Monthly Archives: May 2014

Charter breached by screening device test not carried out “forthwith”

Two new cases have not been ruled in our favour due to police actions resulting from ASD tests:

R. v. Bergen 2014 MBQB 84 – Conviction for over 80 reversed on appeal as screening device sample taken violated s. 8 of Charter because it was not taken forthwith.

R. v. Biernaskie 2014 ONCJ 235 – Charter breached by screening device test not carried out “forthwith” due to necessity to await arrival of device and subsequent evidence excluded.

In Bergen, the officer explained why he chose to wait the 15 minutes following the ASD demand, saying:

“… he may have consumed alcohol within the last matter of minutes, so I didn’t want to take a sample from him immediately because there’s a possibility that there is alcohol still in his mouth, and then we would get a false reading. So I wanted to ensure that there was no residual alcohol in his mouth, so we remained in the vehicle for 15 minutes and then I had him provide a sample.”

The MBQB ruled:

“To be clear, the officer had no specific reason to believe Mr. Bergen had consumed alcohol in the prior 15 minutes or that the ASD would yield a false reading. Further, the officer also chose not to ask Mr. Bergen about when he consumed his last drink because the officer reasoned people generally might lie about that and thus so might Mr. Bergen. In effect, the officer’s way of doing this roadside ASD demand was to make the demand and simply wait until 15 minutes passed before doing the test. Given the generalizations he reasoned to support his decision to delay, it may be reasonably inferred that this was his practice, but I need not determine that here.”

“Why have courts emphasized that the ASD test must be given forthwith or immediately? First, because that is what s. 254(2) plainly sets out, and second, because there is an important constitutional element embedded in the roadside ASD demand. Notably, an officer may randomly stop a motorist, make a roadside ASD demand, detain the person and search their breath, all without believing that person has committed any criminal or other offence or allowing that person to contact a lawyer. This is the second critical concept – the constitutional aspect – that I referred to earlier.

The important and normal safeguard against unwarranted intrusion by government agents in a citizen’s life, of requiring the officer to have reasonable and probable grounds to believe an offence has been committed, has been done away with for an ASD demand. To detain someone for a roadside ASD test, the officer need only reasonably suspect the person has alcohol in his body. Officers are granted this extraordinary power to infringe on a citizen’s normal rights and security, specifically to combat the scourge of impaired driving. The trade-off is that the roadside ASD test must be done forthwith or immediately upon the officer having the suspicion, unless there is a good reason to delay the test such as a broken ASD or waiting for an ASD to be delivered to the officer, or if there is reason to believe the test will not be accurate because of alcohol in the mouth from recent consumption (i.e. within the prior 15 minutes).”

In Biernaskie, the ONCJ ruled that the demand itself was made “forthwith.” However, with regards to the test being administered forthwith, the ONCJ said:

“The second part of the “forthwith” requirement concerns delay in the actual testing. It is a statutory requirement that the test be administered forthwith. In order to justify the suspension of the accused’s right to consult counsel, it is a constitutional requirement that the officer be in a position to administer the test in circumstances where there is no realistic opportunity to contact counsel. The forthwith requirement in section 254(2) applies to the entire time prior to the administration of the test. The ASD test that was administered here was delayed for about 18 minutes after the initial detention. About 15 minutes of that delay arises solely from the fact that an ASD had to be brought from the station.”

“In the case before me, I know that the accused had a cell phone with him. I know that when he was eventually advised of the right to speak to a lawyer, he did. We also know from the in-car video that while waiting for the ASD to arrive he was allowed to stand outside his vehicle, on his own, for a significant period of time. We can see on the video that he spent part of this time eating his take-out meal. There is no doubt that he could have called a lawyer for advice during the delay occasioned by having to have the ASD sent out from the station. This roadside screening test was not done “forthwith” and the suspension of the accused’s Charter rights was not justified.

It follows from my analysis that the ASD demand in this case falls outside of the authority granted by s. 254(2). The detention of the accused and the testing done pursuant to the invalid demand were not authorized by law and so it follows that the accused was subject to an arbitrary detention and an unreasonable search and seizure, contrary to ss. 9 and 8 of the Charter. The accused should have been given his rights to counsel during the delay identified here and so his s. 10(b) rights were also violated.”

