R. v. Stipo, 2017 ONSC 5208
CITATION: R. v. Stipo, 2017 ONSC 5208
COURT FILE NO.: CR-17-10000133MO
DATE: 20170901
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Applicant
– and –
ONTARIO PROVINCIAL POLICE Applicant
– and –
BARBARA STIPO Respondent
M. Sabat, for the Applicant Crown
A. Huckins, for the Applicant Ontario Provincial Police
P. Burstein and L.R. Genova, for the Respondent
HEARD: July 28, 2017
REASONS FOR JUDGMENT
SCHRECK J.:
[1] A Drug Recognition Expert (“DRE”), sometimes referred to as an “evaluating officer”, is a police officer who is specially trained and certified to administer tests to determine whether an individual is impaired by a drug. The Crown can rely on the opinion of a DRE at the trial of an individual charged with operating a motor vehicle while impaired by a drug. One of the things that a DRE must do in order to become certified as such and to keep his or her certification is to keep a log of every test that is administered. Recorded in these “rolling logs” are the date of each test, the name of the individual who is tested, the DRE’s opinion, and whether the opinion was confirmed by subsequent toxicological testing. A DRE’s opinions must be confirmed by toxicological testing at least 75% of the time for a DRE to obtain and keep his or her certification.
[2] Barbara Stipo is charged with operating a motor vehicle while impaired by a drug. The Crown intends to rely on the testimony of a DRE at her trial, which is ongoing in the Ontario Court of Justice. Ms. Stipo brought an application for disclosure of the rolling logs of the DRE who evaluated her. The trial judge ordered that it be provided to her. The Crown and the DRE’s employer, the Ontario Provincial Police (“OPP”), now apply to this Court for certiorari with prohibition in aid as well as pursuant to s. 37 of the Canada Evidence Act (“CEA”) to quash the trial judge’s order. The applicants submit that the rolling logs are “third party records”, that they are not relevant, and that their disclosure is prohibited by s. 258.1 of the Criminal Code.
[3] For the reasons that follow, the application is dismissed.
I. FACTS
A. History of the Proceedings
(i) The Charges
[4] On November 25, 2015, the respondent, Barbara Stipo, was involved in a motor vehicle collision. One of the police officers who attended the scene noted indicia of impairment and demanded that she provide a breath sample into an approved screening device. When the device indicated that there was no alcohol in her system, the officer concluded that she had been operating a motor vehicle while her ability to do so was impaired by a drug and placed her under arrest for that offence.
[5] A demand was made to the respondent pursuant to s. 254(3.1) of the Criminal Code that she undergo an evaluation by a DRE. Cst. Heinz, a certified DRE, performed the evaluation and concluded that the respondent’s ability to operate a motor vehicle was impaired by a drug, specifically a central nervous system depressant. A urine sample was then demanded from her.[^1]
(ii) The Disclosure Application
[6] The respondent’s trial was scheduled to begin in the Ontario Court of Justice on May 29, 2017. Prior to trial, on April 10, 2017, counsel for the respondent brought a motion before the trial judge for disclosure of several items, including Cst. Heinz’s rolling logs. Crown counsel took the position that the rolling logs were third party records and that the record holder, the OPP, ought to be a party to any application requesting their production. She further submitted that the rolling logs were irrelevant and that their disclosure was prohibited by s. 258.1 of the Criminal Code.
[7] In an oral ruling delivered on May 15, 2017, the trial judge concluded that the rolling logs were not third party records but, rather, subject to the Crown’s disclosure obligations and that disclosure was not prohibited by s. 258.1. He ordered that the rolling logs be disclosed.
[8] The Crown and the OPP now apply to this Court for certiorari with prohibition in aid as well as pursuant to s. 37 of the CEA to quash the trial judge’s order. I am advised that while the application was pending, the trial proceeded with other witnesses and the testimony of the DRE was postponed pending the outcome of this application.
B. Drug Recognition Experts
(i) The Legislative Framework
[9] The authority to require an individual to undergo testing by a DRE is found in s. 254(3.1) of the Criminal Code, which provides as follow:
254(3.1) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under paragraph 253(1)(a) as a result of the consumption of a drug or of a combination of alcohol and a drug, the peace officer may, by demand made as soon as practicable, require the person to submit, as soon as practicable, to an evaluation conducted by an evaluating officer to determine whether the person’s ability to operate a motor vehicle, a vessel, an aircraft or railway equipment is impaired by a drug or by a combination of alcohol and a drug, and to accompany the peace officer for that purpose.
