R. v. Steeves, 2011 NBCA 88

COURT OF APPEAL OF NEW BRUNSWICK 3-11-CA HER MAJESTY THE QUEEN APPELLANT SA MAJESTÉ LA REINE APPELANTE- and - - et - KENNETH WILLIAM STEEVES RESPONDENT KENNETH WILLIAM STEEVES INTIMÉ R. v. Steeves, 2011 NBCA 88 R. c.

Steeves, 2011 NBCA 88 CORAM: The Honourable Justice Richard The Honourable Justice Bell The Honourable Justice Green CORAM : L’honorable juge Richard L’honorable juge Bell L’honorable juge Green Appeal from a decision of the Court of Queen’s Bench: December 8, 2010 Appel d’une décision de la Cour du Banc de la Reine : Le 8 décembre 2010 History of case: Decision under appeal: 2011 NBQB 10 Preliminary or incidental proceedings: 2010 NBPC 25 Historique de la cause : Décision frappée d’appel : 2011 NBQB 10 , 2011 NBBR 10 Procédures préliminaires ou accessoires : 2010 NBCP 25 Appeal heard: May 11, 2011 Appel entendu : Le 11 mai 2011 Judgment rendered: October 6, 2011 Jugement rendu : Le 6 octobre 2011 Reasons for judgment by: The Honourable Justice Bell Motifs de jugement : L’honorable juge Bell

Concurred in by: The Honourable Justice Richard The Honourable Justice Green Souscrivent aux motifs : L’honorable juge Richard L’honorable juge Green Counsel at hearing: For the appellant: Lucie Mathurin For the respondent: Kenneth Steeves appeared in person Avocats à l’audience : Pour l’appelante : Lucie Mathurin Pour l’intimé : Kenneth Steeves a comparu en personne THE COURT Leave to appeal is granted, the appeal is allowed and a new trial ordered. LA COUR L’autorisation d’interjeter appel est accordée. L’appel est accueilli et la tenue d’un nouveau procès est ordonnée.

The judgment of the Court was delivered by BELL, J.A I. Background [ 1 ] While s. 253 of the Criminal Code has been principally used to combat alcohol induced impairment of the operation of motor vehicles, vessels and other equipment, Parliament has increasingly turned its attention to the operation of such equipment while impaired by drugs. The

section reads as follows:

Operation while impaired 253.

(1) Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not, (

a) while the person’s ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug; or (

b) having consumed alcohol in such a quantity that the concentration in the person’s blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood. For greater certainty

(2) For greater certainty, the reference to impairment by alcohol or a drug in paragraph (1)(

a) includes impairment by a combination of alcohol and a drug. Capacité de conduite affaiblie 253.

(1) Commet une infraction quiconque conduit un véhicule à moteur, un bateau, un aéronef ou du matériel ferroviaire, ou aide à conduire un aéronef ou du matériel ferroviaire, ou a la garde ou le contrôle d’un véhicule à moteur, d’un bateau, d’un aéronef ou de matériel ferroviaire, que ceux-ci soient en mouvement ou non, dans les cas suivants :

a) lorsque sa capacité de conduire ce véhicule, ce bateau, cet aéronef ou ce matériel ferroviaire est affaiblie par l’effet de l’alcool ou d’une drogue;

b) lorsqu’il a consommé une quantité d’alcool telle que son alcoolémie dépasse quatre- vingts milligrammes d’alcool par cent millilitres de sang. Précision

(2) Il est entendu que l’alinéa

(1) a) vise notamment le cas où la capacité de conduire est affaiblie par l’effet combiné de l’alcool et d’une drogue. [ 2 ] Sections 254(2)(

a) and 254(3.1) require persons, on demand by a peace officer, to submit to physical tests designed to aid in the detection of the presence of drugs or alcohol, or a combination of both. Those tests are fully particularized by regulation in Evaluation of Impaired Operation (Drugs and Alcohol) Regulations , SOR/2008-196.

This Court has not yet had the opportunity to pronounce upon the constitutional validity or the application of the regulatory scheme. [ 3 ] The conduct of the trial and the issues as framed in this appeal demonstrate an intention by the Crown that this case constitute one of first impression in which the regulatory scheme is considered by this Court. For the reasons set out below, I am of the view this Court is not in a position to pronounce upon the features of the regulatory scheme and that a new trial must be held. II.

Relevant facts [ 4 ] The respondent was charged with having operated a motor vehicle while his ability to do so was impaired by drugs, an offence set out in section 253(1)(

a) of the Code . During the course of the trial, the appellant led evidence about the history of the Drug Evaluation and Classification Program, the qualifications of Drug Recognition Experts and Standard Field Sobriety Tests, all of which constitute part of the regulatory scheme. Defence counsel did not object to any of the following:

(1) The qualifications of Cst. Trevor Jones as an expert in the field of “Drug Evaluation [and] Classification”, and entitled to give opinion evidence in relation thereto;

(2) The qualifications of Cst. Travis Jones as an “Expert in Drug Recognition and qualified to provide opinion evidence in thefield for which he has been trained, both in the [Standard Field Sobriety Test] and in the Drug Recognition Program”;

(3) The admissibility into evidence of a 1998 California Standard Field Sobriety Test Study, a 1997 Florida Standard FieldSobriety Test Study and a 1995 Colorado Validation Study.

(4) The relevance of the “science” of drug evaluation and classification as contemplated in the Regulation. [5] It is apparent from a review of the trial transcript that Crown counsel, if required to defend the “science”based upon the test enunciated in R. v. Mohan, (SCC), [1994] 2 S.C.R. 9, [1994] S.C.J. No. 36 (QL), would have relied,in part, upon the viva voce testimony of the two police officers and the studies admitted into evidence.

