R. v. Lee, 2020 ONCJ 342

ONTARIO COURT OF JUSTICE CITATION : R. v. Lee , 2020 ONCJ 342 DATE : July 29, 2020 BETWEE N : HER MAJESTY THE QUEEN — AND — SYLVIA LEE Before Justice John North Reasons for Judgment released on July 29, 2020 Mr. Matthew Giovinazzo and Ms. Melissa Atkin………………….......counsel for the Crown Ms. Jacqueline An…………………………………………………………..counsel for Ms. Lee RULING ON APPLICATION FOR DISCLOSURE OF THE DRE’S ROLLING LOG NORTH J.: I. INTRODUCTION [ 1 ] The Court of Appeal in R. v.

Stipo , 2019 ONCA 3 , concluded that a drug recognition expert’s (“DRE”) rolling log (“rolling log”) of drug recognition evaluations must be disclosed to the defence. The Court found that rolling logs are obviously relevant. The Court also concluded that no provision of the Criminal Code prevents the disclosure of rolling logs. [ 2 ] The Crown has continued to resist disclosure of rolling logs since the Court of Appeal’s decision in Stipo was released in January, 2019. In this case, the defence brought an application for an order requiring the Crown to disclose the rolling log.

The arguments made by the Crown in this case have also been advanced by the Crown during other post- Stipo applications for disclosure of rolling logs. [ 3 ] The Crown advances two arguments in support of its position. First, the Crown asserts that, based on evidence that was not before the Court in Stipo and new provisions in the Criminal Code regarding the admissibility and reliability of a DRE’s evidence, rolling logs are clearly irrelevant.

Second, the Crown argues that the Court of Appeal’s decision in Stipo was based on a provision of the Criminal Code ( s. 258.1 ) that has been repealed and replaced by a new and narrower provision ( s. 320.36 ) which prohibits disclosure. [ 4 ] The Applicant argues that the evidence called by the Crown on this application and the new provisions in the Criminal Code do not undermine the Court’s conclusion in Stipo that rolling logs are obviously relevant.

The Applicant also argues that s. 320.36 does not create a statutory bar on the disclosure of rolling logs. [ 5 ] In deciding the issues raised by the Crown, pursuant to the doctrine of stare decisis , I am required to apply the law as pronounced by Beaudoin J. in R. v. Amarelo-Gemus , 2019 ONSC 2675 . [ 6 ]

Section 320.36 does not prohibit disclosure of the rolling log. However, based on Beaudoin J.’s determination in Amarelo- Gemus , I have concluded that the rolling log in this case is clearly irrelevant.

[7] For the reasons that follow, the application for disclosure of the rolling log is dismissed. II. BACKGROUND [8] The Crown alleges that on December 20, 2018 a Toronto Police Service (TPS) officer observed the Applicant driving amotor vehicle “dangerously close to parked cars”. The officer saw that there was noticeable damage to the passenger side of theApplicant’s vehicle and initiated a vehicle stop. According to the officer, the Applicant had an odour of alcohol on her breath andadmitted to consuming a drug (Xanax). [9] The officer arrested the Applicant for impaired operation of a conveyance.

The Applicant provided two breath samples intoan approved instrument. Both samples indicated that the Applicant had a blood alcohol concentration of 0 milligrams of alcohol in 100milliliters of blood. [10] The officer made a demand that the Applicant submit to a drug recognition evaluation conducted by a DRE. Following thedrug recognition evaluation, the DRE concluded that there were reasonable grounds to believe that the Applicant’s ability to operate amotor vehicle was impaired by a central nervous system depressant.

The DRE demanded that the Applicant provide a urine sample sothat a toxicological analysis could be made to determine whether she had a drug in her body. The Applicant complied with this demand. [11] A toxicologist subsequently examined the urine sample and determined that it contained the presence of a number of drugsincluding: • Alprazolam (Xanax) • Ketamine • Cocaine • Benzoylecgonine • Cocaethylene • Tetrahydrozoline • Zolpidem (Ambien) [12] Alprazolam and Zolpidem are central nervous system depressants.

Ketamine is used “for its analgesic and anestheticproperties and it is also used recreationally for its hallucinogenic and euphoric properties”. Cocaine is a central nervous system stimulantdrug. Benzoylecgonine is an inactive breakdown product of cocaine. Cocaethylene is “a metabolite of cocaine that is formed after theco-administration with alcohol”. Tetrahydrozoline is a topical decongestant and vasoconstrictor.[1] III. DREs AND ROLLING LOGS [13] In 2008, Parliament enacted legislation which led to the creation of a regime to test for drug impaired driving.