[10] An “evaluating officer” is defined in s. 254(1) as “a peace officer who is qualified under the regulations to conduct evaluations under subsection (3.1).” The relevant regulation states that an evaluating officer “must be a certified drug recognition expert accredited by the International Association of Chiefs of Police”.[^2]
(ii) Training and Certification
[11] The OPP filed material outlining the training and requirements for certification as a DRE, as set by the International Association of Chiefs of Police (“IACP”) in a document entitled “Drug Recognition Expert Course Participant Manual”. The requirements are as follows:
- IACP Standard 1.10 requires that the candidate DRE satisfactorily complete a minimum of twelve (12) evaluations, identifying subjects under the influence of at least three of the drug categories.[^3] All three must be supported by toxicology.
- The candidate DRE must also act as the evaluator for at least six evaluations.
- All evaluations, either administered or observed must be documented on the candidate’s rolling log.
- Candidate DREs need to have toxicology samples from at least nine (9) subjects evaluated during the certification process.
- The candidate DRE cannot be certified unless the opinion concerning the drug category(s) is supported by toxicology 75 percent of the time or in at least nine (9) of the twelve samples submitted for certification.
[12] Once certified, a DRE is required to renew his or her certification every two years. The requirement for continued certification is as follows.
- Performing a minimum of four (4) acceptable drug evaluations since the last date of certification;
- Completing a minimum of eight (8) hours of approved re-certification training; and
- Presenting an updated C.V. and Rolling Log to the appropriate coordinator for review.
(iii) The Testimony of DREs
[13] In R. v. Bingley, 2017 SCC 12, the Supreme Court of Canada held that unlike with other witnesses giving expert opinion evidence, no voir dire as to admissibility is required in the case of a DRE (at paras. 20-26):
The DRE, literally, is a “drug recognition expert”, certified as such for the purposes of the scheme. It is undisputed that the DRE receives special training in how to administer the 12-step drug recognition evaluation and in what inferences may be drawn from the factual data he or she notes. It is for this limited purpose that a DRE can assist the court by offering expert opinion evidence.
In this case, the reliability of the 12-step evaluation comes from the statutory framework itself. Parliament has determined that the 12-step evaluation performed by a trained DRE constitutes evidence of drug impairment. It may not be conclusive, but it is evidence beyond the experience and knowledge of the trier of fact.
The Regulations set out a uniform evaluative framework that a DRE must follow in order to reach a conclusion regarding drug impairment for the purposes of s. 254(3.1). 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.
Allowing a DRE to give relevant opinion evidence outside the experience and knowledge of the trier of fact is not “an unqualified endorsement of the underlying science” of the 12-step drug evaluations, as my colleague suggests (para. 46). Reliability is not assessed in a vacuum. Parliament has established, through the adoption of the Regulations, that the 12-step drug evaluation is sufficiently reliable for the purpose of a DRE’s determination of impairment under s. 254(3.1). The scope of a DRE’s expertise is limited to that determination, and it is only for the purpose of making that determination that Parliament has established the 12-step drug evaluation’s reliability.
[14] The Court made it clear, however, that although a DRE’s evidence is presumed to meet the test for the admission of expert evidence, the weight to be given to the evidence is to be determined by the trier of fact (at paras. 31-32):
It is also important to note that the determination of the DRE is not conclusive of the ultimate question of whether the accused was driving while impaired by a drug. The DRE’s task is to determine whether the evaluation indicates drug impairment. The DRE’s evidence does not presume the ultimate issue of guilt; it is merely one piece of the picture for the judge or jury to consider.
That 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.
[15] It is important to note that while a toxicological analysis may confirm a DRE’s opinion that an individual has ingested a particular type of drug, the analysis may not be able to determine when the drug was ingested or what effect it had on the accused. In many if not most cases, the Crown must rely on the opinion of the DRE to prove that the accused’s ability to operate a motor vehicle was impaired.
II. ANALYSIS
A. The Standard of Review and Overview of the Issues
[16] The parties are in agreement that because the applicant OPP is not a party to the prosecution of the respondent and the challenged order will finally decide its rights, extraordinary remedy relief may be granted on the basis of either jurisdictional error or an error of law on the face of the record: Jackson, at paras. 32-43; R. v. Cunningham, 2010 SCC 10 at paras. 57-58; Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), [1994] 3 S.C.R. 835, at pp. 864-67.
[17] This application raises four issues:
(1) Are the rolling logs subject to the Crown’s disclosure obligations or are they properly characterized as third party records?
