R. v. Dillman, 2018 ONCJ 997

CITATION: R. v. Dillman , 2018 ONCJ 997 DATE: 2018-11-27 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — DENISE DILLMAN Before Justice M. Greene Reasons for judgment Released November 27, 2018 C. Kirec...................................................................................................................... for the Crown M. Grossman...................................................................................................... for Denise Dillman

Summary of the Facts [ 1 ] Ms. Dillman is charged with impaired driving. It is alleged that her ability to operate a motor vehicle was impaired by drugs she had consumed some time before driving. Prior to trial, her counsel raised two Charter issues. Firstly he argued that Ms. Dillman’s rights as guaranteed by

section 8 of the Charter were violated when the toxicologist tested her bodily fluids for a broad range of drugs. Secondly, it was argued that her

section 7 Charter rights were violated because there was no scientific basis for the tests employed by the Drug Recognition Evaluator (DRE) and as such, the tests conducted ought not be permitted to provide a basis to request a sample of Ms. Dillman’s bodily fluids. Moreover, since the drug recognition tests are not grounded in science they should not be admissible at Ms. Dillman’s trial. [ 2 ] The factual back drop to this case is that on the day of her arrest, Ms. Dillman was driving a motor vehicle when she was stopped by an officer. A DRE attended on scene and conducted a series of tests on Ms. Dillman.

As a result of these tests, the DRE formed the opinion that Ms. Dillman’s ability to operate a motor vehicle was impaired by a drug, specifically a narcotic analgesic, and that she was unable to operate a motor vehicle safely. [ 3 ] The officer made the demand for a sample of her urine at 0427 hours and Ms. Dillman complied at 0429 hours. The sample was secured and sent to CFS for testing. [ 4 ] Upon receiving the sample, Mr. John-Paul Palmentier tested the urine sample for a broad spectrum of drugs including cocaine, benzoylecgonine and Levamisole.

All three of these drugs are stimulants as opposed to a narcotic analgesics.

Legal Issues Raised in the Case at bar [5] Counsel for the Ms. Dillman argued that his client’s Charter rights were violated when Mr. Palmentier tested her urine for drugsother than a narcotic analgesic. It was his position that since the DRE’s opinion was that there were narcotic analgesics impacting Ms.Dillman’s ability to operate a motor vehicle, the toxicologist’s testing ought to have been limited to these drugs. Crown counsel arguedthat the legislation does not limit the types of drugs that the toxicologist can test for and as a result, the search was valid. [6] Counsel for Ms.

Dillman also argued that the tests performed on Ms. Dillman by the DRE were not founded in science and as suchthe results of the urine test should be excluded. He worded his application as follows: The Applicant is concerned with how subjecting citizens to the determinative criteria of SOR/2008-196 without proper scientificvalidation would be unlawful by the Canadian Charter of Rights and Freedoms.

As Charter unlawful, the results of the SOR/2008-196tests and procedures should be excluded as evidence in this trial. [6] Upon receipt of the application, the court expressed a concern that the above attack was effectively an attack on the legislation,therefore, at the request of the court, the Applicant also filed a notice of constitutional question and argued that section 254(3.1) of theCriminal Code and SOR/2008-196 violate

section 7 of the Charter because when read together, these provisions permit a witness toreach a conclusion that is not grounded in science.

Section 8 of the Charter [7]

Section 8 of the Charter protects against unreasonable search and seizure. A search will be reasonable where it is authorized by law,the law itself is reasonable and where the manner in which the search is carried out is reasonable (R. v. Collins, (SCC),[1987] S.C.J. No. 15 at paragraph 23).

It is well recognized that a lawful search can become unlawful if the manner in which the searchis executed is not in accordance with the law. [8] Section 254(3.4) of the Criminal Code allows for the seizure and testing of a person’s urine or oral fluid in limited circumstances, thesection states: If, on completion of the evaluation, the evaluating officer has reasonable grounds to believe, based on the evaluation, that the person’sability to operate a motor vehicle, a vessel, an aircraft or railway equipment is impaired by a drug or by a combination of alcohol and adrug, 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. [9] This provision does not indicate what type of drugs can be tested. It only states that once the sample is obtained, it should beanalyzed. [10] In the case at bar, the Applicant does not take any issue with the grounds for the drug evaluation tests.

