Avoiding an otiose and absurd result

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 complexand 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. Bingley appealed to the Supreme Court – his appeal was dismissed: 2017 SCC 12. The majority offered the following points in dismissing the appeal.

First, the language of s254(3.1), in particular, the phrase “to determine”, does not support the conclusion that a DRE is automatically entitled to provide an opinion in court. Unfortunately, the majority did not discuss this point in any detail – there was no statutory interpretation undertaken, an approach advanced by the Crown and accepted at the Court of Appeal.

Second, the majority noted that the concession by Bingley that the evidence of the DRE is logically relevant, necessary and not subject to any other exclusionary rule (3 of the Mohan criteria) was “appropriate” [para 18].

Third, the majority noted that the only issue that remained was whether he was properly qualified. With respect to that issue, the officer, a “DRE” is “literally” a “drug recognition expert” who is certified as such for the purposes of the scheme. This expert 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 follows that a DRE is a properly qualified expert who “undoubtedly possess[es] expertise on determining drug impairment that is outside the experience and knowledge of the trier of fact” [para 21].

To put it another way, the only purpose of a voir dire in this case would be to determine whether Constable Jellinek has expertise over and above an ordinary person. Normally, the judge determines this on evidence adduced at the voir dire. But s. 254(3.1) and the legislative and regulatory scheme that accompanies it conclusively answer the question of expertise. The DRE is established by Parliament to possess special expertise outside the experience and knowledge of the trier of fact. He is thus an expert for the purpose of applying the 12-step evaluation and determining whether that evaluation indicates drug impairment for the purposes of s. 254(3.1). His expertise has been conclusively and irrebuttably established by Parliament [para 27].

Fourth, the majority rejected the argument advanced by Bingley that the scheme was for investigative purposes only and did not permit the DRE to provide an opinion in court: “While a DRE’s evaluation certainly has an investigative purpose, their application of the 12-step drug recognition evaluation and determination of impairment is relevant evidence and can assist the trier of fact” [para 21].

Fifth, the majority noted that since the expertise of the DRE is the implementation and interpretation of the 12-step test, the DRE need not be trained in the underlying science [para 22]. More to the point, perhaps, the majority noted that the 12-step evaluation secures its reliability from the statutory framework itself.  

Sixth, any challenge to the underlying effectiveness of the evaluation would require a challenge to the legislative framework itself [para 25].

Bingley is an important decision. Drug impaired driving is a dangerous and too frequent occurrence in Canada. The legislative scheme created by Parliament and now interpreted by the Supreme Court is logical, principled and effective. As the majority noted, the schemed (and concessions by Bingley) make clear that the common law requirements for admissibility are made out and thus, the DRE’s opinion should be admitted without the need for such a voir dire. “To so require would be otiose, if not absurd, not to mention a waste of judicial resources” [para 28].