(2) If the rolling logs are third party records, should they be ordered produced?
(3) Is disclosure of the rolling logs prohibited by s. 258.1 of the Criminal Code?
(4) Is s. 37 of the CEA applicable in the circumstances of this case?
I will consider each in turn.
B. Are the Rolling Logs Third Party Records?
(i) Relevant Legal Principles
[18] The rolling logs are not in the possession of the Crown. It is well established that the Crown’s obligation to disclose relevant material to the defence relates only to material in its possession: R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326; R. v. Jackson, 2015 ONCA 832 at paras. 79-81. If the material is in the possession of a third party, then the accused must establish that he or she is entitled to production of it in accordance with the principles and procedure set out in R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411.
[19] As it is the police and not the Crown who investigate crimes, in most cases the Crown will have in its possession only material which was provided to it by the police. However, an accused’s right to disclosure obviously does not depend entirely on what the police choose to provide to the Crown. The police have a duty to provide to the Crown all relevant material in their possession: Jackson, at paras. 80-81; R. v. McNeil, 2009 SCC 3 at paras. 23-24. This includes “all material pertaining to its investigation of the accused” as well as other information “obviously relevant to the accused’s case”: R. v. Quesnelle, 2014 SCC 46 at para. 12; McNeil, at paras. 14, 59.
[20] Where the police do not provide relevant material to the Crown but the Crown is aware of the potential existence of such material, it has a duty to make further inquiries and to obtain the information if it is feasible to do so: McNeil, at paras. 48-49; Quesnelle, at para. 12. The circumstances in which this duty applies include where the Crown is aware of “potentially relevant evidence pertaining to the credibility or reliability of the witnesses in a case”: McNeil, at para. 50. The material which the police are duty-bound to provide to the Crown and which the Crown must disclose to the defence is sometimes referred to as the “fruits of the investigation”.
[21] In this case, the rolling logs are in the possession of the DRE, who is a police officer involved in the investigation. As a result, the police have an obligation to provide the rolling logs to the Crown if they are “fruits of the investigation”, that is, “information in respect of which there is a reasonable possibility that it may assist the accused in the exercise of the right to make full answer and defence”: Jackson, at para. 82. Similarly, the Crown has an obligation to obtain the rolling logs if they are “potentially relevant . . . to the credibility or reliability of the witnesses” in the case: McNeil, at para. 50.
[22] The police duty to provide material to the Crown and the Crown’s duty to inquire about and obtain material both depend on the relationship between the material and the investigation as well as the potential use the material may have to the defence. Put simply, if the rolling logs are relevant, in the possession of the police officers involved in the investigation and related to the investigation, then the Crown should obtain them and disclose them to the defence. Thus, in order to determine whether Stinchcombe or O’Connor applies, I must consider whether the rolling logs are relevant and related to the investigation. This was made clear in McNeil (at para. 59):
I agree that it is “neither efficient nor justified” to leave the entire question of access to police misconduct records to be determined in the context of the O’Connor regime for third party production. Indeed, as discussed earlier, the disclosure of relevant material, whether it be for or against an accused, is part of the police corollary duty to participate in the disclosure process. Where the information is obviously relevant to the accused’s case, it should form part of the first party disclosure package to the Crown without prompting. [Emphasis in original].
See also R. v. Scurr, 2008 ABQB 127 at paras 45-57; R. v. Vader, 2016 ABQB 228 at paras. 11-12. It follows that I must respectfully disagree with the applicant OPP that “the relevance of the records was not applicable to the determination of whether the records were first or third party records”.
(ii) The Relevance of the Rolling Logs
(a) The Analogy to the Situation in R. v. Jackson
[23] The applicants take the position that the rolling logs are not relevant. In doing so, they rely heavily on R. v. Jackson, which they submit involves issues similar to those in the case at bar. The issue in Jackson arose in the context of an “over 80” prosecution where the Crown relied on the readings of an approved instrument, an Intoxylizer 8000C, to prove that the accused’s blood alcohol concentration exceeded the legal limit. The accused sought disclosure of the service, usage and other records relating to the instrument. This material was not in the possession of the Crown and the Court concluded that the police had no duty to provide it to the Crown nor did the Crown have a duty to obtain it. Central to both conclusions was the Court’s determination that the material sought had no relevance.
