R. v. Thomas Date:, 2012 BCPC 215

Citation: R. v. Thomas Date: 20120622 2012 BCPC 0215 File No: 21943-1 Registry: Smithers IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ROBERT THOMAS REASONS ON VOIR DIRE OF THE HONOURABLE JUDGE BIRNIE Counsel for the Crown: D. Brennan Counsel for the Defendant: I. Lawson Place of Hearing: Smithers , B.C. Date of Hearing: December 8, 2011, April 10, 11, 12, 2012 Date of Judgment: June 22, 2012 [ 1 ] In this trial the Crown wishes to call Cst Johnson, a person trained to conduct an Evaluation under s. 254(3.4) of the

Criminal Code , to give expert opinion evidence as to whether Mr. Thomas’ ability to drive was impaired by a drug in relation to an evaluation conducted on Mr. Thomas under the Drug Recognition Evaluation and Classification Program (DRECP). The issue on this voir dire is whether the DRECP meets the test set out by the Supreme Court of Canada in R. v. Mohan,[1994] 2SCR for the reception of expert evidence. [ 2 ] In the course of submissions counsel filed and referred to a number of case authorities.

I have read and considered all of these authorities though I will not refer to all of them in the course of these reasons. I have also found the decision of the Ontario Court of Appeal in R. v. Abbey 2009 ONCA 624 to be helpful in applying the Mohan criteria. [ 3 ] First, some background. Mr. Thomas is charged with the offence of having care or control of a motor vehicle while his ability to operate a motor vehicle was impaired by a drug on June 25, 2010. In the course of the investigation which led to this charge Mr.

Thomas was required to comply with a demand under s. 254(3.1) that he participate in an Evaluation as defined in Regulation 2008- 196. This regulation states: Evaluation of Impaired Operation (Drugs and Alcohol) Regulations SOR/2008-196 EVALUATION TESTS AND PROCEDURES 3. The tests to be conducted and the procedures to be followed during an evaluation under subsection 254(3.1) of the Criminal Code are (

a) a preliminary examination, which consists of measuring the pulse and determining that the pupils are the same size and that the eyes track an object equally; (

b) eye examinations, which consist of o (

i) the horizontal gaze nystagmus test, o (ii) the vertical gaze nystagmus test, and o (iii) the lack-of-convergence test; (

c) divided-attention tests, which consist of o (

i) the Romberg balance test, o (ii) the walk-and-turn test referred to in paragraph 2( b ), o (iii) the one-leg stand test referred to in paragraph 2( c ), and o (iv) the finger-to-nose test, which includes the test subject tilting the head back and touching the tip of their index finger to the tip of their nose in a specified manner while keeping their eyes closed; (

d) an examination, which consists of measuring the blood pressure, temperature and pulse; (

e) an examination of pupil sizes under light levels of ambient light, near total darkness and direct light and an examination of the nasal and oral cavities; (

f) an examination, which consists of checking the muscle tone and pulse; and (

g) a visual examination of the arms, neck and, if exposed, the legs for evidence of injection sites. [ 4 ] The person conducting the Evaluation, the Evaluating officer is defined by the same regulation as follows: QUALIFICATION REQUIRED OF EVALUATING OFFICER 1. An evaluating officer must be a certified drug recognition expert accredited by the International Association of Chiefs of Police. [ 5 ] The DRECP is more extensive than the Evaluation described in the Regulations.

It is a 12 step process, which in addition to the tests prescribed for an Evaluation requires that : 1. a blood or breath sample be taken and if the result is inconsistent with the degree or type of impairment noted the evaluator move on to the remaining eleven steps, 2. the evaluator discuss the circumstances of the person’s arrest with the arresting officer and inquire about the person’s condition at that time, any observations as to the person’s driving, any statements he made, whether he had any drugs in his possession, any indications of drug consumption etc. 3. the person be asked about any health problems,

4. the evaluator conduct a structured interview with the person questioning him about the use of specific drugs, 5. a urine, blood or saliva sample be obtained from the person and analysed for the presence of drugs which the evaluator believes arecausing impairment. [6] I note that the parties appear to have assumed that the DRECP and the Evaluation mandated by Regulation 2008 - 196 wereone and the same; as in fact did Cst Johnston, since Exhibit “F”, the record of his evaluation of Mr. Thomas, includes the kinds ofquestions referred to in # 3 and # 4 above and answers to these questions provided by Mr.

