R. v. Kenneth STEEVES, 2010 NBPC 25

PROVINCIAL COURT OF NEW BRUNSWICK 2010 NBPC 25 R. v. Kenneth STEEVES Before: Judge Alfred H. Brien At: Saint John , N.B. On: April 28, 2010 Counsel : Crown: Lucie Mathurin Defence: David Kelly REASONS ON DECISION _______________________________________________________________________ Charge: [ 1 ] The accused is charged with one count of operating a motor vehicle while his ability to do so was impaired by drugs contrary to s. 253(1)(a). The offence is alleged to have been committed on Taylor Ave. in this City on April 9, 2009.

Issues: [ 2 ] The real issue in this case is whether the opinion evidence of a Drug Recognition Expert (D.R.E.) should be admissible and then what, if any, weight should be attached thereto. Ultimately the matter rests upon the court to determine if the Crown has proven it’s case beyond a reasonable doubt. Trial Proceedings : [ 3 ] In some respects this decision may run counter to some of the rulings which were made during the trial.

Through a combination of difficulties encountered during the presentation of evidence, including uncertainty and unfamiliarity with the nature of the Crown case, confusion as to terms and acronyms being referred to, and the manner in which some Crown evidence was being offered, certain rulings were either not specific or not based on thorough analysis. An attempt will be made to clarify those rulings and comment on the procedure preferred by the court after having had the opportunity to consider same in the context of the central issue in this case.

[ 4 ] At the start of presentation of evidence, the Crown did suggest that the court enter into a voir dire as to the evidence of the first Crown witness. Discussion at that time left some uncertainty as to exactly what the Crown was seeking to establish. While some of the discussion, counsel representations and eventual rulings of the court were unclear in the context of procedures to be followed, upon reflection as the evidence unfolded, the court indicated that it was prepared to accept the two Crown witnesses as drug recognition experts with ability to give opinion evidence.

The struggle with this issue might have been more productive with a more direct assertion of the nature and extent of the Crown’s case. [ 5 ] In hindsight, it is clear that the appropriate approach is by way of voir dire. Also that counsel provide the court in advance with a statement of the issues, written submissions and caselaw supporting the Crown’s approach. [ 6 ] 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 in R. v. Mohan [1994} 1994 CanLII 80 (SCC) , 2 S.C.R. 9 and R. v.

J. (2000) 2000 SCC 51 (CanLII) , 2 S.C.R. 600 Nevertheless, while I did hear the evidence and made rulings, I think such rulings can be re-considered. Furthermore, even if the procedure followed appears out of step with what might have been a more productive, if not more logical procedure, the court still must decide what weight if any is accorded the evidence.

So with the time reserved for further submissions, the court has had an opportunity to re-consider this issue of admissibility of Drug Evaluation and Classification Program (D.E.C.P.) and, in particular, D.R.E. opinion evidence. [ 7 ] As to the other sources of confusion, it might serve any one reading the transcript, to address them briefly . These arose in the use of certain terms, the number and use of acronyms and the similarity in witnesses names. [ 8 ] With respect to the use of certain terms some confusion was occasioned in the use of the terms ‘expert’ and ‘qualification’.

Clearly there is a difference between the use of the term ‘expert’ in a title bestowed by some external authority and the use of the term in a judicial hearing to indicate a person recognized by a court as having special knowledge in a recognized field and then qualified to give opinion evidence. [ 9 ] Two of the Crown witnesses were referred to using the title ‘Drug Recognition Expert’, a term used in Regulation SOR/2008 – 196 under the heading “Qualification Required of an Evaluating Officer”. The term evaluating officer is found in

section 254 of the Code. For ease of reference the applicable sections are attached to this decision. [ 10 ] In the absence of legislation or caselaw, a title, unto itself does not automatically qualify a person to give opinion evidence in judicial proceedings. So a finding by the court that the two officers met the qualification set out in the Regulation may cloak them with the authority to proceed under sec 254 of the Code but does not automatically make their opinion as to the central issue of driving-ability impairment by drug admissible in court.

If such were the case, then Parliament could have crafted a provision regarding admissibility. [ 11 ] Other confusion is with respect to the acronyms and terms used to describe such, including the descriptors. For ease of reference, attached is a list of the acronyms and descriptors from the court’s understanding thereof, and which will be used in these reasons. [ 12 ] The Crown has referred the court to R. v. Seguin , 2010 Ont. C.J. Info No C1890-08 given November 20,2009 in particular a ruling of Fontana J. on this issue.

Fontana J. classifies an expert as a witness who has “ acquired special or peculiar knowledge through study or experience in respect of the matters on which he or she undertakes to testify”.

Using that test, he proceeded to conclude that the “drug impairedness recognition is a recognized skill”, that the D.R.E. before him was “qualified as an expert in that field” and thus “qualified to express her observations of an accused and her opinions based upon those observations” [ 13 ] 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 to testify” is the underpinning that needs examination.

Fontana J. proceeded further with the caution that the testimony of an expert is still subject to a determination by the court as to what weight it should receive. [ 14 ] Again, while that appears to have been the approach which I took during the trial, namely to permit the Crown witnesses to testify subject to assessment of weight, there also appears to be the outstanding matter of the Crown establishing the validity of the D.E.C.P.. In this 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 witness would 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

qualified as 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”. Admissions [ 15 ] This case involves an investigation by a police officer in regards to a charge of impaired driving. [ 16 ] In oral argument, defence counsel acknowledged that the police officer did have, in the nomenclature of the court in R. v. Harrison , [2009] S.C.J. No. 34 , 2009 SCC 34 , ‘reasonable grounds’ to detain or to stop the motor vehicle driven by the accused on the evening in question.

I am prepared to accept that concession based upon the officer having reasonable grounds under motor vehicle legislation and for driver safety reasons to check on a vehicle and it’s driver. [ 17 ] For the purposes it will serve, there appears to be no question but that the two officers do meet the qualification of evaluating officers namely that they are certified D.R.E.s accredited by the I.A.C.P .through the D.E.C.P.