[24] In concluding that the material had no relevance, the Court stated (at para. 95):
In this case, a substantial component of the information sought consists of historical records of the operation of the same approved instrument during the investigation of others for similar offences. These records have no association with the offence with which the respondent was charged and for which he faced trial. The information was not created, produced or even located during the investigation of the respondent and his alleged offences. The records played no role in the acquisition of any evidence available for proffer in the prosecution of the respondent. Indeed, much of it originates in the investigation of others for offences they are alleged to have committed at times and in places unrelated to the investigation of the respondent.
The applicants argue that the rolling logs are similar. They were not “created, produced or even located during the investigation” and “played no role in the acquisition of any evidence available for proffer in the prosecution”. As well, the rolling logs originated in the investigations of others for unrelated offences.
[25] In my view, while the applicants’ argument has some superficial attraction, it does not withstand scrutiny. It is true that the rolling logs were not created during the investigation and that they relate to the investigations of other people for unrelated offences. However, it cannot be said that they “played no role in the acquisition of any evidence available for proffer in the prosecution”. To the contrary, for reasons I will explain, the creation and maintenance of the rolling log is an important part of the DRE’s qualification to provide an opinion as to the respondent’s ability to operate a motor vehicle. Without the rolling log, the DRE would not be entitled to provide an opinion and his testimony would have no utility.
[26] In Jackson, the service records had nothing to do with the instrument’s ability to obtain an accurate reading. Section 258(1)(d) of the Criminal Code creates a statutory presumption that the readings are accurate. As well, there was evidence that the instrument conducted a series of self-tests and checks to ensure that it was in proper working order. Unless the instrument successfully completed the tests and checks, it would be unable to function: Jackson, at para. 61. The records of those tests and checks were disclosed to the defence. None of the police officers involved in the investigation created, consulted or even had access to the service records: Jackson, at para. 69. In these circumstances, the court concluded that the material sought had “nothing to say about what gave rise to this prosecution, nor about the credibility of any party involved in the making of demands or the operation of the instrument”: Jackson, at para. 137.
(b) The Rolling Logs as a Measure of Proficiency
[27] While the approved instrument’s service records play no role in its ability to provide an accurate reading, the rolling logs play a significant role in the DRE’s ability to provide an opinion as to the accused’s ability to operate a motor vehicle. DREs are required to maintain rolling logs. In order to obtain and retain certification as a DRE, the rolling log must show that the DRE’s opinion as to the nature of the drug ingested by each subject was confirmed by a toxicological analysis at least 75% of the time. This verification rate is clearly viewed by the IACP, which is responsible for qualifying DREs, as a measure of their proficiency. The rolling log is, in my view, akin to a curriculum vitae in that it provides information about the extent of an expert witness’s expertise.
[28] The applicants acknowledge that the IACP views the verification rate as a measure of a DRE’s proficiency, but nonetheless take the position that a court is not entitled to do so. They submit that there may be all kinds of reasons why a DRE’s opinion is not verified by a toxicological analysis and, as a result, the rolling log is irrelevant. In this regard, they rely on R. v. Henry, [2014] O.J. No. 2989 (C.A.), a decision on an application to stay a driving prohibition pending an appeal. In that case, in concluding that the applicant’s appeal had insufficient merit to justify the stay, Hourigan J.A. stated (at paras. 4-6):
The appellant’s main argument is that the enactment of s. 254 has changed the law such that a conviction cannot be supported where the results of a toxicology report requested under s. 254 does not prove or at least corroborate the presence of the drug in the driver’s system. In the present case, the toxicology report was negative for the presence of THC.
In my view, the ground of appeal raises no arguable case. There is nothing in the language of the section which suggests that the test must result in a positive result in order for the Crown to prove its case. I agree with the comment of the trial judge that the appellant “is not charged with exceeding a certain quantity of cannabis in his blood on an approved instrument”. The test result is just one piece of evidence for the trial judge to consider.
[29] The applicants submit that it follows from this that whether or not a DRE’s opinion is verified by a toxicological analysis is irrelevant. I disagree for two reasons. First, that is not what Henry says. In Henry, Hourigan J.A. concluded that the lack of verification was inconclusive, not that it was irrelevant. To the contrary, he acknowledged that it was “just one piece of evidence for the trial judge to consider”. Trial judges are not supposed to consider that which is irrelevant. An examination of the trial and summary conviction appeal judgments in Henry confirm that the lack of toxicological verification was viewed by both courts as relevant, albeit not determinative: R. v. Henry, [2013] O.J. No. 6360 (C.J.) at paras. 22-25, aff’d 2014 ONSC 4115 at paras. 43-44.
