R. v. Gardashnik, 2011 ONCJ 256

;COURT FILE No.: Toronto 12002657 DATE: 2011·04·07 Citation: R. v. Gardashnik, 2011 ONCJ 256 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — MARK GARDASHNIK Before Justice J. W. Bovard Heard on March 11, 2011 Reasons for Judgment released on April 7, 2011 Ms. Mary-Anne Mackett ................................................................................ for the Crown Mr.

Paul Burstein…………………………………..…for the accused Mark Gardashnik Bovard J.: [1] These are reasons for a ruling on an application for disclosure in a case in which the accused, Mark Gardashnik, ischarged on May 7, 2010 in Toronto with operating a motor vehicle while his ability to operate it was impaired by “alcohol or a drug”(marijuana). [2] The defence requests an order that the Crown disclose the following items: 1.

The DRE[1] officer’s training records, including the identity of the training manual and the results of the DRE officer’s trainingexaminations (i.e., the results of the evaluations conducted by the DRE officer on the test subjects as part of the DRE officer’s trainingand certification process). 2. The toxicological corroboration of the DRE officer’s training examinations. 3. The DRE officer’s log of all in-field evaluations conducted since being certified as a DRE through to the present date (together withthe corresponding toxicological corroboration). Facts of the Case [3] The facts are not in dispute.

The applicant’s Notice of Application states them as follows. Mr. Gardashnik was stoppedat a R.I.D.E. spot check on May 7, 2010 and detained for investigation after he admitted to having consumed marijuana. Pursuant tos.254 (3.1) of the Criminal Code, he was ordered to participate in an evaluation by a DRE to determine whether his ability to operate amotor vehicle was impaired by marijuana. [4] The DRE, Sergeant McCormack, administered evaluation tests pursuant to s. 3 of Regulation 2008-196. The officer’sfinding was that the Applicant’s ability to operate a motor vehicle was impaired by a drug.

At trial, the Applicant will dispute thisfinding. The Position of the Defence [5] The defence submits that the Crown intends to call Sergeant McCormack to testify regarding her examination of Mr.Gardashnik and to give her opinion that based on her evaluation of him pursuant to s. 254 (3.1) of the Criminal Code, she determinedthat his ability to operate a motor vehicle was impaired by marijuana. [6] In addition, at trial the Crown is going to ask the court to accept Sergeant McCormack as an expert on the issue ofimpairment by a drug and to allow her to give her opinion as to whether or not Mr.

Gardashnik’s ability to operate a motor vehicle wasimpaired by marijuana without having her qualified as an expert under the criteria set out in R. v. Mohan (SCC), [1994]2 S.C.R. 9.[2] [7] The drug evaluation tests and the drug evaluations are novel science. The defence argues that it needs disclosure of theabove mentioned items in order to challenge Sergeant McCormack’s competence to give expert testimony and in order to challenge this

novel science.

The Position of the Crown [ 8 ] The Crown resists the defence’s application on the grounds of relevance and because the defence is trying to go behind the evaluation regime instituted by Parliament in s.254 of the Criminal Code regarding persons suspected of driving while impaired by a drug. [ 9 ] The Crown submits that s. 254 (3.1) Criminal Code , is part of a legislative scheme by which Parliament has determined that DREs are allowed to give testimony regarding the issue of whether a person’s ability to operate a motor vehicle is impaired by a drug without the DRE having to be qualified as an expert under the criteria set out in Mohan .

The Crown likens the DRE to a qualified breath technician and argues that just as the breath technician does not have to be qualified as an expert to give evidence regarding an accused’s blood-alcohol ratio, or the proper operation of the breath machine, neither should a DRE. [ 10 ] Furthermore, the evaluation authorized by s. 254 (3.1) is not novel science; it has been recognized by Parliament as valid and reliable. The Evidence [ 11 ] The defence called Sergeant McCormack as a witness.