Further the accused takes no issue with and accepts that the arresting officer did perform all of the tests set out in sections 2 and 3 of the Regulations and that he complied with the Criminal Code as that

section authorizes evaluating officers to proceed. [ 18 ] Accordingly, by a combination of defence counsel’s agreement and testimony offered, the Crown has established that at the material times the accused was operating a motor vehicle, that he showed signs of impairment, that such was sufficient to find that such impairment was as to his ability to operate the motor vehicle and that he had certain drugs in his body which could cause that impairment. The question is whether the Crown has proven beyond a reasonable doubt that it was this or any drug which caused the impairment.

The contentious issue then focuses on the testimony of the arresting officer, and in particular the Crown’s contention that based on his training and experience as a DRE, that he is qualified to give expert opinion that the impairment was due to certain drug classifications. [ 19 ] At this juncture then, it might be beneficial to review the law on opinion evidence Law on Opinion Evidence [ 20 ] The seminal case of R. v. Mohan , (supra) referred to f our criteria to be applied to the issue of the admission of expert evidence: • (

a) relevance; • (

b) necessity in assisting the trier of fact; • (

c) the absence of any exclusionary rule; • (

d) a properly qualified expert. [ 21 ] Of note for this case is the indication by Sopinka, J. in Mohan that the admissibility of expert opinion evidence based on novel science is to be determined by employing special scrutiny under the headings of relevance and necessity rather than simply when considering the presence of other exclusionary rules. [ 22 ] In R. v. Wood (supra) that court summarized the methodology set out in Mohan as follows: 34 In

summary, Mohan established a methodology for determining the admissibility of expert opinion evidence which involves a careful analysis of the origin and content of that opinion, as well as the effect its admission will have on the trial. Mohan also requires that expert opinion evidence based on novel science be subjected to special scrutiny in determining its admissibility, particularly with regard to its reliability. Finally, Mohan requires that the expert opinion evidence be scrutinized to an increasing degree as it approaches the ultimate issue.

[ 23 ] The court In Wood was dealing with the same subject matter as found in this case, which it categorized as novel science. Topolniski J. carried out a thorough review of the methodologies in both Mohan and R. v. J-L 2000 SCC 51 (CanLII) , [2000] 2 S.C.R. 600 , noting at para 37 : While the court in Mohan directed that expert opinion evidence based on novel science be subjected to special scrutiny, in J.(J-

L) it delineated a practical methodology to undertake such scrutiny. Binnie J., who delivered the judgment of the court in J. (J-L.), suggested (at para. 33) that the following factors listed by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals Inc. 509 U.S. 579 (1993) at 593-594 could be of assistance in evaluating the soundness of novel science: •

(1) Whether the theory or technique can be and has been tested: •

(2) Whether the theory or technique has been subjected to peer review and publication: • (3)The known or potential rate of error or the existence of standards; and, •

(4) Whether the theory or technique used has been generally accepted. [ 24 ] In then synthesizing the two cases of Mohan and J-L , he arrived at the following criteria which could aid a court in analyzing the evidence on novel science. In my opinion this guide is useful. [24] Noting that the order in which they can be considered is on a case-by –case basis, the court set these out in para 49: 1. Relevance to an issue: A.Does the evidence meet the threshold of logical relevance?

B.Does the evidence meet the threshold of reliability? 1.Is the opinion based on novel science? 2.Does the opinion evidence pertain to the ultimate issue? 3.Does the novel science attain threshold reliability? (a)has the theory/technique been tested? (b)has the theory/technique been subject to peer review/published? (c)is there a known or potential error rate? (d)is the theory/technique generally accepted? C.Do the costs of admitting the evidence outweigh the benefits? 2. Necessary to assist trier of fact. Is the subject matter of the expert opinion beyond that of the trier of fact? 3.

Absence of any exclusionary rule. 4. Properly qualified expert. [ 25 ] In applying the above criteria to the evidence in Wood , the court found that the trial court had not given adequate consideration to the novel science underpinning the opinion of the DRE. The court quashed the conviction and ordered a retrial. [ 26 ] Accepting this approach, and before applying these criteria, it is important to review the evidence offered in this case. Evidence Introduced [ 27 ] The Crown called three witnesses: two police officers, presented as D.R.E. officers, and a toxicologist. With respect to the two

officers, both have the same surname ‘Jones’. To avoid confusion in the names, I will distinguish them by using their given names. D.E.C.P. Provincial Coordinator Trevor Jones [ 28 ] The first witness, Cnst. Trevor was not involved with the accused on any level. It became apparent that as the Provincial Coordinator of the national D.E.C.P. , the import of his evidence was to outline the training an officer must undergo to obtain certification as a D.R.E. He also provided a brief history of the development and use of D.C.E.

P. [ 29 ] As he outlined the training he referenced the underpinnings of the work in a manner which caused the Court some concern as to whether he was giving opinion as fact. At that stage the court indicated that he should be qualified before continuning. [ 30 ] While not called upon to give opinion as to the case in issue, to the extent that his evidence was to validate the D.E.C. P. as based upon accepted science, I will review his qualifications. It also became apparent particularly on the testimony of the next witness, Cnst.

Travis, that the latter referred to the training referenced by this witness. [ 31 ] Cnst Trevor has a combined service of 26 years with the Saint John Police Force and the now defunct New Brunswick Highway Patrol. He has been a qualified Breathalyzer technician since 1985. He completed the 10 day training program in Arizona in S.F.S.T. and D.R.E. in 2005 and has been a DRE officer since 2006. In 2008 he completed the Medical Foundations of Visual System Testing in Arizonia, USA .

As the Provincial Coordinator for the national D.E.C.P., his duties include providing instruction and coordination for the certification procedure for all DRE officers in the province. He has continued D.R.E. certification training on several dates in Arizona with the D.E.C.P for Canadian Police Officers and he has monitored D.R.E. students at the Phoenix Mariposa Jail ( Arizona ). [ 32 ] With particular reference to D.R.E. training this witness outlined the 12 steps in which D.R.E. officers are trained to follow to do an evaluation.