[30] Second, the probative value of the rolling log does not arise from the verification of any single opinion of the DRE but, rather, from the overall verification rate. While the lack of verification may be explainable with respect to any particular opinion, where a large number of opinions are not verified, this may cause a trier of fact to attach less weight to a DRE’s opinion. The IACP’s requirement for a 75% verification rate is likely due to a recognition that there may be some instances where a DRE’s opinion, although formed in accordance with the requisite standards, may not be verified for some reason. Otherwise, the required rate would be 100%. However, where the DRE’s opinion is not verified more than 25% of the time, the IACP apparently concludes that the DRE is not sufficiently proficient to maintain his or her accreditation.
[31] After Bingley, a DRE need not be qualified as an expert in order to give opinion evidence. The courts have left it to Parliament to determine what qualifications are needed for a DRE to be able to provide opinion evidence. In turn, Parliament left that determination to the IACP. The IACP views the rolling log and its contents as a measure of a DRE’s proficiency. Parliament would not have deferred the determination of expertise to the IACP unless it was satisfied that the IACP employed relevant criteria.
[32] While Bingley held that no voir dire is required before a DRE can be qualified to give opinion evidence, the Court made it clear that the DRE’s opinion was subject to challenge by the defence and that it was ultimately for the trier of fact to determine what weight to give the DRE’s opinion: Bingley, at paras. 31. In making that determination, the trier of fact may consider the extent of the DRE’s proficiency, as measured by the criteria chosen by the IACP, namely, the rolling log verification rate.
[33] It must be noted that the potential relevance of the rolling logs does not necessarily benefit only the defence. For example, if a DRE’s rolling log demonstrates that his opinion was verified by toxicological analyses 95% of the time, it would be open to the Crown to invite the court to rely on this in determining what weight to give to the DRE’s opinion.
(iii) The 2010 Training Manual
[34] The record in this case included a training manual for DREs that was created in 2010, which the trial judge referred to in his ruling. With respect to the use and maintenance of rolling logs, the manual states:
Beginning with your first night of Certification Training, and continuing throughout your career as a DRE, you will maintain a log of all persons you examine for possible drug impairment. The log is your personal record of your work as a DRE, and it will have a major impact on three things that should be of major importance to you:
(1) Whether or not your instructors can recommend you for your initial certification as a DRE.
(2) Whether or not you qualify for re-certification, when your initial certification expires.
(3) Whether or not the Court in a particular drug impairment case qualifies you as an expert, and allows you to render your opinion as evidence.
Under the International Standards for the Drug Evaluation and Classification Program established by the IACP, your instructors cannot endorse you for certification unless your log of drug influence evaluations is up-to-date, complete and accurate. . . . Once you do receive a certificate, it usually will be valid for two years. At that time, to qualify for re-certification, you must submit a copy of the entries in your “Rolling Log” since you were certified, as proof that you maintained your proficiency. And, each time you go to court as a DRE, you must bring your “Rolling Log” along, to help establish your credentials as an expert.[^4]
The applicant Crown submits that the trial judge erred in relying on the 2010 Manual because it was “legally wrong”. While I agree that a police training manual cannot be considered as legal authority, in my view the trial judge was entitled to rely on the manual as illustrative of the relevance of the rolling logs. While the manual refers to DREs relying on the rolling logs in order to become qualified as experts, which is no longer necessary after Bingley, it is still open to an accused to challenge a DRE’s conclusions and it remains for the trier of fact to determine what weight, if any, is to be given to the DRE’s evidence
(iv) Conclusion
[35] The rolling logs are created by and in the possession of a police officer involved in the investigation of the respondent and are relevant to the proficiency of his ability to form the opinion the Crown wishes him to testify about in order to prove an essential element of the offence. In my view, the rolling logs clearly meet the definition of “fruits of the investigation” as that term is used in the case law. As a result, the DRE is duty bound to provide them to the Crown, and the Crown is duty bound to obtain them and provide them to the defence, subject to the applicants’ submission that such disclosure is prohibited by s. 258.1 of the Criminal Code, which I will address later in these reasons.
C. If the Rolling Logs Are Third Party Records, Should They be Ordered Produced?
[36] In the event that I am wrong and the rolling logs are third party records, I will consider whether they ought to be produced in accordance with R. v. O’Connor and its progeny.[^5]
[37] The first stage of the O’Connor analysis requires the court to determine whether the material sought to be produced is “likely relevant”. Material is “likely relevant” if there is a “reasonable possibility that the information is logically probative to an issue at trial or the competence of a witness to testify” and includes “evidence relating to the credibility of witnesses and to the reliability of other evidence in the case”: O’Connor, at para. 22. For the reasons I have already outlined, I am satisfied that the rolling logs are “likely relevant”.