As part of thisnew regime, a 12-part drug recognition evaluation for drug impairment was introduced: R. v. Bingley, 2017 SCC 12 , [2017] 1SCR 170, at para. 9. Drug recognition evaluations are administered by DREs. DREs are peace officers qualified under the regulations.DREs receive special training and certification: Bingley, at para. 9. [14] Under this regime, where there are reasonable grounds to believe that a person has driven while impaired by a drug or acombination of drugs and alcohol, that person may be compelled to submit to a drug recognition evaluation: Bingley, at para. 9.

If thedrug recognition evaluation provides the DRE with reasonable grounds to believe that the person is impaired by a drug the legislationauthorizes the police to take tests of oral fluid, urine or blood to determine if the person has drugs in his or her body: Bingley, at para. 9. [15] To be certified as a DRE, candidates must satisfy the requirements of a program established by the International Associationof Chiefs of Police (“IACP”).[2] [16] The IACP requires that all DREs must maintain a “rolling log”: Stipo, at paras. 22 and 61. A rolling log is a documentcreated by the IACP.

A rolling log contains information about every drug recognition evaluation a DRE has administered or observedprior to and after his or her certification: Stipo, at para. 22. A rolling log includes the following information for each evaluation: i. the date of the evaluation; ii. the name and date of birth of the person evaluated; iii. the DRE’s opinion of the result of the evaluation; and iv. the results of any toxicological tests completed on any samples provided.[3] IV. THE COURT OF APPEAL’S DECISION IN R. v.

STIPO Rolling Logs are “Obviously Relevant” [17] In Stipo, at paragraph 118, Watt J.A. concluded that disclosure of rolling logs is governed by the first party disclosure regimeof Stinchcombe as it was “obviously relevant” information. In arriving at this conclusion, Watt J.A., at paragraph 107, primarily focusedon the reliability of the DRE’s evidence:

“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.” [4] [ 18 ] Watt J.A., at paragraph 118, stated that there were four reasons why evidence of the rolling log was obviously relevant. First , Watt J.A. observed, at paragraph 120, that the standard of “obviously relevant” does not mean that the information must be decisive in the case.

Instead, this term describes information that is not in the investigative file but “relates to the accused’s ability to meet the case for the Crown, to raise a defence, or to make decisions about the conduct of the case for the defence”.

It is “not a stringent standard”. [5] Watt J.A. noted, at paragraph 121, that a rolling log “reflects the DRE’s experience with the 12-step evaluation test”. [ 19 ] Second , at paragraph 123, Watt J.A. stated that in the law of evidence, “how an individual acted on prior occasions is relevant in deciding whether or how they acted at a material time”. [ 20 ] Third , at paragraphs 124-125, Watt J.A. observed that a DRE’s opinion on drug impairment, based on the outcome of the 12- step evaluation, is not dispositive on the issue of drug impairment.

Instead, it is “a link in the Crown’s chain of proof”, and “like other links in that chain, it is open to challenge”. [ 21 ] Fourth , at paragraph 128, Watt J.A. stated that “a threshold requirement for the admissibility of expert opinion evidence is a properly qualified expert” and it is “commonplace for proposed experts to record their qualification in a CV”.

In this same paragraph, Watt J.A. observed that a CV is often used to establish the proposed expert’s qualifications and can be used by opposing counsel to “limit the fields of expertise or disqualify the witness entirely in the proposed area of expertise”. Watt J.A. also noted that s. 657.3(3)(a) (iii) of the Criminal Code requires a party who seeks to call an expert witness to disclose “a statement of the qualifications of the proposed witness as an expert”. [ 22 ] At paragraph 130, Watt J.A. found that an expert’s CV was “obviously relevant”.

Watt J.A. then concluded, at paragraph 131, that a rolling log is “obviously relevant for the same reasons as the CV” as both documents “describe the DRE’s experience and are relevant to establishing and delineating the DRE’s area of expertise”. Consequently, at paragraph 131, Watt J.A. concluded that a proposed expert’s CV and a rolling log “should be subject to the same, not different disclosure schemes”. Disclosure of Rolling Logs Not Prohibited by the Previous

Section 258.1(2) [ 23 ] The second main issue before the Court in Stipo involved a question of statutory

interpretation. The Court of Appeal was required to interpret a statutory provision which restricted the use and disclosure of drug recognition evaluations conducted under s. 254(3.1) and toxicological analysis of oral fluid under s. 254(3.4). The fundamental question was whether disclosure of a rolling log was barred by the restriction against disclosure of DRE evaluations in s. 258.1(2), or whether it was permitted by the exception in s. 258.1(2) (a): Stipo , at paras. 150, 169 . [ 24 ]

Section 258.1 provided as follows: 258.1

(1) Subject to subsection 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 section 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 warrant, except (

a) in the course of an investigation of, or in a proceeding for, an offense under any of sections 220, 221, 236 and 249 to 255, an offense under

