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EVIDENCE - Opinion evidence - Expert evidence - Criteria for admissibility - What constitutes special knowledge and experience

Tuesday, March 14, 2017 @ 8:55 AM  


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Appeal by Bingley from a judgment of the Ontario Court of Appeal affirming a decision setting aside his acquittal and ordering a new trial for driving while impaired by a drug. After Bingley was observed driving erratically, the police were called. One of the officers, a certified drug recognition expert (DRE) under the Criminal Code, conducted a standard field sobriety test. Bingley failed the test and was arrested for driving while impaired by a drug. At trial, the Prosecution called the DRE to explain the results of his drug recognition evaluation as evidence of Bingley’s impairment. The Prosecution relied on s. 254(3.1) of the Criminal Code as establishing the admissibility of the DRE’s testimony and argued that no voir dire was required. The judge at the first trial allowed the DRE to testify as an expert regarding the results of the drug recognition evaluation without a voir dire, but acquitted Bingley. On appeal, the acquittal was overturned and a new trial was ordered. The second trial judge held that the DRE could not be qualified as an expert because he was not trained in the science underlying the drug recognition procedure. He also concluded that the evidence was not admissible lay opinion. He acquitted Bingley. The Prosecution successfully appealed the second acquittal. The summary conviction appeal judge held that s. 254(3.1) of the Criminal Code rendered a DRE’s opinion automatically admissible and that in any event, it would be admissible lay opinion. The Court of Appeal held that the DRE’s opinion evidence was admissible without a voir dire. Section 254(3.1) of the Criminal Code allowed a DRE “to determine” whether an individual was impaired due to a drug or a combination of drugs and alcohol. It was implicit that this determination was automatically admissible as opinion evidence, the Court opined. Bingley appealed.

HELD: Appeal dismissed. The purpose of s. 254(3.1) of the Criminal Code confirmed that a DRE’s opinion was not automatically admissible at trial. Section 254(3.1) gave the police investigative tools to enforce laws against drug-impaired driving. It did not dictate whether evidence obtained through the use of those investigative tools would be admissible at trial. When Parliament intended to make evidence automatically admissible, it said so expressly. As s. 254(3.1) of the Criminal Code did not speak to admissibility, the common law rules of evidence applied. Expert evidence analysis was divided into two stages. First, the evidence had to meet the four Mohan factors: (1) relevance, (2) necessity, (3) absence of an exclusionary rule, and (4) special expertise. Second, the trial judge was required to weigh potential risks against the benefits of admitting the evidence. The only issue in this case was whether the DRE had special expertise as required by the fourth Mohan factor. Bingley conceded that the proposed evidence was logically relevant, necessary, and not subject to any other exclusionary rule. Further, Bingley did not argue that the evidence should be excluded because its prejudicial effect outweighed its probative value. Knowledge of the underlying science was not a precondition to the admissibility of a DRE’s opinion. The basic requirement of expertise for an expert witness was that the witness had expertise outside the experience and knowledge of the trier of fact, which the DRE in this case did. DREs received special training in how to administer the 12-step drug recognition evaluation and in what inferences could be drawn from the factual data they noted. It followed that the DRE’s evidence was admissible in this case. Where it was clear that all the requirements of a common law rule of admissibility were established, the trial judge was not obliged to hold a voir dire to determine the admissibility of the evidence. The trial judge correctly found that the DRE in this case was an expert for purposes of administering the 12-step evaluation and determining whether Bingley was driving while impaired for the purpose of requiring further testing. He erred, however, in concluding that because the officer was not an expert in the scientific foundation of the various elements of the test, none of his opinion evidence was admissible. The appeal was dismissed and order for a new trial confirmed.

R. v. Bingley, [2017] S.C.J. No. 12, Supreme Court of Canada, B. McLachlin C.J. and R.S. Abella, M.J. Moldaver, A. Karakatsanis, C. Gascon, S. Côté and R. Brown JJ., February 23, 2017. Digest No. 3642-005