[38] A finding of “likely relevance” under the O’Connor regime leads to an order that the material be produced to the court in order to determine whether production should be ordered to the accused. In making that determination, the court must consider “a balancing of the competing interests at stake in the particular circumstances of the case”: McNeil, at para. 35. In most cases, the focus at this stage is on the privacy interests of third parties. In this case, the respondent is not seeking any identifying information, so I cannot see how the privacy interests of third parties would be implicated. Given that the rolling log is potentially a measure of the DRE’s proficiency and does not engage any privacy interests, in my view it is highly likely that they would be ordered produced to the accused at the second O’Connor stage: McNeil, at para. 41. However, without seeing the material I am unable to come to a final conclusion on this issue.
D. Section 258.1 of the Criminal Code
(i) Overview
[39] Section 258.1 of the Criminal Code provides as follows:
258.1 (1) Subject to subsections 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 paragraph 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 a warrant, 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, an offence under Part I of the Aeronautics Act, or an offence 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 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 offence punishable on summary conviction.
[40] The applicants submit that s. 258.1 creates a complete prohibition without exception against the type of disclosure sought in this case. They submit that any Crown counsel who complied with the disclosure order would be committing an offence contrary to s. 258.1(5), as would any defence counsel who receives the disclosure. The respondent submits that if the rolling logs are relevant and otherwise disclosable, reading s. 258.1 as prohibiting their disclosure would result in the strictest disclosure regime in Canadian law. Even therapeutic records and material subject to informer privilege can be disclosed in certain circumstances while s. 258.1, as interpreted by the applicants, allows no exceptions.
(ii) Principles of Statutory Interpretation
[41] 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”: Thibodeau v. Air Canada, 2014 SCC 67 at para. 112; Lavigne v. Canada (Office of the Commissioner of Official Languages), 2002 SCC 53 at para. 25. In this case, the parties agree that the clear purpose of s. 258.1 is to protect the privacy of individuals who undergo the testing procedures and evaluations described in ss. 254 and 256 of the Criminal Code.
[42] While s. 258.1 is clearly designed to protect privacy, the protection it provides is far from absolute. Clearly, the test and evaluation results can be adduced in evidence in open court at the trial of the individual to whom they relate. They can also be disclosed pursuant to s. 258.1(4) for statistical or other research purposes, provided that they are made anonymous. In this case, the respondent seeks only an anonymized version of the rolling log. Crown counsel takes the position that even where the results are made anonymous, the privacy of the individuals to whom they relate is nonetheless compromised, but did not explain how.
(iii) The Meaning of “In the Course of An Investigation of, or in a Proceeding For”
[43] It seems to me that the determination of the issue in this case depends on the interpretation of s. 258.1(2)(a), which allows disclosure of the results “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 . . .”. The applicants submit that s. 258.1(2)(a) only applies to “a specific case in relation to a specific accused” and does not allow for the disclosure of results to individuals other than to whom the results relate. The respondent submits that her trial is a proceeding for an offence under one of the enumerated sections (s. 253(a)), so disclosure is permissible.
[44] In my view, the respondent’s interpretation is correct. I draw this conclusion for four reasons. First, the interpretation is consistent with the purpose of the section. Provided that the identifying personal information is redacted (as personal information usually is in disclosure material unless it is relevant), the objective of the section, to protect privacy, is met.
[45] Second, a plain reading of s. 258.1(2)(a) does not suggest that disclosure of a result is restricted to an investigation or proceeding related to that result. The exception applies to “an investigation” or “a proceeding”, not “the investigation” or “the proceeding”.
[46] Third, if the applicants are correct, then part of s. 258.1(4), which permits disclosure of results “to the person to whom they relate”, would be redundant. There is a presumption against such redundancy: R. v. Shand, 2011 ONCA 5 at para. 107; National Automobile, Aerospace Transportation and General Workers Union of Canada (CAW - Canada) Local No. 27 v. London Machinery Inc. (2006), 2006 CanLII 8711 (ON CA), 79 O.R. (3d) 444 (C.A.) at para. 7.
[47] Finally, and most importantly, given my conclusion that the rolling logs are potentially relevant, the interpretation suggested by the applicants would violate the respondent’s constitutional right to make full answer and defence. Where 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.
