COURT FILE NO.: CR-19-00000101-00AP
DATE: 20201026
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
DOMINADOR CALIXTERIO
M. Giovinazzo, for the Crown
J. Foy, for the Respondent
HEARD: 24 September 2020
s.a.Q. akhtar j.
[1] On appeal from the acquittal entered on 25 November 2019 by Justice S. Ray of the Ontario Court of Justice.
FACTUAL BACKGROUND AND OVERVIEW
Introduction
[2] The respondent was charged with operating a motor vehicle while his ability to do so was impaired by a drug. At his trial, the respondent requested the Drug Recognition Expert’s (DRE) rolling log. The Crown resisted this request on the basis that s. 320.36(2) of the Criminal Code, R.S.C., 1985, c. C-46, prohibited disclosure of the logs.
[3] The trial judge ruled that the rolling log was first party disclosure under R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326, but agreed with the Crown that disclosure was prohibited by the Code. As a result, the respondent brought an application seeking a declaration that s. 320.36(2) violated his s. 7 rights under the Charter of Rights and Freedoms and was of no force or effect in his trial. He succeeded and the trial judge ordered the Crown to produce the rolling log.
[4] The Crown took the view that the judge’s constitutional ruling was an error and that it was bound by the statutory provision. However, in order to avoid non-compliance with the judge’s ruling, it offered no further evidence and invited the judge to acquit the respondent.
[5] The Crown appeals the judge’s rulings on disclosure and the constitutionality of s. 320.26 of the Code.
[6] Whilst I agree that the judge did make errors including misapprehending evidence and wrongly concluding that s. 320.36 of the Code precluded disclosure of the rolling log, I find that the judge’s ruling that that rolling log had to be disclosed was correct. Accordingly, the appeal must be dismissed.
Background Facts
[7] The complexity of the legal nature of this appeal is belied by the relatively straightforward nature of the facts.
[8] On 6 October 2018, the respondent was seen driving at an excess speed and overtaking vehicles on the Gardiner Expressway in Toronto. He was arrested by police who determined there were grounds to demand a drug recognition evaluation. The respondent was taken to the police station and examined by a DRE who concluded that the respondent was impaired by cannabis. As a result, the DRE made a demand for a urine sample, which when tested revealed the presence of Carboxy-THC in the respondent’s system. As a consequence, he was charged with driving a motor vehicle while impaired by a drug.
[9] At trial, the respondent asked the Crown to provide him with the DRE’s rolling log, which recorded the DRE’s prior drug evaluations of other persons arrested for driving offences. Rolling logs also contain the personal identifiers of the suspects tested and their purpose is to show administrators that a DRE has completed the number of evaluations required for re-certification.
[10] The respondent sought the DRE rolling log as part of his constitutional right to disclosure under Stinchcombe. As noted, the Crown took the position that the rolling log was “clearly irrelevant” and, moreover, that its disclosure was prohibited by s. 320.26 of the Code.
[11] The Crown called evidence to demonstrate the irrelevance of rolling logs in an impaired driving case. The Crown’s aim was to rebut the proposition that the defence could use the logs to highlight a “mismatch” between a DRE’s opinion and the ultimate toxicology result. The evidence called by the Crown would show that a discrepancy between the DRE’s opinion and the result obtained by the toxicologist did not mean that the DRE was “wrong”. Accordingly, the Crown argued, the rolling log served no useful purpose in a criminal trial.
[12] The trial judge rejected this argument. She found that, following the decision of the Court of Appeal for Ontario in R. v. Stipo, 2019 ONCA 3, 2019 ONCA3, 144 O.R. (3d) 145, rolling logs had to be treated as first party disclosure. However, she also agreed that s. 320.36 created a specific provision prohibiting the disclosure of the logs.
[13] Following this ruling, the respondent brought an application arguing the section was unconstitutional. The trial judge agreed and ordered the Crown to provide the rolling log.
[14] The judge concluded that, as a general rule, rolling logs were relevant for a number of purposes including: informing defences, testing the reliability of the DRE, determining whether the DRE had sufficient experience in assessing a particular drug, and the question of whether the DRE was skilled at assessing dilated pupils.