She has been a police officer for 28 years and as a result of recent training she was certified as a Drug Recognition Expert (DRE) in April 2010. Her certificate is exhibit 6. She is also certified to do Standardized Field Sobriety Tests. Her certificate in this regard is exhibit 3. [ 12 ] Her training includes successfully completing the Standardized Field Sobriety Testing Course, the Preliminary Drug Evaluation and Classification Training, and the Drug Evaluation and Classification Training. All of these courses were held in Markham, Ontario in February 2010.

Her certificates of training are exhibits 3, 4 and 5 respectively. These courses were given under the auspices of the Canadian Association of Chiefs of Police. The last stage of her training was conducted in Arizona under the auspices of The International Association of Chiefs of Police. After the successful completion of this course she was awarded a certificate as a Drug Recognition Expert. This certificate is exhibit 6. [ 13 ] As part of the Drug Recognition Expert training she tested 12 persons and kept a log of the details of each person, the tests, and of the results of the tests.

Part of the log lists the drugs for which she tested and whether she was correct in her analysis. [ 14 ] She described the details of her training, but I do not think that her qualifications are directly in issue in this disclosure application because she is not being proffered as an expert on the application.

That issue will undoubtedly arise at trial. [ 15 ] I grant that her qualifications are indirectly in issue in this application in the sense that the defence argues that it needs the requested disclosure because the Crown wants to ask the court to allow Sergeant McCormack to testify at trial as a DRE without first having been qualified according to the criteria in Mohan ( supra).

And the Crown opposes the defence application on the ground that when Parliament amended the C riminal Code with regard to DREs, it determined that DREs are experts and, therefore, no such qualification is required, which makes her qualifications irrelevant and do not need to be disclosed. [ 16 ] In either case, I find that there is no need to investigate her qualifications in order to decide whether or not they should be disclosed to the defence. [ 17 ] Sergeant McCormack testified that she performed a drug recognition examination on Mr.

Gardashnik on May 7, 2010, the results of which gave her reasonable grounds to believe that his ability to operate a motor vehicle was impaired by a drug (marijuana). [ 18 ] She said she not only had reasonable grounds to believe that his ability to operate a motor vehicle was impaired by marijuana, but that she formed the opinion that he was so impaired. Consequently, she made a demand on Mr. Gardashnik that he provide a urine sample pursuant to s. 254 (3.4) (

a) of the Criminal Code . [ 19 ] Mr. Gardashnik was the second person that Sergeant McCormack tested after receiving her Drug Recognition Expert’s certificate. She had been certified for five to six weeks. [ 20 ] As of the date that she testified, she had tested four persons. She has received toxicological confirmation of all the tests, but had not noted the results in her log. However, the toxicological confirmation is supposed to be part of her log.

I presume that she had just not had sufficient time to record it yet. [ 21 ] She testified that some of the things that the defence seeks in its application are not accessible. They are: the toxicological corroboration of her training evaluations, her test scores, and her training records. Analysis [ 22 ] No evidence was called regarding whether the techniques which are used by DREs under s. 254 (3.1) Criminal Code to determine if a person’s ability to operate a motor vehicle is impaired by a drug, constitute “novel science”.

I grant that this issue is somewhat relevant to the disclosure application, but it is not yet squarely before the court in this case. However, the defence has made it clear that it will be at trial. [3]

[ 23 ] The defence provided the court with two scientific articles from the United States that heavily criticize the validity of the tests used by DREs pursuant to Regulation 2008-196. [4] One article, The Standard Field Sobriety Tests: A Review of Scientific and Legal Issues states that these tests have been in use in the United States since the 1980s. [ 24 ] Without deciding the issue, but based on these two articles, I think that it is reasonable to say that these techniques, which were brought into the Canadian drinking and driving legal landscape by s. 254 (3.1) of the Criminal Code and Regulation 2008-196, and the conclusions that the legislation allows the DRE to draw based on these techniques, are sufficiently new and debateable to make them appropriate subjects of scrutiny as to their efficacy and validity in the scientific community. [ 25 ] The Supreme Court of Canada’s holding in Mohan regarding the criterion of a properly qualified expert is particularly instructive on point: (

a) A Properly Qualified Expert 27 Finally the evidence must be given by a witness who is shown to have acquired special or peculiar knowledge through study or experience in respect of the matters on which he or she undertakes to testify. 28 In

summary, therefore, it appears from the foregoing that expert evidence which advances a novel scientific theory or technique is subjected to special scrutiny to determine whether it meets a basic threshold of reliability and whether it is essential in the sense that the trier of fact will be unable to come to a satisfactory conclusion without the assistance of the expert.