Instead, the Applicant hasargued that since the DRE formed the opinion that a narcotic analgesic was what caused the impairment, the toxicologist was onlypermitted to test for a narcotic analgesic. Phrased another way, is a toxicologist prohibited from testing for any drug other than a narcoticanalgesic where the DRE forms the opinion that a person’s ability to operate a motor vehicle was impaired by drug and that drug was anarcotic analgesic? [11] Mr. Palmentier, the toxicologist involved in this case, testified that he tested for a wide spectrum of drugs because this is his generalprocess.

The first step is to test for a broad spectrum of drugs. It is only after this broad testing is conducted that Mr. Palmentier

narrowed his scope to look specifically for narcotic analgesics. [ 12 ] While not relevant to his testing procedure, Mr. Palmentier was asked about the impact of stimulants, like the ones found in Ms. Dillman’s urine, on a person’s behaviour. Mr. Palmentier testified that cocaine is technically a stimulant, in that when it is first ingested the heart rate increases, creating euphoria and elevates the system in the body. However, once this initial phase wears off, the drug starts to act like a depressant.

In other words, cocaine in the body acts like a narcotic analgesic during its latter stages. [ 13 ] A literal reading of the legislation supports a finding that the testing conducted by the toxicologist should not be limited by the opinion of the DRE. Firstly, the DRE is not required to provide an opinion about what drug is causing the person’s ability to operate a motor vehicle to be impaired. Secondly, the legislation only states that bodily fluid may be seized so that the bodily fluid can be tested for the presence of a drug. The

section does not limit the number or types of drugs for which the toxicologist may test. [ 14 ] I do appreciate that in some respects it makes sense that the toxicologist only be permitted to test for the drugs that are suspected by the DRE. This is because the testing involves the invasion of privacy and any intrusion into one’s privacy permitted by law should be as minimal as possible. If the DRE only suspects a certain type of drug in the body, there is arguably no basis to search for other drugs. Having said that, it is clear from Mr.

Palmentier’s evidence, that while the DRE may be able to determine the presence or absence of a drug in a person’s body to the extent that it impairs the person’s ability to operate a motor vehicle, determining the type of drug is a more complex task because drugs affect behaviour differently depending on when the drug was consumed. The example provided by Mr. Palmentier was that cocaine in the initial stages presents as a stimulant but during the latter stages presents as a depressant.

Knowing when the drug was taken, a fact not always known by the DRE, is often necessary to determine what type of drug is impairing the person’s ability to operate a motor vehicle safely. [ 15 ] In my view, given the wording of the legislation and the complexities in identifying the type of drug involved, in particular when dealing with a drug like cocaine, the toxicologist is not required to limit his/her testing to the drug identified by the DRE. Moreover, while a broader spectrum test for drugs is more intrusive than a directed drug test, the additional invasion of privacy is slight.

Given the importance in detecting impaired drivers and the nominal privacy interest engaged when a broader spectrum drug test is conducted as a opposed to a more narrow test, in my view the legislation does not require the toxicologist to only test for a specific drug. I further note, that the DRE is not required to identify which drug may be involved. The DRE need only form the opinion that the driver’s ability to operate a motor vehicle was impaired by a drug.

This provides further support for providing the toxicologist with the ability to test for a wide variety of drugs in the sample seized by the DRE. [ 16 ] For these reasons, I find that Ms. Dillman’s rights as guaranteed by

section 8 of the Charter were not violated. [ 17 ] If I am wrong and the toxicologist was required to limit his search to narcotic analgesics only, while this would lead to a violation of

section 8 of the Charter , since the toxicologist tested for other drugs as well, it is my view that the results of the testing would not be excluded under s. 24(2) of the Charter . In relation to the seriousness of the violation, this is a novel issue that has not yet been litigated. Moreover, the toxicologist identified in his evidence a legitimate basis for conducting a broad spectrum test. In light of this evidence, it is my view that this was not a serious breach grounded in negligence or bad faith. This prong militates in favour of admitting the evidence.

