



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Stipo, 2019 ONCA 3

DATE: 20190107

DOCKET: C64352 & C64397

MacFarland, Watt and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Applicant (Appellant)

and

The Ontario Provincial Police

Applicant (Appellant)

and

Barbara Stipo

Respondent (Respondent)

James V. Palangio, for the appellant Attorney General of
    Ontario

Andrea Huckins, for the appellant Ontario Provincial
    Police

Mark Halfyard and Louie R. Genova, for the respondent

Howard L. Krongold and Chris Sewrattan, for the
    intervener Criminal Lawyers Association

Heard: May 15, 2018

On appeal from the judgment of Justice P. Andras Schreck
    of the Superior Court of Justice, dated September 1, 2017, with reasons
    reported at 2017 ONSC 5208, dismissing an application for an order of
certiorari
with prohibition in aid.

Watt J.A.:

[1]

Barbara Stipo had a motor vehicle accident. Her Porsche collided with a
    Toyota Prius.

[2]

Police investigated the accident. An officer charged Ms. Stipo with
    operating a motor vehicle while her ability to do so was impaired by a drug.

[3]

A drug recognition expert (DRE) conducted a drug recognition
    evaluation. The DRE demanded that Ms. Stipo provide a sample of urine. Barbara
    Stipo complied. Later, a toxicological analysis of Ms. Stipos urine sample
    confirmed the presence of seven different drugs.

[4]

As the trial was about to begin before a judge of the Ontario Court of
    Justice, Ms. Stipo sought disclosure from the Crown of:

i.

the training manual the DRE used in his training and used or relied on
    in his dealings with Ms. Stipo;

ii.

a copy of the DREs rolling log of drug influence evaluations, beginning
    with his training to obtain certification and continuing until the date of the
    application, including his dealings with Ms. Stipo and any toxicological
    corroboration of his analyses;

iii.

a copy of the DREs training record disclosing the results of his
    training examinations resulting in his certification and any toxicological
    corroboration of his training examinations; and

iv.

an updated copy of the DREs resume and resume review.

[5]

The Crown only agreed to disclose item i. The trial judge ordered
    disclosure of items ii-iv.

[6]

The
Ontario Provincial Police (OPP)
, the employer of the DRE, was not a party to the disclosure
    application at trial. However,
the Crown and the OPP together sought
certiorari
with prohibition in aid to quash the disclosure order made by the trial judge.

[7]

A judge of the Superior Court of Justice (the motion judge) dismissed
    the application and affirmed the disclosure order made by the trial judge, with
    reasons reported at
R. v. Stipo
, 2017 ONSC 5208
.

[8]

The Crown and the OPP appeal from the decision of the motion judge.
    These reasons explain why I would dismiss the appeal.

The Background Facts

[9]

The issues raised require little reference to the circumstances of the
    alleged offence. On the other hand, some mention of the role of a DRE, the
    genesis and content of the records sought, and the procedural history of the
    prosecution is essential to an understanding of the arguments advanced and the
    decision that follows.

The Accident

[10]

On November 25, 2015 Barbara Stipos Porsche suffered significant damage
    when it collided with a Toyota Prius. Officers of the OPP investigated the
    accident.

The ASD Demand

[11]

An
    officer from the Toronto Police Service (TPS) arrived at the accident scene
    as an OPP officer was conducting his investigation. The TPS officer advised his
    OPP colleague of a report TPS had received about a potential impaired driver.
    The vehicle involved matched the description of that of Ms. Stipo.

[12]

Armed
    with the information provided by the TPS officer and his own observations of
    Ms. Stipos imbalance as she walked, the OPP officer demanded that Ms. Stipo
    provide a breath sample for an analysis in an Approved Screening Device (ASD).
    She complied. The sample provided registered zero milligrams of alcohol in Ms.
    Stipos system.

The DRE Demand

[13]

The
    investigating officer concluded that Barbara Stipos ability to operate a motor
    vehicle was impaired by a drug. He arrested her for drug-impaired operation of
    a motor vehicle. Then, he demanded that she submit to a drug recognition
    evaluation. Ms. Stipo agreed. The officer took her to an OPP detachment where
    the evaluation could be conducted.

[14]

The
    DRE concluded that Ms. Stipos ability to operate a motor vehicle was impaired
    by a central nervous system (CNS) depressant and that she was unable to
    operate a motor vehicle safely.

The Demand for a Sample

[15]

After
    completion of the drug recognition evaluation, the DRE demanded that Ms. Stipo
    provide a urine sample so that a toxicological analysis could be made to
    determine whether she had a drug in her body. Ms. Stipo complied. She provided
    the urine sample.

[16]

A
    toxicological analysis of the urine sample Ms. Stipo provided revealed:

·

codeine

·

diazepam

·

diphenhydramine

·

nordiazepam

·

oxazepam

·

temazepam

·

trazodone

The Pre-Trial Disclosure

[17]

As
    part of the pre-trial disclosure, the Crown provided defence counsel with the
    DRE and toxicology reports relating to Ms. Stipo. The Crown also disclosed a dated
    copy of the DRE training manual including topics such as:

·

Curriculum vitae
Preparation and Maintenance

·

Case Preparation and Testimony

·

Transition to Certificate Training

The Disclosure Application

[18]

A
    brief description of the various items of which trial counsel sought disclosure
    from the Crown will help to better understand what is in issue.

The Training Manual

[19]

Prior
    to the application to the trial judge, Crown counsel had disclosed the 2010
    version of the Training Manual used to qualify candidates as DREs. The program
    is administered by the International Association of Chiefs of Police (IACP). At
    the time of the incident, the 2013 version of the Manual was in use, but
    because the Crown had disclosed the 2010 manual it was relied upon during the
    application.

[20]

That
    Manual sets out what is required to achieve certification as a DRE. This
    includes field evaluation requirements, which consist of at least 12
    evaluations. A prospective DREs opinion must be corroborated by toxicology
    samples in 75% of the cases. A prospective DRE must encounter three of seven
    drug categories and have their evaluations witnessed and supervised by a DRE
    instructor. The Manual also describes how Drug Influence Evaluations are to be
    completed.

[21]

As
    the Manual explains, a DRE certification expires after two years. A DRE may be
    recertified by following the steps required by the Manual.

The Rolling Logs

[22]

The
    IACP requires each DRE to maintain a rolling log, a record that documents every
    evaluation the DRE has administered or observed prior to and after
    certification. For each evaluation, the rolling log includes:

i.

the date of the evaluation;

ii.

the name and date of birth of the person evaluated;

iii.

the DREs opinion of the result of the evaluation; and

iv.

the results of any toxicological tests completed on any samples
    provided.

The Curriculum Vitae

[23]

The
curriculum vitae
(CV) of the DRE who completed the drug influence
    evaluation of Ms. Stipo was not disclosed to defence counsel or proffered for
    reception at trial.

[24]

The
    IACP requires a DRE candidate to prepare a CV before the candidate has
    completed field certification training. The CV is to reflect the candidates
    training and experience, including some information about the evaluations the
    candidate has conducted or observed. In an accompanying
Commentary
,
    the current version of
The International Standards of the Drug Evaluation
    and Classification Program
, a document filed on the hearing of the appeal,
    the IACP Highway Safety Committee advises:

In order to be accepted as a credible witness, the DRE must be
    able to document and articulate a body of information concerning training,
    qualifications, and experience in the field of drug evaluation and
    classification. Toward this end, candidates are instructed in the importance
    and proper preparation of a curriculum vitae.

[25]

Each
    individual DRE is to maintain copies of all drug evaluations, evaluation logs, their
    CV, certification and recertification progress logs, and certificates.

The Decision of the Trial Judge

[26]

The
    trial judge was satisfied that the records sought were relevant in that they
    could assist defence counsel in undermining the DREs conclusion, impeaching
    the reliability of his opinion, and demonstrating bias. He concluded that the
    first party disclosure regime of
R. v. Stinchcombe
,
[1991]
    3 S.C.R. 326 governed release of the records to defence counsel.

[27]

The
    trial judge then turned to the submission of the Crown that disclosure of the
    records sought was prohibited by the provisions of ss. 258.1(2) and (5) of the
Criminal
    Code
. These sections provide:

(2) Subject to subsections (3) and (4), no person shall use,
    disclose or allow the disclosure of the results of physical coordination tests
    under paragraph 254(2)(a), the results of an evaluation under subsection
    254(3.1), the results of the analysis of a bodily substance taken under
    paragraph 254(2)(b), subsection 254(3), (3.3) or (3.4) or section 256 or with
    the consent of the person from whom it was taken after a request by a peace
    officer, or the results of the analysis of medical samples that are provided by
    consent and subsequently seized under a warrant, except

(a) in the course of an investigation of, or in a proceeding
    for, an offence under any of sections 220, 221, 236 and 249 to 255, an offence
    under Part I of the Aeronautics Act, or an offence under the
Railway Safety
    Act
in respect of a contravention of a rule or regulation made under that
    Act respecting the use of alcohol or a drug; or

(b) for the purpose of
    the administration or enforcement of the law of a province.



(5) Every person who contravenes subsection (1) or (2) is
    guilty of an offence punishable on summary conviction.
[1]

[28]On this issue, the
    trial judge said of these provisions:

This, quite frankly, is incomprehensible to the court. As
    defence counsel has submitted, it makes no sense. This is hardly a principled
    analysis of this issue, but the court is unable to unravel the intent and
    policy considerations at play.

