disclosure of historical records relating to the performance of an approved instrument on other occasions. But the material issue in each case had nothing to do with the instruments performance on other occasions. The material issue in those cases was how the approved instrument worked when it measured Jackson’s and Gubbins’ blood alcohol levels. Expert evidence confirmed that the historical data could say nothing about that. And expert evidence was necessary because persons of ordinary experience could not establish or negate the link between past performance and present functionality. That is not this case. A trier of fact needs no expert evidence to opine on the relevance of prior experience in assessing current reliability.”

[29] With respect to the arguments related to the statutory interpretation of section 258.1 of the Criminal Code, the court in Stipo outlined the principles of statutory interpretation, including the following general principles:

1. 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;
2. Parliament does not intend to produce absurd consequences;
3. other principles of statutory interpretation, such as the Charter values presumption, are only applied when the meaning of the provision is ambiguous;
4. Courts are required to interpret legislation harmoniously with the constitutional norms enshrined in the Charter.

[30] The court then reviewed the provisions of section 258.1 of the criminal code and rejected the argument that the criminal code prevented disclosure of the rolling log. In a footnote, the court noted the following: “These provisions were repealed by S.C. 2018, c. 21, s. 14. In somewhat different form, the provisions are now ss. 320.36(2) and (4).”

[31] For ease of reference, section 258.1 read as follows:

258.1 (1) subject to subsection 258(4) and (5) and subsection (3), no person shall use a bodily substance taken under paragraph 254(2)(b), subsection 254(3), (3.3) or (3.4) or section 256 or with the consent of the person from whom it was taken after a request by a peace officer or medical samples that are provided by consent and subsequently seized under a warrant, except for the purpose of an analysis that is referred to in that provision or for which the consent is given.

(2) Subject to subsections (3) and (4), no person shall use, disclose or allow the disclosure of the results of physical coordination tests under section 254(2)(a), the results of an evaluation under subsection 254(3.1), the results of the analysis of a bodily substance taken under paragraph 254(2)(b), subsection 254(3), (3.3) or (3.4) or section 256 or with the consent of the person from whom it was taken after a request by a peace officer, or the results of the analysis of medical samples that are provided by consent and subsequently seized under warrant, except

(a) in the course of an investigation of, or in a proceeding for, an offense under any of sections 220, 221, 236 and 249 to 255, an offense under Part I of the Aeronautics Act, or an offense under the Railway Safety Act in respect of a contravention of a rule or regulation made under that Act respecting the use of alcohol or a drug; or

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

(3) Subsections (1) and (2) do not apply to persons who for medical purposes use samples or use or disclose the results of tests, taken for medical purposes, that are subsequently seized under a warrant.

(4) The results of the physical coordination tests, an evaluation or an analysis referred to in subsection (2) may be disclosed to the person to whom they relate, and may be disclosed to any other person if the results are made anonymous and the disclosure is made for statistical or other research purposes.

(5) Every person who contravenes subsection (1) or (2) is guilty of an offense punishable on summary conviction.

[32] As indicated, the provisions of section 258.1 were repealed and, as of December 18, 2018, replaced with the provisions of section 320.36, which reads as follows:

320.36(1) No person shall use a bodily substance and obtained under this Part for any purpose other than for an analysis under this Part.

(2) No person shall use, disclose or allow the disclosure of the results obtained under this part of any evaluation, physical coordination tests or analysis of a bodily substance, except for the purpose of the administration or enforcement of a federal or provincial act related to drugs and/or alcohol and/or to the operation of a motor vehicle, vessel, aircraft or railway equipment.

(3) The results of an evaluation, test for analysis referred to in subsection (2) may be disclosed to the person to whom they relate, and may be disclosed to any other person if the results are made anonymous and the disclosure is made for statistical or research purposes.

(4) Everyone who contravenes subsection (1) or (2) commits an offense punishable on summary conviction.

[33] I also note that section 320.12 of the Criminal Code now contains a recognition and declaration of certain principles. One of those recognitions is contained in subparagraph (d), and states: “an evaluation conducted by an evaluating officer is a reliable method of determining whether a person’s ability to operate a conveyance is impaired by a drug or by a combination of alcohol and a drug.”

[34] Counsel also drew the court’s attention to the decision in R. v. Sutherland, 2019 ONCJ 113. That decision concluded that despite the amendments to the Criminal Code which came into effect December 18, 2018, the decision in Stipo was still determinative of the issue, and the court ordered that the rolling log be disclosed. Counsel acknowledge that decision is not binding on this court.

ANALYSIS

[35] This court had the advantage of hearing expert evidence regarding the relevance of the evidence contained in the rolling log of an evaluating officer. Mr. Palmentier testified that nonalignment between an evaluating officer’s opinion and the toxicology findings does not in any way mean that the evaluation is not reliable. The issue is not the reliability of the testing in terms of the substances which it detects. The issue is the failure of the testing to confirm the presence of a class or classes of drugs which the officer opined was the cause or part of the cause of impairment. However, the expert evidence establishes that there are many reasons for nonalignment other than a lack of reliability of the officers’ opinion. Limitations on the ability to test for many drugs, the length of time between the evaluation and the taking of the sample, the volatility of and interactions between drugs and the process of drug elimination from the body are simply some examples of reasons for nonalignment which do not contradict the findings of the evaluating officer.

