R. v. Rajathurai, 2019 ONCJ 294

ONTARIO COURT OF JUSTICE CITATION: R. v. Rajathurai , 2019 ONCJ 294 DATE: May 7, 2019 BETWEEN: HER MAJESTY THE QUEEN -and- PRIYARAJ RAJATHURAI Before Justice Louise A. Botham Ruling on Disclosure Application Matthew Giovinazzo & Sarah De Filippis..................................................... for the Crown Lambert Kwok........................................... counsel for the defendant Priyaraj Rajathurai BOTHAM J.: [ 1 ] The applicant is charged with impaired by drug operation of a motor vehicle.

The trial is scheduled to commence in June of this year. [ 2 ] The applicant had sought production of a number of items set out in para 2 of his factum. I understand from the Crown’s materials and from submissions in court that all but two of the items sought will be disclosed. [ 3 ] On April 2, 2018, the applicant was involved in a car accident. He was the driver. He was assessed by ambulance attendants at the scene. At least one of those attendants will be a Crown witness at this trial. The applicant has applied for an order that the Crown provide a formal witness statement from the ambulance attendants.

I do not understand them to have been interviewed by the police, however the witnesses did make notes of their observations which have been disclosed. [ 4 ] Although it may well be helpful to the defence and even the Crown to have a more fulsome sense of the evidence that the ambulance attendants may give at trial, I am aware of no authority which compels the Crown to interview a witness prior to leading their evidence at trial. As a result, I decline to make such an order.

It would of course be unfortunate in the extreme if the decision not to interview these witnesses led to this matter having to be adjourned to allow the defence to deal with unexpected revelations from these witnesses.

[ 5 ] The applicant also underwent a drug evaluation by Cst. Petrakis who is a certified drug recognition expert (DRE). The applicant seeks an order that the officer’s rolling log be disclosed, per R. v. Stipo,

(2019) O.J. No. 28 Ont.CA. [ 6 ] The Crown resists the application. An agreed statement of facts has been filed in this proceeding outlining expert evidence which would have been led by the Crown with respect to the potential relevance or lack of relevance of the rolling logs to an assessment of the reliability of the DRE’s opinion. [ 7 ] On January 7, 2019, our Court of Appeal in R. v.

Stipo held that the rolling log of a DRE, is relevant, first party disclosure and therefore should be disclosed. [ 8 ] The Crown submits that the ruling in Stipo should be revisited since the court did not have the benefit of the expert evidence led in this case which the Crown asserts contradicts the earlier finding of relevance. The Crown further submits that as a result of amendments to the Criminal Code , Bill C-46, which came into effect on December 18, 2018 the legislative landscape has changed. [ 9 ]

Section 320.31(5) now states that the opinion of a DRE is automatically admissible without the need for a voir dire to establish either the expertise of the evaluator or the reliability of the evaluation process. I am not persuaded that

Section 320.31(6) is anything more than a codification of the law as it previously existed on this issue. I would also note that the court in Stipo [1] specifically acknowledged that Parliament had conclusively and irrefutably established the DRE’s expertise and referenced the statutory recognition of the reliability of the 12-step drug evaluation. [2] [ 10 ] The Crown submits that contrary to the statement in Stipo at para 96 that no presumption of guilt follows from the conclusion expressed by the DRE,

Section 320.31(6) does precisely that, rendering the opinion of the DRE presumptively accurate if corroborated by toxicology, thereby reducing further any potential relevance of the rolling logs. [ 11 ]

Section 320.31(6) provides that where the analysis of the substance seized demonstrates that the person has a drug in their body that is of a type identified by the evaluating officer to have impaired a person’s ability to operate a conveyance then that drug (meaning the drug identified through toxicologically testing) is presumed to be the drug that was present in the person’s body at the time the conveyance was being operated and ‘on proof of the person’s impairment’ to have been the cause of that impairment. [ 12 ] While I accept that

section 320.31(6) creates a presumption of accuracy, I don’t accept that it creates a presumption of guilt. The criminal charge is of course impaired operation of a conveyance. It is the finding that impairment has been proven beyond a reasonable doubt that leads to a finding of guilt. [ 13 ] Justice Watt, writing for the court in Stipo at para 96 to 98 was specifically referencing the relevance of the rolling logs to a defendant’s ability to challenge the opinion of impairment put forward by the evaluating officer. “Parliament has established the reliability of the 12-step drug evaluation test.