In any event, the court is quite prepared to make an order
    exempting the participants in this trial matter from being in contravention of
    this legislation.

[29]

In
    the result, the trial judge ordered the Crown to disclose to the defence:

i.

the training manual used or relied upon by the DRE in carrying out his
    duties in the investigation of Ms. Stipo;

ii.

the DREs rolling logs of drug influence evaluations, including any
    toxicological corroboration of his analyses contained in those logs, from the
    start of his certification training up to and including his dealings with Ms.
    Stipo; and

iii.

an updated copy of the DREs resume, but not a resume review, whatever
    that is.

The trial judge declined to order
    disclosure of the DREs training records and the results of the DREs training
    examinations.

The Decision of the Motion Judge

[30]

The
    Crown sought
certiorari
with prohibition in aid to quash the decision
    of the trial judge only in connection with disclosure of the rolling logs. As
    the record holder, the OPP sought the same relief, although the police force
    had not been involved in the application at trial. On the return of the motion,
    the OPP filed a copy of the 2013 DRE training manual that was in force at the
    time of the evaluation of Ms. Stipo.

[31]

The
    motion judge concluded that the rolling logs were fruits of the
    investigation, and thus subject to the first party disclosure regime put in
    place by
Stinchcombe
. He wrote:

The rolling logs are created by and in the possession of a
    police officer involved in the investigation of the respondent and are relevant
    to the proficiency of his ability to form the opinion the Crown wishes him to
    testify about in order to prove an essential element of the offence. In my
    view, the rolling logs clearly meet the definition of fruits of the
    investigation as that term is used in the case law. As a result, the DRE is
    duty bound to provide them to the Crown, and the Crown is duty bound to obtain
    them and provide them to the defence, subject to the applicants submission
    that such disclosure is prohibited by s. 258.1 of the
Criminal Code
,
    which I will address later in these reasons.

[32]

The motion judge rejected the submission of the Crown and OPP that
    disclosure of the rolling logs was barred because it would constitute an
    offence under s. 258.1(5) of the
Criminal Code
even if the results of
    other evaluations were anonymized. He concluded that since the prosecution of
    Ms. Stipo was
a
proceeding for a listed offence, disclosure of the
    results of other drug influence evaluations was not barred by the
    offence-creating provision of s. 258.1(5) due to the exception in s. 258.1(2).

[33]

Even if disclosure of the rolling logs were governed by the third party
    regime of
R. v. OConnor
, [1995] 4 S.C.R. 411, the motion judge
    continued, the logs were likely relevant, thus producible for inspection and
    a final decision on disclosure.

[34]

Before the motion judge, but not before the trial judge, the Crown and
    OPP invoked s. 37 of the
Canada Evidence Act
as a bar to disclosure.
    The section allows the Crown to object to disclosure of information based on a
    specified public interest. The specified public interest advanced in this
    case included:

i.

the interest in respecting Parliamentary authority;

ii.

the interest in maintaining a functioning democracy and in Parliaments
    ability to function as the legislative body;

iii.

the public interest in prosecuting impaired driving cases; and

iv.

the privacy interest of third parties.

The motion judge was satisfied that none of the
    interests identified by the Crown and OPP fell within the range of specified
    public interest in s. 37 of the
CEA
and that even if one or more of
    them did, it did not justify a refusal to order disclosure.

The Grounds of Appeal

[35]

The
    Crown and OPP (the appellants) raise three grounds of appeal. They contend
    that the motion judge erred:

i.

in finding that the DREs rolling log was a record disclosure of which
    was governed by the first party regime of
Stinchcombe
, not the third
    party regime of
OConnor
;

ii.

in finding that the DREs rolling log was relevant to an issue at the
    respondents trial; and

iii.

in failing to find that s. 258.1 barred disclosure of the rolling log
    even if anonymized.

A Preliminary Issue: The Availability of
Certiorari

[36]

While
    this judgment was under reserve, the Supreme Court of Canada released its
    decisions in
R. v. Gubbins
, 2018 SCC 44, and
R. v. Awashish
,
    2018 SCC 45. We invited and received written submissions from the parties and
    intervener on the effect, if any, of those decisions on the issues raised in
    this appeal. I have considered those submissions, in addition to those
    contained in the factums and raised in oral argument in reaching my conclusion.

[37]

The
    appellants invoked the extraordinary remedy jurisdiction of the motion judge to
    challenge the disclosure ruling made by the trial judge. None of the parties
    made any submissions to the motion judge about the availability of
certiorari
as a remedy to challenge the correctness of the trial judges disclosure order.
    Nor did the parties or intervener question the appellants remedy choice in
    oral argument in this court.

[38]

To
    be faithful to the teachings of
Awashish
, it becomes necessary to
    consider first whether the remedy sought by the appellants 
certiorari
with prohibition in aid  could be invoked as a basis on which to set aside the
    disclosure order made by the trial judge.

The Positions of the Parties

[39]

In
    his written submissions, Crown counsel acknowledged that
certiorari
was
    not available to challenge the trial judges finding that the rolling logs were
    relevant or that their disclosure was governed by the first party disclosure
    regime of
Stinchcombe
. In each instance, the Crown recognizes, even if
    the trial judge were wrong, the error was an error of law within the
    jurisdiction of the trial judge, not a jurisdictional error.

[40]

On
    the other hand, the Crown contends, the trial judges purported exemption of
    the parties from the disclosure prohibition in s. 258.1(2) of the
Criminal
    Code
amounts to jurisdictional error. This is because, under
Awashish
,
    a failure to follow a mandatory statutory provision is a jurisdictional error.

[41]

At
    all events, the Crown argued, because the OPP had third-party standing to seek
certiorari
,
    the Crown was also entitled to advance arguments before the motion judge as a
    party affected by the decision. The OPP says that as a third party  the record
    holder  it was entitled to invoke
certiorari
to correct errors of law
    on the face of the record. Those errors, according to the OPP, consisted of the
    trial judges findings that:

i.

the rolling logs were relevant;

ii.

disclosure of the rolling logs was governed by the first party disclosure
    regime under
Stinchcombe
; and

iii.

disclosure was not prohibited by the provisions of ss. 258.1(2) and (5)
    of the
Criminal Code
.

[42]

In
    addition, the OPP continues, the trial judges refusal to allow the force as
    the record holder to make submissions about disclosure breached the principles
    of natural justice. This too permitted the OPP to access
certiorari
to
    challenge the trial judges decision.

[43]

The
    respondent contends that
Awashish
has no bearing on our determination
    of this appeal. The disclosure order made at trial was a final order against
    the OPP, the record holder. And as the record holder, the OPP can invoke
certiorari
to correct what it alleges to be errors of law on the face of the record, as
    well as alleged breaches of the principles of natural justice. Here, the record
    holder and the Crown advance the same arguments about the character of the
    impugned record and whether it was improperly ordered disclosed. The decision
    in
Awashish
does not erect any bar to a decision on the merits.

The Governing Principles

[44]

In
Awashish
, the parties were at loggerheads over disclosure of documents
    said to be relevant to the defence against charges, among them impaired
    operation of a motor vehicle. The documents sought related to the maintenance
    of the breathalyzer machine used in the investigation. A judge of the Superior
    Court of Québec quashed an order of a judge of the trial court requiring the
    Crown to inquire into the existence of certain documents relating to
    breathalyzer maintenance. The Québec Court of Appeal held that although
certiorari
was available to an accused where a judge acted without jurisdiction, and
    sometimes, when a judge erred in law in the face of the record, the remedy was
    not available to the Crown in this case because the decision was made in the
    exercise of the trial courts jurisdiction. The Crown appealed to the Supreme
    Court of Canada.

[45]

The
    Supreme Court of Canada dismissed the Crown appeal. In doing so, Rowe J., who
    delivered the judgment of the unanimous and full court, set out several
    principles concerning the availability of
certiorari
to review orders
    made by provincial court judges on pre-trial applications.

[46]

First,
    extraordinary remedies, among them
certiorari
, are available to the
    parties in criminal proceedings
only
for jurisdictional errors by a
    provincial court judge:
Awashish
, at para. 20.

[47]

Second,
    in criminal proceedings, jurisdictional errors occur where a provincial court
    judge

i.

fails to observe a mandatory provision of a statute; or

ii.

acts in breach of the principles of natural justice.

See,
Awashish
, at
    para. 23.

[48]

Third,
    these strict limitations on the availability of
certiorari
for parties
    are to prevent the use of extraordinary remedies as an end-run to circumvent
    the rule against interlocutory appeals:
Awashish
, at paras. 10-11.

[49]

Fourth,
certiorari
is not available to parties to review the conduct of
    criminal proceedings on the basis of an alleged error of law on the face of the
    record:
Awashish
, at para. 16-17.

[50]

Fifth,
    the scope of review available on
certiorari
for third parties is
    somewhat more expansive. After all, third parties do not have rights of appeal,
    at least in most cases. Thus, in addition to review of jurisdictional errors, a
    third party may invoke
certiorari
to challenge an error of law on the
    face of the record, provided the order has a final and conclusive effect in
    relation to that third party:
Awashish
, at para. 12.