Thomas. [7] The Crown tendered Mr. Wayne Jeffery as an expert witness qualified to give opinion evidence as to the efficacy andvalidity of the Drug Recognition Evaluation and Classification Program (DRECP) as a tool in detecting drug impairment. Mr. Jeffery isthe only witness called by the Crown on the voir dire. They did not call Cst. Johnson or tender his opinion. [8] This voir dire commenced with an examination in both direct and cross of Mr. Jeffery’s qualifications and with argument asto whether Mr. Jeffery was qualified to give the opinion sought.

In an oral decision I ruled that he was qualified to give this opinionbased on: 1) his training in pharmacy and pharmaceutical chemistry, 2) his 34 years experience working as a forensic toxicologist, and 3) his training in the DRECP and his work in the field of DRECP for the last 13 years which has included reviewing and keepinghimself current on the scientific literature on the DRECP and heading a committee of forensic scientists in Canada which has reviewedthe use of the DRECP. [9] Throughout the voir dire, until I heard submissions, defence counsel took the position that Mr.

Jeffery’s opinion could not bereceived in evidence because the validity of the DRECP had not been established. Ultimately however Defence conceded that Mr.Jeffery’s opinion was admissible because it was about that very issue – the validity of the DRECP. [10] Before considering Mr. Jeffery’s evidence I will address some preliminary issues regarding the admissibility of an EvaluatingOfficer’s evidence.

The position of both Crown and Defence on this voir dire was that provided he demonstrates that he is qualified inaccordance with Regulation 2008-196, an Evaluating officer may give evidence of the Evaluation tests he has conducted on a person, andof any opinion he arrives at based on the Evaluation for the purpose of establishing his grounds for making a blood or urine demand. Other than establishing that he is qualified as an Evaluating officer he need not be qualified as an expert witness. [11] There are a number of case authorities which support this position: R. v.

Wakewich,[2010]O.J.No 1128 (Ont Ct Justice), R. v.Conron,[2012] O.J. No. 1399 ( Ont. Ct. Justice), R. v. MacDonald,[2012] N.S.J. No. 178 ( N.S. Prov. Ct.). I had some questions duringthe submissions of the Crown as to whether this might not be the case if there was a challenge to the objective reasonableness of theEvaluating officer’s opinion. Whether in that case there would need to be some expert evidence to show the Evaluation tests are validpredictors of impairment of the ability to drive by drugs.

This issue has not been raised in this trial however and will be left for anotherday. [12] Crown and Defence also concurred that if the evidence of an Evaluating officer is tendered for the purpose of proving that aperson’s ability to drive is impaired by a drug then the Evaluating officer must be qualified as an expert witness. This is based, again, onthe authorities set out above in paragraph 11. As I understand these authorities the Evaluating officer must be qualified as an expert inorder to give his opinion of impairment based on the evaluation he conducted.

I would add that in my view, without establishing that heis qualified as an expert, the Evaluating officer may also give evidence of any observations he made of the accused person, or anyadmissible statements made by the accused during the course of the Evaluation, which do not require the

interpretation of an expert - forthe purpose of proving that the person’s ability to drive was impaired by a drug. [13] Before expert evidence can be received it must meet the criteria set out in R. v. Mohan, (SCC), [1994] 2S.C.R. 9. These criteria are: relevance, necessity in assisting the trier of fact, the absence of an exclusionary rule, and a properlyqualified expert. The burden is on the Crown to establish these criteria on the balance of probabilities. Mr. Jeffery’s Evidence: [14] Mr. Jeffery’s explanation and opinion of the DRECP was filed as exhibit “B”.

