January 28, 2016 by Canadian Underwriter
The Supreme Court of Canada announced Thursday it will hear an appeal from a motorist who was charged with driving while impaired by drugs, where a central issue is the admissibility of opinion evidence of a police drug recognition expert.
Carson Bingley was tried and acquitted of operating a motor vehicle while drug-impaired. After the crown appealed he was charged and acquitted again. The crown appealed again, a third trial was ordered and Bingley appealed that order for a third trial. In a decision released June 17, 2015, the Court of Appeal for Ontario upheld the order for a third trial.
Bingley then applied for leave to appeal to the Supreme Court of Canada, which announced Jan. 28 it granted Bingley leave to appeal.
Court records indicate that on May 7, 2009 a vehicle crossed the centre line of Maitland Avenue in Ottawa while travelling southbound. That vehicle then pulled into a parking lot and struck another car.
Bingley was arrested and an Ottawa police Drug Recognition Expert (DRE) conducted tests. Court records indicate that Bingley’s blood alcohol level was within the legal limit but he failed field sobriety tests.
During his first trial, the judge allowed opinion evidence from the police drug recognition expert who had conducted tests on Bingley after he was arrested. The judge in the second trial ruled that the DRE evidence was inadmissible. On May 22, 2014, a summary conviction appeal judge allowed a crown appeal and ordered a third trial.
One issue was the admissibility of opinion evidence – from the DRE – on whether a person’s ability to operate a motor vehicle is impaired by a drug or a combination of alcohol and a drug.
Section 254 (3.1) of the Criminal Code of Canada gives a DRE the power – when a person is suspected of operating a vehicle impaired by drugs or a combination of drugs and alcohol – to conduct an evaluation of “whether the person’s ability to operate a motor vehicle, a vessel, an aircraft or railway equipment is impaired by a drug or by a combination of alcohol and a drug.”
Section 254(3.4) of the Criminal Code states:
(3.4) If, on completion of the evaluation, the evaluating officer has reasonable grounds to believe, based on the evaluation, that the person’s ability to operate a motor vehicle, a vessel, an aircraft or railway equipment is impaired by a drug or by a combination of alcohol and a drug, the evaluating officer may, by demand made as soon as practicable, require the person to provide, as soon as practicable,
(a) a sample of either oral fluid or urine that, in the evaluating officer’s opinion, will enable a proper analysis to be made to determine whether the person has a drug in their body; or
(b) samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, will enable a proper analysis to be made to determine whether the person has a drug in their body.
Bingley argued that the “sole purpose of the evaluation is to serve as a precondition to the making of a demand for a bodily fluid sample” under section 254 (3.4).
In a unanimous decision, the Court of Appeal for Ontario disagreed.
“Had Parliament intended the DRE’s evaluation under s. 254(3.1) to be used solely as grounds for a bodily fluid sample demand under s. 254(3.4), it could have said so expressly,” Madam Justice Eileen Gillese wrote on behalf of the Court of Appeal for Ontario.
In Bingley’s second trial, the judge subjected the opinion evidence of the DRE to a “Mohan voir dire” – a procedure named after Supreme Court of Canada ruling in 1994 on expert opinion evidence. Chikmaglur Mohan, a pediatrician, had been convicted in 1990 of sexual assault. An expert witness for the defence had testified in a voir dire and that expert’s opinion evidence was found inadmissible. On appeal, a new trial of Mohan was ordered, after the Court of Appeal for Ontario found that the expert witness’s opinion was actually admissible. But the Supreme Court of Canada, in 1994, restored the original conviction.
In Bingley’s second trial, the judge – after holding a Mohan voir dire – declined to accept the DRE’s opinion on the source of impairment. The summary conviction appeal judge ruled that the second trial judge erred in having the opinion evidence subjected to a voir dire.
In dismissing Bingley’s appeal earlier this year – of the order to hold a third trial – the Court of Appeal for Ontario ruled that “a contextual reading” of s. 254(3.1) of the Criminal Code of Canada “makes it clear that DRE opinion evidence is admissible to prove the offence without the need for a Mohan voir dire.”
“By requiring the DRE ‘to determine’ whether the driver is drug-impaired, s. 254(3.1) requires the DRE to reach a conclusion – that is, to form an opinion – as to impairment,” Justice Gillese wrote.
The other two judges hearing Bingley’s appeal – Madam Justice Eleanore Cronk and Mr. Justice Grant Huscroft – agreed.
“It is implicit that the DRE opinion evidence as to impairment is admissible without the need for a Mohan voir dire, and that the court may consider that opinion evidence when determining whether the offence has been made out,” Justice Gillese wrote, adding it is up to the court to decide what weight to give to the opinion evidence of a DRE.
“It is open to the accused to cross-examine the DRE on the methodology that was used and on how the DRE reached his or her conclusion.”