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How long can a detainee take when attempting to contact counsel? Must the police give him access to the Internet in order to assist him in doing so?

R. v. Bernesky 2014 ABPC 98 – yet another case out of the Alberta Provincial Court has examined the time limits to contact counsel and whether or not we have to give them access to the Internet to do so. Graham James Bernesky (‘Bernesky’) was arrested for impaired driving and taken to the police station to provide breath samples. Over more than 1 1/2 hours, he attempted to contact a lawyer, without success. Police eventually decided that he had taken enough time and directed him to provide breath samples immediately. He refused to do so. This case involved consideration of the right to counsel and what has become known as the ‘first implementational duty’. How long can a detainee take when attempting to contact counsel? Must the police give him access to the Internet in order to assist him in doing so?

The issues at the Charter hearing were whether or not the accused was afforded a reasonable opportunity to exercise his right to counsel? Did the police infringe or deny his right to counsel by: (a) directing him to contact Legal Aid after approximately an hour and 40 minutes; (b) seizing his cell phone and thereby preventing him from accessing the Internet; and/or (c) peremptorily terminating his efforts to contact counsel?

The implementational duty to afford detainees a ‘reasonable opportunity to consult counsel’ has been the subject matter of considerable litigation. That obligation, as an incident of a detainee’s right to counsel, was first described by the Supreme Court in the seminal case of R. v. Therens, [1985] 1 S.C.R. 613, where Lamer J. stated (at para.21):

“In my view, s. 10(b) requires at least that the authorities inform the detainee of his rights, not prevent him in any way from exercising them and, where a detainee is required to provide evidence which may be incriminating and refusal to comply is punishable as a criminal offence, as is the case under s. 235 of the Code, s. 10(b) also imposes a duty not to call upon the detainee to provide that evidence without first informing him of his s. 10(b) rights and providing him with a reasonable opportunity and time to retain and instruct counsel.”

As Wilson J. stated in R. v. Jacoy, [1988] 2 S.C.R. 548 (at para.29):

“Going through the mechanics of informing persons under arrest or detention of their right to retain and instruct counsel without delay and then denying them the right to do so does not meet the requirements of s. 10(b).”

Determination of whether a detainee’s opportunity to consult counsel was reasonable is a finding of fact. See: R. v. Smith, [1989] 2 S.C.R. 368 (‘Smith’), per L’Heureux-Dube J. The proper approach to making that determination was described by the court in Smith in the following terms:

“What is a reasonable opportunity is determined by reference to all the circumstances of the case, including the action of the accused. Whether an opportunity is reasonable must be judged in part in light of the diligence with which the accused seeks to avail himself or herself of the right.”

This formulation was reiterated and expanded upon in R. v. McCrimmon, 2010 SCC 36, where the court stated (at para.18):

“What amounts to a reasonable period of time depends on the circumstances as a whole, including factors such as the seriousness of the charge and the urgency of the investigation. It is also informed by the purpose of the guarantee. The right to counsel upon arrest or detention is intended to provide detainees with immediate legal advice on his or her rights and obligations under the law, mainly regarding the right to remain silent.”

It was inevitable that courts would be called upon to consider limitations on or qualifications to a detainee’s ‘reasonable opportunity to consult counsel’. At least 4 limitations or qualifications, operating alone or in conjunction with each other, have now been recognized by the Supreme Court. These are: (1) situations where the detainee fails to pursue his or her right to counsel with due diligence; (2) ‘compelling’ situations of urgency; (3) situations where delay would lead to the loss or destruction of evidence; and (4) situations involving danger. According to the ABPC in this case, the first 3 of these qualifications or limitations had application to this case.