In identifying the 7 drug categories, he testified that the goal of a D.R.E. is to opine about which classification of drug is involved not to opine as to which specific drug in causing the impairment. [ 33 ] He testified that in his own D.R.E. training he was called upon to conduct 12 practical evaluations.

He was not questioned as to his rate of confirmation, that is, the number of opinions as to class of drugs which were confirmed by toxicology. [ 34 ] Through this witness the Crown tendered, unopposed by the Accused, copies of three research studies referred to as validation studies of the Standardized Field Sobriety Test (S.F.S.T.) Battery, prepared by or for the U.S.Department of Transportation National Highway Traffic Safety Administration. These can be referred to as the Colorado Study (November 1995) the Florida Study (1997) and the California Report (August 1998).

These studies related to S.F.S.T. and in particular alcohol impairment detection, and as such were not helpful with respect to the D.R.E.issue. D.R.E. Cnst. Travis Jones [ 35 ] The second Crown witness, Cnst. Travis, was the arresting officer. Prior to joining the Saint John Police Force in 2007, Cnst Travis served as both an Emergency Medical Technician(E.M.T.) and a Firefighter for a total of 18 years. Through the national D.E.C.P. he completed the S.F.S.T. in Ottawa (2008) and D.R.E. in Arizona (2009). Cnst. Travis was certified as a D.R.E. in 2009 and has since been re-certified.

In essence he participated in the same 10 day training program as well as the re-certification referenced by Cnst. Trevor. In addition he testified that he took pharmacology courses as an E.M.T. [ 36 ] Both constables referred to the intensity and rigour of the D.R.E. training To give a indication Cnst. Travis indicated that in his class there was a 30% attrition rate.

As to the mandatory 12 practical evaluations he undertook in training he testified that all but one was confirmed and he provided an explanation for that one case. [ 37 ] In total he has done 7 drug recognition evaluations in the field and was found to be correct in those evaluations by chemical testing. [ 38 ] I have outlined their qualifications in detail as it should be noted that these two officers, together with the Toxicologist, presented as knowledgeable in what they had been trained, namely the DE.C.P. and it is hard not to be impressed by their testimony particularly the assuredness they repose in their training and abilities, and the confidence with which they answered questions.

However, while they may have been well trained and demonstrate strong abilities to put that training into practice, the court can not loose sight of the real question which is as to the underpinnings of the program in which they had been trained. In essence they may have acquired special skills in D.R.E. but the important question to be asked is as to the validity of D.E.C.P. and the D.R.E. program upon which they could be

considered experts to render opinions as the Crown proposes. Factual Background [ 39 ] Turning to the factual background of this case, Cnst. Travis had stopped the accused at around 7:30 p.m. on the date in question. Of the accused he observed slow reaction to oral requests, very slow and deliberate movements, white frothing of saliva from the corners of his mouth, thick and slurred speech. There was no odour of an alcoholic beverage on his breath. Suspecting impairment by drug the officer proceeded to give a demand under s 254(2) for a physical coordination test.

The accused understood and exited his vehicle at which time Cnst Travis observed immediate swaying of the accused on his feet. He administered the S.F.S.T., and according to the officer, the accused showed poor performance in the walk and turn test and the one leg stand. [ 40 ] Cnst Travis then read a demand under s. 254(3.1) for an evaluation by an evaluating officer. The accused was arrested for impaired driving and taken to the police station. He was advised of his Charter rights and given the police caution.

In the D.R.E. room the officer started the testing at 8:45 p.m. and completed it at 10:10 p.m. consuming a total of 1 hour 25 min. [ 41 ] The DRE Worksheet and ‘Drug Influence Evaluation’ report completed by Cnst Travis were tendered as Exhibit C-5. These record observations the officer made as he went through the 12 steps of the evaluation. It is noted that the Evaluation of Impaired Operation (Drugs and Alcohol) Regulations SOR 2008-196 set out 7 tests and procedures, which are incorporated in the 12 steps referred to by the officer.

The remaining five, as will be seen are not tests but rather interviews(2), possible demands(2) and an opinion.

Here are the results of the 12 steps, and I will refer to each by the number and order given by the witness: 1.Breath Test: As no alcohol was suspected a breath test demand was ruled out. 2.Interview of the Arresting Officer: Being the arresting, this step was not necessary. 3.Preliminary Examination of subject: The officer inquired of the accused who, to specific questions advised that he had eaten at 4:30 p.m.; had not been drinking; last slept the night before for 3 hours; had an injured right ankle; had taken Tylenol 3 for pain; was not diabetic, epileptic, using insulin; had no physical disabilities; not under a doctor/dentist’s care.

The officer then rated his attitude as ‘good’ , his coordination as “slow/unsteady’ , his speech as ‘slurred/thick’ and his face as ‘normal’ Also his pulse was recorded at three times during the testing, and noted to be declining each time. 4. Eye Examination: The officer noted the accused had watery eyes, equal pupil size, equal tracking of the eyes, no Nystagmus ( involuntary jerking of the eyes) present and had droopy eyelids. On the convergence test, the accused failed to follow the light stimulus. The accused was unable to focus on the stimulus being used by the officer. 5.

Divided Attention tests: A series of divided-attention tests was conducted to check the accused’s ability to multitask. On the Romberg Balance Test. The accused displayed a circular sway of 4 inches considered by the officer as a prominent sway.. The accused was observed staggering to the left and over estimated the time lapse for the test by 50 percent. On the walk and turn test, the accused continuously did not keep his balance, with numerous recordings of not being able to follow verbal instructions in the two sets of nine steps he was required to take.