Part I of the Aeronautics Act , or an offense 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 the 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 offense punishable on

summary conviction. [ 25 ] Watt J.A. observed that the words used in the first part of s. 258.1(2)(a) – “in the course of an investigation of, or in a proceeding for, an offence” – do not limit the exception to the specific case in which the tests were originally obtained: Stipo , at para. 188 . [ 26 ] Watt J.A. held that “test results can be disclosed in any investigation or proceeding described in s. 258.1(2)(a)”: Stipo , at para. 190 . In other words, disclosure of rolling logs is permitted under the exception in s. 258.1(2)(a): Stipo , at para. 184 . [ 27 ] This

interpretation of s. 258.1(2)(a), Watt J.A. concluded, “is one that ensures that the provision is consistent with the

constitutionally protected right of an accused to disclosure, an incident of the right to make full answer and defence”: Stipo , at para. 192 . [ 28 ] Finally, Watt J.A. held that in the absence of a statutory prohibition on the disclosure of a rolling log, the Crown must comply with its constitutional obligation to disclose it: Stipo , at para. 192 . Watt J.A. concluded, at paragraph 191, that while a statutory regime can displace the process laid down by Stinchcombe , “such a ‘regime’ would require more than a bare prohibition on disclosure”. V.

EVIDENCE ON THE APPLICATION [ 29 ] The Crown called two witnesses who were qualified as experts on this application: Inger Bugyra and Detective Constable Bradley Verspeeten. Ms. Bugyra is a forensic toxicologist with the Centre of Forensic Sciences. Detective Constable Verspeeten is a DRE instructor with the Toronto Police Service. In Stipo , the Crown did not call evidence of this nature. [6] Evidence of Inger Bugyra [ 30 ] I nger Bugyra has been employed by the Center of Forensic Sciences (“CFS”) since 1998.

Her job title is “Forensic Scientist, Toxicology.” For the purposes of this application, she was qualified as an expert in the following four areas: (

i) The absorption, distribution and elimination of alcohol, drugs and poisons in the human body. (ii) The pharmacological and toxicological effects of alcohol, drugs and poisons in the human body (including such factors as delay, tolerance, methods of administration and post-mortem redistribution). (iii) Analytical techniques for the isolation, detection and quantitation of drugs and alcohol from biological samples. (iv) The effect of alcohol and drugs on the human body and on the ability to drive a motor vehicle. [ 31 ] Ms.

Bugyra conducted an analysis of the urine sample taken by police from the Applicant on the date of her arrest. Ms. Bugyra’s objective was to examine the urine sample “for the presence/absence of drugs and/or poisons”. Ms. Bugyra prepared a toxicology report which sets out the results of this examination. The analysis detected the presence of the drugs previously mentioned in these reasons. Ms. Bugyra testified that this kind of examination does not provide sufficient information to determine the dose, the route of administration or whether a specific individual was impaired.

However, based on this kind of examination, Ms. Bugyra was in a position to say whether or not the presence of certain drugs found in a urine sample could potentially cause impairment. [ 32 ] Ms. Bugyra testified that the DRE categories for the drugs detected in the Applicant’s urine sample included: depressant (central nervous system depressant) [7] , dissociative anesthetic [8] and stimulant (central nervous system stimulant). [9] Ms.

Bugyra understood that, according to the DRE program, if a DRE makes one correct “call” it is considered a match. [ 33 ] In this case, the DRE “called” a central nervous system depressant. Therefore, while the DRE did not call all of the drugs that were ultimately detected, based on the DRE program, it was considered a correct call. [ 34 ] Ms. Bugyra explained that in any case, for a variety of reasons, there may be a “discordance between a type of drug as identified by a drug recognition evaluator and the results of a toxicological analysis”.

These reasons include: • Not all individuals will respond to a drug in exactly the same way. For example, a frequent user of a drug may develop a tolerance to that substance and may not display the same response to the drug as non-frequent users. • A person’s response to a drug depends on the quantity of the drug that was consumed and the method of administration. • Consumption of multiple drugs can result in “opposing effects” and observed symptoms can change over time.

It is possible that a combination of drugs from different classes could “mimic symptoms of drugs that are in fact not in that person’s body”. • A sample taken from a person can degrade after it is collected. It is possible that a drug that was in a person’s body at the time he or she was being evaluated by a DRE would not be present when the sample was tested by CFS. • Some drugs are quickly eliminated from a person’s body. • The volume of a sample was too small to do all of the tests that should be conducted. [ 35 ] Ms.

Bugyra testified that, as a CFS toxicologist, she is unable to determine the cause of an apparent mismatch between a DRE’s call and toxicology results. Ms. Bugyra added that she could not comment on the reliability of a DRE’s call based on an apparent mismatch. [ 36 ] Ms. Bugyra also testified about a number of other limitations that exist in examining seized bodily substances like urine for the presence of drugs. For a variety of other reasons, the tests used at the CFS will not always detect the presence of every drug that a person might have recently consumed.