In R. v. Prosper, [1994] 3 S.C.R. 236, the court acknowledged that a requirement for police to hold off on obtaining breath samples until a detainee was able to contact counsel could prevent the prosecution from relying upon the ‘presumption of identity’ in s.258(1)(c) C.C. Nevertheless, Lamer J. ruled that,

” … in the context of impaired driving cases, I am satisfied that the existence of the two-hour evidentiary presumption available to the Crown under s. 258(1)(c)(ii) of the Code does not, by itself, constitute such a compelling or urgent circumstance.”

And further that,

“A detainee’s Charter-guaranteed right to counsel must take precedence over the statutory right afforded to the Crown which allows it to rely on an evidentiary presumption about what a breathalyser reading would have been at the time of care and control of a vehicle.”

Impaired driving cases involve situations where important evidence may disappear over time. That is to say that alcohol is metabolized by the human body over time. In the vast majority of cases, delay in taking and analyzing breath samples will result in the test subject’s blood/alcohol level being higher at the time of driving than it is when tested. This dynamic was also considered by the court in Prosper in the context of how much time should be allotted a detainee of whom breath samples are demanded:

“It may be that on some occasions a detainee’s reasonable opportunity to contact counsel, and the corresponding holding-off period, will extend to the point at which it is no longer possible to obtain breathalyser readings that can be accurately extrapolated backwards to provide information about the accused blood alcohol level at the time of the alleged offence. The question of whether or not the imminent loss of the chance to obtain any meaningful breathalyser data might constitute an “urgent circumstance” sufficient to curtail the holding-off period does not arise on facts of this appeal. In the case at bar, breathalyser readings were obtained roughly an hour after the appellant was detained, well before any sense of urgency connected to the loss of the opportunity to obtain useful breathalyser data would have developed. It is, therefore, unnecessary to decide in this case whether, under different circumstances, the prospect of the loss of all opportunity to obtain breathalyser data might justify abridging the holding-off period. Moreover, this question could not, in my view, be decided without considering the statutory provisions upon which the police’s ability to obtain breathalyser data rests. As I noted in Bartle, at p. 213, breathalyser evidence in impaired driving cases is often characterized as “statutorily compellable” by virtue of the fact that refusing to provide a breath sample in these circumstances is itself a criminal offence under s. 254(5) of the Code. The results of a breathalyser test are self-incriminatory evidence (Bartle, at pp. 213-14), and were it not for s. 254(5), a detainee would be free to choose not to assist the state’s investigation by providing a breath sample. In my view, any consideration of the question of whether the state’s interest in obtaining breathalyser readings was sufficiently pressing to constitute an “urgent circumstance” warranting the curtailment of a detainee’s s. 10(b) rights would, by inference, require an examination of the constitutionality of s. 254(5), an issue that was not raised directly on this appeal. For these reasons, I prefer not to decide this question at this time.”

In the hearing at hand, the Hounourable B.D. Rosborough said, without more, the court was satisfied that Bernesky not only had the right to select a particular lawyer, but he had the right to exclude a particular lawyer (or group of lawyers) from those he might otherwise retain and instruct. Bernesky testified that, based upon a previous experience involving duty counsel, he believed that he would not receive appropriate legal advice. His view was apparently supported by counsel privately retained by him. There was no evidence contradicting these assertions and the court accepted them.

Judge Rosborough said it was significant that Bernesky did not, at any relevant time, request the use of either his cell phone or another device capable of accessing the Internet. He was frustrated with his attempts to contact counsel by using the materials provided by the police, but was intent on continuing to do so. Police do not have to guess whether a detainee wishes to use another method of contacting counsel, so therefore in this case, the police did not infringe or deny the Applicant’s right to counsel by failing to afford him access to the Internet or otherwise provide him with his cell phone.

Further, it would appear from these authorities that there is no set limit on the amount of time a detainee may take when making bona fide efforts to contact counsel. Indeed, said the Judge, at least one court has expressly declined an invitation to provide such a ‘time limit’ in an impaired driving case. See: R. v. Dunnett, 62 C.C.C. (3d) 14 (N.B.C.A.). It would be reversible error to conclude that 30 minutes, or 1 hour, or 2 hours, or 10 hours constitutes an immutable time limit in that regard. Indeed, Wilson J. saw nothing unreasonable about an 8 hour ‘hold off’ period in a case where the accused was charged with murder and there was no urgency in pursuing the investigation.