[51]

It
    is uncontroversial that a trial judge has jurisdiction or authority to
    determine disputes about disclosure. The jurisdiction is engaged upon request
    of a party, usually the person charged. It necessarily follows from this
    adjudicative authority that the decision of the trial judge may require a
    determination about which disclosure regime  first party or third party 
    controls the decision:
Gubbins
, at para. 29.

[52]

A
    logical consequence of the authority to determine disclosure issues, more
    particularly to decide which disclosure regime governs what is sought, is that
    any alleged error, at least as a general rule, would not amount to a
    jurisdictional error, but only an error of law in the exercise of jurisdiction.
    And as we have already seen, unless the error were to amount to a failure to
    observe a mandatory statutory provision or a breach of the principles of
    natural justice, the error would fall beyond the reach of
certiorari
at the instance of any party to the proceedings, but not a third party.

The Principles Applied

[53]

As
    I will explain, I am satisfied that the decision in
Awashish
does not
    foreclose the appellants recourse to
certiorari
to challenge the
    disclosure order made by the trial judge in this case.

[54]

Recall
    at the outset that no party contested the availability of
certiorari
as a mechanism to review the disclosure order made by the trial judge. Not
    before the motion judge. And not in this court, as the appeal was argued.

[55]

On
    the other hand, as
Awashish
confirms, the availability of
certiorari
as a mechanism for parties to challenge pre-trial rulings is significantly
    circumscribed. That neither party challenged its availability cannot overcome
    those restrictions.

[56]

The
    Crown accepts that it generally cannot invoke
certiorari
to review a
    disclosure order made in provincial court proceedings to which it is a party.  This
    shields from interlocutory review the provincial courts determination that the
    disclosure request is governed by the first party regime of
Stinchcombe
rather than the third party procedure of
OConnor
. A trial judge has
    the jurisdiction to make these decisions. Jurisdiction is a matter of
    adjudicative authority, not correctness of the decision rendered.

[57]

However,
    the decision in
Awashish
does allow a party access to
certiorari
for jurisdictional error. And jurisdictional error includes failure to observe
    a mandatory provision of the
Criminal Code
or a breach of the
    principles of natural justice. Here, the Crown alleges that the trial judge
    failed to give effect to the
Criminal Code
prohibition against the use
    or disclosure of evaluation results save in exceptional circumstances, a
    prohibition reinforced by the creation of a summary conviction offence for
    improper disclosure. The effect of this error, the Crown argues, amounts to a
    failure to observe a mandatory provision of the
Criminal Code
, and thus
    permits access to
certiorari
in accordance with an exception
    recognized by
Awashish
. This allegation is sufficient to place the issue
    of the provincial court judges jurisdiction before the superior court by way
    of
certiorari
.

[58]

As
    a third party record holder, the OPP was also able to challenge the trial
    judge jurisdiction on
certiorari
. Therefore, I am satisfied that this
    is not a case in which access to
certiorari
was foreclosed by the
    prohibition against interlocutory appeals laid down by
Awashish
.
[2]

Ground #1: The First Party Disclosure Issue

[59]

This
    ground of appeal challenges the correctness of the trial and motion judges
    decisions that disclosure of the rolling log is governed by the first party
    regime of
Stinchcombe
, not the third party scheme of
OConnor
.

[60]

To
    situate the claim of error in its proper environment, a brief refresher about
    the origins, nature and control of the rolling logs will provide a suitable
    frame of reference for the discussion that follows.

The Rolling Logs

[61]

The
    rolling log is a document created and maintained as part of a DREs
    professional obligations. It records the tests and evaluations the DRE conducts
    or observes from the beginning of training, which culminates in certification
    as a DRE, up to the time the DRE testifies at trial. For each evaluation, the
    log includes:

i.

the name and date of birth of the person who is evaluated;

ii.

the date of the evaluation;

iii.

the DREs conclusion about drug impairment; and

iv.

the results of toxicological testing as corroborative or contradictive
    of the DREs evaluation.

[62]

The
    rolling log is historical in that it records evaluations conducted or observed
    prior to that involving the person charged. But it is also prospective for it
    includes evaluations conducted or observed after that of the accused up to the
    time of the DREs testimony. Among its entries, of course, are the particulars
    of the DREs evaluation of the accused, disclosure of which is governed by
Stinchcombe
and has been made here.

[63]

The
    only connection of the rolling log with the investigation of an individual
    accused is the entry in the log relating to the DREs evaluation of that
    accused and any confirmation or contradiction of the DREs opinion by
    toxicological testing.

The Arguments on Appeal

[64]

The
    appellant Crown acknowledges that it has a broad obligation to disclose to an
    accused charged with an offence all relevant non-privileged information it has
    in its possession or control unless disclosure of that information is otherwise
    governed by law. This obligation extends to information in the possession or
    control of the prosecuting Crown, not to information held by other arms of the
    state, unless that information falls within the fruits of the investigation
    category. Records in the hands of a third party, including the police, are
not
subject to the first party disclosure obligation put in place by
R. v.
    Stinchcombe
.

[65]

It
    follows, the Crown says, that when an accused seeks records which are not fruits
    of the investigation from the police, as in this case, the accused must seek
    disclosure from the third party, whether directly or through the prosecuting
    Crown, or bring a third party records application under
R. v. OConnor
.
    This requires the accused to demonstrate the likely relevance of what is
    sought.

[66]

The
    Crown accepts that neither it nor the police are permitted a passive or
    disinterested approach to the production of third party records. When put on
    notice of the existence of material an accused seeks, the Crown has a duty to
    inquire and to make reasonable efforts to obtain what is sought.
    Correspondingly, the police have a duty to provide the Crown with all
    information that they know has obvious relevance to an accuseds case.

[67]

Despite
    these positive obligations, the Crown continues, this does not mean that the
    records the respondent seeks must be disclosed as part of the Crowns first
    party disclosure obligation. Upon inquiry by the Crown and refusal by the
    police to disclose any material which is not part of the fruits of the
    investigation, an accused must pursue a third party records application under
OConnor
to obtain the material.

[68]

The
    Crown says that it does not have possession or control over the rolling log,
    which is created, maintained, and held by the DRE or the OPP, the DREs
    employer. The log is not part of the fruits of the investigation. Nor is it
    obviously relevant. The police have no obligation to turn the rolling log over
    to the Crown for disclosure to the respondent. The judges below were in error
    in deciding that this case was one of first party disclosure. To obtain what he
    seeks, the respondent must bring a third party records application in
    accordance with
OConnor
.

[69]

The
    appellant OPP repeats many of the submissions of the Crown.

[70]

The
    OPP points out that the rolling log is a record generated and updated by an
    officer of the OPP. The log is held by and is kept under the control of the
    OPP. It contains a one-line summary of every evaluation the DRE performs,
    together with the corresponding toxicological results. The substantial majority
    of the information contained in the log consists of historical summaries of
    evaluations conducted during investigations of persons other than the
    respondent. These summaries have no association with the respondents alleged
    offence or the investigation of it by the OPP. This is not a record in the
    possession or control of the prosecuting Crown.

[71]

In
    addition, the OPP says that, despite its status as the record holder, it
    received no notice of the application at trial. It had no opportunity to
    advocate its position or adduce evidence about the purpose and use of the logs.
    In particular, the OPP says it had no opportunity to adduce expert evidence to
    explain why toxicological results may not coincide with DRE evaluations.

[72]

The
    respondent readily acknowledges that rolling logs are not in the possession or
    control of the prosecuting Crown. But that, the respondent says, does not end
    the inquiry into the applicable disclosure regime, or rule out first party
    disclosure as the governing disclosure scheme. This is because of two corollary
    duties in place to ensure that disclosure is meaningful and that an accused
    gets the entire fruits of the investigation.

[73]

The
    first duty, imposed on the police, is to provide all potentially relevant
    material they have in their possession to the Crown. This includes all material
    pertaining to its investigation of the accused. The second duty, settled upon
    the Crown, is to obtain all relevant material of which they become aware,
    including potentially relevant evidence pertaining to the credibility or
    reliability of the witnesses in the case.

[74]

The
    rolling log, the respondent contends, is relevant to the credibility of the DRE
    and the reliability of the DREs evidence on the issue of impairment. This
    triggers the Crowns duty to seek and obtain a copy of the log from the OPP and
    the duty of the OPP to disclose that log to the Crown without prompting. And so
    it is that the log forms part of first party disclosure under
Stinchcombe
.
    This issue is not controlled by the decision in
R. v. Jackson
, 2015
    ONCA 832, 128 O.R. (3d) 161. In that decision, the court decided that certain
    records relating to breathalyzer devices were not likely relevant, but the rolling
    log at issue here plays a significant role in the respondents prosecution.

[75]

The
    respondent likens the rolling log to an experts
CV
. Each reflects the witnesss qualifications to testify
    as an expert. No one would gainsay that a
CV
is first party disclosure. The same result should apply to the rolling log, an
    essential component of the DREs
CV
.

[76]

The
    intervener, the Criminal Lawyers Association (CLA), contends that the test
    for disclosure is simply relevance, whether under the
Stinchcombe
or
    the
OConnor
framework. The only difference between the two frameworks
    is that under
OConnor
it is the accused who must bear the burden of
    establishing relevance in an application. The choice between the

two
    frameworks is largely a matter of policy that should be informed by whether it
    would be justified and efficient to require a full-blown
OConnor

hearing
    in each case. For rolling logs, it is an inefficient use of court resources and
    unjustified to shift to an accused the burden of bringing an application to
    obtain disclosure of this obviously relevant information. The nature of the
    rolling logs and their relationship to the weight to be assigned to the DREs
    expert opinion on impairment engages the Crowns duty to inquire and the
    related police duty to provide in accordance with the
Stinchcombe
disclosure regime.

