Her Majesty the Queen - v. -, 2012 SKPC 69

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 069 Date: April 20, 2012 Information: 24431368 Location: Yorkton _____________________________________________________________________________ Between: Her Majesty the Queen - and - Tyler Slater Appearing: Barrie Stricker For the Crown David Kreklewich / Evan Thompson (Student at Law) For the Accused DECISION ON DISCLOSURE APPLICATION R. GREEN , J I. OVERVIEW [ 1 ] Mr. Slater is charged with driving while impaired by a drug contrary to s. 253(1) (

a) of the Criminal Code . The defence applied by Notice of Motion for an order that the Crown disclose the manual or standardized instructions for the Drug Recognition Expert evaluation performed on Mr. Slater. Attached to the Notice are copies of correspondence between Mr. Kreklewich and Crown counsel. In particular, on August 15, 2011, Mr. Wellsch responded to the defence request for an operating manual regarding the use of drug sobriety tests by saying that there is no such operating manual.

[2] There is no mention of the Charter of Rights and Freedoms in the Notice of Motion, except by implication through thestatement that the disclosure sought is necessary for the defence to make full answer and defence. Clearly, there is no request for aremedy under s. 24(1) of the Charter. As a result, I take this application to be made in furtherance of this Court’s power to supervise theprovision of disclosure to the defence (R. v.

Stinchcombe, (SCC), [1991] 3 S.C.R. 326 at para. 21). [3] Other than the Notice of Motion, appended with correspondence between counsel, a copy of the Regulations referred to in s.254 of the Code, and two cases referred to by the defence, the evidentiary basis of this application was supplied through the comments ofMr. Thompson, appearing for Mr. Kreklewich in Esterhazy on April 10, 2012. Mr. Thompson submits such oral submissions may formthe basis upon which the defence can satisfy the Court of the potential existence and relevance of the disclosure which is sought (as perthe comments of Sopinka J. in R. v.

Chaplain, (SCC), [1995] 1 S.C.R. 727 at para. 30 - 31). [4] I understand, from the representations of counsel and from Mr. Kreklewich’s letter to Crown counsel on January 13, 2012,that RCMP Cst. Stark performed an evaluation on Mr. Slater pursuant to ss. 254(3.1) and (3.4) of the Code, that the Crown will submitat the trial that this officer is an evaluating officer as defined in the Code and that the evaluation Cst. Stark performed on Mr. Slaterresulted in a demand to provide a bodily substance under s. 254(3.4). II.

THE STATUTORY BASIS FOR DRUG EVALUATION [5] The relevant sections from the Code on this application are: 254.

(1) In this

section and sections 254.1 to 258.1, "evaluating officer" means a peace officer who is qualified under the regulations to conduct evaluations under subsection (3.1);

(3.1) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours hascommitted, an offence under paragraph 253(1)(

a) as a result of the consumption of a drug or of a combination of alcohol and a drug, thepeace officer may, by demand made as soon as practicable, require the person to submit, as soon as practicable, to an evaluationconducted by an evaluating officer to determine whether the person's ability to operate a motor vehicle ... is impaired by a drug or by acombination of alcohol and a drug, and to accompany the peace officer for that purpose. ...

(3.4) If, on completion of the evaluation, the evaluating officer has reasonable grounds to believe, based on the evaluation, that theperson's ability to operate a motor vehicle ... is impaired by a drug or by a combination of alcohol and a drug, the evaluating officer may,by demand made as soon as practicable, require the person to provide, as soon as practicable, (

a) a sample of either oral fluid or urine that, in the evaluating officer's opinion, will enable a proper analysis to be made to determinewhether the person has a drug in their body; or (

b) samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, will enable aproper analysis to be made to determine whether the person has a drug in their body. [6] Further, the Evaluation of Impaired Operation (Drug and Alcohol) Regulations (SOR/2008-196) provide in part: 1. An evaluating officer must be a certified drug recognition expert accredited by the International Association of Chiefs of Police. ... 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 eyestrack an object equally; (

b) eye examinations, which consist of (

i) the horizontal gaze nystagmus test,

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

c) divided-attention tests, which consist of (

i) the Romberg balance test, (ii) the walk-and-turn test referred to in paragraph 2(b), (iii) the one-leg stand test referred to in paragraph 2(c), and (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 theirnose 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 nasaland 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. III. THE POSITIONS OF THE PARTIES [7] Mr. Thompson, for the defence, submits that the drug evaluation of Mr. Slater done by Cst. Stark must have been basedupon his training, which in his submission would have in all likelihood included written material such as a training manual. He submitsthat any such evaluation must be performed to an acceptable standard, and that, as a result, objective criteria must exist upon whichsatisfactory and proper performance of such an evaluation can be judged.