On two occasions he started walking too soon, on ten occasions he stopped walking , on three occasions he missed the heal to toe, he stepped off line five times, on turning to do the second set of nine steps he turned the wrong way, inappropriately raised his arms 13 times and took two steps more than requested. On the one leg stand test the accused could only do the test using his right foot and several times he swayed, used his arms to balance and put his other foot down.

The finger to nose test was employed and the accused was observed to be swaying badly and missed missed the tip of his nose on five of his six attempts. On one attempt he used his wrong hand. 6. Clinical tests: On some clinical tests, the officer observed that the accused’s pulse was declining and blood pressure was elevated above the normal range on all three checks. 7. Darkroom Examination of Pupil Sizes, Nasal and Oral Cavities: On a dark room examination his pupil sizes were within normal range, there was no rebound dilation and his reaction to light was slow to very slow.

His nasal cavity was clear and oral cavity found to be very dry, pasty-white in colour. 8. Check of muscle Tone: The accused’s muscle tone was near normal. 9. Examination of Typical Injection Sites: An examination of typical drug injection sites disclosed none on the accused’s body. 10.Interview With Subject: The officer then interviewed the accused as to what if any, drug or medicine he had used and the time and location at which he used. The accused advised that he had used a 40 mg of oxycondone and 1 hash joint around 5 p.m. when at home and at a friends.

It is curious that the officer elicited this information before he formed his opinion as a D.R.E. 11. Opinion of D.R.E.: The officer formed the opinion that the accused’s ability to operate the vehicle was impaired by two classes of drugs namely :Narcotic Analgesic and Cannabis. He testified that he used a totality of clues from his observations and testing to opine the class of drugs. He was aided by what he described as a matrix card which was not introduced into evidence.

On cross examination he testified that the testing did not result in a pass or failure but was aimed at allowing the officer to determine if certain clues were present. These clues appeared to focus on the ‘abnormal’ and discounted the ‘normal’. 12. Bodily Fluid Sample: The last step was to make a demand for a bodily fluid sample pursuant to s. 254(3.4), namely a urine sample. This demand was also complied with by the accused. Toxicologist Lori Campbell

[ 42 ] The third Crown witness was Lori Campbell, a toxicologist employed with the National Forensic Services in Halifax . She was offered as an expert in forensic toxicology particularly in the absorption, distribution and elimination of drugs, alcohol and similar volatiles in the human body and in the impairing effects of drugs, alcohol and similar volatiles on the body and on the ability to operate a motor vehicle.

The Accused accepted her qualifications as sufficient to admit her expertise and opinions thereon. [ 43 ] Ms Campbell holds a Bachelor of Science degree in Biochemistry from Dalhousie University obtained in 1989 and has worked as a research laboratory technician in the field of molecular biology for two years. She has held positions as a member of the R.C.M.P. Forensic laboratory in Winnipeg , and undertaken comprehensive understudy training periods in Alcohol and toxicology disciplines.

She has also completed courses in S.F.S.T. (2008) and Effects of Drugs on Human Performances and Behaviour ( Indiana University 2003) . She has undertaken extensive reading in her field and is a designated analyst under s 254(1) of the Code in many provinces including New Brunswick and qualified as a expert in toxicology over 230 times in many courts in Canada .

While most of these qualifications were related to alcohol on ten occasions they were related to drugs. [ 44 ] With respect to the drug evaluation program she has the D.E.C.P training in 2008 comprising the D.R.E. course referred to above. [ 45 ] Ms Campbell received and had analyzed the urine sample provided by the accused. She prepared a report which was marked as Exhibit C-8. The report, confirmed by her testimony, indicated the results of the analysis and the conclusions she formed therefrom.

Detected in the sample were not two but three classifications: Oxycodone and codeine ( category: Narcotic Analgesics); carboxy- tetrahydrocannabinol ( category: Cannabis) and ACP, oxazepam, venlafaxine, trazodone and butalbital ( category: Central Nervous System (CNS) Depressants) [ 46 ] The analysis was not a quantitative one so that Ms. Campbell could not say how much of any drug was present or when ingested. She did testify that the drugs Oxycodone and Oxazepam were both detected in high concentrations and the Cannabis in a low concentration relative to the other drugs detected.

However relativity in this context is of little assistance in quantifying the subject drugs. [ 47 ] This witness provided a

summary of the effects of each drug on the human body as well as any intended use of the drug. In particular she opined that the two Narcotic Analgesics detected ( Oxycodone and Codeine) individually as well as the Cannabis are capable of impairing an individual’s ability to operate a motor vehicle safely. The impairing effects are dependent on the quantity ingested.

In fact she opined that all of the drugs detected, alone or in combination, are capable of impairing an individual’s ability to operate a motor vehicle safely [ 48 ] In her remarks, she indicated that the confirmation of the detected Narcotic Analgesics and Cannabis is consistent with the call or opinion of the D.R.E.

Cnst Travis, while the confirmation of the other drugs was inconsistent with his call [ 49 ] In response to a self posed question as to whether the signs of impairment noted by Cnst Travis were consistent with what she detected in the urine sample, she noted that his observations of heart rate, blood pressure, pupil diameter reaction to light, body temperature, muscle tone were used to determine drug category.

She testified that the fact that nystagmus was not detected yet a drug was found in the urine which could have shown up in the gaze tests, namely Cannabis, indicates a low dosage residual of that drug such that that drug no longer was affecting the driving ability. [ 50 ] She observed that indicators such as droopy eyelids and sleepy eyes were consistent with CNS Depressant or Narcotic Analgesic category drugs.

She also testified that in her opinion the observations by the D.R.E.officer of the accused’s droopy eyes notwithstanding that he was able to take instruction and do certain tests, like the walk and turn, would place such within the effects for a Narcotic Analgesic. [ 51 ] In essence she agreed with the opinion offered by Cnst. Travis that when applying the D.R.E. procedures the conclusion that the accused’s ability to operate a motor vehicle was impaired by a drug consumed was confirmed. [ 52 ] However there are questions as to this opinion.

