R. v. Dunlop, 2011 NSPC 30

IN THE PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Dunlop, 2011 NSPC 30 Date: 20110329 Docket: 2156276 Registry: Amherst Between: Her Majesty the Queen v. Matthew Daniel Dunlop Judge: The Honourable Chief Judge Patrick Curran Heard: 18 January 2011, in Amherst, Nova Scotia Oral decision: 29 March 2011 Written release of oral decision: 7 June 2011 Charge: THAT HE on or about the 13 th day of January 2010 at, or near Amherst, Nova Scotia, did while his ability to operate a motor vehicle was impaired by a drug did operate a motor vehicle contrary to section 253(1) (

a) of the Criminal Code . Counsel: Mr. Bruce Baxter, for the crown Mr. Andrew Melvin, for the defence By the Court : [ 1 ] Matthew Dunlop is charged that: on or about the 13 th day of January 2010 at, or near Amherst...while his ability to operate a motor vehicle was impaired by a drug did

operate a motor vehicle. [2] Some time ago now, there was a Charter application on behalf of Mr. Dunlop to exclude the results of the toxicologicalexamination carried out on a urine sample he provided following a drug recognition evaluation procedure. [3] In this case Constable Galloway, the same person as in the previous matter I dealt with this morning, Constable Gallowaypulled Matthew Dunlop’s vehicle over for a motor vehicle infraction. When he went up to the vehicle, the officer noted the smell ofmarijuana coming from it. Mr.

Dunlop pulled a roach out of the vehicle’s ashtray, and according to the statement of facts in Mr.Melvin’s brief, Mr. Dunlop told the constable that he had smoked marijuana earlier. Constable Galloway arrested Mr. Dunlop forpossession of marijuana, then read him a field sobriety test demand. After conducting that test, Constable Galloway then gave Mr.Dunlop a drug recognition evaluation demand, with which Mr. Dunlop complied, after speaking with duty counsel. [4] Constable Galloway told Mr.

Dunlop that if he did not comply with the evaluation, he would be charged with the offence ofrefusal. [5] One part of the evaluation which Constable Galloway, a drug recognition expert under the provisions of the Criminal Code,carried out was an interrogation, during which Mr. Dunlop admitted using marijuana, about 3:00 p.m. that same day. Following theevaluation, Constable Galloway concluded that Mr. Dunlop’s ability to operate a motor vehicle was impaired by cannabis, and hecollected a urine sample from Mr. Dunlop for a toxicological examination. [6] As was pointed out by Mr. Melvin, on behalf of Mr.

Dunlop, the drug recognition process approved in Criminal Coderegulations does not include interrogation. Mr. Melvin argues that his client was forced, by the threat of a refusal charge, to admit use ofmarijuana earlier in the day, thus incriminating himself. He argues further that because that admission was part of the basis upon whichthe constable relied in forming his belief that Mr. Dunlop was impaired by cannabis, and taking a resulting sample from him, that thetaking of that sample should be found to be in breach of

section 8 of the Charter, and that under section 24(2), the sample should befound inadmissible. [7] Mr. Melvin also argued that the drug recognition process lacked scientific validity, although he didn’t present any evidencein support of that argument. He referred to other cases. [8] Mr. Baxter, for the crown, argued that Constable Galloway was entitled at common law to interrogate Mr. Dunlop during thedrug recognition process, and that in any case, Constable Galloway had testified, on cross examination, that he had not relied upon theadmission in interrogation to conclude impairment by cannabis.

Constable Galloway had testified the opposite effect on directexamination and said otherwise in the report he sent to the crown. Constable Galloway’s testimony in cross examination referred to byMr. Baxter was not persuasive. [9] Demanding that a person comply with a process or be charged with refusal, and then including an interrogation in thatprocess, renders replies to the interrogation involuntary and contrary to the right against self incrimination.

Use of the results of such aninterrogation to advance criminal proceedings against an accused is akin to using a statutorily compelled report as evidence on a criminalcharge, against the person who gave the report. [10] That which I just described was a situation dealt with by the Supreme Court of Canada in R. v. White, (SCC),[1999] 2 S.C.R. 417. Now it’s not an exact parallel. The point in R. v.

