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.


News: Child exploitation Legislation comes into force

The Federal government continued its battle against child exploitation in December.  On December 8, 2011 Bill C-22 came into force enacting provisions as set out in An Act respecting the mandatory reporting of Internet child pornography by person who provide an Internet service and related Regulations.
It applies to Internet service providers, including email providers and social networking sites.  The new legislation requires those identified providers to do the following:
  • "report tips they receive regarding Web sites where child pornography may be publicly available to the Canadian Centre for Child Protection; and
  • notify police and safeguard evidence if they believe that a child pornography offence has been committed using an Internet service that they provide.
The Department of Justice's announcement and backgrounder provide further information.
DG Mack

News: New ASD

The Attorney General of Canada recently amended the Approved Screening Devices Order to recognize a new Approved Screening Device (for the purposes of section 254(2)).  The new device is the Drager Alcotest 6810
On its webiste Drager notes the following as one of the 6810's benefits:
The electrochemical sensor (fuel cell) of the Dräger Alcotest® 6810 reacts specifically to alcohol and excels with very short response times. Even with a very high alcohol content, the devices ensures quick measurements.
Another important feature of the 6810 is noted on another website (electrogasmonitors) to be its ability to obtain readings with "low" respiratory volume:  
Even with high alcohol concentration, the Dräger Alcotest 6810 reacts within a short period. Blowing resistance is low, therefore the test can also be used if the test person has a low respiratory volume. The automatic adjustment measures the respiratory flow and adapts the minimum volume in such a way that air is taken from deep inside the lungs. Manually triggered collection can even be used for people who are not consciously in a position to provide a breath sample. The device displays the test results on a backlit graphics display with LEDs in different colors and, with acoustic signals.
This feature will be helpful in rebutting the argument - to the extent it has any validity - that a person has a reasonable excuse for not providing a sample due to some medical issue.

DG Mack