But it has not determined or said that the conclusion drawn by the DRE is dispositive of guilt. The DRE determines whether the evaluation indicates drug impairment. This opinion is neither more nor less than a piece of evidence for the trier of fact to consider in deciding whether the Crown has proven that the ability of the person charged to operate a conveyance was impaired by drug. No presumption of guilt follows from the conclusion expressed by the DRE: Bingley, at para 31.

The statutory recognition of the reliability of the 12-step drug evaluation erects no barrier to the authority of the trier of fact to critically access a DRE’s conclusion about impairment or the right of the person charged to challenge that evidence. Cross examination may undermine the DRE’s conclusion. Unearth a bias. Demonstrate a failure to follow required steps. Or reveal the questionable nature of the DRE’s inferences. Evidence of bodily sample analysis or testimony from lay witnesses or experts may rebut or discredit the DRE’s assessment.

And at the end, as with any item of evidence adduced in a criminal trial, it will be open for an accused to challenge and for the trier of fact to assess the weight to be assigned to the DRE’s opinion about impairment” [ 14 ] I see nothing in the wording of s. 320.31(5) that negates those comments. [ 15 ] It is impossible for me to assess whether Stipo would have been decided differently had the Crown chosen to put forward the evidentiary record it now presents.

I think it important to acknowledge that the court in Stipo did not limit the relevance of the rolling logs to a comparison between the DRE’s opinion as to the nature of the drug and the toxicological testing. In finding relevance, the court also referenced that prior experience with the evaluation process itself or a particular drug group may provide fodder to challenge the

reliability of the DRE’s opinion. [3] I can say, having considered the agreed statement of facts filed at this hearing, in my view there is still merit to the applicant’s assertions that there is relevance to the information contained in the rolling logs. [ 16 ] For the reasons, already set out in my ruling, I can also say that I am not persuaded that the legislative amendments referenced by the Crown would have changed the court’s assessment of relevance in the context of the items sought. But from my perspective the real answer to the Crown’s submissions is that R. v. Stipo is still good law and binding on me. [ 17 ] Regardless of relevance, the Crown submits that

section 320.36 of the Code now prohibits disclosure of the results of a drug evaluation unless for the administration or enforcement of a federal or provincial Act related to drugs and or alcohol or to the operation of a motor vehicle, vessel aircraft or railway equipment. [ 18 ] Previously, although s. 258.1(2) did prohibit disclosure of the results of a drug evaluation, there was an exception to that prohibition in the course of an investigation or proceeding for a series of enumerated offences, which included s. 249 to 255. It was that

section which was considered by the court in Stipo and found to support an order for production. [ 19 ] I am not persuaded that that was the only basis upon which the court would have ordered production.

If it was, then there would have been no need for the court to have also referenced the significance of an accused’s right to make full answer and defence in determining the state’s obligation to disclose relevant material. [ 20 ] The court wrote: “Moreover, as a person charged with an indictable offence, the respondent is entitled to disclosure of material and information in the possession or control of the prosecuting Crown, as well as “obviously relevant” information in the hands of other Crown entities. As we have already seen, the rolling log falls into this disclosure basket.

This right to disclosure and reciprocal duty to disclose relevant, non- privileged information is an integral part of the respondent’s right to make full answer and defence, a right that is constitutionally grounded. It is true that a statutory disclosure regime can displace the process laid down by Stinchcombe , but such a “regime” would require more than a bare prohibition on disclosure. The conclusion I have reached about the

interpretation of s. 258.1(2)(

a) 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. In absence of a statutory prohibition on the disclosure of the rolling log, the Crown can comply with its constitutional obligation to disclose the log to the respondent as part of first party disclosure.” [4] [ 21 ]

Section 320.36 allows for the disclosure of the results of a drug evaluation where necessary for the administration or enforcement of a federal or provincial Act related to drugs and or alcohol or to the operation of a motor vehicle, vessel aircraft or railway equipment. It is not an absolute prohibition on the disclosure of that material. If it can be disclosed to the state to assist in the enforcement of legislation relating to the operation of a motor vehicle, then I can see no basis why, it cannot be disclosed to an accused person to ensure his right to make full answer and defence is protected.

I am certainly not persuaded that the court’s decision in Stipo to order disclosure of the DRE rolling log to the defence would have changed by virtue of the wording in 320.36 of the Code . [ 22 ] The application is granted and I order the disclosure of a vetted/anonymized version of the DRE rolling log of Cst. Petrakis. Justice Louise A. Botham