It is not necessary to review all of these reasons. I will mention three. [ 37 ] First , Ms.

Bugyra explained that where the chemical structure of a drug has been changed, even slightly, a test conducted by the CFS “may not be able to detect that drug, so there’s always a time lag between the development of new drugs and the development of new methods in our laboratory”. [ 38 ] Second , the CFS cannot anticipate and test for every new drug that people might consume. [ 39 ] Third, a drug will not be detected if its concentration in the subject’s body is lower than the minimum concentration set by a drug screen test.

Evidence of Bradley Verspeeten [ 40 ] Detective Constable Bradley Verspeeten has been with the TPS since 2005. He is an IACP certified DRE instructor and is the drug recognition evaluating coordinator for the TPS. [ 41 ] DC Verspeeten testified that all DREs are authorized to complete a standardized 12-step drug influence evaluation to determine whether a subject’s ability to operate a conveyance is impaired by drugs, alcohol or a combination of both. [ 42 ] DC Verspeeten described what is required to become a DRE. In Ontario, an officer must first complete a two-week course.

Once the officer completes this course, he or she is required to pass a written examination. The officer must also successfully complete a “certification event” in Florida or Arizona. During the certification event the officer is required to conduct evaluations on volunteer subjects who have consumed drugs. These evaluations are monitored and assessed by a drug recognition evaluation instructor. To successfully complete the certification event a student must conduct a minimum of twelve evaluations and 75% of the evaluations must be “confirmed by toxicology”.

DC Verspeeten explained that the toxicological test involved in this process is very basic and that “some drugs aren’t detectable in the certification event”. The final step to become a DRE involves a “knowledge exam”, which usually takes more than four hours to complete. [ 43 ] DC Verspeeten testified that there a number of differences between the “certification event” and what a DRE may encounter in real life. [ 44 ] Drug recognition certification is good for two years from the date of the certification. At the end of two years, a DRE must apply to re-certify.

To be recertified, a DRE must conduct a minimum of four evaluations over a two-year period, one training evaluation must be witnessed by a drug recognition evaluating instructor (the DRE must demonstrate proficiency during that evaluation) and the DRE must complete eight hours of re-training. [ 45 ] Every time a DRE conducts an evaluation, he or she must include specific information about the evaluation in his or her rolling log.

A DRE’s rolling log must be submitted, through a state coordinator, to the IACP. [ 46 ] DC Verspeeten explained that different drug categories cause different effects within the human body.

At the completion of an evaluation, a DRE reviews the standardised drug recognition evaluating matrix to determine which of the seven listed drug categories is causing the impairment: See s. 320.28(5) of the Criminal Code . [ 47 ] DC Verspeeten testified that if upon completion of the drug influence evaluation the DRE has reasonable grounds to believe that the subject’s ability to operate a conveyance is impaired by one or more of the types of seven categories of drugs, the DRE shall identify or “call” the type of the drug category or drug categories and may make a demand that the subject provide a sample of urine or blood for a toxicological analysis: See s. 320.28(4) of the Criminal Code .

DC Verspeeten explained that a DRE’s call regarding impairment and the category of drug is made on the totality of the entire evaluation. [ 48 ] DC Verspeeten testified that before a urine or blood sample can be sent to the CFS for analysis a DRE instructor must review the worksheet prepared by the DRE to determine if the proper procedure was followed. The DRE instructor must also confirm that he or she agrees with the call made by the DRE.

The CFS will not test a sample without a DRE instructor signing off on the request. [ 49 ] He testified that the reason a rolling log is sent to the IACP is because it a DRE is required to record the number of evaluations he or she has conducted, which is information that is required for recertification purposes. [ 50 ] DC Verspeeten testified that there are many reasons why a toxicology result might not confirm the call made by the DRE.

DC Verspeeten explained that a DRE’s evaluation is based on the symptoms a DRE observed at the time of an evaluation and that “there’s multiple reasons why a DRE could see something different than comes back in the toxicology”. [ 51 ] While a rolling log reveals whether a DRE’s calls were “supported” by a toxicological test, that is not information that is considered when the officer applies to be recertificated. To be recertified, there is no requirement for a DRE to establish that a minimum number of his or her calls were supported by toxicological testing.

DC Verspeeten stated that once an officer is certified as a DRE, “it’s okay if [a DRE’s call] doesn’t match the toxicology”. DC Verspeeten did not know why the rolling log forms require DREs to include toxicology results. [ 52 ] In DC Verspeeten’s opinion, no conclusions about the proficiency of a DRE can be drawn based on an apparent mismatch between a DRE’s call and toxicology results. It was his opinion that an apparent mismatch was “irrelevant”. [ 53 ] In cross-examination, DC Verspeeten would not agree that there was a subjective element to a drug influence evaluation.