[15] The trial judge also held that rolling logs could demonstrate the existence of bias, and that explanations for discrepancies between a DRE’s opinion and toxicology results could be a factor in determining the issue of guilt.
[16] In response, the Crown conceded that it could not comply with the disclosure order and invited an acquittal.
Grounds of Appeal
[17] The appellant raises the following grounds of appeal:
The trial judge erred in her conclusion that the rolling log should be disclosed pursuant to Stinchcombe;
The trial judge misapprehended evidence relating to the relevance of the rolling logs; and
The trial judge erred in deciding s. 320.36 was unconstitutional.
[18] The respondent raises two grounds in response. First, he argues that the appeal route taken by the appellant is an impermissible abuse of process. Secondly, he argues that the trial judge erred by finding that disclosure of the rolling log was prohibited by section 320. 36(2) of the Code. As a consequence, he submits that there is no need for this court to decide the constitutionality of the section.
ANALYSIS
Abuse of Process
[19] The respondent argues that at the end of the legal rulings, the appellant had two permissible legal options: it could have disclosed the rolling log, continued with the trial, and then, depending on the verdict, appealed the trial judge’s ruling. Alternatively, it could have halted proceedings and launched an interlocutory appeal to challenge the judge’s decision. The respondent submits that, in this case, the appellant pursued an improper route to obtain a remedy.
[20] It is well settled that the Crown’s ability to request an interlocutory remedy mid trial is limited.
[21] In United States v. Fafalios, 2012 ONCA 365, 110 O.R. (3d) 641, at para. 55, the court made the following comments:
When the Crown requests a premature termination of a proceeding after an adverse interlocutory ruling, it must establish the existence of circumstances where a direct appeal of the ruling is absolutely necessary — where there is no reasonable alternative. The onus on the Crown is formidable due to the exceptional nature of a procedure that essentially circumvents the rule against a direct appeal from an interlocutory order.
[22] The jurisprudence recognises that there are instances where the Crown may not request a stay or invite an acquittal simply for the purposes of launching an appeal. The law forces the Crown in such situations to seek practical solutions and comply with any applicable court rulings: Fafalios, at para 45; R. v. Tingly, 2015 NBCA 51, 444 N.B.R. (2d) 1, at paras. 140-142.
[23] However, I agree with the appellant that this case can be distinguished from those authorities. Here, the appellant was faced with two different rulings that caused a potential conflict with compliance: the judicial interpretation of s. 320.36(2) which forbade disclosure and the finding that the section was unconstitutional.
[24] These rulings placed the Crown in a difficult, if not impossible, position. Whatever the result of the trial and any potential appeal, the rolling logs would have been disclosed. If the judge’s ruling was found to be in error, the damage would be irreparable. I note that the British Columbia Court of Appeal came to a similar conclusion in R. v. Creswell, 2000 BCCA 583, 149 C.C.C. (3d) 286, when dealing with the Crown production of privileged documents providing legal opinions to the police.
[25] Faced with this situation, it was perfectly reasonable for the Crown to act as they did. Doing so, meant that the Crown did not contravene the trial judge’s order and allowed a route that would allow them to seek a remedy without contravening s. 320.36(2).
[26] For these reasons, I find that there was no real alternative to the Crown proceeding in the fashion that it did. It follows that there can be no finding of an abuse of process.
Are the Rolling Logs Relevant?
[27] The judge ordered disclosure of the rolling logs in this case because she found it to be material that clearly fell within the parameters defined by the Supreme Court of Canada in Stinchcombe, which made clear that the Crown had to disclose all material that was not “clearly irrelevant”.
[28] As previously described, the appellant called evidence as part of its response to the claim for the rolling logs. Officer Brad Verspeeten, the Toronto Police Service Agency Coordinator for the Drug Evaluation and Classification Program, testified about the contents of the rolling logs and their use and purpose. The Crown argued that his testimony showed that the rolling logs were “clearly irrelevant” to the respondent’s defence.
