A drug evaluation officer as defined in s. 254 of the Criminal Code can not give expert evidence on the issue of whether a person’s ability to operate a motor vehicle is impaired by a drug

R. v. Cripps 2014 ONCJ 189 – I’ve gotten several calls and emails on this recent case, looking for some clarification on the issue of whether or not a drug evaluation officer can testify to a person’s ability to operate a motor vehicle while impaired by a drug as an expert. Without going into the facts and specifics of the case here (I can provide the full case decision to anyone who would like to have it), the issue essentially came down to the interpretation of the regulation passed under s. 254.1 establishing the qualification of a drug evaluation officer on June 11, 2008:

An evaluating officer must be a certified drug evaluation expert accredited by the International Association of Chiefs of Police.

The law of expert evidence is well established and it cannot be admitted without meeting the R. v. Mohan [1994] 2 S.C.R. 9 qualifications. These are:

a) relevance;

b) necessity in assisting the trier of fact;

c) the absence of any exclusionary rule;

d) a properly qualified expert.

Crown counsel in this case argued that because, as per the regulations, an evaluating officer must be a certified drug evaluation expert accredited by the International Association of Chiefs of Police, the officer should be able to offer an opinion as “an expert opinion of the certified drug evaluation expert regarding the accused’s ability to operate a motor vehicle being impaired by drug without the necessity of a Mohan voir dire.” The Honourable Justice Brent Knazan said despite its use of the word “expert” in the regulation stating the qualifications of an evaluating officer, it does not address the issue of expert evidence at all.

Justice Knazan said:

1) The decision of the Supreme Court of Canada in Mohan is binding. An expert must be qualified according to the criteria established in that case and R. v. McCarthy [2014] O.J. No. 35 does not deal with the question of how statutory interpretation of a new section of the Criminal Code can result in not following a decision of the Supreme Court of Canada.

2) No such finding is necessary in order for a drug evaluation officer to give an opinion; he already can, according to R. v. Graat, [1982] 2 S.C.R. 819 and the court can give it the weight that it deserves, including taking into account the officer’s training and experience.

3) Creating a third category of opinion evidence in addition to that covered by Mohan and Graat, assuming that there is a way that any court other than the Supreme Court of Canada could, would complicate an area of the law already encrusted with rules and qualifications, a result very much to be avoided: see R. v. Graat.

4) Allowing a drug evaluation officer to be qualified as an expert in every case will lengthen trials, another result very much to be avoided. Since any opinion, of the non-expert Graat type or expert opinion is only as good as the facts underlying it, giving the opinion of the drug evaluation officer the status of expert opinion will lead to lengthy cross-examinations and trials of the tests authorized by the regulations.

Justice Knazan ruled that the officer can clearly testify as a certified drug evaluation expert, which they are, that the officer conducted the tests properly, formed reasonable grounds to believe that the person’s ability to operate a motor vehicle was impaired by a drug and that the officer made the proper demand for a sample of oral fluid, blood or urine. But whether the officer’s opinion that the person’s ability to operate a motor vehicle while impaired by a drug should be given the weight of expert opinion is the very issue to be determined, so it cannot be stated said the Justice.

To summarize, a trial judge must scrutinize the proffered expert evidence to ensure it meets the reformulated Mohan criteria and not simply grant expert evidence status to an evaluating officer’s testimony.

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