It is noted that while confirming the D.R.E. opinion as to driving-ability impairment due to one class of drugs identified by the D.R.E., she negated the D.R.E.’s opinion of another class of drugs. She also identified other classes of drugs which could have been at play. Consideration of Criteria [ 53 ] Returning now to the criteria to be used to decide whether this evidence is admissible as novel science. Relevance [ 54 ] The opinion of the D.R.E. appears logically relevant to the issue at trial.

It has some tendancy to make the proposition for which it is advanced more likely than that proposition would be in its absence ( see Paciocco & Struessor Law of Evidence 4 th ed. P. 29.)

Novel Science [ 55 ] This brings us straight to the issue raised before examination of the evidence: Is the expert opinion based upon novel science.? [ 56 ] The answer as to whether this is novel science depends on the definition of novel science. Again I am going to refer to the decision in Wood.

A fter considering the scientific technique of the D.R.E. standardized procedure, Topolniski J stated at para 55-56: 55 The DRE protocol is designed to provide a scientific foundation on which the evaluator can base his or her opinion that the individual's ability to drive is impaired by a drug and to enable the evaluator to detect the drug acting as the agent of impairment.

Its validity is entirely dependant on its ability to detect the condition it is designed to detect, and the accuracy of the evaluator conducting the tests. 56 While there is no clear definition of what constitutes novel science, there are some indicators. For example, in R. v. Dimitrov (2003), 2003 CanLII 50104 (ON CA) , 68 O.R. (3d) 641 ( C.A. ) , the proposed expert evidence was directed at identification by barefoot impressions.

In ruling that this was a novel science, the Ontario Court of Appeal observed (at para. 40) that unlike footprint impression evidence, which is routinely accepted in courts, barefoot impression evidence had only be scrutinized in one reported decision. [ 57 ] Prior to following along with this latter noted approach, namely examining reported decisions, it might be beneficial to clarify what scientific technique or techniques are present in the D.R.E.P. and what constitutes the novelty thereof. [ 58 ] First, as to the evidence-gathering side, it can be noted that police officers are permitted to testify as to observations and opinions therefrom of an accused regarding signs consistent with impairment.

This is particularly so in the process of formulating grounds for certain processes under the Criminal Code . This is not new science. [ 59 ] Accordingly some of the D.R.E.

Procedure steps would not be considered novel: the steps involving the interviews with the accused (steps 2, and 10) are neither scientific nor novel; the preliminary examination of the accused for vital signs, muscle tone and injection sites ( steps 3,6,8 and 9) are possibly scientific but not novel; the breath test and toxicology tests ( steps 1 and 12) are scientific but not novel in nature [ 60 ] This then brings us to other aspects of the technique in question.

The eye examinations, divided attention tests, dark room examination ( steps 4,5 and 7), while they in themselves may not be new techniques, clearly it is the opinion of the D.R.E. involving these examinations which forms part of the isssue. [ 61 ] Second, on the opinion side it would be as to the reliability of the tests and the reliability of the D.R.E. evaluation to accurately form an opinion based upon scientific techniques and other evidence gathering that is in question. [ 62 ] We turn now to how D.R.E. opinion evidence has been handled in other courts. [ 63 ] The Crown submitted some decisions which will be reviewed.

Note has already been made of the thorough analysis set out in Wood . (supra) [ 64 ] In R. v. Primerano (2006), 2006 ONCJ 443 (CanLII) , 72 W.C.B. (2d) 42 , the court did not address the issue of the validity of the D.R.E. Program. The court viewed the relevance and necessity requirements and while referring to it as’ a novel area of the law” and noting that it was a specialized course that was two weeks in duration, no other scrutiny was undertaken by the court con cerning the D.R.E.P. [ 65 ] The same observation applies to other decisions tendered by the Crown. In R. v.

Labelle 2007 O.J.5616 the court did not address the underpinning of the D.R.E.P. The court did reference the four tests set out in Mohan , and did discuss at length the issue of probative versus prejudicial value, eventually relying upon the evidence of the D.R.E. officer as to her training as a D.R.E. to accept her evidence as opinion evidence. The court made no differentiation as envisioned in Mohan between expert opinion which advances novel scientific theory or technique and that pertaining to generally accepted fields of knowledge.

Considering that the opinion evidence in that case closely approached the ultimate issue to be decided by the court, the absence of special scrutiny seems at odds with Mohan . (see para 28 )

[ 66 ] As to the novelty of the technique, in R. v. J. B. [2009] O.J. No 5728 ( Ont Ct.Jus.) the court entered into a discussion with counsel about the issue of admissibility, concluding at para 123 that it was ‘really on the edge of new science”.

The court went on to note the legislative framework for D.R.E. s and concluded that once the Crown established the qualification of a D.R.E. it can offer the D.R.E. evidence “ as admissible as to that officer’s opinion both with respects to an evaluation of the presence of narcotics in the suspect as well as form the basis of the grounds to make a fluid demand.” The court then noted that the accused could challenge the “quality, the reliability and other aspects, even credibility of such evidence”. This appears to be use of the ‘weight to be attached “ approach to D.R.E. evidence.

No special scrutiny was undertaken. [ 67 ] In R. v. Jansen 2010 O.J. 959 the court acquitted the accused based upon the Crown’s inability to relate back the presence of a drug found in the accused’s system to the time of the driving and that the expert evidence only referred to impairment and not to the ability to drive a vehicle. While accepting the legislative scheme now in place with respect to drug evaluation, and conscious of the onus on the Crown to prove all the elements beyond a reasonable doubt, the court raised some concerns.

The court noted the absence of statutory presumptions as in the case of breath analysis , referring to the latter as “based upon careful consideration of the science of breath alcohol testing and of absorption and elimination as it relates to alcohol.” The court also noted the absence of evidence as to the quantity of the drug in the accused’s system and relative rates of absorption and elimination of the drug [ 68 ] At para 60 the court in Jansen observed: Certainly, the certificate of analysis was unhelpful.