Judge Rosborough said courts have steadfastly rejected the propositions that: (a) loss of the statutory presumption in s. 258(1)(c) C.C.; or (b) dissipation of alcohol from the blood of a suspected impaired driver render those investigations ‘urgent and compelling’. Rather, the availability of expert opinion evidence to extrapolate blood/alcohol concentrations and resort to the offence of ‘impaired driving’ (s. 253(1)(a) C.C.) have been suggested as adequate safeguards in the circumstances. It was also worthy of note, said the Judge, that the offence of ‘refusal’ (s. 254(5) C.C.) is not conditioned on compliance with a peace officer’s demand within a given period of time. Legal compulsion to provide breath samples continues indefinitely.

Given the foregoing analysis, Judge Rosborough was satisfied that the Applicant had proven on a balance of probabilities that his right to counsel was infringed or denied by the police and that the admission of any evidence (including the Applicant’s refusal to comply with Belanger’s demand) would bring the administration of justice into disrepute.

 

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During the forensic examination of a computer seized by a search warrant issued in an attempted murder investigation, when evidence of an unrelated criminal offence was discovered, a second judicial authorization must be obtained to search the computer for evidence relating to the unrelated offence

R. v. K.Z. 2014 ABQB 235 – during the forensic examination of a computer seized by a search warrant issued in an attempted murder investigation, evidence of an unrelated criminal offence was discovered. The Crown took the position that a second judicial authorization must be obtained to search the computer for evidence relating to the unrelated offence. see R. v. Vu, 2013 SCC 60, [2013] 3 SCR 657; R. v. Jones, 2011 ONCA 632, 278 CCC (3d) 157. That was not the issue; at issue was should it be a search warrant or a general warrant?

On September 14, 2012, the Edmonton Police Service began an attempted murder investigation. In the weeks following, the police obtained and executed three search warrants. A laptop computer and memory storage device were seized during the execution of the second warrant, and the suspect’s cell phone was seized during the execution of the third. During the forensic examination of the computer in the attempted murder investigation, an officer discovered a folder that contained a picture believed to be child pornography. This officer terminated his search of the folder and contacted a police officer assigned to the Northern Alberta Integrated Child Exploitation Unit, who advised the officer to seek a search warrant for the laptop, digital storage device and cell phone, in order to investigate the offences of accessing and possessing child pornography.

On June 17, 2013, the officer sought a general warrant to conduct “… a complete and thorough forensic examination of all data, images and video” on the seized laptop, digital storage device, and cell phone “… by using established procedures and software written specifically for the purpose of extricating information and data from computer systems and storage media” with respect to the offences of accessing and possessing child pornography. The general warrant was not granted by the reviewing Provincial Court Judge because a s. 487.01 general warrant was inappropriate (this can be authorized by a s. 487 warrant).

The Crown took the position that a second search warrant was not legally available to authorize the forensic examination of a computer already in the possession of the police by virtue of a first search warrant. In summary, the Crown argued:

When the police are already in lawful possession of a computer pursuant to a seizure in one of the above mentioned scenarios, they do not require authorization to search a place or to seize the computer already lawfully seized. Therefore, it is the position of the Applicant that a s. 487 Search Warrant is not available.

In the scenarios described above, the police only require authorization to analyze the data on the computer. They therefore require authorization to use any device or investigative technique or procedure or do any thing described in the warrant that would, if not authorized, constitute an unreasonable search. It is the position of the Applicant that a s. 487.01 General Warrant is the appropriate authorization for the analysis of the computer’s content.

The use of a s. 487 Search Warrant in either of the above scenarios, for the sole purpose of analyzing the data, is not only wrong in law, but leads to many practical difficulties. One of those difficulties is the initial question of whether a computer is a “thing”, a “place” or a “receptacle”.

The Crown submits that a computer is a “thing”; not a “place” or a “receptacle”.

The Honourable Justice E.A. Hughes J. said, according to the SCC in Vu:

1. An authorization to search a place gives to those executing the warrant authorization to search places and receptacles in that place: para 39.