The Governing Principles

[77]

Despite
    the novelty of its subject-matter, a DREs rolling log, this disclosure issue reduces
    in the main to the application of settled principles intermingled with a
    tincture of statutory prohibition.

The Disclosure Regimes

[78]

It
    is commonplace that two different regimes govern disclosure in criminal cases.

[79]

The
    first party disclosure regime originated in
Stinchcombe
and was
    supplemented by duties imposed on the Crown and the investigating police in
R.
    v. McNeil
, 2009 SCC 3, [2009] 1 S.C.R. 66. This requires disclosure of all
    relevant information upon request. If the Crown refuses disclosure, the Crown
    bears the burden of establishing that the information is privileged from
    disclosure or clearly irrelevant:
Gubbins
, at para. 29.

[80]

The
    third party disclosure regime has its genesis in
OConnor
and requires
    an application to the court for records that fall outside the first party
    disclosure scheme. In these cases, the defence bears the initial burden of
    showing that the records sought are likely relevant:
Gubbins
, at
    para. 29.

[81]

Each
    disclosure regime has as its purpose the protection of an accuseds right to
    make full answer and defence to the offences charged. At the same time, each
    scheme recognizes the need to place limits on disclosure when required,
    including limits to avoid fishing expeditions:
Gubbins
, at para. 29.

[82]

To
    determine which disclosure regime controls a disclosure dispute, a court should
    pose and answer two questions:

(1)

Is the information sought in the possession or control of the
    prosecuting Crown?

(2)

Is the nature of the information sought such that the police or another
    Crown entity in possession or control of the information
ought to have supplied it to the
    prosecuting Crown
?

The answer to the second
    question will be yes if the information sought qualifies as part of the fruits
    of the investigation or as obviously relevant:
Gubbins
, at para.
    33.

[83]

Where
    either question yields an affirmative answer, the first party disclosure regime
    applies, at least in the absence of any applicable statutory regime. In any
    other case, the third party scheme governs:
Gubbins
, at para. 33.

[84]

The
    term fruits of the investigation refers to police investigative files, not to
    operational records or background information. In other words, the term
    describes information generated or acquired during or as a result of the
    specific investigation into the charges against the accused. This information
    may relate to the unfolding of the narrative of material events, the
    credibility of witnesses or to the reliability of evidence that may form part
    of the case an accused is required to meet:
Gubbins
, at para. 22;
Jackson
,
    at paras. 92-93.

[85]

In
    addition to information that falls within the fruits of the investigation,
    the police should disclose to the prosecuting Crown any additional information
    that is obviously relevant to an accuseds case. The term obviously
    relevant describes information that is
not
within the investigative
    file, but that would nonetheless be required to be disclosed under
Stinchcombe
because it relates to the accuseds ability to meet the case for the Crown, to
    raise or advance a defence, or otherwise consider the conduct of the defence.
    Under
McNeil
, the police are required to turn this information over to
    the Crown:
Gubbins
, at paras. 23 and 36.

[86]

The
    Supreme Court has stressed that obviously relevant does not create a new
    standard or degree of relevance:
Gubbins
, at paras. 23 and 36.
    Nevertheless, the term should be understood with reference to the stage of the
    process at which the relevance inquiry takes place. Unlike in the second step
    of the
OConnor
application, the court will not have the records
    before it for examination. Therefore, the relevance of the records must be
    obvious without such examination.

[87]

No
    one suggests that every police record is subject to the first party disclosure
    regime of
Stinchcombe
: see, for example,
McNeil
, at para. 59.
    It follows that the third party disclosure regime of
OConnor
occupies
    a vital role for disclosure of records which are neither part of the
    investigative file nor obviously relevant and thus fall outside the first party
    disclosure regime:
Gubbins
, at para. 24.

[88]

Third
    party disclosure requires an accused to apply to a court to obtain that
    disclosure. The procedure involves two steps. The first requires that the
    accused satisfy the judge that the record sought is likely relevant. This
    burden is met where the accused demonstrates a reasonable possibility that the
    information sought is logically probative of an issue at trial or the
    competency of witnesses to testify. Information in respect of which there is a
    reasonable possibility that it may assist the accused in the exercise of the
    right to make full answer and defence meets this threshold:
Gubbins
,
    at para. 27;
McNeil
, at para. 44;
OConnor
, at paras. 21-22.

[89]

Where
    an accused has demonstrated likely relevance, the documents are produced to the
    judge for examination and determination of whether, and to what extent, the
    documents should be disclosed to the defence. This step involves a
    determination of actual (rather than likely) relevance and a consideration of
    competing interests:
McNeil
, at para. 39;
Gubbins
, at para.
    27.

The DRE

[90]

Under
    s. 254(1) of the
Criminal Code
, an evaluating officer is a peace
    officer qualified under the regulations to conduct evaluations to determine
    whether a persons ability to operate a conveyance such as a motor vehicle is
    impaired by a drug or a combination of alcohol and a drug. Whether the results
    of the evaluation cause the evaluating officer to have a reasonably grounded
    belief that the accuseds ability to operate a motor vehicle is impaired by a
    drug or a drug in combination with alcohol will determine whether a further
    demand for a sample of bodily substances will be made:
Criminal Code
,
    s. 254(3.4).

[91]

In
    2008, Parliament put in place a regime to test for drug impairment: a 12-point
    evaluation established by the Regulations based upon the procedure set out by
    the IACP. The evaluations are carried out by police officers accredited by the
    IACP. These officers, known as DREs, carry out the functions assigned to an
    evaluating officer as defined in s. 254(1) of the
Criminal Code
.

The Admissibility of DRE Evidence

[92]

Unlike
    in prosecutions for alcohol-impaired operation of a conveyance, the
Criminal
    Code
contains no provisions governing the admissibility of the evidence of
    DREs about drug impairment. The applicable principles are those governing the
    admissibility of expert opinion evidence. This familiar analysis is divided
    into two steps:

i.

the threshold requirement; and

ii.

the cost benefit analysis.

See
White Burgess Langille
    Inman v. Abbott and Haliburton Co
.
, 2015 SCC 23, [2015] 2 S.C.R.
    182.

[93]

At
    the first step, the evidence must satisfy the four requirements of
R. v.
    Mohan
, [1994] 2 S.C.R. 9, among them that the witness have expertise in
    the subject-matter of his or her evidence that extends beyond the experience and
    knowledge of the trier of fact about that subject:
R. v.
Bingley
,
    2017 SCC 12, [2017] 1 S.C.R. 170, at paras. 14, 15 and 19;
Mohan
, at
    p. 25.

[94]

Parliament
    has established that a DRE has special expertise outside the experience and
    knowledge of the trier of fact. Said in another way, the DRE is an expert for
    the purpose of applying the 12-step evaluation and determining whether that
    evaluation indicates drug impairment for the purposes of s. 254(3.1).
    Parliament has conclusively and irrebuttably established the DREs expertise:
Bingley
,
    at para. 27.

[95]

The
    statutory framework Parliament has enacted does
not
undermine the
    trial judges gatekeeper function which enables the trial judge to safeguard
    the trial process and to ensure that it is not disturbed by improper expert
    opinion evidence. Focusing the analysis on the DREs administration of the
    evaluation may persuade the trial judge that the prejudicial effect of the
    evidence outweighs its probative value and warrants its exclusion:
Bingley
,
    at para. 30.

[96]

Parliament
    has established the reliability of the 12-step drug evaluation test. But it has
    not determined or said that the conclusion drawn by the DRE is dispositive of
    guilt. The DRE determines whether the evaluation indicates drug impairment.
    This opinion is neither more nor less than a piece of evidence for the trier of
    fact to consider in deciding whether the Crown has proven that the ability of the
    person charged to operate a conveyance was impaired by a drug. No presumption
    of guilt follows from the conclusion expressed by the DRE:
Bingley
, at
    para. 31.

[97]

The
    statutory recognition of the reliability of the 12-step drug evaluation erects
    no barrier to the authority of the trier of fact to critically assess a DREs
    conclusion about impairment, or to the right of an accused to challenge that
    evidence. Cross-examination may undermine the DREs conclusion. Unearth a bias.
    Demonstrate a failure to follow required steps. Or reveal the questionable
    nature of the DREs inferences. Evidence of bodily sample analysis or testimony
    from lay witnesses or experts may rebut or discredit the DREs assessment:
Bingley
,
    at para. 32.

[98]

And
    in the end, as with any item of evidence adduced in a criminal trial, it will
    be open for an accused to challenge and for the trier of fact to assess the
    weight to be assigned to the DREs opinion about impairment:
Bingley
,
    at para. 32.

Section 657.3 of the
Criminal Code

[99]

Section
    657.3 of the
Criminal Code
enacts notice and disclosure requirements
    when expert opinion evidence will be tendered for admission in a criminal
    trial. Among other things, s. 657.3(3)(a) requires a party to provide
    disclosure of a statement of the qualifications of the proposed witness as an
    expert to the other party or parties.