It did confirm the presence of a drug that in Constable Baillargeon's opinion was the cause of the impairment that he found assessed. The urinalysis left many important questions unanswered. How much of the drug was found? What was the absorption rate of the drug, and what might influence the rate of absorption? What was the elimination rate of the drug from the bodies system? Was the state of the science of drug testing such that the results could be reliably related back to the time of the alleged offence?

Was the state of the scientific investigation such that the presence of the drug in any quantity, or an ascertainable quantity, would lead one to the inescapable conclusion that the defendant's ability to drive at the time he was found in the car to have been impaired by the drug (Underlining added) [ 69 ] Some of those questions are alive in this case. [ 70 ] The Crown also submitted the case State of Washington v.

Baity 2000 Supreme Court of Washington No 66876-1 The issue in that case was set out as: “Is a drug recognition program novel scientific evidence generally accepted in the scientific community thus satisfying the Frye test for admissibility? “ It is interesting to note that the court did find that some of the evidence had a scientific nature and should be analyzed under the Frye test which reportedly states that “evidence deriving from a scientific theory or principle is admissible only if that theory or principle has achieved general acceptance in the relevant scientific community”.: [ 71 ] In R. v.

LaForest 2008 N.S.P.C. No 1982588-89 the court considered the evidence of the D.R.E.P., and on raising a number of concerns with respect to “the science surrounding it”, noted at page 9: “But leaving all of that aside and taking the whole process at its highest as offered by the various persons who testified, in the end what Ms. Robson said is that person was probably impaired. That is the only conclusion that you can draw from it, not that a poerson was, at least not even that exactly, but what was ultimately said, 19 chances out of 20 that the person is impaired.

Well that does not tell us really anything very much about the person in the particluar case.” [ 72 ] It is interesting to note that the accused in Laforest testified as to other explanations for the observations of impairment made by the police officers, and the court rejected those explanations . The court then relied upon the observations of impairment, the proof of marijuana in the accused’s system and the absence of other explanation to convict the accused. [ 73 ] This latter approach is similar to the approach taken in two other decisions referred to by the Crown namely R. v. Cusson 2008 NBQB 243 and R. v.

Charest 2006 NBPC 10 . Both courts in those cases referred to the “constellation of evidence” approach including admission of ingestion of a drug, in concluding impaired driving-ability by drug consumption. In neither case was the evidence of a D.R.E.,opinion offered. These cases confirm that there are ways in which the Crown can establish driving-ability impairment by drug other than relying solely on the opinion of the D.R.E. on that issue.

It is noted as well that the court in Charest was sensitive to the issue of fatigue as a possible cause of impairment. . [ 74 ] The court has also considered the decision in R. v. Penney-Flynn (2006), 40 M.V.R. (5th) 117 (NfId. Prov. Ct. ) . In that case the DRE evidence was excluded on the basis that the accused's Charter rights had been infringed. The court did not comment on the reliability of the D.R.E.P.

[ 75 ] It would appear then that R. v. Wood is the only case which has undertaken an analysis of D.R.E.P. from the point of view of whether it is novel science prior to determining admissibility. That court found that it was not sufficiently reliable to meet the standard of relevance .

Considering the nature of the techniques used, the outcome in Wood , other decisions acknowledging the novelty of the science and the absence of other judicial consideration and analysis concerning the D.R.E.P., in my opinion the appropriate approach is to consider it in the category of novel science and subject to special scrutiny. Reliability: [ 76 ] Having found that the Crown is seeking the admission of expert opinion evidence based upon novel science, it bears the onus of establishing the reliability of that science. The onus is on a balance of probabilities.

Further that reliability does not require absolute scientific precision or perfection. ( see Mohan and Wood supra) [ 77 ] The Crown did introduce some evidence of reliability by the DRE officer’s personal involvement. First he passed the 12 practical tests during training, however the foundation for the training is in issue. Second he has completed a few evaluations as an D.R.E officer where fluid samples submitted for analysis, disclosed a category of drug indicated by his opinion.

However these are very few in number and not sufficient to qualify as a test of the D.R.E.P. reliability. [ 78 ] The Crown introduced some testimony to the effect that the D.R.E.P. has been tested by other authorities. This was in the form of oral testimony in which the Crown witnesses referred generally to testing having been conducted and reports written. However only publications noted above, concerning the S.T.F.S. were introduced through one witness. As noted above, those publications dealt with the substance alcohol, not drugs.

In essence, none of the witnesses referred to, nor relied upon, any specific peer reviewed study or publication. [ 79 ] The court is aware that the tests in steps 4,5 and 7 are now recognized and legislated by SOR 2008-196 , indicating a degree of reliability must have convinced the legislators to include them. However, it is also noted that such would be necessary for s 254 to be functional for the gathering of evidence, namely so that police officers could form the grounds of suspicion and reasonable belief leading to valid demands for further testing and to obtaining a bodily fluid sample.

That is different from the expert opinion function advanced by the Crown. [ 80 ] In its book of authorities submitted after trial, the Crown did submit copies of three publications, two regarding evaluations of the D.R.E.P. and one entitled “Identifying Types of Drug Intoxication: A Laboratory Evaluation of Subject-Examination Procedures” authored by George Bigelow et al dated (May 1985). [ 81 ] The first comment to be made is that these were not tendered as evidence, nor specifically relied on by the Crown witnesses, and despite the absence of any objection from the accused as to this manner of submitting the publications to the court, the court should not consider them as evidence.

The court should not be left to consider publications for which it has no basis for assessing authorship, reliability or acceptance in the scientific community. ( see R. v. Desaulniers (1994) 1994 CanLII 5909 (QC CA) , 93 C.C.C.(3d) 371 (Que C.A.) [ 82 ] While the Toxicologist was qualified as an expert in forensic toxicology and on the effects of alcohol and drugs on the human body, and presumably could speak to the science of D.R.E.P., no publications were offered through this witness such that she could have been examined in relation thereto.