DC Verspeeten testified that a DRE makes a call about the cause of impairment “based on the indicators he or she sees”. A DRE is not required to find a minimum number of the nine categories before making a call. [ 54 ] In this case, the DRE was Constable Steve Aguilar. DC Verspeeten signed off on the drug evaluation worksheet prepared by Constable Aguilar.

Factual Findings [ 55 ] Based on my assessment of the evidence in this case, I adopt the following factual findings made by Beaudoin J. in Amarelo- Gemus , at paragraph 63 , who considered evidence of a similar nature: “…it is clear that toxicology cannot confirm or contradict a DRE’s opinion and, that there are many reasons for this: • Even where the drugs as found in urine matches the drug class called by the DRE, it is only corroborative, not confirmatory. This is because presence of a drug in urine merely shows prior exposure and not presence of that drug in the urine at the time of the offence.

• An absence of any drugs of the class called by the DRE does not contradict their opinion either. T here are many reasons why this is so, including that toxicology does not test for every drug and some drugs change their physical manifestation over time (such as cocaine which begins its life as a stimulant but in the “crash” phase displays as a depressant). • Even within the DRE program, an apparent non-match is not necessarily a concern and is not grounds to support decertification, if the DRE call is otherwise peer-reviewed and deemed acceptable”. [Emphasis added.] [ 56 ] DC Verspeeten was a credible witness.

However, I do not agree with his assertion that a drug recognition evaluation does not involve a subjective element. While DREs follow a standardized 12-step drug recognition evaluation, a number of the tests require a DRE’s

interpretation of the observations that he or she made. There is a subjective element in any drug recognition evaluation: R. v. Thompson , 2015 ONCJ 705 , at para. 30 ; R. v. Wakewich , 2010 ONCJ 86 , at para. 10 ; R. v. Tonelli , 2011 ONCJ 542 , at paras. 23-24 . [ 57 ] Further, while an apparent mismatch between a DRE’s call and toxicology results in an individual case cannot confirm or contradict the DRE’s opinion, I am not satisfied that an apparent mismatch is clearly irrelevant for all purposes. [10] VI.

THE DOCTRINE OF STARE DECISIS [ 58 ] The doctrine of stare decisis “compels courts who are subject to the supervisory authority of higher courts to apply the law as pronounced by those higher courts”: R. v. R.S ., 2019 ONCA 906 , at para. 73 . [ 59 ] In R.S. , at paragraph 75 , Doherty JA. concluded that the determination of a Superior Court judge on a question of law made on a prerogative writ application is binding on judges of the Ontario Court of Justice. VII. THE FIRST ISSUE – ARE ROLLING LOGS CLEARLY IRRELEVANT? [ 60 ] The first issue is whether the DRE’s rolling log is clearly irrelevant.

The Crown argues that “the law and the facts before [this] Court are different in critical ways than the ones that existed for the Stipo Court ”: Crown’s Factum , at para. 10.

In support of this position the Crown advances two arguments. [ 61 ] First , the Crown argues that “the discussion in Stipo about the relationship between rolling logs and assessing a DRE for the purpose of an expert voir dire has become irrelevant” as a result of amendments to the Criminal Code which make a DRE’s opinion “automatically admissible and their reliability is declared by statute”: Crown’s Factum , at para. 22. [ 62 ] Second , the Crown argues that based on evidence that was not before the Court of Appeal in Stipo , a DRE’s rolling log is clearly irrelevant.

In Stipo , the Crown did not call a toxicologist or a DRE as expert witnesses.

The Crown argues that the evidentiary record in this case establishes that rolling logs are not subject to the first party disclosure regime. [ 63 ] The defence argues that Stipo is determinative of this issue and that the rolling log must be disclosed. [ 64 ] Judges of the Ontario Court of Justice have been divided on the issues of whether rolling logs are clearly irrelevant and whether s. 320.36 prohibits disclosure of rolling logs. [11] Given my conclusion that there is a binding decision of the Superior Court on these issues, it is unnecessary to conduct a detailed review of the reasoning of the judges from the Ontario Court of Justice who have considered these questions.

A helpful

summary of some of these decisions is contained in R. v. Lutz , [2019] O.J. No. 4940 (OCJ) , at paras. 32-48 . [ 65 ] I am aware of only one Superior Court decision since Stipo was released that addresses the question of whether rolling logs must be disclosed. In Amarelo-Gemus , Beaudoin J. considered two applications by the Crown for writs of certiorari against rulings made by judges of the Ontario Court of Justice that required disclosure of rolling logs. In one of these cases, the Crown had called evidence in the Ontario Court of Justice from a DRE and a toxicologist.