The Principles Applied

[100]

As I will
    explain, I would not accede to this ground of appeal. I agree with the
    conclusion of the trial and motion judges that disclosure of the rolling log is
    governed by the first party disclosure regime of
Stinchcombe
, not the
    third party scheme of
OConnor
. However, as will become apparent, I
    reach my conclusion for reasons that differ from those of the trial and motion
    judges.

[101]

The touchstone
    of disclosure is relevance. No one has a right to disclosure of information or
    material which lacks logical relevance. And no one has a duty to disclose
    information or material which lacks logical relevance.

[102]

In this case,
    the Crown must prove beyond a reasonable doubt that, at the time alleged, the
    respondents ability to operate a motor vehicle was impaired by a drug or a
    combination of a drug and alcohol. As part of its proof, the Crown may tender as
    evidence the opinion of the DRE who conducted the drug recognition evaluation
    of the respondent.

[103]

In the absence
    of any statutory provisions displacing them, the common law rules governing the
    exceptional admission of expert opinion evidence apply in prosecutions for
    drug-impaired operation. In the result, the admissibility of expert opinion
    evidence requires a two-stage analysis.

[104]

The first stage
    considers whether the proposed evidence satisfies the four
Mohan
factors including that the proposed witness have special expertise beyond the
    knowledge and experience of the trier of fact. Evidence that fails to meet the
Mohan
threshold requirements will be excluded.

[105]

The second stage
    involves the application of the general exclusionary rule, which assesses
    whether the benefits of admitting the evidence outweigh any potential harm its
    reception occasions to the trial process.

[106]

At the second
    stage of the admissibility analysis, it is open to defence counsel to endeavour
    to show that the prejudicial effect of the evidence exceeds its probative
    value. This analysis focuses on the DREs administration of the evaluation. It may
    involve exposing limitations, such as the absence of a standardized approach to
    weighing the various tests in reaching a determination of drug impairment. Or
    the failure of the DRE to explain how she drew the inference of drug impairment
    on the basis of the 12-step evaluation. Cross-examination of the DRE on the
    admissibility inquiry may expose these deficiencies and persuade the trial
    judge to exclude the evidence on the basis of the cost benefit analysis.

The Relevance of the Rolling Log

[107]

When Crown
    counsel tenders as evidence the opinion of a DRE formed from conducting the
    12-step evaluation test, counsel is of necessity asserting that the DREs
    conclusion affords reliable evidence of drug impairment of an accuseds ability
    to operate a motor vehicle. It follows that any evidence that has a tendency to
    cast doubt on the reliability of the DREs conclusion is relevant. Evidence of
    the DREs prior experience in conducting drug recognition evaluations would
    seem relevant on this basis.

[108]

Apart altogether
    from the statutory requirements of s. 657.3(3)(a) of the
Criminal Code
,
    disclosure of a proposed expert witness
CV
has been commonplace. This is because the CV is relevant to the witnesss
    qualifications to give expert opinion evidence and the weight to be assigned to
    any evidence the witness is permitted to give. Indeed in this case, the DREs
CV
seems to have been eventually provided.
    Recall that the
CV
is a
    document in which the IACP requires the DRE to include some of the same details
    about evaluations as are recorded in the rolling log.

[109]

This is not a
    case governed by
Jackson
or
Gubbins
. In those cases, the
    accused sought disclosure of historical records relating to the performance of
    an approved instrument on other occasions. But the material issue in each case
    had nothing to do with the instruments performance on other occasions. The
    material issue in those cases was how the approved instrument worked when it
    measured Jacksons and Gubbins blood alcohol levels. Expert evidence confirmed
    that the historical data could say nothing about that. And expert evidence was
    necessary because persons of ordinary experience could not establish or negate
    the link between past performance and present functionality. That is not this
    case. A trier of fact needs no expert evidence to opine on the relevance of
    prior experience in assessing current reliability.

[110]

As a result, I
    am satisfied that the rolling log is relevant material or information for
    disclosure purposes.

The Applicable Disclosure Regime

[111]

Determining which
    regime governs disclosure of the DREs rolling log requires consideration of
    two questions:

(1)

Is
    the information that is sought in the possession or control of the prosecuting
    Crown? and

(2)

Is
    the nature of the information sought such that the police or another Crown
    entity in possession or control of the information ought to have supplied it to
    the prosecuting Crown?

Unless some other statutory
    scheme interferes, an affirmative answer to either question settles disclosure
    under the first party regime of
Stinchcombe
.

Possession or Control of the Log

[112]

In this case,
    the rolling log is created and its currency is maintained by the DRE. The log
    is not in the possession or control of the prosecuting Crown. It remains in the
    possession of the DRE, and the police force which employs the DRE, in this
    case, the OPP. Therefore, the question becomes whether the entries on the log
    constitute fruits of the investigation or are otherwise obviously relevant
    such that the OPP has an obligation to disclose them to the Crown.

The Log as fruits of the investigation

[113]

The term fruits
    of the investigation refers to the investigative files of the police,
not
to operational records or background information. This is information generated
    or acquired during or as a result of the specific investigation into the charge
    against the respondent. The term posits a relationship between the information
    sought and the investigation that led to the charges against the respondent.

[114]

Apart from that
    portion of the rolling log which relates to the investigation of the respondent
    and has already been disclosed, the historical portions of the log were
    generated or acquired during or as a result of unrelated investigations. It
    follows that the portion of the logs sought is
not
part of the fruits
    of the investigation. To the extent that the trial and motion judges grounded
    their finding that the first party disclosure regime governed on the basis that
    the log was part of the fruits of the investigation, they, without the
    benefit of the decision in
Gubbins
, erred in so holding.

The Log as obviously relevant

[115]

The opinion of
    the DRE that the respondents ability to operate a motor vehicle was impaired
    by a drug is part of the case for the Crown on the issue of drug impairment.
    While not dispositive, the opinion is nonetheless relevant, material and
    potentially admissible. It also provides a gateway to the admission of the
    results of the toxicological analysis of the respondents urine. Tender of the
    DREs opinion on drug impairment of necessity amounts to a representation by
    the Crown that the opinion is a reliable indicator of drug impairment. This in
    turn is an implicit claim that the DRE followed the 12-step evaluation and did
    so properly. Any evidence that has a logical tendency to cast doubt on that
    claim is therefore relevant.

[116]

Recall that in
Bingley
,
    the court recognized that despite Parliaments statutory approval of the
    reliability of the 12-step drug evaluation, an accused retained the right to
    test the evidence. The trier of fact also retained the ability to critically
    assess the DREs conclusion. Among the methods of testing, the court mentioned:

i.

cross-examination of the DRE to undermine the conclusion of drug
    impairment;

ii.

evidence of bias;

iii.

evidence of failure to conduct the evaluation in accordance with the
    DREs training;

iv.

questioning the DREs inference-drawing from observations; and

v.

refutation of the conclusion by bodily sample evidence collected under
    s. 254(3.4).

[117]

In the end, this
    issue reduces to whether the rolling log is
relevant
in challenging
    the Crowns necessary and implicit claim that the DREs conclusion on drug
    impairment is reliable.

[118]

In my view,
    evidence of the rolling log meets the requirement of obviously relevant for
    the purposes of the first party disclosure regime. I reach this conclusion for
    four reasons.

[119]

First, the
    relevance requirement itself.

[120]

The term
    obviously relevant represents a comment on the obvious nature of the
    relevance of the record in the case. What the term does not do is describe a
    higher standard or degree of relevance. It describes information that is not
    within the investigative file but relates to the accuseds ability to meet the
    case for the Crown, to raise a defence, or to make decisions about the conduct
    of the case for the defence. For disclosure purposes, relevance is not
    determined by whether the information sought is decisive in the case, rather by
    its logical relevance. This is not a stringent standard.

[121]

A rolling log
    reflects the DREs experience with the 12-step evaluation test to determine
    drug impairment. It shows how many times the DRE has conducted the test. The
    drug groups identified. The toxicological results, whether confirmatory or
    contradictory of the DREs opinion.

[122]

Second, prior
    experience and present reliability.

[123]

In the law of
    evidence, we recognize that how an individual acted on prior occasions is
    relevant in deciding whether or how they acted at a material time. Although
    admissibility rules rooted in policy considerations may exclude this evidence
    in some circumstances, as for example when tendered by the Crown, exclusion is
not
based on lack of relevance. In a similar way, we test the reliability of
    current information from a confidential informer by examination of the track
    record (or the absence of a track record) of that informer.

[124]

Third, the
    impact of the DREs evidence.

[125]

As we have seen,
    the DREs opinion on drug impairment, formed by inference from the results of
    the 12-step evaluation, is not dispositive on the issue of drug impairment. For
    the DRE cannot describe the effect of any drugs found through toxicological
    analysis on the mental or physical ability of an accused to operate a motor
    vehicle. The DREs opinion on drug impairment is a link in the Crowns chain of
    proof. Like other links in that chain, it is open to challenge.

[126]

The appellants
    analogy to
Jackson
and
Gubbins
is misplaced. There, the
    appellants sought disclosure of historical records about the performance of the
    approved instrument on other occasions. The material issue in each case was not
    of course how the approved instrument had performed on those prior occasions,
    but how it actually worked when the appellants breath was tested. Expert
    evidence confirmed that historical data could tell nothing of that. And there
    were also several pre-test steps, mechanisms to ensure that the instrument
    would only function if operating properly. But that is not this case. No
    expertise is required to establish the relevance of prior experience to current
    reliability.

