Ontario Criminal


Non-expert witness could give evidence that person was intoxicated

Appeal by Crown from acquittal of accused on charge of operating motor vehicle while drug impaired. Accused was arrested and he was taken before police officer who was drug recognition expert (DRE), who concluded that accused was drug impaired. Trial judge found that DRE’s opinion was to be received without conducting voir dire. Accused was acquitted, Crown successfully appealed and new trial was ordered. At new trial Crown sought to call DRE to give evidence without voir dire. Accused objected to this approach and judge found that voir dire was necessary. Voir dire was conducted, judge refused to qualify DRE as expert and his opinion was not allowed. DRE could not even give lay opinion on issue of accused’s possible impairment. Acquittal that was subject of this appeal resulted. Appeal allowed. DRE’s opinion could be given in court without voir dire. Non-expert witness could give evidence that person was intoxicated and police officer, without qualification, could give evidence that accused was intoxicated or impaired. No specific qualifications were required. DRE should have been able to give his lay opinion regarding accused’s condition. DRE should have been able to give his evidence. New trial was ordered because it was only alternative in this case.

R. v. Bingley

(May. 22, 2014, Ont. S.C.J., McLean J., File No. 09-2086) 113 W.C.B. (2d) 198.

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