of the section do not limit the exception to the specific investigation
or proceeding in relation to which the test results were first
obtained. In this case, for instance, the section appears to permit
disclosure not only of the respondent’s own test results, but also
those relating to others. What is required is only that the disclosure be made in the course of an investigation or proceeding
described in the section. This ensures that the use or disclosure is
offence-specific and does not extend to other unrelated crimes.
[ 189] The English text of s. 258.1(2)(a) refers to “an investigation” or “a proceeding” for “an offence”. The French version
refers to “dans le cadre de l’enquête relative à une infraction”
and later “ou lors de poursuites intentées à l’égard d’une telle
infraction”. Although the French text uses the definite article —
“ l’enquête” — it also includes the indefinite article — “une
infraction” — and the plural “poursuites”, rather the singular
“poursuite”. In addition, it uses “de” rather than “des” with
“poursuites”, which refers to non-specified proceedings. Likewise,
“telle infraction”, rather than “cette infraction”.
[ 190] As it appears to me, there is no discordance or incompatibility between the English and French text of the section. Neither
limits use or disclosure of the results of a drug recognition evaluation to the specific case in which the evaluation was conducted.
Therefore, the meaning common to both versions of the statute
prevails: test results can be disclosed in any investigation or
proceeding described in s. 258.1(2)(a). No provision of the
Criminal Code prevents the disclosure of the rolling log.
[ 191] Moreover, as a person charged with an indictable offence,
the respondent is entitled to disclosure of material and information in the possession or control of the prosecuting Crown, as
well as “obviously relevant” information in the hands of other
Crown entities. As we have already seen, the rolling log falls into
this disclosure basket. This right to disclosure and reciprocal duty
to disclose relevant, non-privileged information is an integral part
of the respondent’s right to make full answer and defence, a right
that is constitutionally grounded. It is true that a statutory
disclosure regime can displace the process laid down by
Stinchcombe, but such a “regime” would require more than a bare
prohibition on disclosure.
[ 192] The conclusion I have reached about the interpretation of
s. 258.1(2)(a) is one that ensures that the provision is consistent
with the constitutionally protected right of an accused to disclosure, an incident of the right to make full answer and defence. In
absence of a statutory prohibition on the disclosure of the rolling
log, the Crown can comply with its constitutional obligation to
disclose the log to the respondent as part of first party disclosure.