[127]

Fourth, the
curriculum
    vitae
.

[128]

A threshold
    requirement for the admissibility of expert opinion evidence is a properly
    qualified expert. It is commonplace for those proposed as experts to record
    their qualifications in a CV. Further, it is the practice for the proponent of
    the evidence to utilize the CV to establish the proposed witness
    qualifications in a defined subject-matter. The same document is often used by
    opposing counsel to limit the fields of expertise or to disqualify the witness
    entirely in the proposed area of expertise.

[129]

Section 657.3(3)(a)(iii)
    of the
Criminal Code
requires a party who intends to call an expert
    witness to disclose to the other parties in the proceedings a statement of the
    qualifications of the proposed witness as an expert. Section 657.3(3)(a)
    describes the time periods within which this disclosure is to be provided for
    the purpose of promoting the fair, orderly and efficient presentation of the
    testimony of the witnesses. A compendious equivalent for the statutory language
    a statement of the qualifications of the proposed witness as an expert would
    be the witness
curriculum vitae
or CV.

[130]

It is worth
    notice that disclosure of the CV under s. 657.3(3)(a)(iii) imposes a duty on
    the proponent of the evidence and a correlative right on the opponent. No
    application for disclosure is necessary. In short, the CV is obviously
    relevant.

[131]

The rolling log
    is obviously relevant for the same reasons as the CV. Both documents describe
    the DREs experience and are relevant to establishing and delineating the DREs
    area of expertise. Therefore, both should be subject to the same, not different
    disclosure schemes.

[132]

In the result, I
    am satisfied that disclosure of the rolling log is governed by the first party
    disclosure regime of
Stinchcombe
, not the third party scheme of
OConnor
.

Ground #2: The Relevance of the Rolling Log

[133]

The second
    ground of appeal challenges the finding of the motion judge that the rolling
    log of the DRE is
relevant
for disclosure purposes.

[134]

As I have already
    explained in connection with the first ground of appeal, the touchstone of
    disclosure is relevance. My determination that the rolling log of the DRE is
    obviously relevant for disclosure purposes, and thereby subject to the first
    party disclosure regime, allows for a rejection of this ground of appeal without
    further discussion.

[135]

Nevertheless,
    two passages in the motion judges discussion of relevance require
    clarification.

The Reasons of the Motion Judge

[136]

The motion judge
    described the role of the rolling log in the qualification of the DRE to give
    expert opinion evidence about drug impairment at paragraph 25 of his reasons:

In my view, while the applicants argument has some superficial
    attraction, it does not withstand scrutiny. It is true that the rolling logs
    were not created during the investigation and that they relate to the
    investigations of other people for unrelated offences. However, it cannot be
    said that they played no role in the acquisition of any evidence available for
    proffer in the prosecution. To the contrary, for reasons I will explain, the
    creation and maintenance of the rolling log is an important part of the DREs
    qualification to provide an opinion as to the respondents ability to operate a
    motor vehicle.
Without the rolling log, the DRE would not be entitled to
    provide an opinion and his testimony would have no utility.
[Emphasis added.]

[137]

The motion judge
    also considered the rolling log as a measure of the DREs proficiency. He wrote
    at paragraph 30:

Second, the probative value of the rolling log does not arise
    from the verification of any single opinion of the DRE but, rather, from the
    overall verification rate. While the lack of verification may be explainable
    with respect to any particular opinion, where a large number of opinions are
    not verified, this
may
cause a trier of fact to attach less weight to a
    DREs opinion. The IACPs requirement for 75% verification rate is likely due
    to a recognition that there may be some instances where a DREs opinion,
    although formed in accordance with the requisite standards, may not be verified
    for some reason. Otherwise, the required rate would be 100%. However, where the
    DREs opinion is not verified more than 25% of the time, the IACP apparently
    concludes that the DRE is not sufficiently proficient to maintain his or her
    accreditation. [Emphasis in original.]

The Arguments on Appeal

[138]

The appellants
    take issue with both excerpted passages.

[139]

The appellants
    say that the rolling log and its contents have nothing to do with whether a DRE
    is qualified to give expert opinion evidence on drug impairment. What controls
    is that, at the time of the evaluation of the accused, the DRE was
actually
trained and certified as a DRE by the IACP. It is the certification, not the rolling
    log, that permits the officer to conduct the 12-step evaluation, reach a
    conclusion about drug impairment, and testify as an expert about that
    conclusion at an accuseds trial.

[140]

The appellants
    also contend that the motion judge relied on an erroneous understanding about
    what the DREs need in order to maintain their certification. It is not the case
    that a DREs rolling log needs to reflect a 75% rate of toxicological verification
    for that purpose. What is required for maintaining certification is:

i.

performance of at least four acceptable evaluations since the last
    certification, all of which are reviewed and approved by a certified DRE
    instructor and one of which is witnessed by a certified DRE instructor;

ii.

completion of at least eight hours of recertification training since the
    last certification; and

iii.

presentation of an updated CV and rolling log for review by the
    appropriate DRE coordinator.

The Governing Principles

[141]

Two brief points
    of principle inform the decision on this ground. The first has to do with what
    qualifies a DRE to give expert opinion evidence and defines the scope of that
    expertise. The second relates to the requirements for recertification.

[142]

First, the expertise
    of a DRE for the purpose of applying the 12-step evaluation and determining whether
    that evaluation indicates drug impairment for the purposes of s. 254(3.1) of
    the
Criminal Code
has been conclusively and irrebuttably established
    by Parliament:
Bingley
, at para. 27. Once certified as a DRE, the candidate
    becomes an evaluating officer within s. 254(1) of the
Criminal Code
for the purpose of the 12-step evaluation and the inferences of drug impairment
    arising from it.

[143]

Second, the
    verification rate and the requirements for recertification.

[144]

To obtain
certification
as a DRE, a candidate must have 75 percent of his or her conclusions about the
    category of drugs present be confirmed by toxicological testing. There is no
    such requirement for recertification.

The Principles Applied

[145]

As I will
    briefly explain, I am satisfied that the motion judge erred in connection with
    both issues raised by the appellants.

[146]

A two-stage
    process governs the admissibility of expert opinion evidence in criminal
    proceedings. Among the requirements at the first stage is that the witness who
    is tendered to give the evidence must be a qualified expert. In the usual
    course, the qualifications of the witness to give opinion evidence as an expert
    are established by evidence given on a
voir dire
before the trial
    judge.

[147]

Parliament has
    relieved the prosecutor of the obligation of demonstrating the qualification of
    the DRE on a
voir dire
. It has done so by conclusively and irrebuttably
    establishing the expertise. A DRE is an expert. Not because a DRE creates and
    maintains a rolling log, but because a DRE is a DRE.

[148]

To obtain
    certification as a DRE, among other things, a candidates drug impairment
    evaluations must be verified at least 75 percent of the time by toxicological
    testing. Certification lasts for two years. A DRE may be recertified by meeting
    IACP standards for recertification. The standards do
not

require
    that the drug impairment evaluations be verified in at least 75 percent of the
    cases by toxicological testing for recertification.

[149]

In the result, I
    am satisfied that the motion judge erred in holding that without the rolling
    log the DRE would not be entitled to provide an opinion on drug impairment and
    that absent a 75 percent verification rate a DRE would not maintain his or her
    certification. However, neither error had an impact on the ultimate conclusion
    that the motion judge reached about the regime that governs disclosure of the
    rolling log.

Ground #3: The Disclosure Prohibition

[150]

The final ground
    of appeal requires consideration of the meaning to be assigned to a statutory
    provision which restricts the use and disclosure of drug recognition
    evaluations conducted under s. 254(3.1) and toxicological analysis of oral
    fluid or urine performed under s. 254(3.4). More specifically, what requires
    determination is whether the restriction has the effect of foreclosing
    disclosure of the rolling log of the DRE who conducted the drug recognition
    evaluation of the respondent.

The Decision of the Trial Judge

[151]

The trial judge
    expressed frustration with the drafting of the restriction in s. 258.1(2) of
    the
Criminal Code
. He found that the section was inscrutable,
    incapable of interpretation. In the end, he decided that, if necessary, he
    would grant a constitutional exemption to permit disclosure of the rolling log.
    Yet no one seems to have sought such an exemption.

The Decision of the Motion Judge

[152]

The motion judge
    considered that the purpose underlying the enactment of s. 258.1(2) was to
    protect the privacy of those who are subject to the various testing procedures
    described in the section. But, the motion judge observed, the protection was
    not absolute. The results of each individual evaluation would be disclosed in
    open court in proceedings against the accused to whom the evaluation related.
    The exception in s. 258.1(4) authorized disclosure of anonymized results to
    others for statistical or research purposes.

[153]

The motion judge
    concluded that s. 258.1(2) did
not
bar disclosure of an anonymized
    rolling log. He reached his conclusion for four reasons:

i.

the respondents trial was for a listed offence and anonymized
    disclosure was consistent with the purpose of the section to protect the
    privacy of the persons evaluated;

ii.

a plain reading of the section, especially the use of the indefinite
    articles a and an, rather than the definite article the, in relation to
    both investigation and proceeding, supported the conclusion that use and
    disclosure of results were not limited to
the
proceeding or
    investigation in which the evaluation was conducted;

iii.

limiting use and disclosure to proceedings against the person to whom
    they related would render the exception in s. 258.1(4) redundant; and

iv.

since the obvious relevance of the rolling log renders them disclosable
    under the first party regime, the contrary interpretation would violate the
    respondents right to disclosure and to make full answer and defence.

