Court File and Parties

DATE: March 25, 2022 Information No.: 0411-998-20-00078-00

ONTARIO COURT OF JUSTICE

HER MAJESTY THE QUEEN

v.

CHRISTOPHER MAGEE

EXCERPT PROCEEDINGS

BEFORE THE HONOURABLE JUSTICE J.P. WRIGHT

on March 25, 2022, at OTTAWA, Ontario

APPEARANCES: T. Fairchild Counsel for the Crown B. Crawford Counsel for Christopher Magee

Ruling

WRIGHT, J. (ORALLY):

...EXCERPT PROCEEDINGS BEGIN

There are novel issues involving the DRE, and obviously there is a first time for every issue. The DRE, in this case, was Constable Simard, also of the Ontario Provincial Police. He testified that he had Gone to Aylmer to follow a two-week training regarding the DRE program, and this would have been in September to October 2016, followed by my certification which would have been in Jacksonville, Florida in December of that year, and I was successful and obtained my credentials as the Drug Recognition Evaluator.

So from the evidence it would appear that this particular witness followed the usual routine, he attends the Ontario Police College located in Aylmer, followed by the IACP which is held in Jacksonville, Florida. He goes on to tell us that he did his two-year recertification, also successfully, that he was certified at the time of the investigation, that is while performing the tests and completing his evaluation, but as of the date of giving his evidence at trial, he had not been able to recertify, he tells us, because of COVID. The question then is, can the opinion evidence of Constable Simard be received, and if so, how can it be received?

The first issue is the qualification of Constable Simard to give expert DRE evidence as of the time of trial. This issue is really based on timing. The witness was a qualified DRE at the time of conducting the tests, but he was not qualified at the time that he gave evidence. Parliament of Canada, pursuant to s. 320 has amended the Criminal Code to provide that DRE evidence will be received as expert evidence without the necessity of a Mohan hearing. The relevant section is s.320.31(5);

An evaluating officer's opinion relating to the impairment, by a type of drug that they identified, or by a combination of alcohol and that type of drug, of a person's ability to operate a conveyance is admissible in evidence without qualifying the evaluating officer as an expert.

This section is seen as a shortcut, as it were, for the Crown, removing the necessity of a Mohan voir dire. I have not been able to find any cases on point where the officer offering testimony evidence was qualified at the time where they conduct the tests and the evaluation but ceases to be qualified as of the time of trial.

A plain reading of s. 320.31(5) suggests to me that in order for the DRE opinion evidence to be automatically admissible, the witness must be an evaluating officer at the time that they are giving evidence. Granted this could lead to certain consequences. Crown refers to situations where the DRE has retired, or one might suppose a situation where the witness gives evidence over two days or more with the qualifications lapsing in between. While I agree with the submission that statutory interpretation begins with trying to interpret the intent of Parliament. Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 SCR 559, a civil case, considered this issue.

S. 12 Provides that every enactment “is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its [objective]”.

Previously the common law had recognized what might be termed as the rule of strict interpretation of criminal legislation, which rule must now be considered as modified as a result of s. 12.

In 1993 our Supreme Court had occasion to consider the meaning of the word "capable" in relation to the conversion of a mini-Uz belonging to a Mr. Hasselwander from semi-automatic to fully automatic and the Court said,

This Court has on many occasions applied the well-known rule of statutory construction that if a penal provision is reasonably capable of two interpretations, that interpretation which is the more favourable to the accused must be adopted: see, for example, R. v. Cheetham (1980), 53 C.C.C. (2d) 109, 17 C.R. (3d) 1; R. v. Negridge (1980)

I do not think, however, that this principle, always requires a word which has two accepted meetings to be given the more restrictive meaning. Where a word used in a statute has two accepted meanings, than either or both meaning may apply.

The Court is first required to endeavour to determine the sense in which Parliament used the word from the context in which it appears. It is only in the case of an ambiguity, which still exists, after the full context is considered. Where it is uncertain in which sense Parliament used the word that the above rule of statutory construction requires the interpretation which is the more favourable to the accused to be adopted. Hasselwander is at 2 SCR 398.

However, in the case before me, obviously the plain meaning should apply. There is not truly a competing interpretation, rather a suggested alternative wording which might well have avoided the consequences of the manner of drafting. As we are not faced with two meanings on the face of the legislation, the one which we have is clearly problematic. By way of example, the amendment to s. 320 cited earlier only came about as a direct response to the decision of the Supreme Court of Canada in Bingley, and to the interpretation of the earlier DRE legislation. If there is one meaning which is apparent, then the Court should not look for others in an effort to correct what may be now seen as an oversight.

If the Crown does not get the benefit of the statutory shortcut, then by common law Mohan applies. The leading case dealing with qualification of a DRE in the Mohan context is Bingley. In the Bingley the Court applied a virtual automatic recognition under step four of Mohan, which was premised on a clear acceptance of the science, and that the DRE evaluation tests were reliable, submitted by a current certified evaluation officer being qualified as an expert by virtue of their specific and accepted training. Constable Simard undertook the very same specific and accepted training, the same certification process that Parliament has now deemed to be conclusive, and which the Court in Bingley so approved of.

The Defence concedes steps 1 through 3 of the Mohan inquiry which are relevance, necessity, and the absence of any exclusionary rule. It seems to me that the only difference between the facts in Bingley and those before me are that the witness's certification has lapsed. I think it is reasonable in conducting the Mohan voir dire to be mindful of any reasons why a witness is no longer qualified. The unchallenged evidence before me is that the reason in this case was because of COVID, but there may well be other circumstances which would be fatal to meeting the step for criteria. The obvious being a witness who has not recertified because they failed.

Defence argues that there is no information of what other options would have been available to recertify. This is speculative. The Court has to proceed on the basis of the evidence that was led, and the only evidence is that the witness could not recertify because of the Pandemic.

At common law, the Court obviously will be very much guided by the comments of the Supreme Court in Bingley. From paragraph 25,

Parliament is entitled to establish such a framework, and in doing so, establish that the 12-step drug evaluation is sufficiently reliable for the purposes of determining impairment. No further evaluation of the reliability of the steps mandated by the Regulations is required. Any challenge to the underlying effectiveness of the evaluation would require a challenge to the legislative framework itself.

Simard therefore has received all of the usual training, he has been certified, and, again, the only distinguishing feature here is that his certification lapses between the testing and his giving evidence. The witness is unshaken with respect to his qualifications or more importantly with respect to the procedures that he followed in this case. Again, the only factual distinction from Bingley is that which effectively resulted the Court skipping the voir dire under Mohan. It seems to me that the key date for purposes of Mohan is the date of conducting the test and completing the evaluation. On these dates the witness was indeed qualified to conduct and perform the evaluations.

I have considered the reasons given, and the reason for the inability to recertify and I find that in the circumstances the Crown meets the criteria 4 admission of expert evidence under Mohan.

...END OF EXCERPT PROCEEDINGS

Certificate of Transcript

FORM 2

Certificate of Transcript Evidence Act, subsection 5(2)

I, Tania Ciurlia, certify that this document is a true and accurate transcript of the recording made of R v. MACGEE in the Ontario Court of Justice, held 161 EGLIN STREET, OTTAWA, Ontario, taken from Recording No(s). 0411_CR11_20220325_084050__6_WRIGHTPET.dcr, which has been certified in Form 1.

April 19, 2022 Date Signature

Tania Ciurlia ACT ID: 2370921515 905-626-7858 tciurliatranscripts@gmail.com