Recognizing Statutory Experts

Lorraine Parada was driving her car on Highway #2 in the municipal district of Air Ronge, Saskatchewan. Officer De Bruin noticed her driving. She was not driving well. She had crossed over the centre line, more than once. De Bruin pulled her over. As he spoke to her and asked for her licence and other documents he made observations that led him to suspect she was impaired. He made a roadside demand. As he did not have an approved screening device with him, he demanded she perform field sobriety tests [SFST] pursuant to section 254(2)(a) Code. Those tests, as per the Regulations, include the horizontal gaze nystagmus, the walk-and-turn test and the one-leg stand test. Parada failed. She was arrested. She later provided samples of her breath. She was over the legal limit. She was charged. She was convicted at trial. She appealed: 2016 SKCA 102.

On appeal Parada argued, inter alia, that the trial judge erred in allowing the officer to give "opinion" evidence related to the SFSTs without being qualified as an "expert" and requiring 657.3 notice. 

The Court of Appeal dismissed the appeal. The court began by noting that there are three recognized "categories" of experts capable of providing opinion evidence: (i) Mohan qualified experts; (ii) lay witness opinions (see Graat); and (iii) statutory experts. In relation to the statutory experts the court cited Bingley, 2015 ONCA 439. The court noted that in that case the ONCA held that drug recognition officers (evaluating officers as per s254 Code) need not be qualified to give an opinion on impairment. The statutory scheme, including the Code provisions and Regulations, provide the authority to permit DRE officers to give such an opinion.

In the present case section 254(2)(a) does not require that the officer be an "evaluating officer". If DREs need not be qualified under Mohan, the court concluded that officers performing the SFSTs need not be qualified under Mohan to provide evidence (admissible only for grounds at any rate) on the SFST tests.

Parada is another helpful decision settling the law across the country on issues related to the drug impaired driving provisions. As in Bingley, the court recognized the existence of "statutory" experts capable of giving an opinion pursuant to their qualifications under statute. This approach is logical, reasonable and consistent with statutory interpretation. It is one that the Supreme Court will likely accept when Bingley is decided later this year.