The closer the evidence approaches an opinion on an ultimate issue, the stricter the application of this principle. [ 26 ] The Crown argues that Parliament’s legislative scheme as set out in s. 254 (3.1) and Regulation 2008-196 determines that a DRE should be accepted as an expert witness without the necessity of qualification as such by the court under the criteria in Mohan (supra).

As part of her argument the Crown relies on the definition of an “evaluating officer” in s. 254(1) of the Criminal Code : “ ‘evaluating officer’ means a peace officer who is qualified under the regulations to conduct evaluations under subsection (3.1).” Furthermore, the Crown argues that Regulation 2008-196 states that: “An evaluating officer must be a certified drug recognition expert accredited by the International Association of Chiefs of Police.” The Crown contends that this means that once accredited, an evaluating officer is an expert and can testify as such without first being qualified under the Mohan principles. [ 27 ] Further in support of her argument, the Crown referred to R. v.

Bois [2010] O. J. No. 3945 in which an officer was allowed to testify as a DRE without being qualified as an expert. However, the issue was not before the court so the court was not asked to rule on it specifically. To the extent that the court accepted the DREs testimony without first qualifying him as an expert under the Mohan criteria, with the greatest of respect to that court I do not agree with that result. [ 28 ] I do not find that Bois supports the proposition that DREs should be allowed to testify without first being qualified as an expert under the Mohan criteria.

First of all, s. 1 of Regulation 2008-196 prescribes that DREs must be accredited by the International Association of Chiefs of Police. The officer in Bois only “attended a course for drug recognition expert training…offered by the National Drug Evaluation Classification Program” (Para. 4). In addition, the court stated at paragraph 40 that the officer’s “…evaluation of Daniel Bois was approved by a qualified instructor and his conclusion was consistent with poly drug use.” Had the officer truly been an expert, he would not have had to have his findings approved by a qualified instructor.

It sounds as if the officer was still in training. Finally, the court’s characterization of the officer as a Drug Recognition Expert (paragraph 60) does not appear to conform to the requirements of the Regulation. [ 29 ] The Crown tried to draw an analogy between the DRE and a qualified breath technician and submitted that just as a qualified breath technician can testify without being qualified as an expert, so should a DRE be allowed to. D. Di Giuseppe J. dealt with this argument in R. v. Wakewich [2010] O.J. No. 1128 and dismissed it as flawed. I agree with his finding.

The court held as follows: 9 The Crown seeks to tender the DRE as an expert witness, but submits that the legislative scheme in place eliminates the need to qualify the DRE as an expert. While Parliament has determined that opinion evidence of an evaluating officer is relevant and necessary to establish the grounds for a demand under s. 254(3.4) of the Criminal Code and the laying of a charge under s. 253(1) (

a) of the Criminal Code , that officer must none the less be qualified as having acquired special or peculiar knowledge through training, study or experience. This is no different than qualifying a breath technician as to his ability to conduct breath tests, and to opine about the operation of an approved instrument. The fact that the defence routinely accepts the qualifications of a breath technician does not mean that such qualifications cannot be challenged.

The courts must still ensure that such person has been properly designated as a qualified technician. 10 Further, analogizing the status of a DRE to that of a qualified technician is flawed. There are significant differences between the two: 1. Use of an approved instrument is largely a mechanical or technical skill; little expert opinion is used by the breath technician (see R. v. Nethery (2004), 10 M.V.R. (5th) 266 ) The evidence of a DRE on the other hand, involves observations and a subjective determination based on these observations.

