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PROCEDURE - Crown's duties - Disclosure

Wednesday, November 20, 2019 @ 8:09 AM  

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Application by two accused, both charged with impaired driving, for disclosure of the rolling log of Carchidi, a Drug Recognition Expert. Both accused were submitted to a drug recognition evaluation conducted by Carchidi. The rolling log was the historical record of all past evaluations completed by Carchidi and included private, biographical information of prior subjects, calls made regarding impairment and class of drug and information about subsequent toxicological results of biological samples obtained from those prior subjects.

HELD: Application dismissed. Section 320.36(2) of the Criminal Code was narrower than its predecessor, s. 258.1 and was not merely a simplified version of s. 258.1. The grammatical and ordinary sense of “administration or enforcement” contemplated that the recipient of the information must have the capacity to administer or enforce the law. The applicants defending a charge were not doing so for the purpose of the administration or enforcement of a federal or provincial Act. Should Parliament have intended the exception to include for the purpose of investigation or proceeding it would have stated so, as it had done in s. 258.1(2). The applicants were asking the court to read in words that were included in s. 258.1(2)(a) that were excluded in s. 320.36(2). The purpose of the legislation would be frustrated by the disclosure of rolling logs. Section 320.36(2) of the Criminal Code prohibited the disclosure of the rolling log. The applicants were not precluded from challenging the findings and opinion of Carchidi.

R. v. Lutz, [2019] O.J. No. 4940, Ontario Court of Justice, C.M. Brochu J., October 1, 2019. Digest No. TLD-November182019006