Supreme Court rules on admissibility of police drug recognition experts in criminal impaired driving trials

An Ontario motorist charged with impaired driving is facing a third trial now that the Supreme Court of Canada has ruled that a judge did not have to hold a voir dire before admitting opinion evidence from a police drug recognition expert.

In a ruling released Thursday, a majority of Supreme Court of Canada judges hearing an appeal from Carson Bingley, ruled that opinion evidence from a DRE is not automatically admissible.

Bingley was acquitted twice in Ontario of operating a motor vehicle while drug-impaired.

A third trial for Bingley was ordered by an Ontario court after a crown appeal. In a ruling released June 17, 2015, the Court of Appeal for Ontario upheld the order for a third trial. That ruling was upheld by the Supreme Court of Canada in its divided ruling released Feb. 23, 2017.

In 2009, a vehicle crossed the centre line of Maitland Avenue in Ottawa while travelling southbound. That same vehicle eventually struck another car.

Bingley’s blood alcohol level was within the legal limit but court records indicate he failed field sobriety tests. A police drug recognition expert then conducted tests. After that, a urinalysis “revealed the presence of cannabis, cocaine and Alprazolam.”

Section 254 (3.1) of the Criminal Code of Canada gives a drug recognition expert certain powers when a driver is suspected of being impaired by drugs or a combination of drugs and alcohol.

The DRE has the power to conduct an evaluation of whether a “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 of Canada states that if the DRE “has reasonable grounds to believe” that the person’s ability to operate the vehicle is impaired, “the evaluating officer may, by demand made as soon as practicable, require the person to provide” a blood, oral fluid or urine sample.

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).

An issue before the Supreme Court of Canada was whether a judge can admit opinion evidence from a drug recognition expert without holding a “Mohan” voir dire. In 1994, the Supreme Court of Canada restored a conviction, of sexual assault, of Chikmaglur Mohan. The court had excluded expert evidence from a defence witness.

In Mohan, the Supreme Court of Canada noted that the “admission of expert evidence” depends on the application of four criteria: relevance, necessity in assisting the trier of fact, the absence of any exclusionary rule and a “properly qualified expert.”

At Bingley’s first trial, he was acquitted. The trial judge ruled that DRE evidence was admissible. The crown appealed. Bingley was acquitted after the second trial judge ruled DRE evidence inadmissible. In the second trial, the DRE opinion evidence was put to a Mohan voir dire. The judge in the second trial erred, ruled Mr. Justice Hugh McLean of the Summary Conviction Appeal Court in a decision released May 22, 2014.

Related: Motorists’ oral drug testing trial to ‘help establish possible future operating procedures:’ Public Safety Canada

In upholding that ruling, the majority of Supreme Court of Canada judges found that section s. 254(3.1) of the Criminal Code does not displace the common law rules of evidence and that opinion evidence from a DRE is not automatically admissible. However they did agree that evidence from the DRE in Bingley’s case was admissible and that a Mohan voir dire was not required.

“The DRE, literally, is a ‘drug recognition expert’, certified as such for the purposes of the scheme,” Chief Justice of Canada Beverley McLachlin wrote on behalf of the majority. “It is undisputed that the DRE receives special training in how to administer the 12-step drug recognition evaluation and in what inferences may be drawn from the factual data he or she notes. It is for this limited purpose that a DRE can assist the court by offering expert opinion evidence.”

The only issue in Bingley’s appeal was whether the drug recognition expert satisfies the fourth criterion set out in the Mohan ruling, of being a properly qualified expert, Chief Justice McLachlin suggested.

“The DRE’s expertise is not in the scientific foundation of the test but in the administration of the test itself,” she wrote.

“That Parliament has established the reliability of the 12-step drug evaluation by statute does not hinder the trier of fact’s ability to critically assess a DRE’s conclusion of impairment or an accused person’s right to test that evidence,” Justice McLachlin added. “Cross-examination of the DRE may undermine his or her conclusion. Evidence of bias may raise doubt about the officer’s conclusion. The officer may fail to conduct the drug recognition evaluation in accordance with his or her training. A DRE may draw questionable inferences from his or her observations.”

Concurring were Madam Justice Rosalie Silberman Abella, Mr. Justice Michael Moldaver, Madam Justice Suzanne Côté and Mr. Justice Russell S. Brown.

Dissenting from the majority were Madam Justice Andromache Karakatsanis and Mr. Justice Clément Gascon, who would have reinstated the acquittal of Bingley.

“Absent statutory language that clearly designate DRE evaluations as admissible evidence, a basic threshold of reliability of the tests must be established through precedent or evidence on a voir dire,” Justice Karakatsanis wrote in the dissenting argument. “Given the unsettled nature of the case law and the relatively recent reception of DRE evidence into Canadian courts, it was open to the trial judge to treat the proposed testimony as an opinion based on novel science.”