In that opinion he asserts that a person trainedto conduct the 12 step DRECP, a Drug Recognition Evaluator, i.e. an Evaluating officer, is able to determine:

a) If the subject of the evaluation is actually impaired,

b) If the impairment is drug or medically related, and

c) If it is drug related - the drug category or combination of drug categories that is the cause of the observed impairment. [15] He describes the DRECP as a systematic and standardized 12 step procedure used to detect “drug influence” which has been“evaluated and scientifically accepted in peer reviewed publications and been published in the scientific literature” ( Exhibit “B” p.3.). The 12 steps are those set out above in paragraph 5 of these reasons. In his opinion he sets out how each step is performed.

Withrespect to the physical tests he explains that: 1) horizontal gaze nystagmus (HGN) – the involuntary jerking of the eyeballs as the eyes move side to side while staring at an object -is the best predictor of an individual’s alcohol level and can also be induced by certain drug categories,

2) vertical gaze nystagmus (VGN) - the involuntary jerking of the eyeballs as a subject is directed to follow an object up and down - indicates a high dose of a drug, 3) the ability to converge or cross one’s eyes is impaired by certain categories of drugs, 4) the Romberg balance test, the walk and turn test, the one leg stand test and the finger to nose test are all divided attention tests which can indicate impairment if they are done too fast or slow, balance is not maintained, or the test is done incorrectly or cannot be performed. 5) pulse, blood pressure and body temperature are taken and compared to medically acceptable norms and the results can indicate the presence of some drugs in the body. 6) eye pupil sizes in different light conditions are measured and can indicate the presence of drugs.

Nasal and oral cavities are examined for evidence of drug use. 7) muscle tone is examined as certain drugs can cause either rigidity or flaccidity. 8) the subject is examined for the presence or absence of injection sites. [ 16 ] In the course of doing these physical tests and examinations the Evaluating officer is looking for signs and symptoms of “drug effects”. “Signs” are detectable by an observer. “Symptoms” are subjective and may be reported to the observer. [ 17 ] Mr.

Jeffery stated that the DRECP was evaluated by the Canadian Society of Forensic Sciences Drugs and Driving Committee in 1993 – 1994 and recommended as a scientifically reliable program to detect the drug impaired driver. (Exhibit “B” p. 7) He also stated that it has been accepted to provide an accurate and reliable assessment of a subject’s impairment and the category of drug impairment, (Exhibit “B” p. 7) and explained in his oral testimony that this is based on published scientific literature. [ 18 ] The terms “drug influence” and “drug effects” were not defined or related to physical or cognitive impairment. [ 19 ] In his oral testimony he reviewed his opinion and described the various steps.

He explained how the physical divided attention tests are conducted and explained that the walk and turn, one leg stand and finger to nose may show impairment per se in terms of factors such as poor balance, swaying, unable to touch finger to nose etc. [ 20 ] He explained that cannabis can raise the pulse rate and lower blood pressure. He referred to the eye examination and that the whites of the eyes are slightly pinkish when a person is under the influence of cannabis and that cannabis may cause the pupils to be dilated.

He referred to the muscle tone examination and stated that cannabis does not affect muscle tone. He stated that the Evaluating officer’s opinions are 70 – 95% accurate depending on the category of drug involved and that the opinion needs to be confirmed by toxicology – i.e. by a blood or urine sample.

He did not state what this accuracy related to, but on cross examination it became apparent that he was referring to the Evaluating officer’s opinion as to what drug the subject had consumed or was under the influence of and was the cause of the signs or symptoms of impairment noted. [ 21 ] A number of literature reviews were put to Mr. Jeffery on cross- examination:

a) Exhibit G: “Laboratory Validation Study of Drug Evaluation and Classification Program: Alprazolam, d-Amphetamine, Codeine, and Marijuana” – Heishman, Singleton and Crouch in Journal of Analytical Toxicology Vol. 22 October 1998.

b) Exhibit C: “Evaluation of the Drug Evaluation and Classification Program: A Critical Review of the Evidence” – Beirness, Le Cavalier and Singhal in Traffic Injury Prevention 2007, and

c) Exhibit D: “The Accuracy of Evaluations by Drug Recognition Experts in Canada” – Beirness, Beasley and LeCavalier, in Canadian Society of Forensic Science Journal Vol. 42, 2009. He agreed that these are examples of the literature he relies on and he has relied on these articles and the research they are based on as the basis for his opinion. The Heishman et al Study: [ 22 ] In the introduction of this study the authors referred to “DRE cases” 1 “typically resulting in a conviction on an impaired driving charge”. (Exhibit G p. 503).