White (supra) was that the person had made a report under theMotor Vehicle Act in British Columbia and then the contents of the report, the things that the person said during the making of the reportwere used, or attempted to be used, in a subsequent criminal trial, and that was ultimately found not to be an acceptable practice. [11] In my view, there’s a significant parallel between what the Supreme Court said in R. v. White (supra) and the circumstanceshere today. So in my view Mr. Dunlop has established, on the balance of probability, that his right against unlawful seizure has beenbreached.

And I say that, again to make it clear, because in my view it was clear in everything that Constable Galloway put before thecourt, except his comment on cross examination, that he was relying, in part, on that interrogation and the answers received in reachingthe conclusions that he did and taking the steps that he did. There was no point otherwise for the interrogation to have taken place.

There was no point otherwise to have been referred to. Interrogations are not part of what Parliament has approved for these purposes,and I think that’s for obvious reasons. I think it’s clear that Parliament would have recognized that it would be unconstitutional toprovide for an interrogation following a demand of the person making it clear that refusal to respond to any part of the process wouldresult in a refusal charge. The fact that Mr.

Dunlop was permitted to speak to counsel along the way in no way undermines theproposition that you can’t put a person in the position that he either answers a question about his actions, which are part and parcel of thematter before the court, or he will be charged for not answering. [12] That brings us to section 24(2) of the Charter, and whether or not the breach should result in the evidence in question beingadmitted or excluded. Of course, since two years or so ago the Supreme Court’s decision in R. v. Grant 2009 SCC 32 , [2009] 2S.C.R. 353, governs these considerations. In R. v.

Grant (supra), the court ultimately said there were three factors which a court mustconsider in deciding whether the admission of evidence would bring the administration of justice into disrepute. Those three things are: (1) the seriousness of the Charter-infringing state conduct, (2) the impact of the breach on the Charter-protected interests of the accused,and (3) society’s interest in the adjudication of the case on its merits. [13] With regard to the first of those, it’s clear in this case that Constable Galloway was not acting maliciously in including aninterrogation in his drug evaluation.

He was doing what he had been taught to do, which however did not reflect what Canadian lawpermitted. His own actions were not in bad faith, but it’s really somewhat hard to reach the same conclusion regarding what appears tohave been an officially, or at least unofficially sanctioned process in which he participated. [14] Regarding the second factor, the impact of the breach on the Charter protected interests of the accused. It seems to me that ifall there were in this case were the drug evaluation and resulting seizure of a urine sample it would, as argued by the defence, have asignificant impact on Mr.

Dunlop’s privacy and human dignity, although as acknowledged by the defence, it would not be as intrusive astaking a blood sample. However, there is more in this case. Specifically, the accused’s counsel has set out in his brief, item four, that theaccused had told Constable Galloway at the time he was stopped that he consumed marijuana earlier in the day. In these circumstances,eliciting similar information during the course of the evaluation and relying on it, in my view was of little significance. [15] Regarding the third factor, society’s interest in the adjudication of the case on its merits.

Defence counsel has challenged theintroduction of the toxicological examination of the urine sample on the basis that it would not, in itself, provide an answer to theultimate question in the case, that is was Mr. Dunlop impaired by a drug at the time of the alleged operation of the vehicle. However,defence counsel does acknowledge that the results are potentially relevant, and I would say more than that, in support of the drugrecognition expert, Constable Galloway’s opinion regarding the condition of Mr. Dunlop at the time that he was operating a vehicle.

Inmy view, that makes the results of the test substantial evidence. [16] It’s worth noting that the defence also challenged, as I think I mentioned before, the scientific underpinnings of the DREprocess, but did not offer evidence during the course of the voir dire in support of such a challenge. [17] In my view, the defence has not established, on the balance of probability, that the exclusion of the evidence would not bringthe administration of justice into disrepute. There is no strong reason for exclusion in these particular circumstances. Had Mr.

Dunlopnot made his admission in his car when first confronted by the officer, things might well have been different. But I find in thesecircumstances that the evidence is admissible. PCJ