That evidence was similar to the evidence called by the Crown in the case at bar. The arguments made by the Crown in Amarelo-Gemus were essentially the same arguments made by the Crown in this case. Amarelo-Gemus – Criminal Code Amendments Since Stipo (Other than

Section 320.36) [ 66 ] In Amarelo-Gemus , at paragraph 52 , Beaudoin J. concluded that certain new amendments to the Criminal Code constituted a significant development in the law which permitted a court to revisit the decision in Stipo . [12] Beaudoin J. found the following new provisions to be significant: (

i) Pursuant to s. 320.12(d), an evaluation conducted by a DRE is a reliable method of determining whether a person’s ability to operate a conveyance is impaired by a drug or a combination of alcohol and a drug. (ii) Pursuant to s. 320.31(5), a DRE’s opinion relating to the impairment, by a type of drug that they have identified, or a combination of alcohol and that kind of drug, of a person’s ability to operate a conveyance is admissible without qualifying the DRE as an expert. (iii) Pursuant to s. 320.31(6), if an analysis of a sample provided under s. 320.28(4) demonstrates that the person has a drug in their body that is of a type that the DRE identified as impairing the person’s ability to operate a conveyance, that drug is presumed, in the absence of evidence to the contrary , to be the drug that was present in the person’s body at the time the person operated the conveyance, and on proof of the person’s impairment, to have been the cause of that impairment. [Emphasis added.] [13] [ 67 ] Beaudoin J. noted, at paragraph 58, that while the presumption in s. 320.31(6) is “not a presumption of guilt, it provides a presumption of accuracy of the DRE’s call when it is corroborated by a toxicological analysis”.

Beaudoin J. held, at paragraph 59, that “the rolling log is no longer relevant to challenge the DRE’s opinion in these circumstances”.

[ 68 ] However, Beaudoin J. concluded, at paragraph 62, that rolling logs are disclosable where the DRE’s call is not corroborated by a toxicological analysis: “I conclude that the amendments to the Code do not change the result in Stipo , save and except where the DRE’s call is confirmed by the toxicological results.” Amarelo-Gemus - The Different Evidentiary Record [ 69 ] Beaudoin J. rejected the Crown’s position regarding the significance of the evidence from the DRE and forensic toxicologist (which was not before Court in Stipo ) on the question of the relevance of a rolling log.

Beaudoin J., found, at paragraph 69, that a rolling log “is relevant and, just like any other piece of evidence, it may be given limited weight”. [ 70 ] Beaudoin J. concluded, at paragraph 66, that “the change the evidentiary record illustrates does not impact the right to challenge the DRE’s ultimate reliability based on an alleged mistaken drug class call in the rolling log when that call has not been corroborated by toxicological testing”. Beaudoin J. agreed that a rolling log “as a whole” has value as a measure of proficiency: Amarelo-Gemus , at para. 70 .

The Law as Pronounced in Amarelo-Gemus on the Relevance of Rolling Logs is Binding [ 71 ] Beaudoin J.’s conclusion that rolling logs are not clearly irrelevant unless a DRE’s opinion is corroborated by a toxicology report was a determination on a question of law on a prerogative remedy application. This conclusion was central to the disposition in that case: R. v. Henry , 2005 SCC 76 , at para. 57 ; R. v. Fitts , 2015 ONCJ 262 , at para. 68 , per Paciocco J. (as he then was). [ 72 ] The arguments advanced by the Crown in the case at bar are essentially the same arguments made by the Crown in Amarelo- Gemus .

The evidentiary foundation laid by the Crown in both cases is essentially the same. Beaudoin J.’s determination in Amarelo- Gemus regarding the relevance of rolling logs is binding on the Ontario Court of Justice. [ 73 ] I n Bellis , Brophy J., at paragraph 33, concluded that he was bound by the Court’s determination in Amarelo-Gemus . [ 74 ] I n Lutz , at paragraph 63, Brochu J. concluded that the decision in Amarelo-Gemus was not binding on the Ontario Court of Justice as “it was a certiorari hearing and not an appeal”.

However, approximately six weeks after the decision in Lutz was delivered, the Court of Appeal released R.S .., which clarified that decisions on questions of law by the Superior Court on prerogative writ applications are binding on the Ontario Court of Justice. [ 75 ] I am bound to apply the law as pronounced by Beaudoin J. in Amarelo-Gemus . Application of the Law to the Facts of this Case [ 76 ] In Amarelo-Gemus , Rajathurai and Sutherland, judges considered evidence from DREs and forensic toxicologists.