It also reported that several field studies had indicated that DRE opinions were confirmed by toxicological analysis in 74 – 92% of cases where the Evaluating officer concluded suspects were impaired.

It was unclear however if this meant their conclusions of impairment were confirmed by a toxicological analysis that demonstrated a level of drug(s), or drugs and alcohol in the body that established impairment of the ability to drive, or if it meant that their opinion of impairment by a drug category was confirmed by a toxicological analysis which showed that drug category in the body. 1 The term “DRE” in this and the following two studies refers to a Drug Recognition Evaluation in which the Evaluating officer uses the DRECP as the evaluating tool.

The same term is also used in these studies to mean “Drug Recognition Expert” – referring to the Evaluating officers. To avoid confusion I use the term DRE in these reasons in the first sense described above – i.e. the Evaluation conducted by the evaluating officer using the DRECP. I refer to the “Drug Recognition Expert” as the Evaluating officer. [ 23 ] The main focus of this study was on determining the accuracy of DREs done without the ability to question the subjects about drug consumption or the receipt of any information from an arresting officer.

The study was done in a laboratory setting with drugs being administered under double blind conditions. The subjects of the Evaluations had received one of: a placebo, a low dose, or a high dose of a particular drug. The results for marijuana were a false positive rate of 30% for marijuana when the subjects had received a placebo. In other words 30% of the subjects were determined to have taken the drug when they had not.

[ 24 ] Mr. Jeffery pointed out that this is why it is essential to confirm the opinion of an Evaluating officer by a toxicological analysis showing the actual presence of the drug in the person’s system. This assumes that as long as it can be shown that there is a drug in the body the opinion about impairment itself is confirmed and not simply the presence or influence of a drug. [ 25 ] The term “impairment” was used at various points in this study with reference to Evaluating officers concluding or not concluding that impairment was present.

The term “impairment” was not defined in any scientific sense however and was not related to impairment of the ability to drive. The conclusion of the study was that the Drug Evaluation and Classification Program is a valid test to identify recent drug use. There was no conclusion about its ability to identify impairment. The 2007 Beirness Evaluation: [ 26 ] The objective of this

article was to do a critical review of the existing evaluation studies to determine the validity and accuracy of the DRECP for identifying drivers under the influence of drugs. The authors reviewed the three laboratory studies which had been done to date and five field studies.

One of the lab studies reviewed was the Heishman 1998 study referred to above. [ 27 ] The authors found: Laboratory studies do not provide overwhelming support for the accuracy with which officers trained in the DEC 2 program can detect and identify the particular class(es) of drugs involved based on psychophysical assessment alone. ......Although field enforcement studies are not as scientifically rigorous as laboratory studies, DEC studies in an enforcement context have the benefit of information obtained from the arresting officer and from interviews with the suspect. ...In general officers trained in the DEC program are able to identify persons under the influence of drugs and to specify the drug class responsible with a degree of accuracy that not only exceeds chance, but in some cases can reach a very high level. (Exhibit C at p.368 - introductory synopsis) The term “under the influence of drugs” is not defined and is not related to impairment.

Mr. Jeffery said he had no reason to question the conclusions of this study. 2 DEC is an acronym for Drug Evaluation and Classification which refers to the DRECP 12 step program. Beirness et al 2009 [ 28 ] In their introduction the authors state at p.76 : “The acceptance of the DEC Program by the public and the courts depends heavily on the demonstrated effectiveness of the procedure. Several studies have examined the accuracy with which officers trained in the technique are able to correctly identify the category of drug(

s) ingested by the individual being evaluated.” And at p. 77: “This paper examines the accuracy with which Canadian police officers trained as Drug Recognition Experts (DREs) are able to identify the category of drugs ingested by persons suspected of being impaired by drugs” [ 29 ] The study looked at all drug evaluations completed by Evaluating officers in Canada along with toxicological reports on bodily fluid collected, in order to determine the degree of correspondence between the Evaluating officer’s opinion of the category of drugs believed to be involved based on the DRECP evaluation and the results of the toxicological analysis of the fluid sample obtained from the individual.