He suggests any training manual Cst. Stark used in his trainingwould set out the criteria needed to assess the sufficiency of the officer’s evaluation of Mr. Slater, and that this disclosure is made all themore necessary as the testimony and credibility of this officer is, in effect, the case for the Crown on whether Mr. Slater’s ability tooperate a motor vehicle was impaired by a drug. [8] Mr. Stricker, for the Crown, submits, as reflected in Mr.

Wellsch’s response to defence counsel, that there is no operatingmanual for drug recognition examinations done by an RCMP officer, and hence he cannot disclose what does not exist. Regarding anytraining manual Cst. Stark might have used in his training, he submits that this is not relevant. Rather, he says what is relevant in thiscase is what this police officer did on the date in question. [9] Mr.

Stricker asserts that an evaluating officer does not need to be qualified by the Court as an expert given the statutoryscheme for drug evaluation put into force by Parliament, which includes ss. 254(3.1) and (3.4) of the Code. He says these sections, andthe Regulations, set out who is an evaluating officer and how such an evaluation is to be conducted by an evaluating officer. He submitsthese statutory provisions provide a basis upon which the sufficiency of the actions of the evaluating officer, in this case Cst. Stark, canbe judged. [10] Mr.

Stricker further submits that this application is a so-called “fishing expedition” by the defence. He questions whether, ifa drug recognition training manual for an evaluating officer acting under ss. 254(3.1) and (3.4) was found to be relevant and disclosable,the police training manuals dealing with the formation of grounds for a breath demand under ss. 254(2) and (3) would be similarlyrelevant and disclosable for any police officer making a demand under those subsections. [11] Finally, even if a training manual used by Cst. Stark was found to exist and to be relevant and disclosable, Mr.

Strickersubmits that the manual is in the possession of a third party and not the Crown, and, as a result, the proper disclosure application, forevidence of the type involved here should have been a so-called O’Connor application as set out by the Supreme Court of Canada in R.v. O’Connor, (SCC), [1995] 4 S.C.R. 411 and further explained by the Supreme Court in R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66.

IV. ANALYSIS AND DECISION [ 12 ] The first question to be determined is whether this application is properly made to require production of the sought after material from the Crown prosecutor. I accept that Mr. Stricker does not have in his possession any operating or training manual for drug evaluation used by the RCMP. [ 13 ] In R. v. Carmicheal , 2011 SKPC 60 , Judge Hinds considered and dismissed a similar disclosure application seeking the production of police training manuals that dealt with providing detained people with their right to consult a lawyer.

Judge Hinds considered in detail (at para. 4 - 12 of Carmichael ), the so-called “first party” obligations of the Crown, as set out by Charron J. in McNeil , supra . As a result of this analysis, I accept that there may in some cases be an obligation on the Crown prosecutor to obtain and then disclose materials in the possession of the police when that information is clearly relevant to the charge before the Court.

For example, a finding of police misconduct by a police officer involved in the same incident that forms the subject matter of the charge against the accused would be an example of what information or material would be subject to such disclosure (as per para. 54 in McNeil ). [ 14 ] However, similar to the conclusion reached by Judge Hinds in Carmicheal , I am not satisfied that the materials the defence seeks to be disclosed are within the first party disclosure obligations of the Crown prosecutor in this case. These materials are not directly in the possession of the prosecutor.

Nor, further to McNeil , are these materials which the prosecutor is obligated to obtain from the police and then disclose - assuming of course that the materials exist and are in the possession of the police. If such a drug examination training manual does exist, it would in all likelihood be in the possession of whichever institution or programme Cst. Stark took his training from, which led to him supposedly being accredited by the International Association of Chiefs of Police as a certified drug recognition expert (as per s. 1 of the Regulations ).