(iv) The Trial Judge’s Reasons
[48] In dealing with the s. 258.1 issue in his oral ruling, the trial judge stated:
This section enacts safeguards to prevent unauthorized use of bodily substances that have been seized as part of the drinking and driving regime in ss. 254 and 256. Subsection (1) [sic] makes it a summary conviction offence to use these substances other than for authorized purposes, namely for the analysis referred to in the provision authorizing the seizure or pursuant to an Order by a court under s. 258(4) to test for drugs against the person to whom it relates, or for a statistical or other research. This, quite frankly, is incomprehensible to the court. As defence counsel has submitted, it makes no sense. This is hardly a principled analysis of this issue, but the court is unable to unravel the intent and policy considerations at play.
In any event, the court is quite prepared to make an order exempting the participants in this trial matter from being in contravention of this legislation.
The applicant Crown points out that the trial judge referred to s. 258.1(1), which relates to the unauthorized use of bodily substances, rather than s. 258.1(2). This, the applicant Crown submits, shows that the trial judge “exceeded his jurisdiction by not applying the correct subsections in his ruling.” Both applicants also submit that the trial judge had no authority to grant an “exemption” from the legislation.
[49] With respect to the first issue, it was clear throughout the proceedings that the respondent was seeking the results of evaluations as recorded in the rolling logs, not bodily substances. The trial judge clearly understood this. The fact that he misspoke when referring to bodily substances instead of evaluation results did not amount to jurisdictional error.
[50] With respect to the “exemption”, it is unclear whether the trial judge intended to make an order pursuant to s. 258(4) of the Criminal Code, which allows for the release of a blood sample to an accused for the purpose of analysis. If he did, he erred. Section 258(4) orders apply only to blood samples, not evaluation results, and can only be made by a Superior Court. If the trial judge was not relying on s. 258(4), then the nature of the “exemption” is unclear. I agree with the applicants that if s. 258.1 of the Code did prohibit the disclosure of the rolling log, then it would not have been open to the trial judge to exempt the parties from the legislation. However, in my view s. 258.1 does not create any such prohibition. It follows that insofar as the trial judge erred by making an exemption order, the error was of no moment.
E. Section 37 of the Canada Evidence Act
(i) Overview
[51] Section 37 of the CEA sets out a procedure for determining objections to disclosure made by government officials on the basis of a “specified public interest”. Where an objection is made, the court or other entity that could have made the disclosure order must ensure that the information is not disclosed until the procedure set out in the section is followed (s. 37(1.1)). Where the objection is made to a superior court, that court must determine the objection (s. 37(2)). Where the objection is made before another court, the objection must be determined by a superior court (s. 37(2)(b)).[^6] The court hearing the application must determine whether the disclosure would “encroach upon a specified public interest”. If it would not, then the court may authorize disclosure (s. 37(4.1)). If the court concludes that disclosure would “encroach upon a specified public interest”, then the court must determine whether the “public interest in disclosure outweighs in importance the specified public interest”. If so, the court may order some or all of the disclosure subject to any conditions the court considers appropriate (s. 37(5)). If not, the court must prohibit disclosure (s. 37(6)). Section 37.1 creates a right of appeal from a decision made pursuant to s. 37.
[52] In this case, the applicants have invoked s. 37 in support of their objection to disclosure of the rolling logs. They rely on a number of “specified public interests”:
- The “interest in respecting Parliamentary authority”.
- The “interest in maintaining a functioning democracy and in Parliament’s ability to function as the legislative body”.
- The “public’s interest in prosecuting impaired driving cases”.
- The privacy interests of third parties.
(ii) “Specified Public Interest”
[53] Section 37 does not define what is meant by a “specified public interest”. The section is most commonly invoked to protect informer privilege (e.g. R. v. Basi, 2009 SCC 52) or to prevent disclosure that would compromise police investigations (e.g. R. v. Richards (1997), 1997 CanLII 3364 (ON CA), 34 O.R. (3d) 244 (C.A.)). However, as the applicants point out, it has been invoked in other contexts: Belden Farms Ltd. v. British Columbia (Milk Board), [1987] B.C.J. No. 1136 (S.C.); Public Service Alliance of Canada v. Northwest Territories, [2001] F.C.J. No. 1374 (C.A.).
[54] While I accept that s. 37 of the CEA is not restricted to claims of informant or investigative privilege, I do not think that the term “specified public interest” is so broad as to include the types of interests identified by the applicants. Not everything in which the public may have an interest can be considered a “specified public interest” for the purpose of s. 37, as was explained by Wood J.A. in his concurring reasons in Canada (Attorney General) v. Sander (1994), 1994 CanLII 1658 (BC CA), 90 C.C.C. (3d) 41 (B.C.C.A.) at pp. 59-60:
. . . [I]t is important to note that s. 37(1) does not provide for an objection to disclosure based simply on grounds of “public interest.” It requires that the public interest invoked against disclosure be “specified.”
