Her Majesty the Queen et al. v. Stipo
[Indexed as: R. v. Stipo]
2019 ONCA 3
Court of Appeal for Ontario, MacFarland, Watt and Paciocco JJ.A.
January 7, 2019
Criminal law — Disclosure — Drug recognition expert’s rolling log
being subject to first party disclosure regime as it was obviously relevant
in challenging reliability of drug recognition expert’s conclusion on drug
impairment — Disclosure of anonymized rolling log not enjoined under
s. 258.1(2) of Criminal Code — Disclosure permitted under exception in
s. 258.1(2)(a) of Code — Criminal Code, R.S.C. 1985, c. C-46, s. 258.1(2).
Criminal law — Extraordinary remedies — Certiorari — Crown and
Ontario Provincial Police applying for certiorari to quash order of provincial court judge for disclosure of drug recognition expert’s rolling log
— Certiorari available as applicants alleged that order violated s. 258.1
of Criminal Code — Criminal Code, R.S.C. 1985, c. C-46, s. 258.1.
The accused was charged with driving while her ability to do so was impaired by
a drug. A drug recognition expert (“DRE”) conducted a drug recognition evaluation and concluded that the accused’s ability to operate a motor vehicle was
impaired by a central nervous system depressant. The DRE demanded that the
accused provide a urine sample. A toxicological analysis of the sample confirmed
the presence of seven drugs. The Crown refused to comply with a defence request
for disclosure of the DRE’s rolling log of drug influence evaluations. The rolling log
showed the DRE’s experience with the test including how many times the DRE
had conducted it, the drug groups identified and whether toxicological results later
confirmed the DRE’s opinion from the start of their field training until the time he
dealt with the accused. The trial judge ordered that the rolling log be disclosed.
The Crown and the Ontario Provincial Police (the DRE’s employer) sought
certiorari with prohibition in aid to quash the disclosure order. The application
was dismissed. The Crown and the OPP appealed.
Held, the appeal should be dismissed.
Although the availability of certiorari is very narrow when a party seeks to review
a disclosure order, it was available here as the Crown and the OPP alleged that
the disclosure order violated s. 258.1 of the Criminal Code. A failure to observe
a mandatory provision of the Criminal Code would amount to jurisdictional error.
The rolling log was not in the possession or control of the Crown; it remained in
the possession of the DRE and the OPP. Apart from that portion which related to
the investigation of the accused, which had already been disclosed, the rolling log
was not part of the fruits of the investigation. However, it was “obviously relevant”
in challenging the reliability of the DRE’s conclusion on drug impairment such
that the police should have provided it to the Crown. Disclosure of the rolling log
was therefore governed by the first party disclosure regime.
The motion judge erring by holding that unless the rolling log was admitted into
evidence that the evidence of the DRE would be inadmissible. The Criminal Code
provided an irrebuttable presumption that a certified DRE is an expert.
The disclosure prohibition in s. 258.1(2) of the Criminal Code did not enjoin disclosure of the DRE’s anonymized rolling log. Disclosure was permitted under the