SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: 796
DATE: 2014/09/05

RE: Her Majesty the Queen (Appellant)

• and -

Beausoleil Oum (Respondent)

BEFORE: Justice J. N. Morissette

COUNSEL:
Brian D. White, for the appellant
Jack Hardy, for the respondent

HEARD: August 20th, 2014

On appeal from judgment of The Honourable Mr. Justice J. E. Allen
dated March 13th, 2013

ENDORSEMENT

[1] The Crown appeals the respondent’s acquittal on the charge of operating a vehicle while impaired by a drug contrary to section 253(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46 s. 253(1)(a).

[2] At issue in this appeal is whether the trial judge erred in finding inadmissible both the expert opinion and lay opinion in a drug impaired driving case.

[3] In fairness to the trial judge, he did not have before him the jurisprudence from the Superior Court of Justice[^1] that has followed his decision, which perhaps could have been of assistance.

[4] The trial judge, conducted a blended voir dire and found that an evaluating officer, known as a Drug Recognition Expert (DRE) in the regulation,[^2] could not give expert evidence and found his opinion evidence to be inadmissible.

[5] Further, the trial judge found that lay opinion evidence in drug cases, as in this case, cannot be admitted either because “the effect of a drug on an individual’s ability to operate a motor vehicle on the other hand, are not in the ordinary experience of lay people.”[^3]

Admissibility of Lay Opinion on the ultimate issue of impairment to drive by a drug:

[6] I agree with the comment made by the trial judge that effects of a drug on an individual is not common knowledge, and a lay person may not be qualified to give an opinion on such a matter. However, I disagree with the trial judge’s ultimate finding of inadmissibility of that evidence.

[7] As stated in R. v. Graat, 1982 33 (SCC), [1982] 2 S.C.R. 819, a non-expert witness may give evidence that a person is intoxicated. Similarly, it would seem that a police officer without qualification may give lay opinion with respect to the condition of the accused, notwithstanding that there is no specific appellate directive to do so under s. 254 of the Criminal Code.

[8] This is consistent with the proposition that a trial judge is entitled to rely on the evidence of lay people in deciding this issue of impairment.[^4]

[9] Accordingly, I find that the trial judge made an error of law when he found that lay opinion evidence in a drug impaired driving case was inadmissible. This ruling resulted in disregarding all of the indicia of impairment observed by officers with the exception of the bad driving, stunned expression and the odor of burnt marijuana.

Legislative intent and expert opinion:

[10] In R .v. Henry,[^5] the accused was convicted of driving while impaired by the use of a drug despite the toxicology report returning a negative result.[^6] The learned trial judge made this finding when considering, in totality, the evidence of impairment before him including the accused’s admission to consuming marijuana. Here, the only way the trial judge could consider the totality of the evidence demonstrating whether or not the accused was impaired by the use of marijuana was to consider all of the evidence presented by both the lay and expert witnesses concerning the accused’s impairment.

[11] Turning to the legislative intent, the enactment of s. 254 of the Criminal Code, was designed to “enhance the investigative powers of the police.”[^7] I agree with the determination of Hourigan, J.A. finding that if parliament had intended to require a positive result for the test of bodily fluids containing the psychoactive component of the drug (THC), then the positive test result would have been a mandatory element of the offence; but it is not.^8

[12] Expert opinion is extremely relevant to cases involving drug impairment as can be seen in R. v. Henry,[^9] when Dr. Hirst, the expert witness, testified that a urine sample taken for a toxicology report is similar to a blood test used to measure THC in a subject’s system. The samples will be similar because urine is made of materials also present in blood.

[13] Furthermore, the expert witness opined that “once marijuana is smoked, it is in the blood stream within minutes with maximal effects about 30 minutes to one hour after exposure.”[^10] A “high” from marijuana can last up to three hours with the complete elimination of THC from the human body about six hours after the time of consumption.[^11] Therefore, when urine samples are collected for a toxicology examination up to three hours after consumption, THC will still be detectable.[^12] The exclusion of the toxicology report was a piece of evidence properly to be considered amongst all the other factors to determine impairment of the accused.[^13]

The Evaluating Officer and the Mohan Criteria:

[14] The appellant submits that the trial judge erred in his failure to accept the evaluating officer’s evidence as expert opinion evidence on the ultimate issue of impairment.

[15] The trial judge accepted that Officer Holland’s training as a DRE allowed him to conduct a drug evaluation, and to determine whether a person’s ability to operate a motor vehicle is impaired by drugs. Despite this finding by the trial judge, he excluded all of Officer Holland’s evidence at trial.

[16] The appellant argues that the DRE is presumptively, by the operation of the legislation, satisfying the Mohan[^14] Criteria, and therefore, no requirement to qualify the DRE is necessary.

[17] In support of that presumption, the appellant submits that the status of a DRE is analogous to that of the qualified technician for taking breath samples in alcohol related charges. Therefore it says, that the Criminal Code and the regulations define the qualifications for a DRE and deem DEC evidence to be relevant, necessary and admissible, which means no qualification is required. The Crown does go on to submit that nevertheless the DRE could give expert opinion evidence related to DEC evaluations and the DEC process.

[18] As indicated by the appellant, court decisions on whether the Mohan^15 Criteria must be met or is presumptively met, has seen a divisive split in the jurisprudence. As I pointed out to counsel at the outset of the hearing before me, I was not unfamiliar with the ongoing debate as to whether the Mohan[^16] Criteria is to be applied or not.

