Supreme Court clarifies handling of expert evidence in drugged-driving cases
Ottawa motorist admitted to smoking marijuana but was acquitted in 1st trial, new trial will now proceed
The Supreme Court of Canada says expert testimony can be admitted in drugged-driving trials without a preliminary examination of the evidence.
The 5-2 court decision Thursday in the case of an Ottawa motorist paves the way for speedier resolution of trials involving suspected drug impairment at the wheel.
It also comes as the federal government prepares to introduce legislation to legalize the recreational use of marijuana — a plan that has vast implications for policing the roads.
"Driving while impaired by drugs is a dangerous and, sadly, common activity, prohibited by the Criminal Code," Chief Justice Beverley McLachlin wrote in her reasons for the majority decision.
"Parliament long ago established a regime to enforce the law against alcohol-impaired driving, with breathalyzer testing and analyst certification at its centre. Enforcing the offence of drug-impaired driving was more elusive."
Driver acquitted despite expert testimony
In 2008, Parliament established a regime to enforce the law against drug-impaired driving. The centrepiece of the regime is a 12-part evaluation for drug impairment, established through regulations, to be administered by police officers, called drug recognition experts, who receive special training and certification.
In May 2009, Carson Bingley cut off a driver, crossed the centre line and drove into the opposite lane, nearly striking oncoming traffic, and soon after he bumped a car in a parking lot.
He failed sobriety tests administered by a drug recognition expert and admitted to smoking marijuana.
Bingley was acquitted of driving while drug-impaired despite the expert's evidence, which the judge found could be admitted without a voir dire, or preliminary examination of the evidence.
An appeal led to a second trial, where a judge found that the evidence must be vetted in a voir dire.
The subsequent preliminary examination led the judge to rule the expert evidence inadmissible, resulting in a second acquittal.
The Crown successfully appealed again and a third trial was ordered; Thursday's Supreme Court ruling means that trial will go ahead.
12-step evaluation
The Criminal Code allows police to compel a person to submit to a drug recognition evaluation when there are reasonable grounds to believe the individual has been driving while impaired by drugs.
The 12-step procedure includes eye evaluations, attention tests, and measurements of blood pressure, temperature, pulse and muscle tone.
If the evaluation leads the officer to further believe the person is impaired by a drug, the officer can then take tests of saliva, urine or blood to determine whether the driver has drugs in their system.
At issue before the Supreme Court was whether a drug recognition expert has expertise beyond the knowledge and experience of a trial judge.
In the decision, McLachlin said the expert does indeed have such knowledge under the system set out in law. "His expertise has been conclusively and irrebuttably established by Parliament."
A trial judge is therefore not obliged to hold a voir dire to determine the admissibility of the expert's evidence, McLachlin said, adding that doing otherwise would be "a waste of judicial resources."