Drug impaired driving prosecutions – albeit not common place – are quite contentious. The new legislation, the drug recognition expert (DRE) and disclosure have all been recent subjects of litigation [see for example my recent blog: So what mark did you get in criminal law?]. In the recent case of R v Steeves, 2011 NBCA 88 the New Brunswick Court of Appeal had the opportunity to consider some of these issues and provide some helpful appellate authority. Unfortunately, the court took another route.
Kenneth Steeves was charged with drug impaired operation. At trial the Crown sought to tender evidence of two officers; one to testify in relation to “drug evaluation and classification” and the other to testify as a “drug recognition expert”. The trial judge initially admitted the evidence of both witnesses. Later, however, and without notice, the trial judge reconsidered this ruling and held that the evidence was not admitted. Steeves was acquitted and the Crown appealed.
While it would have been helpful if the court had considered the issue the trial judge had difficulty with – the admissibility of DRE evidence – the court dealt with the appeal in a different way. The court held that while the trial judge was not functus, and therefore could have reconsidered the issue as he did, the trial judge erred by reconsidering it without notice: see R v Pinchak, 2010 ABQB 747. The court held that where the trial judge decides to reconsider an issue “the parties should be put on notice that the matter is being reconsidered and invited to make further submissions” [para 13].