For example, in Wood the expert toxicologist referred to a publication of the same name as the one noted above referred to as the ‘Bigelow study’, upon which the expert was examined and questioned by the court. As will be noted in Wood, this formed a part of the careful analysis carried out by the court. [ 83 ] The expert in Wood also referred to other studies which the court called the 1996 study and the 1998 study and the court made some observations of same in considering the issue of reliability. The fact that these are referenced in his decision does not in my opinion allow me to take notice of the studies.

In my opinion it would be dangerous to do so in a situation where these studies are not before the court as evidence and with no context as to admissibility and weight. It is interesting to note that the appellate court in Wood had serious questions as to the reliability of the D.R.E.P. based upon his observations about the shortfalls in the studies placed before the court in evidence as well as the expert testimony. In this case the court is even farther removed from any evidence as to reliability

testing of the D.R.E.P. [ 84 ] There may well exist evaluations regarding reliability which could have been introduced in evidence but were not. Peer-reviewed publications regarding testing are not in evidence. [ 85 ] In the final analysis, this court is not in a position to determine what reliability to place on the D.R.E.P. The known or potential rate of error or the existence of measuring standards are unknown. There is no evidence as to whether the techniques have been generally accepted in the scientific community.

The one decision referred to , in which a thorough analysis was undertaken, found the evidence lacking in regards to reliability. [ 86 ] In my opinion the Crown has failed to establish the threshold of reliability on the issue of relevance. In such a case no further examination of the tests set out in Mohan will be undertaken. [ 87 ] Accordingly, the court will not consider as admitted evidence the opinion of the D.R.E. officer regarding driving-ability impairment by a drug or drugs.

The officer meets the qualification of an evaluating officer and a D.R.E. and as such was entitled to advance grounds related to those subsections of 254 of the Criminal Code which contemplate same. In this case those grounds ultimately led to a bodily fluid analysis.

Proof of Driving Ability Impairment by Drug. [ 88 ] The question now turns to whether the Crown in this case can successfully rely upon the “constellation of factors” approach to establish the essential element of driving ability impairment by a drug. [ 89 ] Having accepted that driving ability impairment has been conceded and established, what is the evidence that it was by a drug?. [ 90 ] First it is noted that this is not a case where the accused is actually observed ingesting or inhaling a drug at the time by the police officer as was the case in Labelle where the police officer observed the accused while in the driver’s seat inhaling a solvent. [ 91 ] Second this is not a case where a drug was present at the time of arrest as in LaForesst , Whelan and Cusson where the police noted the presence and odor of marijuana in the accused’s vehicle. [ 92 ] Also in Charest , the officer found a bag containing bottles of prescription medication in the accused’s car followed by an admission of the accused that he had consumed same.

No evidence as to the chemical composition or effects of the medications was offered. However the court noted that the impairment observed by the police was ‘obvious’ and it had to have been caused by ‘something’. He then discounted fatigue as a possible cause based upon the results of the physical tests at the police station noting : “While under arrest at a police station and questioned about his consumption of medication, he was unable to pass these tests.

He must have been quite awake at that time Fatigue does not explain his inability to pass these simple physical tests.” [ 93 ] The court in Charest relied upon the statements given to the police by the accused. The accused told the police what medication and when he had consumed same; the reason he took the drug, namely to induce sleep and the presence of a warning label on the pill bottle to take care while operating a motor vehicle.

In finding that the medication could impair the ability to operate a vehicle the court concluded: “ .. it is my opinion that the evidence tendered at trial enables me to find that the impairment of Mr. Charest’s ability to operate a motor vehicle was caused by his consumption of the drug Vilafaxine. After all, his ability was impaired. The signs of intoxication were obvious.

This inability was caused by something.” [ 94 ] In another case in which no scientific evidence or testimony of the accused as to the physiological effects of medication taken by an accused was before the court , a judge examined all the relevant and admissible evidence regarding consumption and effects of that consumption in registering a conviction of driving ability impairment by drug.

[ 95 ] R. v. Rosskoph [1995] M.J. No 90 involved an accused who told the officer who stopped him because of his erratic driving that he had not consumed alcohol, but rather codeine. Specifically, he stated that he had been chewing Tylenol with codeine all day because of a toothache, and that he knew he shouldn't be driving. There, even in the absence of scientific evidence or testimony by the accused, the judge was able to conclude that the accused was guilty by means of his admissions to the police officer.

Specifically, these admissions were to the effect that he had consumed codeine, that the codeine was responsible for his erratic driving, and that he knew that the codeine had resulted in this erratic driving. [ 96 ] With this in mind, what is the relevant and admissible evidence in this case regarding driving ability impairment by drug?. [ 97 ] As in Charest and Rosskoph , the accused did not testify but made statements to the police about his consumption of drugs.

However, unlike those two cases, the accused in this case did not indicate the reason for such use, nor as to any knowledge about the effects thereof. [ 98 ] Regarding the effects of such consumption, unlike Charest and Rosskoph, there is no admissible evidence of erratic driving by the accused. The arresting officer observed slow and deliberate movements, frothing of saliva of the corners of the mouth thick, slurred speech and swaying on his feet.

Some of these observations continued during the secondary examinations with the details noted as to his results on the divided attention tests. [ 99 ] The toxicologist did not perform quantitative tests. She relied upon the observations of the D.R.E. officer in opining that some of those signs were consistent with the potential effects of the several drugs found in the fluid sample. She attempted to explain the possible effects, interactions and counter effects of the various drugs on the body.

With no further verification as to the accuracy of the information provided by the accused to the police re his consumption, the absence of quantification of the drugs in the fluid sample left to conjecture on her part as to absorption, elimination of the drugs on the accused and hence the effects on his driving ability. There is no question but that several of the drugs on their own could cause driving ability impairment, and in certain circumstances as to quantity and time, would cause that impairment.