The authors found an overall accuracy rate of 95% and concluded that drug evaluations done by Evaluating officers in Canada are accurate. [ 30 ] There was no analysis and no conclusions as to whether any of the subjects of these evaluations were in fact impaired in some measurable way. They were referred to as “suspected impaired drivers”. The Mohan Test: [ 31 ] In R. v. Mohan , ( supra), the Supreme Court of Canada set out the criteria which must be established on the balance of probabilities in order for a witness to give expert opinion evidence. These are:

a) relevance,

b) necessity,

c) a properly qualified expert and

d) the absence of any exclusionary rule. The application of these criteria was refined in later decisions including R. v. Abbey (supra); leave to appeal to the SCC refused [2010] SCCA No.125. [ 32 ] Admissibility of expert opinion is not an all or nothing proposition. The role of the trial judge is to determine the appropriate scope of an expert opinion so as to ensure sufficient or threshold reliability. Expert evidence can be science or non science based. ( R. v. Abbey (supra )). [ 33 ] As set out in the Abbey decision a judge must engage in a two stage inquiry. At the first stage the following preconditions should be present:

i) The proposed opinion must relate to subject matter which is the proper subject of expert opinion evidence, ii) there must be a properly qualified witness, iii) there is no exclusionary rule which would preclude admission of the opinion, iv) the opinion must be logically relevant to a material issue.

[34] At stage two the court exercises its “gatekeeper” function. It must consider the probative value of the evidence as well as thepotential prejudice which may result from its admission and engage in a “cost benefit analysis”. A key issue at this stage is thresholdreliability the type of expert evidence must be considered. Is it amenable to empirical testing and precise error rates? Does it purport toemploy a scientific method and to be the result of scientific inquiry? If not then its reliability does not need to rest on its scientificvalidity. If so the Daubert factors should be considered; i.e.:

a) Whether the theory or technique can be and has been tested,

b) Whether the theory or technique has been subjected to peer review and publication,

c) The known or potential rate of error and the existence of standards, and

d) Whether the theory or technique has been generally accepted. [35] Another factor at this “gatekeeper” stage is the question of necessity. The standard of necessity should not be too strict. Thefactors to be considered are whether:

a) the area in which the opinion is proffered is outside the experience and knowledge of the trier of fact,

b) the subject matter is such that ordinary people would be unlikely to form a correct opinion if unassisted by persons with specialknowledge, and

c) the opinion would usurp the function of the trier of fact. R. v. Mohan, (supra). Application of Mohan to this case: Stage One: [36] In this case the opinion which is to be put forward by Cst. Johnston is whether Mr. Thomas’ ability to drive was impaired by adrug. Impairment of the ability to drive can properly be the subject of an expert opinion.

Courts often hear such opinions fromtoxicologists in relation to the amount of alcohol or drugs determined to be in a person’s body and the impact they would have on aperson’s physical and mental faculties. [37] Because of the way in which this voir dire unfolded I have yet to hear Cst.

Johnston’s qualifications so I will assume, withoutdeciding, that he will be shown to be a properly qualified “Evaluating officer” and that his training and experience in this regard wouldprovide the basis for him to give the opinion sought. [38] At this point in the trial there is no exclusionary rule which would bar the admission of Cst. Johnston’s opinion. I notehowever, that one of the potential problems with the way in which the evaluation in this case was conducted is that Mr. Thomas appearsto have been interviewed about his drug consumption, including, how much and when.

This is not part of the evaluation that he wasrequired to undergo and, unless he was advised that he need not answer any questions put to him other than those relating directly to hisrequired performance of the Evaluation tests, it may well be that answers to any questions posed and thus aspects of the factual bases ofthe opinion could be inadmissible. [39] An opinion as to whether the results of the evaluation indicated that Mr. Thomas’ ability to drive was impaired and that thatimpairment was caused by a drug is logically relevant to a material issue in this case. It is logically relevant to the material issue.