In relation to the impact of the breach, the impact was nominal. The urine was seized lawfully and the only additional search was for drugs other than the narcotic analgesics. This prong also militates in favour of inclusion of the evidence. In relation to the third prong, impaired driving is a serious offence that raises real public safety concerns. There is a strong societal interest in this matter being heard on its merits. This last prong also weighs in favour of admitting the evidence.

In balancing all this evidence, the administration of justice would not be placed in disrepute if the evidence was admitted at trial.

Section 7 of the Charter the constitutionality of section 254(3.1) of the CC and SOR/2008-196 [ 18 ] Section 254(3.1) of the Criminal Code allows a police officer to demand that a driver submit to an evaluation conducted by an evaluating officer to determine whether the person’s ability to operate a motor vehicle was impaired by a drug or a drug combined with alcohol. Pursuant to section 254(3.4) (

a) of the Criminal Code, upon completion of the evaluation, if the qualified evaluating officer is of the opinion that the person’s ability to operate a motor vehicle was impaired by drug, the officer may demand that the driver provide a sample of her urine or oral fluid to determine if there is a drug in the person’s body. [ 19 ]

Section 254.1(1) of the Criminal Code allows for the Governor in Council to make regulations respecting the qualifications and training of the drug recognition evaluator as well as make regulations prescribing the tests that are to be conducted.

[20] The regulation of SOR/2008-196 states that an evaluating officer must be qualified by the International Association of Chiefs ofPolice. It also sets out physical coordination tests and evaluation tests and procedures to be used by the evaluating officer. [21] In 2017, the Supreme Court of Canada in R. v. Bingley, 2017 SCC 12 , [2017] S.C.J. No. 12, held that a drug recognitionofficer is an expert in administering the 12-step drug recognition evaluation. The DRE is permitted to provide expert evidence in thisarea without a voir dire.

Moreover, the court noted that the DRE is an expert in administering the test as opposed to the science behindthe test and as a result, the DRE may still provide expert opinion evidence even if the DRE is unfamiliar with the science behind thetesting. The Supreme Court of Canada went on to state in R. v. Bingley at paragraph 24, In this case, the reliability of the 12-step evaluation comes from the statutory framework itself. Parliament has determined that the 12-step evaluation performed by a trained DRE constitutes evidence of drug impairment.

It may not be conclusive, but it is evidencebeyond the experience and knowledge of the trier of fact. [22] Counsel for Ms. Dillman argued that he is not attacking the legislation, instead it is his position that the DRE’s actions areunconstitutional because they are not grounded in science and as a result the tests and procedures should be excluded. Respectfully, Idisagree that this is not an attack on the legislation.

It is the legislation that allows for the state to qualify the drug recognition evaluatorsand it is the legislation that allows the state to determine what tests should be conducted by the drug recognition evaluators. As noted inR. v. Bingley, it is Parliament that has determined the 12-step evaluation and as such, the officer’s conduct is only unconstitutional if thelegislation is unconstitutional.

I will therefore proceed to consider the argument in the context of a constitutional challenge to thelegislation. [23] The essence of the Applicant’s argument is that the legislation that allows for the seizure of bodily fluids through testing that is notsupported by science. In support of his position, counsel filed a single

article that states that there is no science in support of the testing. He provided no other evidence that the 12- step evaluation employed by the DRE is not supported by science. He also provided noevidence that this lone

article has been accepted by other scientists or that the results have been reproduced. [24] The Applicant bears the burden of establishing on a balance of probabilities that the 12-step evaluation is not supported by science.The single

article filed with this court does not provide sufficient evidence to satisfy me that on a balance of probabilities the evaluationis not based on science and that it is not sufficiently reliable to justify the intrusion of taking a sample of someone’s bodily fluid for drugtesting. As a result, I find that the Applicant has not met her burden and that, given the record before me, the legislation isconstitutional. [25] I am mindful that counsel had originally brought a motion for directions which was put aside when I advised that his

section 7argument was an attack on the legislation. In light of this, if Ms. Dillman’s counsel wants to re-open this issue and bring a properevidentiary foundation he is welcome to do so. Released November 27, 2018 ____________________________ Justice Mara Greene