The appellant argues, however, that even though the public interest must be “specified,” the test still authorizes a “standardless” sweep “dependent on the idiosyncratic view of the judge.” But this argument overlooks the fact, which will be discussed in more detail later in these reasons, that for the purposes of those proceedings to which the federal law of evidence applies, ss. 37, 38, and 39 of the Canada Evidence Act, which in 1982 replaced s. 41 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, have codified the common law of what used to be called Crown privilege but is today more commonly referred to as “public interest immunity.” As such, the scope of the phrase “specified public interest” must be construed as being limited to those public interest grounds which were capable of supporting a claim for public interest immunity under the common law. Thus, the expression establishes a standard which is governed by a considerable body of precedent capable of being applied by judges with no more than the usual amount of idiosyncrasy. [Emphasis added].
[55] It must be recalled that s. 37 creates an exception to the ordinary rule against interlocutory appeals in criminal matters. In the case of trials in the Ontario Court of Justice, the proceedings are interrupted while the s. 37 application is heard in the Superior Court. Even where the trial takes place in the Superior Court, there is the possibility of an interlocutory appeal to the Court of Appeal. In my view, allowing every disclosure order that could be characterized as potentially contrary to Parliament’s intentions or somehow inimical to the public’s interest in the prosecution of crime to be the subject of s. 37 proceedings would create a serious threat to the proper functioning of the criminal justice system.
(iii) The Public Interests Identified by the Applicants
[56] Even if I am wrong about the applicability of s. 37, none of the types of public interest relied on by the applicants would, in my view, justify non-disclosure of the rolling logs.
[57] The “interest in respecting Parliamentary authority” and the “interest in maintaining a functioning democracy and in Parliament’s ability to function as the legislative body” are both based on the applicant’s contention that disclosure of the rolling logs is prohibited by s. 258.1 of the Criminal Code. For the reasons explained earlier, in my view s. 258.1 does not create any such prohibition.
[58] The “public’s interest in prosecuting impaired driving cases” appears to relate to a concern that disclosing the rolling logs would give rise to “collateral attacks” and the re-litigation of prior cases in which the DRE was involved. I fail to understand why this would be. Disclosure of the rolling logs would not affect the applicability of the ordinary rules of evidence, including the collateral fact rule.
[59] With respect to the privacy interests of third parties, the respondent does not seek the names or any identifying information respecting the data in the rolling logs. Accordingly, there is no compelling state interest in privacy that could possibly ground a s. 37 claim.
[60] In these circumstances, I am satisfied that disclosure of the rolling logs would not encroach on any of the public interests enumerated by the applicants.
III. DISPOSITION
[61] For the foregoing reasons, the application is dismissed.
Justice P.A. Schreck
Released: September 1, 2017
CITATION: R. v. Stipo, 2017 ONSC 5208
COURT FILE NO.: CR-17-10000133MO
DATE: 20170901
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
ONTARIO PROVINCIAL POLICE
– and –
BARBARA STIPO
REASONS FOR JUDGMENT
P.A. Schreck J.
Released: September 1, 2017
[^1]: The record does not indicate whether a sample was provided or the results of any analysis.
[^2]: Evaluation of Impaired Operation (Drugs and Alcohol) Regulations, SOR/2008-196, s.1
[^3]: There are seven categories: central nervous system depressants, central nervous system stimulants, hallucinogens, dissociative anesthetics, narcotic analgesics, inhalants and Cannabis.
[^4]: According to the applicant OPP, the 2010 manual was replaced by a 2013 manual. The portion of the manual relied on by the trial judge was entitled “Session XXX: Transition to Certification Training”. The 2013 manual in the OPP’s Application Record is entitled “Drug Recognition Expert Course (DRE) 7-Day School Participant Manual” and includes in point form a description of the topics to be covered in the course. It sets out the requirements for creating and maintaining a rolling log but is silent with respect to the use of the rolling log during testimony.
[^5]: If the rolling logs are third party records, then the trial judge erred by hearing the application in the absence of the record holder. However, counsel for the applicant OPP accepts that she has now had an opportunity to be heard in this court, which cures any prejudice arising from the OPP’s absence at trial.
[^6]: In certain circumstances where a disclosure order is made by a person or body other than a court, the objection must be determined by the Federal Court (s. 37(3)(a)).