The observations themselves have a subjective element. (see Regulation 2008-196 under the Criminal Code , particularly

section 3). 2. The Crown enjoys certain presumptions under s. 258 of the Criminal Code with respect to samples of breath analyzed by an approved instrument; there are no such presumptions with respect to the evidence of a DRE;

3. While an evaluating officer is defined in the regulation as a certified drug recognition expert, the evidence of that officer, based on theevaluation performed, establishes only reasonable grounds to make a demand, and, unlike the readings from an approved instrument(provided certain statutory conditions have been met and there is no evidence to the contrary), is not dispositive of an issue before theCourt. 11 References in s. 254 of the Criminal Code to evaluating officers and evaluations permit the officers to conduct an evaluation andmake a demand upon a person to provide a sample of bodily substance.

There is nothing in the Criminal Code that elevates theirevidence to that of an expert. In fact, absent a finding by a Court, they cannot give expert evidence on the issue of impairment by drugs.The fact that these evaluating officers and the evaluation tests and procedure are designated by regulation, does not exempt them fromMohan scrutiny. [30] Further, I would point out that a qualified breath technician does not give Mohan “expert testimony” with regard towhether the accused’s ability to operate a motor vehicle is impaired by alcohol.

Sometimes the breath technician might testify that he orshe thinks that the accused’s ability to operate a motor vehicle was impaired by alcohol, but this testimony is not considered by the courtto be the opinion of an “expert in impairment of the ability to operate a motor vehicle by alcohol.” It is simply an observation that isworth neither more nor less than anyone else’s observation that the court considers along with all of the other circumstances. [31] A breath technician may give an opinion as to whether the breath machine was working properly, but this evidence isbased on what the machine told the technician.

And all of the technician’s evidence with regard to the preparation and operation of themachine, as well as, the results produced by the machine are nothing but repeating what the machine communicated to the technician asit was put through its various procedures. It is the machine that determines if the accused is over 80 or not. There is no subjective qualityto this testimony and no subjective assessment of the accused’s level of impairment.

It is a mechanical procedure devoid of subjectivitydesigned to determine if the accused’s blood alcohol concentration is over 80 milligrams of alcohol in 100 millilitres of blood. [32] In contrast, what the DRE does has a significant subjective component. When a DRE conducts the tests approved by theRegulation, it is the officer that gages and judges the accused’s performance, not a scientifically validated machine. Moreover, it is theofficer that gives the opinion that the accused’s ability to operate a motor vehicle was impaired by a drug.

This is a subjective opinionbased on the officer’s subjective evaluation of the accused’s performance on the tests prescribed by the Regulation. [33] I am not swayed by the Crown’s arguments that a DRE, duly accredited according to the Regulation, can testify as anexpert and give opinion evidence without first satisfying the Mohan criteria, thereby making the disclosure that the defence seeksirrelevant.

Even if one regards the DRE as an expert, I cannot see anything in the legislation that exempts the DRE from having to bequalified under the Mohan criteria like all other experts. [34] Therefore, I find that the defence has the right to the disclosure that it requests that is in the Crown’s possession withregard to Sergeant McCormack’s qualifications as a DRE in order to mount full answer and defence. In R. v.

Stone (SCC), [1999] 2 S.C.R. 290 at paragraph 99 in dissent on another issue, Binnie J. writing for Lamer C.J., Iacobucci and Major JJ. saidthat when a witness is called to give an opinion for the assistance of the court “the opposing party must be given access to the foundationof such opinions to test them adequately.” [35] Furthermore, as the defence pointed out, Sergeant McCormack is a new DRE who has not performed many tests. Herlogs will assist the defence in testing her ability to perform her duties as a DRE accurately, which relates to her ability to give opinionevidence regarding whether Mr.

Gardashnik’s ability to operate a motor vehicle was impaired by a drug, which is the reason for whichthe Crown intends to call Sergeant McCormack at trial. [36] In R. v. Egger (SCC), [1993] 2 S.C.R. 451, referring to R. v. Stinchcombe (SCC),[1991] 3 S.C.R 326, the court held that: 19 … the Crown has a duty to disclose to the accused all information reasonably capable of affecting the accused's ability to make fullanswer and defence, and to do so early enough to leave the accused adequate time to take any steps he or she is expected to take thataffect or may affect such right.

