Drug Recognition Experts are Experts

Carson Bingley was driving his car, poorly. His driving was erratic. He cut off one driver and crossed over the centre line. He nearly collided with another car. Bingley pulled into the parking lot of an apartment complex  and struck another car. The police were called.

Officer Tennant responded. She spoke to Bingley. She noted several things that led her to believe that Bingley was impaired: his zipper was undone; he had difficulty doing it up; he stumbled; he was swaying and uncoordinated; his eyes were glossy and bloodshot; his speech was slurred; he was having trouble focusing. While officer Tennant believed Bingley was impaired, there was no odour of alcohol. An ASD sample revealed a BAC of 16. Officer Jellinek – who is trained and qualified as a “drug recognition expert” (thereby classifying him as an “evaluating officer within the meaning of section 254) – arrived on scene. Standard Field Sobriety Tests were conducted. Bingley failed. Bingley was arrested. Back at the station officer Jellinek conducted an evaluation (as set out in section 3 of the Evaluation of Impaired Operation (Drugs and Alcohol) Regulations, SOR/2008-196). Bingley failed.

A urine sample was obtained pursuant to section 254(3.4). It was analyzed. Carboxy THC (an inactive by-product of THC – the psychoactive component of cannabis), cocaine and Alprazolam were detected in the urine sample.

At trial one of the issues raised by counsel for Bingley, Trevor Brown, was whether officer Jellinek could provide an “opinion” on the issue of whether Bingley was impaired by drug absent a Mohan voir dire. The Crown argued that the statutory provisions permitted such an opinion to be given without the need for such a voir dire. The trial judge disagreed. Bingley was acquitted. The Crown appealed. The summary conviction appeal court judge, Justice McLean, allowed the Crown appeal. Bingley appealed.

A unanimous Court of Appeal dismissed the appeal: 2015 ONCA 439. In doing so, the court offered the following points.

First, contrary to the submission of Bingley (via his counsel Mr Brown) section 254(3.1) is not simply a procedure provision that serves only as a precondition to the making of a demand under 254(3.4).

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. [@39].

In so concluding, the court noted that 254(3.4) is permissive, not mandatory. It follows that it would be illogical and incongruous to interpret 254(3.1) as merely a procedure step toward the obtainment of a biological sample under 254(3.4) when the latter is not mandatory.

Second, the statutory construct of 254(3.1) and related provisions makes it clear that an “evaluating officer” is permitted to provide an opinion on impairment.

Based on a plain reading of s. 254(3.1) of the Criminal Code, it is my view that DRE opinion evidence is admissible to prove the offence of drug-impaired driving, without the necessity of a Mohan voir dire, so long as it is established that the witness is a certified DRE as specified in the Regulations. [@44]

The court continued:

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. 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. No further statutory provision is required for the DRE opinion evidence to be admitted. This conclusion flows from the wording of s. 254(3.1) and is harmonious with the object and scheme of the legislative provisions and Parliament’s intention.
The detailed scheme in the relevant legislative provisions and the Regulations provides further support for this conclusion. Not all peace officers are entitled to perform drug evaluations under s. 254(3.1). Instead, only peace officers “who [are] qualified under the [R]egulations” are allowed to perform the evaluations (s. 254(1)). Under s. 1 of the Regulations, the evaluating officer “must be a certified drug recognition expert accredited by the International Association of Chiefs of Police.” Furthermore, s. 3 of the Regulations specifies precisely which tests the DRE must perform in conducting the evaluation under s. 254(3.1). By creating this detailed regulatory regime, Parliament has shown that it is satisfied of the science underlying the drug evaluations. [@47-48].

In short, the Court of Appeal concluded that once it is established that an officer is an “evaluating officer” – who by definition is a drug recognition expert – that officer is permitted – on the basis of an evaluation and other evidence – to provide an opinion on whether an accused is impaired by drug.

Bingley is a significant decision. It is the first Court of Appeal ruling on this point in Canada. It is in line with a recent trend in Ontario accepting this approach: see R v Lecomte, 2014 CarswellOnt 10127 @11-13 (CJ); R v Dejesus, 2014 ONCJ 489 @7-9; R v Oum, 2014, ONSC 5131 @14-27.

Bingley also stands as a clear and unequivocal rejection of the argument that a Mohan voir dire is necessary to allow an evaluating officer to provide such an opinion – an argument advanced by Bingley (at both trials) and one accepted by other lower courts.