2. Computers are not like other receptacles that may be found in a place during a search, and are, to a certain extent, a separate place [emphasis added]: paras 51, 54, 39.

3. Computers are different from other receptacles because:

a. A search of a computer is one of the most intrusive invasions of privacy: para 40.

b. A computer may store immense amounts of information so that the comparison between a computer and traditional storage receptacles is unrealistic: para 41.

c. Further, a computer contains information that is automatically generated, often unbeknownst to the user. “This kind of information has no analogue in the physical world in which other types of receptacles are found”: para 42.

d. In addition, a computer retains files and data even after users believe they have destroyed them. “Computers … compromise the ability of users to control the information that is available about them in two ways: they create information without the users’ knowledge and they retain information that users have tried to erase. These features make computers fundamentally different from the receptacles that search and seizure law has had to respond to in the past”: para 43.

4. Due to the “numerous and striking differences” between computers and traditional receptacles, a prior authorization is required for the search of a computer seized in a place: paras 45, 47.

5. If police locate a computer during a search and the warrant does not give them the prior authorization to search the computer, the police may seize the computer and then obtain a separate warrant to search the data on the computer: para 49.

6. A search warrant does not give the police “licence to scour indiscriminately”. Rather, police are obligated “to adhere to the rule that the manner of a search must be reasonable” in a search of a computer: para 61.

The Judge said it is clear from the authorities that a search warrant is usually the proper form of authorization for the seizure of a computer found within a place, aside from searches incident to arrest or where exigent circumstances justify a warrantless search, and a General Warrant can only be issued when no other form of warrant or order is sufficient to accomplish what is sought to be done. The Crown submitted “the idea of ‘searching’ for specific types of data as ‘things’ is not an accurate reflection of what a forensic technician does when analyzing the contents of a computer. What the examiner is actually doing is analyzing the data using a ‘procedure’ or ‘technique’.”

Justice E.A. Hughes J. said during the forensic examination of a computer seized by a search warrant issued in an attempted murder investigation, when evidence of an unrelated criminal offence was discovered, a second judicial authorization must be obtained to search the computer for evidence relating to the unrelated offence and it must be a search warrant, not a general warrant:

“I find a general warrant is not the proper authorization for a search on the facts before me. My analysis rests upon the characterization in Vu of a computer being treated “to a certain extent, as a separate place”: para 51. Thus, if evidence of a second offence is located during the search of the computer for the first offence, s. 487 of the Criminal Code provides for the search of a “place” if there are reasonable grounds to believe that the search will “afford evidence with respect to the commission of an offence”. This situation is no different than the example provided by the EPS, or the situation where during a search of a house, evidence of another offence is discovered which requires the police to hold the house and obtain a second search warrant before the search is conducted for evidence of the second offence.

This analysis does away with the Crown’s submission that a general warrant is the proper form of authorization because a search warrant will cause the police to “search their own premises” and seize the “thing” they already have lawfully seized. Rather, in the case of a second warrant to search a computer for evidence of other offences, the computer is the place to be searched because it is, in essence, the crime scene.”

The EPS made one additional submission: the issuing judge exceeded his jurisdiction in making the direction that “in the case of a s. 487 warrant, naming an officer is a statutory requirement.” The ABQB ruled that a s. 487 search warrant need not name a peace officer to whom it is directed.

“… [T]he naming requirement does not apply to a peace officer, but only to a person other than a peace officer who may be authorized to conduct a search. …”

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Screening device demand was not made until screening device arrived and was not made “forthwith”

R. v. Thompson 2014 ABPC 83 – Mr. Thompson was alleged to have committed, on September 9, 2011, two offences: (1) operating a motor vehicle while the concentration of alcohol in his blood exceeded the permitted level [the “.08” offence, Criminal Code section 253(1)(b)]; and (2) operating a motor vehicle while his ability to do so was impaired by alcohol [the “impaired driving” offence, Criminal Code section 253(1)(a)].

