Law Times

Law TiMes • May 26, 2014 Page 11 www.lawtimesnews.com Courts differ on drug evaluation officers' expertise BY Glenn KauTh Law Times s Canada's justice sys- tem continues to adapt to Criminal Code amendments dealing with drug-impaired driving, the courts are making diverging find- ings on whether drug evaluation officers are experts when provid- ing evidence in court. e court's answer has im- plications for whether it must conduct a voir dire into the of- ficer's opinion as per the R. v. Mohan criteria. In R. v. Cripps last month, Justice Brent Knazan of the Ontario Court of Justice, aer analyzing the regulation passed under s. 254.1 of the Criminal Code, ruled against the Crown's bid to deem drug evaluation officers to be experts and therefore weigh their evi- dence accordingly. "In my opinion, the legisla- tion, despite its use of the word 'expert' in the regulation stating the qualifications of an evaluating officer, does not address the issue of expert evidence at all," wrote Knazan in his April 15 ruling. "We made it clear from the beginning of the case that we were going to be challenging the expertise," says Sean Robichaud, counsel for Emily Cripps in the impaired driving case. But in the meantime, the Crown sought a finding that drug evaluation of- ficers could give expert evidence on whether someone was driv- ing while impaired by drugs. A finding in the Crown's favour would have given added weight to the officers' evidence, a sce- nario Robichaud calls "offensive" in light of concerns about the reliability of the tests they con- duct. e ruling, he suggests, reinforces defence lawyers' abil- ity to challenge drug evaluation officers' testimony. "e problem with this type of evidence . . . is that these peo- ple become experts aer a very short course on recognizing in- dicia for drug impairment," says Robichaud. Police had stopped Cripps in November 2011 aer she turned le at an intersection despite a sign prohibiting turns. e of- ficer, whom Knazan noted "had no experience with a driving while under the influence of a drug investigation," became sus- picious aer noticing what she thought was a burnt marijuana cigarette and the smell of the drug. Before arresting Cripps, she called a more experienced officer to investigate whether there were grounds to de- mand Cripps submit to an evaluation by a drug evalu- ation officer. He determined there were, and the evaluat- ing officer demanded a urine sample aer conducting his assessment. According to Knazan, the evaluating officer found Cripps had failed some of his initial tests and passed others. As for the urine sam- ple, an expert medical wit- ness testified marijuana was present along with prescrip- tion drugs but "he specifically stated that he was unable to give any opinion on whether or not her ability to operate a motor vehicle was impaired by a drug at the time that she was driving, or at all," according to Knazan. e situation le Knazan with the task of deciding what weight to give the drug evaluation offi- cer's finding that he had reason- able grounds to believe Cripps' ability to drive was impaired by a drug. Knazan considered the regulation enacted as part of Criminal Code changes aimed at setting out the process for in- vestigating drug-impaired driv- ing. According to the regulation, "an evaluating officer must be a certified drug evaluation expert accredited by the International Association of Chiefs of Police." Knazan disagreed with an- other judge, Justice Richard LeDressay of the Ontario Court of Justice, on his findings in R. v. McCarthy last month in which he suggested a statutory inter- pretation of the changes "entitles the evaluating officer to give an expert opinion on this issue without being qualified as an expert." "With respect to my colleague and others of the same view, I disagree," wrote Knazan. "ere are a number of rea- sons even before undertaking an interpretation of the words of s. 254(3.1) for holding that an evaluating officer cannot give expert evidence: "e decision of the Supreme Court of Canada in Mohan is binding. An expert must be qualified according to the crite- ria established in that case and McCarthy does not deal with the question of how statutory inter- pretation of a new section of the Criminal Code can result in not following a decision of the Su- preme Court of Canada." In addition, Knazan noted it's not necessary for the court to deem officers to be experts in order for them to give their opinion and that creating a third category of opinion evidence, as the Crown suggested in Cripps, "would complicate an area of the law already encrusted with rules and qualifications, a result very much to be avoided." Knazan's decision on the issue was positive given the concerns about the science underpin- ning the tests drug evaluation officers conduct, says Toronto criminal lawyer Joseph Neu- berger of Neuberger Rose LLP. "A lot of it is not very strong science and a lot of the tests are subjective," he says. "eir evidence cannot be dispositive of whether an individual has a drug in their system," he adds, noting there's a difference between the expertise of someone like a toxicologist and a drug eval- uation officer. Neuberger compares the issue to sobriety testing and notes the court doesn't deem the roadside officer observing someone's driving and behav- iour to be an expert. What's key to establishing guilt, or not, is the intoxilyzer evidence that comes aerwards along with the officer's observations. With drug-impaired cases, the blood and urinary tests come into play along with the findings of the roadside and drug evaluation officers as well as any experts called in. "We overdo this expertise stuff. Anybody can be an expert," says Neuberger. "It gives credibility where credibility should not be given." As for Cripps, Knazan found her not guilty. "ere was a le- hand turn against a sign but no evidence that it was not properly executed," he wrote. "ere was another le-hand turn and then the driver pulled over. Without any driving to show impaired ability, this is a circumstantial case, with proof of consumption of drugs but no evidence of how much or when." As for the drug evaluation of- ficer, Knazan, wrote: "From this discussion, it follows that I ac- cord officer Mathews's opinion, that he formed for the purpose of making a demand under s. 254(3.3) of the Criminal Code, the weight it deserves — he is a police officer who observed Ms. Cripps fail some of the tests, pass some of the tests, and be normal in some of the physical measurements that he took. e underlying basis for his opinion is established but he did not see her driving and there was no bad driving to tell him about at all; there was a properly executed le turn three minutes aer four by the officer's car clock." LT FOCUS STACEY STEVENS | DAVID MACDONALD | MICHAEL BENNETT YOUR ADVANTAGE, in and out of the courtroom. Since 1936 Thomson, Rogers has built a strong, trusting, and collegial relationship with hundreds of lawyers across the province. As a law firm specializing in civil litigation, we have a record of accomplishment second to none. With a group of 30 litigators and a support staff of over 100 people, we have the resources to achieve the best possible result for your client. Moreover, we are exceptionally fair when it comes to referral fees. We welcome the chance to speak or meet with you about any potential referral. We look forward to creating a solid relationship with you that will benefit the clients we serve. TF: 1.888.223.0448 T: 416.868.3100 W: www.thomsonrogers.com TRUST (YHU\WLPH\RXUHIHUDFOLHQWWRRXUßUP you're putting your reputation on the line. It's all about trust well placed. Untitled-2 1 14-04-02 9:22 AM A 'We made it clear from the beginning of the case that we were going to be challenging the expertise,' says Sean Robichaud.

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