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

Supreme court | Evidence

Opinion

Experts

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.).

Free newsletter

Our daily newsletter is FREE and keeps you up to date on all the developments in the Ontario legal community. Please complete the form below and click on subscribe for daily newsletters from Law Times.

Recent articles & video

Ford government’s cuts to Toronto city council ruled constitutional

Histories of Canadian law and Métis people are entwined, says Jean Teillet

More women are on TSX company boards - but there’s slow progress to the C-Suite, says Osler

GM lawyer Michael Smith becomes partner at Bennett Jones

Ontario court rules cap on general damages does not apply to sexual abuse

House of Commons reveals legal fee reimbursement over $54k

Most Read Articles

Ontario court rules cap on general damages does not apply to sexual abuse

Man discharged from his fourth bankruptcy

Insurance lawyers reveal their referral philosophies

Court of Appeal rules auto insurer not liable for parental negligence claim stemming from accident