Pubdate: Fri, 24 Feb 2017
Source: Winnipeg Free Press (CN MB)
Copyright: 2017 Winnipeg Free Press
Author: Jim Bronskill
Page: A10


OTTAWA - Expert testimony can be admitted in drugged-driving trials
without preliminary examination of evidence, the Supreme Court said
Thursday in a decision that could expedite the judicial process in the
legalized-marijuana era.

The 5-2 court decision on the case of an Ottawa motorist comes as the
federal Liberal government prepares to introduce long-promised
legislation to legalize the recreational use of pot.

"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."

In 2008, Parliament sought to confront that challenge with a new
regime that includes a 12 part evaluation for drug impairment,
established through regulations, to be administered by police officers
who receive special training and certification - so-called "drug
recognition experts."

In May 2009, Carson Bingley cut off a driver, crossed the centre line
and drove into the opposite lane, nearly striking oncoming traffic
before bumping into a car in a parking lot. He failed sobriety tests
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 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 appealed and a third trial was ordered; this ruling means
that trial will go ahead.

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.

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

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."

In dissenting reasons, Justice Andromache Karakatsanis said Parliament
had endorsed the 12-step evaluation as an investigative tool, not for
the purpose of "an evidentiary shortcut at trial."
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