The Arguments on Appeal

[154]

The appellants
    begin with the proposition that first party disclosure is not absolute. It
    recognizes exceptions, even for material in the possession or control of the
    prosecuting Crown. There is no duty to disclose or right to receive material or
    information which is irrelevant, privileged, or subject to another disclosure
    regime.

[155]

In this case,
    the appellants continue, s. 258.1(2) is a statutory disclosure regime, albeit
    not one as detailed as some others, for example s. 278.1. Nonetheless, s.
    258.1(2) is a self-contained exhaustive regime governing use or disclosure of,
    among other things, the results of drug recognition evaluations and analyses of
    bodily samples. As such, depending on the interpretation of the sweep of the
    provision, this may influence the nature and extent of the Crowns disclosure
    obligations in connection with rolling logs.

[156]

The modern
    approach to statutory interpretation, the appellants say, requires that the
    provisions be read in their entire context, in their grammatical and ordinary
    sense and harmoniously with the scheme and object of the Act and the intention
    of Parliament. Although the motion judge stated this principle of statutory
    interpretation, he failed to apply it properly to the provision in issue.

[157]

The appellants
    submit that s. 258.1(2) is an integral part of an elaborate and comprehensive
    scheme to combat the scourge of impaired operation of various conveyances,
    among them automobiles. The scheme includes various provisions for effective
    detection, investigation, and prosecution of those suspected of impaired
    operation. The principal objective of s. 258.1 is to restrict use and
    disclosure of the results of enumerated tests and procedures to the purpose for
    which they were obtained. And that purpose is the detection, investigation, and
    prosecution of the individual charged with an offence to which those tests and
    procedures relate.

[158]

According to the
    appellants, it is a reasonable inference that Parliament sought to create a
    scheme that linked use and disclosure of evidence gathered by specific means to
    the prosecution of those to whom the evidence relates. To permit more
    widespread dissemination of the results is not only incompatible with this
    investigation-prosecution nexus, but also implicates significant privacy
    concerns of others in unrelated cases, which Parliament clearly had in mind in
    curtailing dissemination.

[159]

The appellants
    say that the motion judges conclusion that Parliaments objective in enacting
    s. 258.1  to protect personal privacy  could be achieved by redacting
    personal identifiers from the log is an exercise in statutory nullification,
    not statutory interpretation. This interpretation is contrary to the very words
    of the provision Parliament has enacted.

[160]

The motion
    judges plain reading interpretation, the appellants submit, is also flawed.
    The real issue is what Parliament sought to achieve by the enactment, not
    whether it used an indefinite rather than a definite article. In addition, an
    analysis of the corresponding French text reveals the use of a definite article
    and supports the appellants position that use and disclosure of the results of
    a DRE evaluation and toxicological analysis are limited to proceedings against
    the person tested. Such an interpretation has the added advantage of being
    consistent with the objective of the provision.

[161]

The appellants
    also take issue with the motion judges conclusion that their suggested interpretation,
    limiting disclosure of results to the person tested, would render the exception
    in s. 258.1(4) redundant. Not so, say the appellants. The results may reveal
    that no further investigation is required. That no offence was committed or
    that the results are inconclusive. Far from being redundant, s. 258.1(4)
    authorizes disclosure to the person evaluated in these circumstances.

[162]

The final point
    the appellants make has to do with the motion judges conclusion that any
    ambiguity in s. 258.1 must be resolved in favour of disclosure in light of the respondents
    right to disclosure, an essential feature of the right to make full answer and
    defence. The appellants say that, properly interpreted, the section is not
    ambiguous and
Charter
values cannot be used to create an ambiguity
    where none exists.

[163]

The respondent
    and intervener support the conclusion of the motion judge that s. 258.1(2) does
    not bar disclosure of the rolling log, as anonymized, to an accused charged
    with drug-impaired operation.

[164]

The respondent
    agrees, as she did in the courts below, that the purpose of ss. 258.1(1) and
    (2) is to protect the personal privacy of persons who have been evaluated by a
    DRE or their bodily samples analyzed by a toxicologist. But she argues that the
    protection of personal privacy is not absolute. The evaluation and test results
    and samples are taken for use in open court. The information collected may be
    disclosed to provincial bodies who enforce and regulate highway traffic laws
    and for others for statistical or research purposes.

[165]

According to the
    respondent, the fundamental divide between the parties is the extent to which
    s. 258.1(2) limits the right to disclosure to safeguard personal privacy. The
    respondent says that the section permits disclosure for
any
impaired
    operation proceeding, but restricts disclosure for collateral uses outside the
    court system. The limitation is scarcely a statutory disclosure regime; rather,
    it is a specific prohibition on the use of samples and the disclosure of the
    results of analyses.

[166]

The respondent
    contends that the motion judges interpretation did not amount to statutory
    nullification. His interpretation that the section permitted disclosure in
any
enumerated impaired operation proceedings, but not incidental or outside
    disclosure, was grounded on the purpose and context of the provision, not that Parliaments
    privacy concerns could be side-stepped by redaction.

[167]

In the
    respondents submission, the motion judges interpretation of the English
    language version of s. 258.1 was correct and not undermined by the text of the
    French language version, which formed no part of the submissions or analysis
    below. The principles of bilingual statutory interpretation involve two steps.
    The first involves an examination of the provisions to determine whether a
    discordance exists between them. If the sections can be read harmoniously, the
    harmonious interpretation prevails. On the other hand, where the different
    linguistic meanings cannot be reconciled, a court must rely on other statutory
    interpretation principles, at the same time keeping in mind that Canadian
    courts favour a purposive and contextual approach.

[168]

When the
    sections are read as a whole in both official languages, no discordance arises.
    But even if there were ambiguity, the respondent contends, other principles of
    statutory interpretation support the broad meaning she advances. Principles
    like the presumption against absurd consequences, such as frustration of other
    parts of the DRE regime, as for example the obligation of a DRE to disclose the
    log to IACP every two years to maintain certification. Like the need for clear
    and unambiguous language to displace common law rules, for example an accuseds
    right to disclosure of obviously relevant information. To adopt the
    appellants interpretation would compromise this right, as the motion judge
    properly concluded.

The Governing Principles

[169]

The issue here
    is one of statutory interpretation. What must be decided is whether disclosure
    of the rolling log is barred by the prohibition against disclosure of DRE
    evaluations in s. 258.1(2), or permitted by the exception in s. 258.1(2)(a).

The Statutory Provision

[170]

Section 258.1(2)
    is described in the marginal note that accompanies it as Unauthorized use or
    disclosure of results.



Unauthorized
          use or disclosure of results

(2)
          Subject to subsections (3) and (4), no person shall use, disclose or allow
          the disclosure of the results of physical coordination tests under paragraph
          254(2)(a), the results of an evaluation under paragraph 254(3.1)(a), the
          results of the analysis of a bodily substance taken under paragraph 254(2)(b)
          or (c), subsection 254(3), (3.3) or (3.4) or section 256 or with the consent
          of the person from whom it was taken after a request by a peace officer, or
          the results of the analysis of medical samples that are provided by consent
          and subsequently seized under a warrant, except

(a) in
          the course of an investigation of, or in a proceeding for, an offence under
          any of sections 220, 221, 236 and 249 to 255, an offence under Part I of the
          Aeronautics Act, or an offence under the Railway Safety Act in respect of a
          contravention of a rule or regulation made under that Act respecting the use
          of alcohol or a drug; or

(b) for
          the purpose of the administration or enforcement of the law of a province.

Utilisation
          ou communication des résultats

(2)
          Sous réserve des paragraphes (3) et (4), il est interdit dutiliser, ou de
          communiquer ou de laisser communiquer, les résultats des épreuves de
          coordination des mouvements effectuées au titre de lalinéa 254(2)a), les
          résultats de lévaluation effectuée au titre de lalinéa 254(3.1)a), les
          résultats de lanalyse de substances corporelles prélevées sur une personne
          au titre des alinéas 254(2)b) ou c), des paragraphes 254(3), (3.3) ou (3.4)
          ou de larticle 256 ou prélevées avec son consentement à la demande dun
          agent de la paix ou les résultats de lanalyse des échantillons médicaux
          prélevés avec son consentement et subséquemment saisis en vertu dun mandat,
          sauf :

a) dans
          le cadre de lenquête relative à une infraction prévue soit à lun des
          articles 220, 221, 236 et 249 à 255, soit à la partie I de la Loi sur
          laéronautique, soit à la Loi sur la sécurité ferroviaire pour violation des
          règles ou règlements concernant la consommation dalcool ou de drogue, ou
          lors de poursuites intentées à légard dune telle infraction;

b) en
          vue de lapplication ou du contrôle dapplication dune loi provinciale.



[171]

Further
    exceptions to the prohibition in s. 258.1(2) appear in ss. 258.1(3) and (4):



Exception

(3) Subsections (1) and (2) do
          not apply to persons who for medical purposes use samples or use or disclose
          the results of tests, taken for medical purposes, that are subsequently
          seized under a warrant.

Exception

(3) Les paragraphes (1) et (2)
          ne sappliquent pas aux personnes qui, à des fins médicales, utilisent des
          échantillons, ou utilisent ou communiquent des résultats danalyses
          effectuées à des fins médicales, qui sont subséquemment saisis en vertu dun
          mandat.