At issue was whether his rights as guaranteed by sections 7, 8, 9, and 10 of the Canadian Charter of Rights and Freedoms (Charter) were violated (I won’t discuss the s. 10 issue here). Defence counsel did not argue whether or not the officer had sufficient grounds to make the Criminal Code section 254(2) screening device breath demand. Defence questioned whether the section 254(2) screening device breath demand was made “forthwith” as required by section 254(2) (as interpreted by the Supreme Court of Canada in R. v. Woods (2005) 197 C.C.C. (3d) 353), was the section 254(2) screening device breath sample taken “forthwith”, and was the section 254(3) evidentiary breath demand made “as soon as practicable”.

The officer in his testimony gave conflicting accounts as to the reasonable belief or reasonable suspicion, or that’s how the judge saw it at least.  The officer did not have an ASD in the patrol car, so he had to request one be brought to his location.  The driver also had an outstanding warrant of arrest, so this also came into play during the roadside stop (impairment) investigation.

“In the case at bar, at no later than 2149 hours, the [Constable] formed his opinion that the ability of Mr. Thompson to operate a motor vehicle was impaired by alcohol. He made the ASD breath demand at 2204 hours (15 minutes later). Nothing prevented the [Constable] from making the ASD breath demand as soon as he had formed the requisite suspicion (and he clearly had the requisite suspicion at 2149 hours because he had already formed the section 254(3) opinion by that time). The officer did not have to wait for the arrival of the approved screening device before making the ASD breath demand, and the absence of the approved screening device did not justify postponing the making of the demand.”

As a result, Provincial Court Judge A.A. Fradsham ruled that the ASD breath demand was not made forthwith.

During cross-examination testimony, the constable stated:

Q. Okay. So then at this point in time in the investigation, after the accused has admitted consumption of alcohol to you, and having in your mind the speeding, the other driving pattern, the smell of alcohol, the admission of consumption, and then I guess the facts that you itemized for us towards the end of your testimony, the dropping the wallet, the sweaty forehead, the red eyes, I take it you had a belief that the accused was impaired in his ability to operate a motor vehicle by alcohol — impaired by alcohol, I should say, in his ability to operate a motor vehicle. You had that belief after he admitted to consuming to you, correct?

A. That’s correct.

Q. Okay. So, if I understand what your thought process was is that before calling — or, requesting the screening device you were satisfied in your own mind that his ability to operate a motor vehicle was impaired by alcohol?

A. Correct.

Q. And that he was arrestable for the offence of impaired driving?

A. Correct.

Q. And you wanted to conduct the screening device test to give you potential grounds to make a breath demand — a — a demand for the full breath samples, is that right?

A. Can you rephrase that, please?

Q. Sorry, yeah, it’s a bad question. You wanted to do the screening device test to acquire potential evidence to assist you in your investigation of the possible offence of driving with more than the legal amount of alcohol in the blood — driving over 80, is — is that right?

A. Well, I knew the accused had consumed alcohol. The amount that he has given me and what I smelled —

Q. Right.

A. — I had the belief that he was impaired.

Q. Yes.

A. However, if it’s not over the legal limit it may have resulted in a 24 hour suspension or it would have resulted in the traffic offences.

Q. Okay. So, the — the — the — then the screening device test was more to do with assisting you in determining how much alcohol was in his bloodstream as in whether or not it was over the legal limit, is that right?

A. Correct. So, it’s a tool and I made use of it.

Q. Okay. So, when — when, in my own mind, he was arrestable for impaired driving why did you not arrest him for the offence of impaired driving at that point in time?

A. Because, I had reasonable suspicion, but I wanted to verify the level of alcohol by an approved screening device.

As a result, Judge A.A. Fradsham was satisfied that at least by 2149 hours, the officer had formed his opinion that Mr. Thompson’s ability to operate a motor vehicle was impaired by alcohol.

The ASD arrived at the scene at 2203 hours, and the ASD breath sample was taken at 2205 hours. The delay occasioned waiting for the delivery of the approved screening device did not offend the concept of “forthwith”, so unlike the ASD demand, the sample was taken “forthwith”. As for the 254(3) demand, the officer formed his requisite opinion at 2149 hours, but did not make the breath demand until 2210 hours after a “Fail” of the ASD. In the circumstances of this case, the section 254(3) breath demand was not made as soon as practicable said the Judge.