[36] Any nonalignment between an evaluating officer’s opinion and toxicology testing results in any particular case is disclosed in the Drug Influence Evaluation completed by the evaluating officer, and the toxicology results provided by CFS. The remaining information in an evaluating officer’s rolling log essentially relates to the number of evaluations conducted by that officer, and any nonalignment between the officer’s opinion and the toxicology results in other investigations.

[37] The opinion of an evaluating officer with respect to impairment and the cause of that impairment is, as outlined in Stipo, one link in the chain of evidence in proving impairment of the ability to operate a conveyance. Like all pieces of evidence, the court must assess the opinion critically. The question becomes whether the information contained in the rolling log will be of any assistance in testing that evidence.

[38] Any confirmation of the presence of a drug in the urine sample of an accused is relevant, but of limited utility in determining whether that individual’s ability to operate a conveyance was impaired at the relevant time. The presence of a drug in the sample is simply confirmation that an accused has been exposed to that drug. It tells the court nothing about whether or not impairment by that drug existed at the relevant time. The timeframe in which an individual was exposed to the drug varies significantly, depending upon the specific drug. As indicated, the absence of detection of that drug in the bodily sample can be for a wide variety of reasons which have nothing to do with the reliability of the evaluating officer’s opinion. Again, the question becomes whether the information contained in the rolling log will be of any assistance in testing that evidence.

[39] At paragraph 116, Stipo lists some of the methods of testing that evidence. Given the wide range of reasons which could lead to nonalignment of the evaluating officer’s opinion and toxicology results, the information obtained from the rolling log would not be of any assistance to me in evaluating the conclusion of the cause of drug impairment, or as evidence of bias, or to refute the conclusion related to bodily sample evidence. In my view, the only information contained in the rolling log which would be of assistance to the court is the number of tests conducted by the evaluating officer, given that the officer is required to conduct a minimum number of tests in order to remain proficient and retain his or her qualifications. That information can be disclosed to the defence without disclosing the rolling log. With that exception, I am of the view that the information contained in the rolling log would not be of any use to the court in assessing the evidence of the evaluating officer. For that reason, the remaining contents of the rolling log are not relevant to this case.

[40] With respect to the issue of statutory interpretation of section 320.36 of the Criminal Code, for reasons set out below, I conclude that the provision prohibits disclosure of the rolling log.

[41] As indicated, Stipo dealt with the interpretation of section 258.1 of the Criminal Code. The court was certainly aware that the provisions were amended effective December 18, 2018. However, in my view, the inclusion of the footnote mentioning the repeal of section 258.1 does not mean that the court was ruling on the interpretation of section 320.36. As the court itself has noted on an earlier occasion, important legal issues are not dealt with by way of footnote.

[42] As I understand the decision in Stipo regarding its interpretation of the provisions of section 258.1(2), the relevant portion of the section which led to that conclusion is set out below:

“(2) Subject to subsections (3) and (4), no person shall use, disclose or allow the disclosure of the results of physical coordination tests under section 254(2)(a), the results of an evaluation under subsection 254(3.1), the results of the analysis of a bodily substance taken under paragraph 254(2)(b), subsection 254(3),… except

(a) in the course of an investigation of, or in a proceeding for, an offense under any of sections 220, 221, 236 and 249 to 255, an offense under Part I of the Aeronautics Act, or an offense under the Railway Safety Act in respect of a contravention of a rule or regulation made under that Act respecting the use of alcohol or a drug; or

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

[43] That is to be contrasted with section 320.36, which prohibits disclosure of any evaluation or analysis of bodily substance, except for the purpose of the administration or enforcement of a federal or provincial Act related to drugs and/or alcohol and/or the operation of a conveyance. I am of the view that an accused who is defending an impaired driving charge is not doing so for the purpose of the administration or enforcement of the federal or provincial Act. Administration or enforcement relates to the actions of government pursuant to the administration or enforcement of the laws of that jurisdiction.

[44] Section 320.36(3) creates exceptions to the prohibition on disclosure. The exception related to disclosure of anonymous results for statistical or research purposes clearly does not apply to an accused who is defending an impaired driving charge. The second aspect of the exception allows disclosure to the person to whom the results relate. That allows disclosure of the results related to an accused to that accused for purposes of preparing and maintaining a defence to a criminal charge. However, I interpret the section as prohibiting disclosure to an accused of the results related to the testing of other individuals. Disclosure of the rolling log would violate that prohibition.

CONCLUSIONS

[45] The application for disclosure of the rolling log is dismissed.

Released: March 22, 2019

Signed: Justice A.T. McKay