Court Information

Ontario Court of Justice

Date: 2019-04-25

Court File No.: Guelph 18/229

Between:

Her Majesty the Queen

— and —

Ian Gorman

Before: Justice M.K. Wendl

Heard on: April 24, 2019

Ruling on Motion released on: April 25, 2019

Counsel

Michael Michaud — counsel for the Crown

Robert Wulkan — counsel for the defendant Ian Gorman

Decision

WENDL J.:

Background

[1] Ian Gorman [hereinafter the applicant] is charged with impaired operation of a motor vehicle by a drug. The charge dates from December 30, 2017. The applicant requested rolling logs as part of his disclosure. The Court of Appeal, on January 7, 2019, in R. v. Stipo, held that rolling logs are relevant. Therefore, they should form part of first party disclosure, and should be provided.

[2] Yet the Crown denied the request.

[3] They posit two grounds for the refusal. The first is that the Crown is offering a more detailed evidential record than was available to the Court of Appeal in Stipo. This evidence, the Crown claims, demonstrates that the rolling logs are not relevant. The second is that on December 18, 2018 the new law regulating impaired operation of a motor vehicle, now a conveyance, changed. Most importantly, this change, the Crown alleges, forbids the disclosure of rolling logs. As a result, they argue, this Court can revisit binding precedent.

[4] The applicant takes the position that I am bound by stare decisis.

Threshold Determination: Can This Court Revisit the Ruling in Stipo?

[5] Courts must follow the decisions of higher courts. This is the legal principle of stare decisis. It guarantees certainty in the law.

Common law courts are bound by authoritative precedent. This principle — stare decisis — is fundamental for guaranteeing certainty in the law. Subject to extraordinary exceptions, a lower court must apply the decisions of higher courts to the facts before it. This is called vertical stare decisis. Without this foundation, the law would be ever in flux — subject to shifting judicial whims or the introduction of new esoteric evidence by litigants dissatisfied by the status quo.

[6] The disclosure of rolling logs, as mentioned above, was dealt with in Stipo. As such, I am bound to follow that decision unless there has been a significant development in the law, a change in the circumstances and/or evidence that fundamentally shifts the parameters of the debate. As noted in the above quote, those exceptions are qualified as extraordinary.

[7] In relation to the change of evidence exception this is a high threshold, not an easy one to reach and narrow. It is not a question of disagreement or interpretation and it is not enough to provide alternate answers to the same questions posed. Finally, it is not a general invitation to reconsider binding authority on the basis of any type of evidence.

[8] The Supreme Court, in Comeau, referred to the type of evidence that can invoke the exception. It is evidence that demonstrates that the underlying social context has changed or as they referred to it a "significant evolution in the foundational legislative and social facts". Again, the evidence must change the parameters of the relevant legal debate or shift the paradigm.

[9] In Bedford the type of evidence that allowed a revisiting of binding precedent was richer evidence and research not available in 1990. Essentially, the social, political and economic assumptions that were the foundation of the case no longer applied. The context of the case was also different. The court was dealing with a different form of expression (promotion of safety v. commercial). Put a different way "the exception has been found to be engaged where the underlying social context that framed the original legal debate is profoundly altered."

[10] The Supreme Court has linked this analysis to the "living tree" metaphor, wherein, the interpretation of the constitution evolves over time given the shift in relevant legislative and social context.

Analysis of Crown's Arguments

New Evidence Exception

[11] In this case, the new evidence consists of the opinion of Karen Woodall, a forensic toxicologist, and DRE instructor Justin Lyon. Essentially, their opinion is that the rolling logs are not relevant because they cannot assist in determining the reliability of the DRE officer. This is a direct contradiction to the finding of Watt J.A. in Stipo.

[12] I believe it is axiomatic that this evidence does not shift the parameters of the debate or the paradigm. To the contrary, the evidence of Karen Woodall and Justin Lyon is intimately linked to the paradigm and seems to have been sought out directly as a result of the position in Stipo. The question before this court is the same question as in Stipo. The Crown is just looking for a different answer. This is a question of disagreement. As stated in Comeau, it is not enough to provide different answers to the same questions to raise the evidence exception.

[13] I pause to note that it is the Crown and the OPP that pursued the appeal all the way to the Court of Appeal Stipo. They made a tactical decision on the record they had. Furthermore, there is no evidence in front of me that the evidence of Karen Woodhall or Justin Lyon is based on new science or that their evidence was not available while Stipo was being litigated.

Change in Law Exception

[14] In relation to the change in the law exception, that also must be significant. For example, the legal exception applied in Carter because that case dealt with a different conception of section 7 of the Charter and the law relating to the principles of overbreadth and gross disproportionality had materially advanced since the leading case, Rodriguez, was decided.

[15] Crown counsel points me to three sections of the new legislation, sections 320.12(d), 320.26 and, most importantly, section 320.36 to advance the legal exception argument.

[16] Section 320.12(d) confirms the reliability of the DRE method. The method had been considered a reliable method for determining impairment by a drug under the prior legislation. This was confirmed by the majority's opinion in Bingley.

[17] Section 320.26 codified the admissibility of the DRE without a voir dire. However, this was the state of the law prior to codification, in any event, as a result of Bingley. Therefore, it is not a significant change.

[18] Counsel also points me to section 320.36(2). Counsel purports that this section now renders it illegal to provide the rolling logs in disclosure. Although I will not go into a lengthy digression on statutory interpretation, I point out that Bill C-46 intended to simplify the law, as stated in its preamble.

[19] Watt J.A., in Stipo, considered section 320.36(2) in its previous incarnation, section 258.1(2)(a). The crux of Watt's analysis was that the term "investigation" does not limit disclosure only to the person being investigated, but any person being investigated for an offence under the then sections 220, 221, 236 and 249 to 255.

[20] Section 320.36(2) is greatly simplified. It states that rolling log can be disclosed for enforcement or administration of a federal or provincial act related to the operation of a motor vehicle and/or drugs and/or alcohol. It is my view that the previous sections, 258.1(2)(a) and (b), are collapsed into the new section 320.36(2). The basis for my opinion is the adding of "drugs and/or alcohol and/or to the operation of a motor vehicle, vessel, aircraft or railway equipment" and "enforcement of a federal…act" which was essentially the content in the former 258.1(2)(a) i.e., investigating offences under sections 220, 221, 236 (offences that could involve a motor vehicle) and 249 to 255 of the Criminal Code (actual driving offences), to what was section 258.1(2)(b) "for the purpose of the administration or enforcement of the law of a province".

[21] The term enforcement under section 320.36(2) clearly includes investigation. Again, that term is not restricted to the person being enforced or investigated against. Watt J.A's analysis of section 258.1(2)(a) applies with equal force to the new sections. The changes in the legislation are not significant enough, if at all, to invite the court to depart from binding authority.

[22] I buttress my position that the change between section 258.1(2)(a) and section 320.36(2) is not a significant difference because the Court of Appeal in Stipo stated, "these provisions were repealed by S.C. 2018, c.21, s.14. In somewhat different form, the provisions are now sections 320.36(2) and (4)". "In a somewhat different form" does not mean a significant change in the law.

Conclusion

[23] Disclosure of the rolling logs is granted. The Crown has not met the threshold to allow me to revisit binding authority on this Court.

Released: April 25, 2019

Signed: Justice M.K. Wendl