However, this was not necessarybecause of the position taken by the defence. [6] Although he had initially admitted the evidence, the trial judge later reversed his ruling and acquitted therespondent. At 2010 NBPC 25, he made two pivotal conclusions: As noted above, the principal issue is the admissibility of the D.R.E.'s opinion evidence particularly in the context of the tests set out inR. v. Mohan (SCC), [1994] 2 S.C.R. 9 and R. v. J. 2000 SCC 51 , [2000] 2 S.C.R. 600 Nevertheless, while I didhear the evidence and made rulings, I think such rulings can be re-considered.

Furthermore, even if the procedure followed appears outof step with what might have been a more productive, if not more logical procedure, the court still must decide what weight if any isaccorded the evidence.

So with the time reserved for further submissions, the court has had an opportunity to re-consider this issue ofadmissibility of Drug Evaluation and Classification Program (D.E.C.P.) and, in particular, D.R.E. opinion evidence. [para. 6] [Emphasisis mine.] [7] This apparent tension between the weight to be accorded an expert witness’s testimony and the admissibilityof his/her testimony as opinion evidence appears to arise once again in the following passage from the trial judge’s reasons: While I have no difficulty with his general definition of an expert, it appears to me that the “matter on which he or she undertakes totestify” is the underpinning that needs examination.

Fontana J. proceeded further with the caution that the testimony of an expert is stillsubject to a determination by the court as to what weight it should receive. Again, while that appears to have been the approach which I took during the trial, namely to permit the Crown witnesses to testifysubject to assessment of weight, there also appears to be the outstanding matter of the Crown establishing the validity of the D.E.C.P. Inthis regard, I am inclined to the view expressed in R. v. Woods [2007] A.J. No. 895, (Alta.

Q.B.) that to give such an opinion the witnesswould have to be declared an expert in a field recognized by the court to be a valid field of expertise. In other words he can't be qualifiedas an expert unless the subject area, namely D.E.C.P. is accepted by the court as valid science, or as Fontana J. suggests, a valid"secondary field". [paras. 13-14] [Emphasis is mine.] [8] I would note the judge qualified both police witnesses as experts capable of offering opinion evidence. Thecategorization of one of the experts, Cst.

Travis Jones, was in relation to drug evaluation and classification, the very “science” the trialjudge now questions. [9] The trial judge acquitted the respondent, whose acquittal was upheld on appeal by the

summary convictionappeal court established pursuant to

Part XXVII of the Code. The appellant now seeks leave to appeal, pursuant to section 839(1), whichprovides that any appeal must be taken on a ground that involves a question of law alone. III. Issues

[10] One of the grounds of appeal raised before the

summary conviction appeal court was whether the trial judgehad erred when he concluded the Crown had not established the threshold of reliability with respect to the drug evaluation andclassification program. Before this Court, that ground of appeal was restated in the following two grounds: • The

summary conviction appeal court judge erred in law with respect to the relevance of testimony generally, and specifically withrespect to section 254(3.1); and • The

summary conviction appeal court judge erred in law with respect to the sufficiency of evidence and the burden of proof withrespect to a conviction. IV. Analysis [11] At trial, the judge qualified Cst. Travis Jones as an expert entitled to give opinion evidence with respect to the“science” of drug evaluation and classification. This is the very “science” the trial judge later rejected because it did not meet thethreshold test of reliability: see para. 85 of the trial decision. This is a basic threshold question which, in my view, constitutes part of theMohan relevancy criteria: see Mohan, para. 28.

It is trite to say that unreliable evidence will not be admissible, even if it satisfies othercomponents of the Mohan criteria. [12] A trial judge is not functus until he or she finally deals with all issues: Estey v. Lockerbie et al. (1999), (NB CA), 214 N.B.R. (2d) 17 (C.A.); R. v. Howell, (NS CA), [1995] N.S.J. No. 483 (C.A.) (QL); R. v.Roberts, (A.W.), 2004 BCCA 436, [2004] B.C.J. No. 1843; and R. v. Conley, 1979 ALTASCAD 129 , [1979] A.J. No. 845(C.A.) (QL).

Therefore, nothing prevented the trial judge from reconsidering the qualification of any witness as an “expert”, nor didanything prevent him from revisiting whether a science is valid. However, he can only reverse himself after providing notice to theparties that he is having second thoughts, and after giving them an opportunity to address the issue anew: see R. v. Pinchak, 2010 ABQB747, [2010] A.J. No. 1374 (QL), where the appeal court ordered a new trial because the trial judge reversed himself on a prior rulingwithout notice to the parties.

Pinchak also canvasses the law regarding the obligations of a judge in this situation and the importance ofallowing counsel on both sides to argue a matter before judgment is rendered. [13] In the case at bar, the trial judge initially accepted the testimony of the police officers. In permitting them totestify as expert witnesses, he implicitly accepted the scientific underpinnings of their testimony. He later reconsidered their testimonyand concluded it was inadmissible due to the unreliability of the science, without calling for further submissions.

Although the judge isnot functus until the final disposition of the case, where he or she reconsiders a previous ruling, the parties should be put on notice thatthe matter is being reconsidered and invited to make further submissions. [14] I am of the view the

summary conviction appeal court judge erred in law by upholding the trial judge incircumstances where the appellant’s right to be heard on the issues of admissibility of evidence (expert opinion evidence as opposed toits weight) and the threshold of reliability (as a component of relevancy) of a “science” was not respected. For these reasons, I wouldgrant leave to appeal, allow the appeal, set aside the acquittal and order a new trial. ______________________________ B. RICHARD BELL, J.A. WE CONCUR: _______________________________

J.C. MARC RICHARD, J.A. _______________________________ BRADLEY V. GREEN, J.A.