Stage Two: Scientific Validity: [40] The Drug Recognition and Evaluation Classification Procedure as described by Mr. Jeffery is or purports to be a scientificallybased procedure for the identification of persons whose ability to drive is impaired by a drug(

s) and for the identification of the categoryof drug(

s) causing the impairment. The scientific studies and articles referenced and relied on by Mr. Jeffery were replete with referencesto error rates and attempted to show that the DRECP was empirically valid both in field and laboratory settings. [41] For this reason it is important to examine the scientific validity of the procedure and whether there is a valid empirical basisfor the claim that the DRECP can identify a person whose ability to drive is impaired by drugs to the degree claimed i.e. a 74 – 95%accuracy rate. (based on the Heishman and 2009 Beirness studies) [42] A review of the literature, (i.e.

Exhibits C,D and G), relied on by Mr. Jeffery for his conclusions that an officer trained toconduct the DRECP is able to determine:

a) if the individual is actually impaired, (and by this I understand he meant that their ability to drive a motor vehicle is impaired),

b) whether the impairment is medically or drug related, and

c) if drug related what drug category is the cause of the impairment, shows that all of these conclusions are not supported. In particular, none of the studies or literature reviews referred to above atparagraphs 22 to 30 define the state of impairment which the DRECP is said to determine. In this context it is important to be mindful ofthe caution set out in R. v. Andrews, 1996 ABCA 23 , [1996] A.J. No. 8 (Alta C.A.), leave to appeal to S.C.C. refused:

The question is not whether the individual's functional ability is impaired to any degree. The question is whether the person's ability to drive is impaired to any degree by alcohol or a drug. In considering this question, judges must be careful not to assume that, where a person's functional ability is affected in some respects by consumption of alcohol, his or her ability to drive is also automatically impaired. (at paragraph 17) [ 43 ] The studies variously refer to subjects who:

a) are suspected impaired or drug-impaired drivers,

b) are suspected of having used an impairing substance,

c) are suspected of being impaired by drugs,

d) are under the influence of a drug(s),

e) have ingested drugs,

f) are showing drug effects, or

g) are impaired. [ 44 ] None of these states including the term “impairment” are defined and none of them are related to whether or not the subject’s ability to drive is impaired. When a trier of fact receives evidence on “impairment” from an expert witness it is normally from a toxicologist who relates the ingestion of a particular substance to its anticipated effect on a person’s cognitive and physiological functioning including how those processes are impaired.

Reference is usually made to adverse effects on judgment, perception, attention, motor coordination, tracking, reaction time etc. ( As, for example in Exhibit # 2, the report of Christine Dagenais in this case). [ 45 ] In these studies, however, “impairment” is not defined and there appears to be an assumption that any of the other “states”, such as “under the influence of drugs”, are the equivalent of impairment which is itself the equivalent of impairment of the ability to drive. In the context of a science based evaluation and classification system this is not a permissible assumption to make.

None of the error rates tabulated and discussed in these studies are related to the impairment of a subject or to impairment of the ability to drive. They are all related to the ability of an Evaluating officer to determine what category of drug he believes the person has ingested or are under the influence of. [ 46 ] For these reasons I find that the DRECP has not been shown to have the threshold reliability necessary to support an expert opinion as to whether a person’s ability to drive is impaired.

At most it has been shown to be useful in determining if a person is under the influence of a particular drug category. Necessity: Is the area in which the opinion is proffered outside the experience and knowledge of the trier of fact: [ 47 ] The opinion which the Crown wishes to elicit from Cst. Johnston is whether Mr. Thomas’ ability to drive was impaired by alcohol. “Impairment” including impairment of the ability to drive is an area well within the knowledge and experience of judges and juries.

Indeed it is within the knowledge of most people, which is why witnesses including police officers are routinely asked whether or not they thought a person was impaired including “how impaired” they were. They are entitled to give their opinion in this regard, not as “experts” but because this falls within the realm of common experience. The weight to be accorded such an opinion depends on the observations it is based on but it is not entitled to any special regard in the sense that it flows from the “expertise” of the witness.

The subject matter is such that ordinary people would be unlikely to form a correct opinion if unassisted by persons with special knowledge [ 48 ] Much of the subject matter of the DRECP is not material about which people would be unlikely to form a correct opinion without the assistance of an expert. Information about the person’s driving pattern and their condition and behaviour upon arrest is the type of evidence which triers of fact routinely hear as a basis for making determinations about whether a person’s ability to drive was impaired.