In my opinion, the questions raised in Jansen are valid and remain unanswered in this case. [ 100 ] Impaired driving is not a criminal offence. The Crown must prove that the ability to drive was impaired by alcohol or a drug. With alcohol being ruled out the mere presence in the accused’s body of drugs whose potential is to cause driving ability impairment is not sufficient to found a conviction. Signs of impairment consistent with, but not exclusive to, a specific drug are not sufficient to found a conviction.

While in some criminal cases, the failure of an accused to offer an explanation for his behaviour could place the accused in jeopardy of conviction, in these circumstances I am not convinced that such an approach is appropriate.

To base a conviction on the basis that in the absence of any other explanation it had to be the drugs which caused the driving ability impairment, the court must be satisfied that no other conclusion is reasonable or warranted. [ 101 ] In this case I am not satisfied that fatigue was adequately addressed and that is a potential for impairment . [ 102 ] In conclusion while it appears highly probable that the accused’s driving ability was impaired by one or more of the drugs found in his body, that does not meet the test of proof beyond a reasonable doubt.

This is not a case where the court is prepared to say that the impairment must have been from the drugs Attachment 1. Acronyms and description:

“D.E.C. P.” Drug Evaluation and Classification Program: A program founded in California in the 1970’s to develop a systematic and standardized procedure to evaluate drivers suspected of being under the influence of drugs.. Supported by the I.A.C.P. and in Canada by the C.A.C.P,. it has adopted standards specifying the requirement for certicication and re-certification of D.R.E. officers and instructors “D.R.E.” Drug Recognition Expert “D.R.E.

Officer” A police officer who has been accredited and certified by I.A.C.P. as a D.R.E. “D.R.E.P.” Drug Recognition Expert Program: a program to develop the necessary evidence to support a charge of drug-impaired driving utilizing procedures for physical and psychometer tests and toxicological examination of bodiuly fluid samples. “D.R.E. Procedures” Drug Recognition Expert Procedures: The standardized 12 steps (including the seven evaluation tests and procedures set out in Regualtion SOR/2008 – 196 s. 3 ) to evaluate a subject regarding impairment by drugs or a drug and alcohol combination.

Sometimes referred to as D.R.E. protocol “D.R.E. Evaluation” Drug Recognition Expert Evaluation: the process of following standardized D.R.E. Procedures and recording and evaluating the results for determining driving ability impairment by drugs or a drug and alcohol combination. The results are recorded by a D.R.E. officer on a form entitled “Drug Influence Evaluation”. “Evaluating Officer” : A peace officer who is qualified under the Regulations to conduct evaluations under 254(3.1) of the Criminal code .( Definition under ss 254(1) C.C.).

An evaluating officer must be a certified D.R.E. accredited by the I.A.C.P. (Regulations SOR 2008-196 s. 1 ) I.A.C.P. International Association of Chiefs of Police S.F.S.T. Standard Field Sobriety Tests: A battery of three tests originally designed to help law enforcement officers to determine whether motorists who are suspected of impaired driving have blood alcohol concentrations greater than 0.10 percent.. These tests are referred to as Physical Coordination Tests in para 254(2)(

a) of the Criminal Code and prescribed in the Regulation SOR 2008-196 s.2 .. The results of this testing are recorded on a form titled: DRE Worksheet form C.A.C.P. Canadian Association of Chiefs of Police. Attachment 2 Excerpts of Applicable Legislation: Criminal Code

Definitions 254.

(1) In this

section and sections 254.1 to 258.1,

“evaluating officer” “evaluating officer” means a peace officer who is qualified under the regulations to conduct evaluations under subsection (3.1); Testing for presence of alcohol or a drug

(2) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment or had the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officer may, by demand, require the person to comply with paragraph ( a ), in the case of a drug, or with either or both of paragraphs (

a) and ( b ), in the case of alcohol: (

a) to perform forthwith physical coordination tests prescribed by regulation to enable the peace officer to determine whether a demand may be made under subsection (3) or (3.1) and, if necessary, to accompany the peace officer for that purpose; and Evaluation

(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 has committed, 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, the peace officer may, by demand made as soon as practicable, require the person to submit, as soon as practicable, to an evaluation conducted by an evaluating officer to determine whether the person’s ability to operate a motor vehicle, a vessel, an aircraft or railway equipment is impaired by a drug or by a combination of alcohol and a drug, and to accompany the peace officer for that purpose. Video recording

(3.2) For greater certainty, a peace officer may make a video recording of an evaluation referred to in subsection (3.1). Testing for presence of alcohol

(3.3) If the evaluating officer has reasonable grounds to suspect that the person has alcohol in their body and if a demand was not made under paragraph (2)(

b) or subsection (3), the evaluating officer may, by demand made as soon as practicable, require the person to provide, as soon as practicable, a sample of breath that, in the evaluating officer’s opinion, will enable a proper analysis to be made by means of an approved instrument. Samples of bodily substances

(3.4) If, on completion of the evaluation, the evaluating officer has reasonable grounds to believe, based on the evaluation, that the person’s ability to operate a motor vehicle, a vessel, an aircraft or railway equipment 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 determine whether 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 a proper analysis to be made to determine whether the person has a drug in their body. Regulations under Criminal Code Evaluation of Impaired Operation (Drugs and Alcohol) Regulations SOR/2008-196 CRIMINAL CODE Evaluation of Impaired Operation (Drugs and Alcohol) Regulations

QUALIFICATION REQUIRED OF EVALUATING OFFICER 1. An evaluating officer must be a certified drug recognition expert accredited by the International Association of Chiefs of Police. PHYSICAL COORDINATION TESTS 2. The physical coordination tests to be conducted under paragraph 254(2) (

a) of the Criminal Code are the following standard field sobriety tests: (

a) the horizontal gaze nystagmus test; (

b) the walk-and-turn test; and (

c) the one-leg stand test. EVALUATION TESTS AND PROCEDURES 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 eyes track 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 their nose 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 nasal and 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. COMING INTO FORCE 4. These Regulations come into force on July 2, 2008.