Chief Justice McLachlin speaking for the majority of the Court determined that DREs are to be considered expert witnesses and that a voir dire is not required to admit their evidence as parliament has already established that they possess special expertise. While DREs are automatically accepted as experts for this purpose, the determination of the DRE does not determine whether a driver was driving while impaired by a drug and is merely one piece of the picture for the judge or jury to consider. A DRE's evidence does not hinder a judge's ability to critically assess a DRE's conclusion of impairment, or an accused person's right to cross-examine the DRE to undermine his or her conclusion or to cast doubt on the DRE's conclusion. The weight ultimately given to a DRE's evidence will necessarily respect the scope of the DRE's expertise and the fact that it is not conclusive of impairment.3
...the determination of the DRE... is merely one piece of the picture for the judge or jury to consider.
Further to this decision, ensuring that a motorist accused of drug-impaired driving has proper representation during the criminal proceedings has increased importance given that they likely will need to challenge the evidence of a DRE. This is of particular importance to insurers who face increased challenges of deflecting liability in subsequent tort actions when their insured has already been convicted of committing a criminal offence. Given this, we continue to recommend that insurers consider taking appropriate actions to ensure that their insureds are properly represented in the criminal proceeding (and even go so far as to retain counsel for their insured when the potential tort exposure is significant) so that they are not prejudiced in their ability to properly defend an anticipated civil action.
See all articles in this theme of Legalizing Marijuana:
- Are Dispensaries and Vapour Lounges the new Tavern?
- Product Liability for Producers, Distributors, and Dispensers
- Drugged driving and how insurers can manage risk
- Medical Marijuana: Considerations for Employers
1 Paragraph 9.
2 2017 SCC 12
3 Paragraphs 31-32.