R v Gardashnik, 2011 ONCJ 256, 2011 CarswellOnt 3382 is the latest in a series of cases dealing with the issue of disclosure and "qualifications" of evaluating officers (DREs). In Gardashnik the defence sought, as part of Crown disclosure the following items: (1) the DREs "training records...and results of the DRE officer's training examinations"; (2) the toxicological corroboration of the DRE officer's training examinations' (3) the DRE officer's log of all in-field evaluations.
The trial judge granted the defence request for all items. With respect, I do not see how these items are subject to Crown disclosure; in my view, they are clearly irrelevant.
In seeking the material in question, the defence asserted - and the trial judge accepted - that the Crown must enter a Mohan voir dire to qualify the DRE officer and that the material was required in order to challenge the "novel science" that the DRE was relying upon to provide an opinion on impairment by drugs [paras 7 and 22-23]. This argument should have been rejected and, with respect, the trial judge's acceptance of it is flawed.
First, there is no need to qualify DREs as "experts" in accordance with Mohan. Parliament has recognized these officers (identified as "evaluating officers in section 254) as "experts" defined in the Regulations. Parliament has already conducted the Mohan voir dire on this issue and accepted the qualification standards of the International Association of Chiefs of Police. Once it is shown that the officer is indeed an "evaluating officer" (by demonstrating that they are a "certified drug recognition officer) then they are experts.
In his ruling, the trial judge noted this argument but held that it does not follow that DREs are therefore permitted to offer "opinion" evidence in court. With respect, this ignores the express language and reasonable interpretation of section 254(3.1). That section reads as follows:
(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. [Emphasis added].
If the purpose of the evaluation is to permit the evaluating officer "to determine" if the accused is impaired it must follow that Parliament intend the officer to provide that opinion in court. It would be illogical and unnecessarily restrictive to read into that section that despite performing this accepted tests and forming an opinion, the officer is not permitted to provide the opinion unless they are further qualified - and the science is accepted - under the Mohan criteria. Proper statutory interpretation supports the view that Parliament has recognized DREs as "experts" able to form and testify about their opinion on impairment by drug.
Second, the alleged "novel science" has also been approved by Parliament. The tests employed by the DRE officers are enacted in Regulations to the Criminal Code. Accordingly, any "scrutiny as to their efficacy and validity in the scientific community" [para 23] must be done by way of constitutional challenge. Parliament has already conducted a Mohan voir dire. With respect, it is not open to the courts, absent a constitutional challenge, to revisit that issue.
Third, even putting aside these issues, the material sought is still clearly irrelevant in challenging the DRE's evidence. In considering the relevance of the material sought it is important to keep in mind that the evidence in question is an opinion. Opinions are, just that, opinions; reasonable experts can disagree. More to the point, having access to their marks from exams or prior opinions cannot possibly assist in determining if the current opinion is flawed. Consider, by way of analogy psychiatrists. Psychiatrists testify regularly in criminal proceedings and do so on issues which are essentially the ultimate issue: NCRMD and reasonable possibility of control in DO hearings. Are the University marks of psychiatrists relevant? Is it relevant that a psychiatrist has previously provided an opinion that was not accepted by the court? I think the answer to both is no. With respect, I do not see how the material sought will assist in the search for the truth or testing the strength of the current opinion.