This obligation has constitutional underpinnings deriving from s. 7 of the Canadian Charter of Rights andFreedoms which reflect the overriding concern that failure to disclose impedes the ability of the accused to make full answer and defence.

This common lawright has acquired new vigour by virtue of its inclusion in s. 7 of the Canadian Charter of Rights and Freedoms as one of the principles offundamental justice. [Stinchcombe, supra, at p. 336.] The Crown's disclosure obligation is subject to a discretion, the burden of justifying the exercise of which lies on the Crown, to withholdinformation which is clearly irrelevant or the nondisclosure of which is required by the rules of privilege, or to delay the disclosure ofinformation out of the necessity to protect witnesses or complete an investigation: Stinchcombe, supra, at pp. 335-36, 339-40.

As wassaid in Stinchcombe, supra, at p. 340, "[i]nasmuch as disclosure of all relevant information is the general rule, the Crown must bringitself within an exception to that rule". 20 The trial judge reviewing the Crown's disclosure decisions, and by backward extension the Crown itself in exercising its discretion,

should be guided by the general principle that information ought not to be withheld if there is a reasonable possibility that the withholding of information will impair the right of the accused to make full answer and [page467] defence, unless the non-disclosure is justified by the law of privilege. [ Stinchcombe , at p. 340.] One measure of the relevance of information in the Crown's hands is its usefulness to the defence: if it is of some use, it is relevant and should be disclosed -- Stinchcombe , supra, at p. 345.

This requires a determination by the reviewing judge that production of the information can reasonably be used by the accused either in meeting the case for the Crown, advancing a defence or otherwise in making a decision which may affect the conduct of the defence such as, for example, whether to call evidence. [ 37 ] I find that the information that the defence seeks is “ reasonably capable of affecting the accused's ability to make full answer and defence” .

I also find that there is a “ reasonable possibility that the withholding of information will impair the right of the accused to make full answer and defence.” It is not “clearly irrelevant” and could “reasonably be used by the accused either in meeting the case for the Crown, advancing a defence or otherwise in making a decision which may affect the conduct of the defence such as, for example, whether to call evidence.” I find that the disclosure that the defence seeks would be “of some use” and therefore it is relevant and should be disclosed. [ 38 ] In addition, from a practical point of view, it would not be difficult to produce the disclosure that the defence seeks.

It is all in Sergeant McCormack’s possession and easy to retrieve. Disposition [ 39 ] Based on all of the above, the court grants the defence application for disclosure as follows. [ 40 ] The Crown shall disclose to the defence the following material: 1. The identity of the training manual that Sergeant McCormack used in her training and used or relied on in the exercise of her duties regarding Mr. Gardashnik in this case. (While making its submissions on the application, the Crown agreed to dis- close this). 2.

The results of Sergeant McCormack’s training examinations, including the re- sults of the evaluations conducted by Sergeant McCormack on her 12 test sub- jects as part of her training and certification process in April 2010. (The court is not ordering disclosure of Sergeant McCormack’s test scores, her training records or the toxicological corroboration of her training evaluations because they are not accessible). 3. A copy of Sergeant McCormack’s log containing information regarding the DRE tests/evaluations that she did in training and in the execution of her duties concerning Mr.

Gardashnik and others to the present date, including any toxico- logical corroboration of her analyses contained in the log as a DRE officer in par- ticular. [ 41 ] Considering that this matter is scheduled for trial on May 13, 2011 this disclosure shall be made within two weeks of this order, April 7, 2011, and shall be subject to appropriate vetting by the Crown as is its normal practice. Released: April 7, 2011 Signed: “Justice J.W. Bovard” [1] Regulation SOR/2008-196, s. 1 , states that “An evaluation officer must be a certified drug recognition expert”.

Therefore, for the purposes of the Regulation and s. 254 (3.1) of the Criminal Code an “evaluating officer” and a “drug recognition expert” (DRE) are the same. [2] relevance; (

b) necessity in assisting the trier of fact; (

c) the absence of any exclusionary rule; (

d) a properly qualified expert. (para. 17)