For the same reasons contained in those decisions, the evidence of the DRE and forensic toxicologist in this case did not satisfy me that rolling logs are clearly irrelevant. [14] However, this conclusion is subject to the exception identified by Beaudoin J. in Amarelo-Gemus , which I have already mentioned and will now apply to the facts of this case. [ 77 ] Given Beaudoin J.’s conclusions about the impact of ss. 320.12(d), 320.31(5) and 320.31(6), the rolling log in this case is clearly irrelevant because the DRE’s call was corroborated by the toxicological analysis. [ 78 ] The defence argues that there was a “mismatch of toxicology results and DRE results” because the toxicological analysis revealed, in addition to central nervous system depressants, the presence of other drugs in the Applicant’s urine. [ 79 ] In Amarelo-Gemus , Beaudoin J. found that the presence of both pseudoephedrine and carboxy-THC (which indicates prior use of cannabis) in the accused’s urine did not undermine the conclusion that the DRE’s opinion had been corroborated by the toxicology results.

In that case, the DRE had concluded that the accused’s ability to drive was impaired by cannabis: Amarelo-Gemus , at paras. 5 and 76 . [ 80 ] In Bellis , Brophy J. concluded the DRE’s opinion that the accused was impaired by a central nervous system depressant was corroborated by the toxicological analysis which revealed the accused had a number of drugs in his system, including cocaine.

In Belli s, there was expert evidence that the “crash” phase of cocaine ingestion would “mimic or have similar symptoms as a depressant”: Bellis , at paras. 6, 18 and 34-35. [ 81 ] In this case, the toxicological analysis identified seven drugs in the Applicant’s system. Two of the drugs were described in the toxicology report as “central nervous system depressants”. According to the toxicology report, the effects associated with the use of the two central nervous system depressants include sedation and drowsiness. Cocaine was also found in the Applicant’s urine. Ms.

Bugyra wrote in the toxicology report that after using cocaine, “a ‘crash’ phase can follow during which time individuals can experience extreme fatigue”. [ 82 ] Applying the approach taken in both Amarelo-Gemus and Bellis , the fact that there were also other drugs in the Applicant’s urine does not undermine the conclusion that the DRE’s opinion was corroborated by the toxicological analysis which found central nervous system depressants in the Applicant’s system. [ 83 ] The DRE’s opinion that the Applicant’s ability to operate a motor vehicle was impaired by a central nervous system depressant was corroborated by the toxicological analysis.

Based on the decision in Amarelo-Gemus , t he rolling log is clearly irrelevant. VIII. THE SECOND ISSUE – IS DISCLOSURE PROHIBITED BY A PROVISION IN THE CRIMINAL CODE THAT WAS NOT CONSIDERED IN STIPO ?

[ 84 ] The second issue is whether disclosure of the rolling log is prohibited by a

section of the Criminal Code that was not considered by the Court in Stipo .

Section 258.1 was repealed on December 18, 2018 by

Part 2 of Bill-46.

Section 258.1 was replaced by s. 320.36. [ 85 ]

Section 320.36 reads: 320.36

(1) No person shall use a bodily substance and obtained under this Part for any purpose other than for an analysis under this Part.

(2) No person shall use, disclose or allow the disclosure of the results obtained under this part of any evaluation, physical coordination tests 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.

(3) The results of an evaluation, test for 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 research purposes.

(4) Everyone who contravenes subsection (1) or (2) commits an offense punishable on

summary conviction. [ 86 ] The Crown argues that s. 320.36 prohibits the disclosure of a rolling log to an accused. The Crown asserts that s. 320.36 is much more narrowly construed than the previous s. 258.1(2)(a): Crown’s Factum , at para. 54. For convenience, I have, once again, reproduced s. 258.1(2): 258.1(2) Subject to subsections (3) and (4), no person shall use, disclose or allow the disclosure of the results of physical coordination tests under section 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 warrant, except (

a) in the course of an investigation of, or in a proceeding for, an offense under any of sections 220, 221, 236 and 249 to 255, an offense under

Part I of the Aeronautics Act , or an offense 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.] [ 87 ] In Amarelo-Gemus , Beaudoin J. disagreed with the Crown’s

interpretation of s. 320.36. Beaudoin J. concluded that while the language used in s. 320.36 is not the same as s. 258.1(2)(a), it is essentially a “simpler restatement of the previous prohibition”, which the Court of Appeal in Stipo found did not prohibit disclosure: Amarelo-Gemus , at para. 72 . [ 88 ] Beaudoin J. held, at paragraphs 71-75, that s. 320.36 does not prohibit disclosure of rolling logs. This was a determination on a question of law which is binding on this Court. [ 89 ] The question of whether s. 320.36 prohibits disclosure of rolling logs can be answered on the basis of stare decisis .