The same goes for any admissible statements made by that person which relate either to the consumption of drugs or their state of impairment. Some of the divided attention tests, including finger to nose, the Romberg balance test and the walk and turn relate to physical symptoms of impairment which triers of fact regularly consider and make inferences from without expert assistance. [ 49 ] This is not the case however for the following elements of the DRECP which are included in the Evaluation provided for by Regulation 2008-196:

a) The eye examination involving an assessment of horizontal and vertical gaze nystagmus and eye convergence,

b) pupil size and equal tracking of the eyes,

c) pulse, blood temperature and blood pressure measurements,

d) an examination of pupil size under different light conditions,

e) an examination of muscle tone, and perhaps

f) some of the divided attention testing

All of these physical tests would require the

interpretation of someone with specialised knowledge to assist the trier of fact in understanding how the person’s performance or the observations of the Evaluator are related to either impairment of the ability to drive or the existence of a drug(

s) in the body or both. [ 50 ] Step 12 of the DRECP, the results of an analysis of a blood or urine sample from a person, would be the subject of a separate expert opinion from a toxicologist, as with the evidence of Christine Dagenais in this case.( Exhibit 2) Such an expert opinion would assist the trier of fact in understanding how the results of any analysis relate to the issues of impairment of the ability to drive, the cause of this impairment being a drug(s), or the ingestion and possible impairing effects of a drug.

I do not see how a second expert opinion from the Evaluating officer, regarding how the toxicologist’s opinion relates to the other evidence of impairment, is necessary. Would the opinion usurp the function of the trier of fact: [ 51 ] The function of the trier of fact on a charge relating to impairment of the ability to drive by drugs is to consider all the evidence of impairment and drug consumption and determine if they are persuaded beyond a reasonable doubt that the accused person’s ability to drive was impaired by a drug.

While they may need the assistance of an expert to appreciate how some of the evidence relates to impairment of the ability to drive and whether that is caused by a drug - they do not need an expert to tell them what that conclusion should be on what is the ultimate issue in the case. [ 52 ] In argument the Crown compared an opinion on the impairment of the ability to drive by drugs to an opinion on whether a person’s possession of drugs is for the purpose of trafficking. The latter opinion is also on the “ultimate issue”.

That issue, however, is not one which is within the common experience of most people and which is considered and determined on a regular basis by judges and juries without the opinion of an expert. In my view an expert opinion from an Evaluating officer as to whether a person’s ability to drive is impaired by a drug does usurp the function of the trier of fact. Cost benefits analysis: [ 53 ] The DRECP has not been shown to be a reliable predictor of whether a person’s ability to drive is impaired by a drug. Its probative value on this issue is therefore very limited if not non- existent.

In addition many of the elements of the DRECP relate to information which a trier of fact is well equipped to understand and interpret without expert assistance. By presenting them as part of an “Evaluation and Classification System” which requires the

interpretation of an expert, they become “dressed up in scientific language” and can distort the fact-finding process. In addition an expert opinion from an Evaluating officer on the ultimate issue in the case, whether the accused person’s ability to drive was impaired by a drug, does usurp the function of the trier of fact. For all of these reasons the prejudicial impact of the expert opinion the Crown seeks to introduce far outweighs any probative value. Conclusion: [ 54 ] For the above reasons I find that an expert opinion from Cst. Johnson based on the DRECP is not admissible as to whether Mr. Thomas’ ability to drive a motor vehicle was impaired by a drug. However, if:

a) the psychomotor tests set out in Regulation 2008-196 can be shown to be reliably related to either impairment or the impairing effects or consumption of a drug(s), and

b) Cst Johnson is properly qualified then he could give an opinion on how each of these tests and Mr. Thomas’ performance on them relates to impairment, the impairing effects of a drug, or the consumption of a drug - so that the trier of fact can use this information to come to a conclusion as to whether Mr. Thomas’ ability to drive was impaired by a drug in this case. ____________________ C. Birnie Provincial Court Judge