[29] The trial judge disagreed. Notwithstanding Officer Verspeeten’s evidence, the trial judge found the rolling logs to be relevant because they can “potentially disclose information relating to the reliability of the person, the drug recognition expert who conducted the test and whether or not they are experienced with assessing the effects of the particular drug in question in the case” as well as “disclosure patterns, such as the record of a drug recognition expert in the past for assessing dilated pupils for which there can be different levels of skill and experience”.
[30] I agree with the appellant that the trial judge misapprehended the evidence given by Officer Verspeeten, whose testimony was to the opposite: a review of the rolling logs could not determine whether clinical tests were properly conducted.
[31] Moreover, I also agree that the judge wrongly concluded that “mismatches” are a factor to be considered using the rolling logs. Officer Verspeeten testified that the rate of mismatch told him nothing about the DRE’s opinion. According to the officer, rolling logs could not explain a “mismatch” between the DRE’s opinion and the toxicological result as there are many toxicological factors that might cause the discrepancy.
[32] However, despite these errors, I conclude that the judge’s ultimate ruling that rolling logs are not “clearly irrelevant” to be correct.
[33] The governing authority on the disclosure of rolling logs is the Court of Appeal for Ontario decision in Stipo. There, the court found that rolling logs were relevant because the Crown was tendering the DRE as an expert on the accused’s impairment by drugs. The court found that the rolling log spoke to the DRE’s experience. As Watt J.A. explained, at para. 107:
When Crown counsel tenders as evidence the opinion of a DRE formed from conducting the 12-step evaluation test, counsel is of necessity asserting that the DRE’s conclusion affords reliable evidence of drug impairment of an accused’s ability to operate a motor vehicle. It follows that any evidence that has a tendency to cast doubt on the reliability of the DRE’s conclusion is relevant. Evidence of the DRE’s prior experience in conducting drug recognition evaluations would seem relevant on this basis.
[34] Watt J.A. likened the rolling log to an expert’s CV, a document routinely disclosed in a criminal trial. The CV’s relevance lay in the need to demonstrate the expert’s qualifications to give opinion evidence. Moreover, the CV was an important factor when deciding the weight to be given to that opinion in the event of a dispute.
[35] Although I agree that the DRE’s opinion is rendered admissible by statute, it does not prevent the defence from attacking its reliability. One tactic available to the defence might is to question the DRE’s lack of experience in conducting the 12 Step Evaluation or dealing with a particular drug. Indeed, Officer Verspeeten conceded that inaccuracies in the rolling logs might cause him to take further steps when re-certifying a DRE.
[36] For all these reasons, rolling logs might become a useful tool for the defence to undermine the reliability of the DRE’s evidence at trial.
[37] The mere fact that rolling logs might not end up being used in this way or have little impact when so used, does not make them “clearly irrelevant”. The rolling logs do not need to be dispositive or critical in their use to be relevant.
[38] At the end of the day, the binding authority of Stipo answers the question of whether the rolling logs should be disclosed in the affirmative.
[39] Accordingly, I find that the trial judge made no error ordering the Crown to disclose the document.
Does Section 320.36(2) Prohibit Disclosure of Rolling Logs?
[40] The appellant submits that whilst the judge wrongly decided the issue of disclosure, her conclusion on the effect of s. 320.36(2) — that the section prohibited disclosure of the rolling log — was correct. The respondent, on the other hand, submits that the judge erred in this respect and that nothing in the section prevented the appellant from providing the rolling log to the defence.
[41] Section 320.26 emerged from amendments to the impaired driving sections of the Code which came into force in late 2018. Its predecessor, s. 258.1(2), read as follows:
(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)(a), the results of the analysis of a bodily substance taken under paragraph 254(2)(b) or (c), 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. [Emphasis added]
[42] Its replacement, s. 320.26(2) is set out below:
(2) No person shall use, disclose or allow the disclosure of the results obtained under this Part of any evaluation, physical coordination test 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.
[43] The successor provision changes the wording of the exception to the disclosure prohibition by removing the phrase “in the course of an investigation of, or in a proceeding for” to allow for disclosure “for the purpose of the administration or enforcement of a federal or provincial Act” in relation to impaired driving.