[19] In R. v. Smith, in mid-2013,[^17] I reviewed the issue of admissibility of opinion evidence of a DRE and found that a DRE can give expert opinion evidence on the ultimate issue of impairment. However, I concluded that in order for a DRE to provide such opinion evidence, a voir dire would be required to address the Mohan[^18] Criteria and most importantly the qualifications of the DRE in so providing his/her opinion.

[20] The appellant has now provided me with the more recent decision of this Court in R. v. Bingley[^19] in which Mr. Justice H. R. McLean reviews the necessity of a Mohan[^20] voir dire and finds that:

[18] The tests themselves are prescribed by regulation. The science upon which those tests were conceived was clearly considered by Parliament when it was concerned with the issue of being able to test for drug impairment when no instrument was available. Clearly, those particular matters were considered by parliament. Indeed, the regulation itself seems to be based on generally accepted scientific data and is subject to review by a panel of experts. Thus, there appears to have been a scientific basis for the formulation of the tests themselves, as determined by Parliament.

[19] It is therefore, this Court’s view that the science has already been established. In addition to this, when we consider Parliament’s intention with respect to s. 254(3.1), as it has been seen, the purpose of these tests is to determine impairment. From the definition of “to determine”, set forth above, it becomes evidence {sic} that this section calls for a conclusion, and thus an opinion. It is this Court’s view that the opinion, therefore, may be given in Court without the requirement of a Mohan ruling. Of course, this in no way affects the weight to be given by the trial court to that opinion. It is merely a situation where opinion can be given by a qualified expert who has applied the regulations to this end.

[21] From the findings above, it appears that J. McLean had before him scientific evidence of the basis upon which these tests were derived under the regulations. Given that there has been no successful challenge on the scientific reliability of these regulated tests, this Court finds compelling this latter approach in Bingley.[^21]

[22] In the case before Justice Allen, it became evident that he questioned the training and the knowledge of the science behind these tests by Officer Holland. The trial judge said:

We must be cautious when entering a new area of evidence in criminal cases. We do not have a history of litigation of any extent in this area. We do not have much of a body of case law for guidance and most importantly we do not have the broad social experience of drug use in our daily lives to make it comparable to the use of alcohol.[^22]

[23] The trial judge went on to stipulate that “expert evidence is required when the trier of fact is dealing with matters outside the normal experience of ordinary people.”[^23] What the trial judge found is that the DRE is only for the purpose of forming reasonable and probable grounds to go further and demand a bodily sample. When faced with a lack of jurisprudence that would accept the evaluating officer as an expert to provide an opinion on the ultimate issue, he found that this did not meet the Mohan[^24] Criteria.

[24] Giving effect to the approach taken in Bingley,[^25] in my opinion, Officer Holland and Officer Murchland’s experience, training and certification as DREs should have satisfied the fourth Mohan[^26] Criteria and their evidence should have been admitted. The weight to be given to their opinion evidence is a question of discretion by the trier of fact and is a separate issue.

[25] I find that the trial judge erred when he did not consider the toxicology report, or the opinions of Officers Holland and Murchland. Instead, consideration was only given to the evidence of bad driving, the smell of marijuana, and the limited admission of the prior consumption of marijuana.[^27]

[26] Having excluded the expert evidence of both officers, and the positive result demonstrating prior drug consumption in the toxicology report, he had no alternative but to acquit. Had the judge considered all the available and admissible evidence, the final decision may have been different.

[27] For these reasons, I find that the trial judge erred in law by not admitting the expert opinion of Officer Holland and that of Officer Murchland, and as such, the only logical remedy is to order a new trial.

“Justice J. N. Morissette”

Justice J. N. Morissette

Date: September 5, 2014

Footnotes

[^1]: R. v. Smith, 2013 ONSC 3343 (S.C.) June 28th, 2013 [Smith], R. v Bingley, 2014 ONSC 2432, [2014] O.J. No. 2468 (S.C.) [Bingley], R. v. Henry, 2014 ONSC 4115, [2014] O.J. No. 3275 (S.C.) [Henry 2014].

[^2]: Evaluation of Impaired Operation (Drugs and Alcohol) Regulations, S.O.R./2008-196.

[^3]: Reasons for Judgment p. 158 l. 22- 25.

[^4]: R. v. Henry, 2013 ONSC 1214, [2013] O.J. No. 1079 (S.C.).

[^5]: R .v. Henry, 2014 ONSC 4115, motion for stay of driving prohibition pending appeal, M44100/C59118 (August 27, 2014) [Henry motion].

[^6]: Ibid at para. 4.

[^7]: Ibid. at para. 5.

[^9]: Henry 2014, at para. 21.

[^10]: Ibid. at para. 23.

[^11]: Ibid. at para.24.

[^12]: Henry 2014, supra, note 1.

[^13]: Henry motion, supra, note 5 at para. 6.

[^14]: R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9.

[^16]: Mohan, supra note 14.

[^17]: Smith, supra note 1.

[^18]: Mohan, supra note 14.

[^19]: Bingley, supra note 1.

[^20]: Mohan, supra note 14.

[^21]: Bingley, supra note 1.

[^22]: Reasons for Judgment p.160, l.6-13.

[^23]: Ibid at p.160 l.24-26.

[^24]: Mohan, supra note 14.

[^25]: Bingley, supra note 1.

[^26]: Mohan, supra note 14.

[^27]: Reasons for Judgment p. 162 l.6-31.