Exception

(4) The results of physical
          coordination tests, an evaluation or an analysis referred to in subsection
          (2) may be disclosed to the person to whom they relate, and may be disclosed
          to any other person if the results are made anonymous and the disclosure is
          made for statistical or other research purposes.

Exception

(4) Les résultats des
          épreuves, de lévaluation ou de lanalyse mentionnées au paragraphe (2)
          peuvent être communiqués à la personne en cause et, sils sont
          dépersonnalisés, à toute autre personne à des fins de recherche ou
          statistique.



[172]

A person who
    contravenes s. 258.1(2) commits a summary conviction offence under s. 258.1(5).

[173]

Similar
    statutory schemes are found elsewhere in the
Criminal Code
for the
    results of analysis of bodily samples in connection with probation orders (ss.
    732.11(2) and (3)), conditional sentence orders (s. 742.31(2) and (3)), and
    peace bonds (ss. 810.4(2) and (3)).

Disclosure Rights and Duties

[174]

As we have
    already seen, even for material in the possession or control of the prosecuting
    Crown, an accuseds right to disclosure and the reciprocal duty of the
    prosecuting Crown to disclose are not absolute. No accused is entitled to
    receive and no Crown required to disclose material or information which is
    irrelevant, privileged, or subject to a separate or discrete disclosure regime:
R. v. Stinchcombe
, [1991] 3 S.C.R. 326, at pp. 336-340;
R. v.
    Dixon
, [1998] 1 S.C.R. 244, at para. 20;
Gubbins
, at para. 18.

The Principles of Statutory Interpretation

[175]

It is well settled
    that statutory interpretation cannot be founded on the wording of the
    legislation alone. Instead, the approach is that advocated by Elmer Driedger in
    his
Construction of Statutes
(2nd ed, 1983):

Today there is only one principle or approach, namely, the
    words of an Act are to be read in their entire context and in their grammatical
    and ordinary sense harmoniously with the scheme of the Act, the object of the
    Act, and the intention of Parliament.

See,
Bell ExpressVu Limited Partnership v. Rex
, [2002] 2 S.C.R. 559, at para. 26;
Rizzo &
    Rizzo Shoes Ltd. (Re
)
, [1998] 1 S.C.R. 27, at para. 21;
Wilson v. British
    Columbia (Superintendent of Motor Vehicles)
,
    2015 SCC 47, [2015] 3 S.C.R. 300, at para. 18.

[176]

This preferred approach recognizes the significant role that
    context must play when courts construe the written words of a statute. No
    statutory provision is an island in itself. Its words take their colour from
    their surroundings:
Bell ExpressVu
,
at para. 27. All issues of statutory
interpretation involve the fundamental question of what Parliament
    intended. To discover what Parliament intended, we look at the words of the
    provision, informed by its history, context and purpose:
R. v.
    Mabior
, 2012 SCC 47, [2012] 2 S.C.R.
    584, at para. 20.

[177]

It is also a
    well-established principle of statutory interpretation that the legislature, in
    this case Parliament, does not intend to produce absurd consequences. Absurdity
    occurs if the interpretation

i.

leads to ridiculous or
    frivolous consequences;

ii.

is extremely
    unreasonable or inequitable;

iii.

is illogical or
    incoherent;

iv.

is incompatible with
    other provisions or with the object of the enactment; or

v.

defeats the purpose of
    the statute or renders some aspect of it pointless or futile.

See,
Rizzo
, at
    para. 27.

[178]

Other principles
    of statutory interpretation, such as the
Charter
values presumption,
    are only applied when the meaning of the provision is ambiguous. An ambiguity
    must be real in that the words of the provision, considered in their context,
    must be reasonably capable of more than one meaning. These meanings must be plausible,
    each equally in accord with the intentions of the statute:
Bell ExpressVu
,
at paras. 28 and 29.

[179]

Courts are also
    required to interpret legislation harmoniously with the constitutional norms
    enshrined in the
Charter
. For
Charter
values are always
    relevant to the interpretation of a disputed provision of the
Criminal Code
:

Mabior
,
at para. 44;

R. v. Rodgers
, [2006] 1 S.C.R. 554, at paras.
    18-19.

[180]

The rules of
    bilingual statutory interpretation prescribe an approach that favours the
    common meaning that emerges from the two versions of the enactment. Where a
    discrepancy exists between two versions of the same text because one version is
    ambiguous but the other is not, the common meaning between the two is
    preferred. And where one version is broader than the other, the common meaning
    favours the more restricted or limited meaning:
R. v. Daoust
, 2004 SCC
    6, [2004] 1 S.C.R. 217, at paras. 2, 26;
Schreiber v. Canada (Attorney
    General)
, 2002 SCC 62, [2002] 3 S.C.R. 269, at para. 56.

[181]

In interpreting
    bilingual statutes, we follow a two-step procedure.

[182]

First, it is
    necessary to determine whether there is a discordance between the two versions.
    Where the two versions are irreconcilable, we invoke other principles to settle
    the meaning, favouring a contextual and purposive approach. We must determine
    whether there is an ambiguity in that either or both versions are reasonably
    capable of more than one meaning. Where one but not the other is ambiguous, we
    look to a meaning common to both in order to reconcile the two versions. If a
    common meaning can be found, it is this common meaning that is the version that
    is plain and not ambiguous. If neither or both of the two versions are
    ambiguous, the common meaning is usually the narrower version:
Daoust
,
    at paras. 27-29.

[183]

Second, we must
    determine whether the common or dominant meaning, according to the ordinary
    rules of statutory interpretation, is consistent with Parliaments intent:
Daoust
,
    at para. 30.

The Principles Applied

[184]

For reasons that
    follow, I would not give effect to this ground of appeal. I agree with the
    motion judge that the disclosure prohibition in s. 258.1(2) does not enjoin
    disclosure of the DREs anonymized rolling log, which the respondent seeks in
    this case. In my respectful view, disclosure is permitted under the exception
    of s. 258.1(2)(a).

[185]

The
    determination of whether s. 258.1(2) prohibits disclosure or whether s.
    258.1(2)(a) authorizes it depends on the interpretation to be accorded to those
    provisions. That interpretation requires me to read the words Parliament has
    used in their entire context and in their grammatical and ordinary sense,
    harmoniously with the scheme and object of the legislation and the intention of
    Parliament.

[186]

Section 258.1 is
    one of several provisions in Part VIII of the
Criminal Code
collected
    together under the heading 
Motor Vehicles, Vessels and Aircraft

. The sections create and punish
    offences involving conveyances. They authorize various investigative procedures
    to gather evidence and to assist in proof of those offences. They include provisions
    that permit the introduction of evidence collected by the authorized investigative
    procedures and, in some instances at least, state the effect of that evidence
    in proof of various offences. They authorize imposition of ancillary orders.

[187]

Section 258.1(2)
    limits and defines the circumstances in which the results of drug evaluation
    tests conducted by a DRE may be used or disclosed. The section achieves this by
    enacting a general prohibition against use or disclosure and excepting certain
    use or disclosure from that prohibition. In s. 258.1(2)(a), the exception
    permits use or disclosure for investigations and proceedings for listed
    offences. In this respect, the provision is broader than the exception in 258.1
    (4), which allows for the results to be disclosed to the person to whom they
    relate. While these provisions show that Parliament intended to safeguard the
    privacy of those who are subject to the tests, they also demonstrate that
    Parliament did not intend for privacy concerns to hamstring legal proceedings
    connected to these offences.

[188]

The English text
    of s. 258.1(2)(a) begins with in the course of an investigation of, or in a
    proceeding for, an offence under a listed section of the
Criminal Code
.
    On its face, the words 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 respondents 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 lenquête relative à
    une infraction and later ou lors de poursuites intentées à légard dune
    telle infraction. Although the French text uses the definite article  lenquête
     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 respondents
    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.

[193]

The obligation
    is to disclose relevant information. The identities of others who have been
    tested are not relevant. The Crown is therefore entitled to edit those
    identities before disclosing the rolling logs.

CONCLUSION

[194]

For these
    reasons, I would dismiss the appeals.

Released: DW JAN 7 2019


David Watt J.A.

I agree. J. MacFarland
    J.A.

I agree. David M.
    Paciocco J.A.





[1]

These provisions were repealed by S.C. 2018, c. 21, s. 14. In
    somewhat different form, the provisions are now ss. 320.36(2) and (4).



[2]
However, the scope of permissible arguments on
certiorari
may have been
    more limited than was allowed by the motion judge in this case. A third party
    record-holder is generally entitled to challenge the disclosure order even for
    errors of law on the face of the record within the trial judges jurisdiction.
    However, the interests of the OPP in this case are closely aligned with those
    of the Crown, as evidenced by the fact that the OPP has relied heavily on the
    Crowns arguments in this appeal. Whether a third party whose interests are
    well represented by a first party should also have expanded access to
certiorari
was not an issue argued before this court. I would only note that, as a
    practical matter, the OPPs expanded third-party standing has allowed the Crown
    to fully re-litigate the trial judges ruling on the rolling log before the
    superior court, even on non-jurisdictional issues. Had the Crown prevailed
    before the trial judge, the accused would not have had a similar opportunity.
    For the present purposes, I assume, without deciding, that the OPP was able to
    invoke
certiorari
in this way.