The Judge said there was no reason to delay the making of the section 254(3) breath demand. Section 254(3) provides that the evidentiary breath demand may be made once the 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 section 253 as a result of the consumption of alcohol”. If the officer chose to delay the making of the section 254(3) breath demand until he had the results of the ASD test, he did so at the risk of offending, as occurred here, the “as soon as practicable” requirement of section 254(3).

According to Judge A.A. Fradsham, Mr. Thompson’s section 8 Charter rights were violated by the taking of both the approved screening device breath sample and the approved instrument breath samples.

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A drug evaluation officer as defined in s. 254 of the Criminal Code can not give expert evidence on the issue of whether a person’s ability to operate a motor vehicle is impaired by a drug

R. v. Cripps 2014 ONCJ 189 – I’ve gotten several calls and emails on this recent case, looking for some clarification on the issue of whether or not a drug evaluation officer can testify to a person’s ability to operate a motor vehicle while impaired by a drug as an expert. Without going into the facts and specifics of the case here (I can provide the full case decision to anyone who would like to have it), the issue essentially came down to the interpretation of the regulation passed under s. 254.1 establishing the qualification of a drug evaluation officer on June 11, 2008:

An evaluating officer must be a certified drug evaluation expert accredited by the International Association of Chiefs of Police.

The law of expert evidence is well established and it cannot be admitted without meeting the R. v. Mohan [1994] 2 S.C.R. 9 qualifications. These are:

a) relevance;

b) necessity in assisting the trier of fact;

c) the absence of any exclusionary rule;

d) a properly qualified expert.

Crown counsel in this case argued that because, as per the regulations, an evaluating officer must be a certified drug evaluation expert accredited by the International Association of Chiefs of Police, the officer should be able to offer an opinion as “an expert opinion of the certified drug evaluation expert regarding the accused’s ability to operate a motor vehicle being impaired by drug without the necessity of a Mohan voir dire.” The Honourable Justice Brent Knazan said despite its use of the word “expert” in the regulation stating the qualifications of an evaluating officer, it does not address the issue of expert evidence at all.

Justice Knazan said:

1) The decision of the Supreme Court of Canada in Mohan is binding. An expert must be qualified according to the criteria established in that case and R. v. McCarthy [2014] O.J. No. 35 does not deal with the question of how statutory interpretation of a new section of the Criminal Code can result in not following a decision of the Supreme Court of Canada.

2) No such finding is necessary in order for a drug evaluation officer to give an opinion; he already can, according to R. v. Graat, [1982] 2 S.C.R. 819 and the court can give it the weight that it deserves, including taking into account the officer’s training and experience.

3) Creating a third category of opinion evidence in addition to that covered by Mohan and Graat, assuming that there is a way that any court other than the Supreme Court of Canada could, would complicate an area of the law already encrusted with rules and qualifications, a result very much to be avoided: see R. v. Graat.

4) Allowing a drug evaluation officer to be qualified as an expert in every case will lengthen trials, another result very much to be avoided. Since any opinion, of the non-expert Graat type or expert opinion is only as good as the facts underlying it, giving the opinion of the drug evaluation officer the status of expert opinion will lead to lengthy cross-examinations and trials of the tests authorized by the regulations.

Justice Knazan ruled that the officer can clearly testify as a certified drug evaluation expert, which they are, that the officer conducted the tests properly, formed reasonable grounds to believe that the person’s ability to operate a motor vehicle was impaired by a drug and that the officer made the proper demand for a sample of oral fluid, blood or urine. But whether the officer’s opinion that the person’s ability to operate a motor vehicle while impaired by a drug should be given the weight of expert opinion is the very issue to be determined, so it cannot be stated said the Justice.

To summarize, a trial judge must scrutinize the proffered expert evidence to ensure it meets the reformulated Mohan criteria and not simply grant expert evidence status to an evaluating officer’s testimony.

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