However, even if the Court’s determination in Amarelo-Gemus on this point was not a binding authority, it would be my conclusion that s. 320.36 does not prohibit disclosure of rolling logs. [ 90 ] The Crown argues that as the new provision does not contain the “wording seized upon by the Court in Stipo ” for interpreting s. 258.1(2)(a), “it cannot simply be simply assumed that the Court of Appeal’s

interpretation of s. 258.1(2)(

a) applies to the correct

interpretation of s. 320.36(2)”: Crown’s Factum , at para. 57. The words that the Crown argues the Court in Stipo “seized upon” were “in the course of an investigation of, or in a proceeding for…”. [ 91 ] I agree that one cannot simply assume that the Court of Appeal’s

interpretation would be the same. However, I see no reasonable basis to conclude that it would be different. I do not accept the Crown’s position that “the new regime is sufficiently different in its approach that Stipo offers no guidance for how to interpret s. 320.36”: Crown’s Factum , para. 68.

In my view, the Court’s reasons in Stipo provide significant guidance on how s. 320.36 should be interpreted. [ 92 ] The Crown submits that s. 320.36 “is structured as a blanket prohibition on disclosure of test results , and does not have the same exception as the previous s. 258.1(2)(a)”: Crown’s Factum , at para. 54. [Emphasis added.] As previously noted, Watt J.A. in Stipo concluded that, “[i]t is true that a statutory disclosure regime can displace the process laid down by Stinchombe , but such a ‘regime’ would require more than a bare prohibition in disclosure ”: Stipo , at para. 191 . [Emphasis added.] I agree with Beaudoin J.’s conclusion in Amarelo-Gemus that “[t]he new s. 320.36(2) does not provide anything more than a bare prohibition on disclosure that the Court of Appeal determined was necessary in Stipo ”: Amarelo-Gemus , at para. 75 . [ 93 ] Further, unlike the previous exception contained in s. 258.1(2)(b), the exception in s. 320.36(2) does not limit the exception to the administration or enforcement of the law of a province .

The exception in s. 320.36(2) is broader than s. 258.1(2)(

b) in one important way, as it includes the administration or enforcement of a federal or provincial Act , relating to drugs and/or alcohol and or the operation of a motor vehicle, vessel, aircraft or railway equipment. [ 94 ] In support of its

interpretation of s. 320.36, the Crown relies on R. v. Branson , 2018 ONSC 6014 . However , the conclusion of the Court in Branson that rolling logs cannot be disclosed to an accused under the previous exception in s. 258.1(2)(b), which was limited to the administration or enforcement of the law of a province, does not advance the Crown’s argument in relation to the broader exception in s. 320.36(2): Branson , at para. 48 . [ 95 ] In my view, the Crown’s argument that “neither the Crown nor the police require the DRE’s Rolling Log to enforce the Criminal Code offence of impaired operation of a motor vehicle” is an unduly narrow

interpretation of the phrase “enforcement of a federal or provincial Act”: Crown’s Factum , at para. 87.

[96] I agree with the following conclusions of Wendl J. in Gorman, at paragraph 21: “The term enforcement under

section 320.36(2) clearly includes investigation. Again, that term is not restricted to the person beingenforced or investigated against. Watt J.A.’s analysis of

section 258.1(2)(

a) applies with equal force to the new sections”. [97] In my view, “enforcement of a federal Act” includes the launching of a prosecution alleging a breach of a criminal law underthat legislation: Gouriet v. Union of Post Office Workers, [1977] 3 All ER 70, at p. 79; R. v. Hauser, (SCC), [1979] 1SCR 984, at p. 1004; R. v. Wijesinha, (SCC), [1995] 3 SCR 422, at para. 44. The initiation of a prosecution for properpurposes aids in the enforcement of the law: Nicholas v. Anderson, (ON SC), [1996] OJ No. 1068 (Ont. Sup. Ct.), atpara. 35.

The enforcement of a federal Act includes the prosecution of those who are alleged to have committed a criminal offence underthat Act: R. v. Jones, (2006) (ON CA), 214 OAC 225, at para. 31. [98] The Crown has constitutionally mandated disclosure obligations. The disclosure of a relevant rolling log by the Crown in aprosecution for impaired operation of an automobile is made for the purpose of the enforcement of a federal Act related to drugs and/oralcohol and the operation of a motor vehicle. [99]

Section 320.36 does not prohibit disclosure of the rolling log in these circumstances. IX. CONCLUSION [100] The application is dismissed. ___________________ NORTH J. [12] A binding legal authority can be revisited if “new legal issues are raised as a consequence of significant developments in the law, orthere is a change in the circumstances of evidence that fundamentally shifts the parameters of the debate”: R. v. Bedford, 2013 SCC 72, [2013] 3 SCR 1101, at para. 42; R. v. Comeau, 2018 SCC 15, at para. 29.

The new evidence “exception to vertical stare decisisis narrow” and the “evidence must fundamentally shift the parameters of the debate”: Comeau, at paras. 30-31; Bedford, at paras. 48-49.