Supreme Court




Drug recognition expert’s opinion evidence was admissible without voir dire

Accused was suspected of drug impaired driving. Drug recognition expert (DRE) performed drug recognition evaluation. Accused was charged with driving while impaired by drug. At trial, Crown relied on s. 254(3.1) of Criminal Code to establish admissibility of DRE’s testimony without voir dire. Judge allowed DRE to testify as expert without voir dire, then acquitted accused. On appeal, acquittal was overturned and new trial ordered. At second trial, judge held s. 254(3.1) did not allow for automatic admissibility of DRE’s evidence and acquitted accused. Crown appealed. Judge held s. 254(3.1) rendered DRE’s opinion automatically admissible. Accused appealed. Court of Appeal held DRE’s opinion evidence was admissible without voir dire and dismissed appeal. Accused appealed. Appeal dismissed. Section 254(3.1) does not provide for automatic admissibility of DRE opinion evidence. Because s. 254(3.1) does not speak to admissibility, common law rules of evidence apply. Trial judge erred in concluding that because DRE was not expert in scientific foundation of various elements of test, none of his opinion evidence was admissible. DRE is expert for purpose of applying 12-step evaluation. Where requirements for admissibility of expert evidence at common law are met and probative value of evidence outweighs prejudicial effect, trial judge is not required to hold voir dire to determine admissibility.

R. v. Bingley (2017), 2017 CarswellOnt 2406, 2017 CarswellOnt 2407, 2017 SCC 12, 2017 CSC 12, McLachlin C.J.C., Abella J., Moldaver J., Karakatsanis J., Gascon J., Côté J., and Brown J. (S.C.C.); affirmed (2015), 2015 CarswellOnt 8987, 2015 ONCA 439, E.A. Cronk J.A., E.E. Gillese J.A., and Grant Huscroft J.A. (Ont. C.A.).

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