[44] The court in Stipo held that the old s. 258.1(2) did not prohibit disclosure of rolling logs in an impaired driving case. Instead, it found, at para. 185, that the Code had to be interpreted in context and “harmoniously with the scheme and object of the legislation and the intention of Parliament”. (See also: Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at paras. 26-27).
[45] As well, the court added, at para. 179:
Courts are also required to interpret legislation harmoniously with the constitutional norms enshrined in the Charter. For Charter values are always relevant to the interpretation of a disputed provision of the Criminal Code. [citations omitted]
[46] Applying these principles, the court in Stipo found that in enacting s. 258.1(2) of the Code, Parliament created a regime which balanced the privacy interests of those identified in rolling logs with the need to ensure all relevant material be placed in the hands of an accused charged with impaired driving: Stipo, at paras. 187-188. The court concluded that the test results recorded in the rolling log could be disclosed in any investigation or proceeding set out in s. 258.1(2).
[47] In this case, the trial judge took the removal of the words “or in a proceeding” from the exemption contained in s. 320.26(2) to mean that Parliament had intended to remove an accused’s right to receive disclosure of the rolling logs. She explained her reasoning in the following manner:
I am in full agreement with the submission that it is not the defendant who administers and enforces transportation offences created by criminal legislation. Administration and enforcement are the function of the executive and administrative branch of government. The creation of legislation is the function of the parliamentary and legislative branch of government. Proceedings are part and parcel of the work of the judicial branch of government. Criminal proceedings are part of what criminal courts do. By leaving out the words “or in a proceeding”, Parliament has deliberately left out the option of disclosure for the purpose of criminal or other judicial proceedings. Parliament no longer intended any disclosure pursuant to the provision to be for the use of the judicial branch of government, and this would include criminal proceedings, which would include the use by a defendant of such disclosure. That is the context.
[48] With respect, and for the following reasons, I disagree.
[49] First, as the judge acknowledged, the amendments were meant to simplify the law relating to impaired driving. It would make little sense for Parliament to do this by removing the disclosure of evidence that was previously recognised to be so significant it required a specific statutory exemption from the prohibition in the Code.
[50] Secondly, the words “administration and enforcement of a federal and provincial Act” cannot be read as solely being within the purview of the executive and administrative branch of government to the exclusion of the judicial branch. The law recognises the opposite principle: R. v. Hauser, 1979 CanLII 13 (SCC), [1979] 1 S.C.R. 984, at 996; R. v. Wijesinha, 1995 CanLII 67 (SCC), [1995] 3 SCR 422, at para. 44.
[51] If anything, the words used in s. 320.36(2) are more expansive than those used in s. 258.1(2) and, in my view, must include criminal proceedings involving impaired driving.
[52] Finally, as pointed out by Watt J.A. in Stipo, legislation must be interpreted in accord with Charter values. The interpretation that s. 320.36(2) does not prohibit disclosure of the rolling logs accords with the s. 7 Charter values espoused in Stinchcombe.
[53] I also reject the argument that disclosure of the rolling logs would lead to the identity of the test subjects being revealed. The rolling logs are first party disclosure but the form of their disclosure falls within the hands of the Crown. All clearly irrelevant material may be redacted from the logs before being provided to an accused. This is routine Crown practice when providing police notes and witness statements. Personal identifiers, addresses, and contact numbers are regularly removed.
[54] For these reasons, I find that s. 320.26(2) does not prohibit disclosure of rolling logs. It follows, therefore, that the judge’s ruling that s. 320.26(2) of the Code is unconstitutional because it prohibited disclosure was also an error.
CONCLUSION
[55] For the foregoing reasons, I find that rolling logs form part of Stinchcombe disclosure.
[56] I also find that disclosure of rolling logs is not prohibited by s. 320.26(2) of the Code.
[57] Finally, the judge erred in finding that s. 320.26(2) is unconstitutional.
[58] Accordingly, the appeal is dismissed.
S.A.Q. Akhtar J.
Released: 26 October 2020
COURT FILE NO.: CR-19-00000101-00AP
DATE: 20201026
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
DOMINADOR CALIXTERIO
REASONS FOR JUDGMENT
S.A.Q. Akhtar J.