As a result, the proper application for disclosure for a copy of any drug recognition training manual used in the training of Cst. Stark would be by way of the third party procedure set out in O ’Connor . [ 15 ] The second issue is whether the materials sought to be disclosed are, in any event, relevant to the issues in this case. Despite my decision on the first issue, I will nevertheless indicate, given my supervisory function on this application, that I am not satisfied that any training manual Cst.

Stark used in his training would be relevant to the issue of whatever actions he took pursuant to ss. 254(3.1) and (3.4) of the Code . Maurice J. in R. v. Ferrari , 2001 SKQB 340 , considered the relevance of police training materials respecting a program for intercepting the transportation of drugs by road, to the issue of whether the Charter rights of the accused were violated by the police during his stop and search. His Lordship stated (at para. 7): Whether a person's Charter rights are violated during the course of a roadside stop depends on the conduct of the police officer carrying out the stop.

The training the officer received in anticipation of carrying out a roadside stop is irrelevant to the determination of a violation. What counts is what he does, not what he was trained to do. The material is not relevant to an issue in the proceedings. [ 16 ] This passage was cited with approval by Judge Hinds in Carmichael , and as well by Judge Kalmakoff in R. v.

Akinchets , 2011 SKPC 88 (in the context of a request for disclosure of a police officer’s training manuals and training certificates respecting sobriety testing). [ 17 ] In this case, what I view as relevant on the issue of drug evaluation is: (1) whether Cst. Stark was an evaluation officer as defined in the Code and the Regulations ; (2) what tests and procedures, as set out in the Regulations , the officer employed in carrying out an evaluation on Mr. Slater; (3) what observations he made of Mr. Slater; (4) what opinion, if any, he formed about whether Mr.

Slater’s ability to operate a motor vehicle was impaired by a drug for the purposes of s. 254(3.4); and (5) what further actions he took pursuant to that subsection. [ 18 ] I recognise, as argued by the defence, that the Ontario Court of Justice, in R. v. Gardashnik , 2011 ONCJ 256 , ordered the Crown to disclose the identity of a training manual a police officer used in her drug recognition training. I, however, am satisfied that case is distinguishable from the current application. In Gardashnik , the Crown, in argument, agreed to disclose the police training manual used by the police officer in question.

As well, the Crown in that case was preparing, at the trial, to tender this police officer as an expert, without qualifying her, to give her opinion on whether the accused’s ability to operate a vehicle was impaired by a drug. While it is not clear from the case report in Gardashnik whether the Crown intended to tender the police officer as an expert for the substantive proof of impairment against the accused, if, at this trial, Cst.

Stark, or any other police officer, is tendered as an expert on the substantive issue of impairment, rather than as an evaluation officer for the purposes of ss. 254(3.1) and (3.4), the principles in R. v.

Mohan, (SCC), [1994] 2 S.C.R. 9, regarding the requirements for the qualification of an expert, may well be engaged. However, that issue will have to be dealt with later in the trial, if it arises. [19] The defence application, regarding the provision of the manual or standardized instructions for the drug recognitionevaluation performed on Mr. Slater, including any training manual used by Cst. Stark in his training, is dismissed.

I, however, order theCrown prosecutor, if he has not already done so, to disclose to the defence within two weeks of today the following material, which I amsatisfied is relevant to any actions Cst. Stark, or any other police officer in this case, took under ss. 254(3.1) and (3.4) of the Code:

(1) Whether, and by virtue of what training obtained through which institution or programme, Cst. Stark is an “evaluation officer” and acertified drug recognition expert accredited by the International Association of Chiefs of Police, within the meaning of the CriminalCode and the Regulations;

(2) What tests and procedures the officer performed on Mr. Slater pursuant to ss. 254(3.1) and (3.4) of the Code;

(3) What observations the officer made of Mr. Slater;

(4) What opinions, if any, the officer formed about Mr. Slater’s condition pursuant to ss. 254(3.1) and (3.4); and

(5) What demands, if any, the officer made to Mr. Slater pursuant to those subsections. R. Green, J