R. v. Bingley (C.), (2015) 335 O.A.C. 328 (CA)

• Judge: Cronk, Gillese and Huscroft, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: April 24, 2015
• Jurisdiction: Ontario
• Citations: (2015), 335 O.A.C. 328 (CA);2015 ONCA 439

R. v. Bingley (C.) (2015), 335 O.A.C. 328 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. JN.025

Her Majesty the Queen (respondent) v. Carson Bingley (applicant/appellant)

(C58943; 2015 ONCA 439)

Indexed As: R. v. Bingley (C.)

Ontario Court of Appeal

Cronk, Gillese and Huscroft, JJ.A.

June 17, 2015.

Summary:

The accused's acquittal on a charge of driving while impaired by a drug was overturned on a summary conviction appeal and a new trial was ordered.

The Ontario Court of Justice, at the second trial, found that a police officer (Jellinek) was well qualified and properly trained as a Drug Recognition Expert (DRE) to perform a drug impairment evaluation under s. 254(3.1) of the Criminal Code, and the drug tests and procedures under s. 3 of the Evaluation of Impaired Operation (Drugs and Alcohol) Regulations. The court conducted a voir dire in accordance with R. v. Mohan (1994, SCC) and refused to admit Jellinek's DRE opinion evidence that the accused's ability to drive had been impaired by a drug. The court concluded that there was no admissible evidence that the accused's impairment was due to a drug and found him not guilty. The Crown appealed.

The Ontario Superior Court held that (1) the DRE opinion evidence was admissible under the Code; (2) it was an error to subject the evidence to a Mohan voir dire; and (3) the evidence was admissible under the principles set out in R. v. Graat (1982, SCC). The court ordered a new trial. The accused applied for leave to appeal, asserting that, inter alia, the court erred in holding that DRE opinion evidence was admissible under the Code.

The Ontario Court of Appeal granted leave to appeal but dismissed the appeal.

Criminal Law - Topic 1362

Motor vehicles - Impaired driving - Evidence and proof - The accused was charged with driving while impaired by a drug - The trial judge found that a police officer (Jellinek) was well qualified and properly trained as a Drug Recognition Expert (DRE) to perform a drug impairment evaluation under s. 254(3.1) of the Criminal Code, and the drug tests and procedures under s. 3 of the Evaluation of Impaired Operation (Drugs and Alcohol) Regulations - The judge conducted a voir dire in accordance with R. v. Mohan (1994, SCC) and refused to admit Jellinek's DRE opinion evidence that the accused's ability to drive had been impaired by a drug - The judge found the accused not guilty - A summary conviction appeal court held that the DRE opinion evidence was admissible under the Code and the trial judge had erred by subjecting the evidence to a Mohan voir dire - The Ontario Court of Appeal affirmed the decision - Contrary to the accused's assertion, the sole purpose of a s. 254(3.1) evaluation was not to serve as a precondition to the making of a demand for a bodily fluid sample under s. 254(3.4) - The DRE opinion evidence was admissible to prove the offence without the need for a Mohan voir dire - That was not to say that the DRE opinion regarding impairment was determinative of the ultimate issue - It was for the court to decide what weight to give the evidence.

Criminal Law - Topic 1386.7

Offences against person and reputation - Motor vehicles - Impaired driving - Drug evaluation - [See Criminal Law - Topic 1362 ].

Cases Noticed:

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241, refd to. [para. 23].

R. v. Graat, [1982] 2 S.C.R. 819; 45 N.R. 451, refd to. [para. 28].

R. v. R.R. (2008), 238 O.A.C. 242; 90 O.R.(3d) 641; 2008 ONCA 497, refd to. [para. 33].

R. v. Dejesus, 2014 ONCJ 489, refd to. [para. 49].

R. v. McCarthy (2014), 61 M.V.R.(6th) 154; 2014 ONCJ 75, refd to. [para. 49].

R. v. Bragi (2014), 61 M.V.R.(6th) 307; 2014 ONCJ 153, refd to. [para. 49].

R. v. Fogarty (W.L.E.) (2015), 355 N.S.R.(2d) 103; 1123 A.P.R. 103; 2015 NSCA 6, consd. [para. 50].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 254(3.1) [para. 3]; 254(3.4) [para. 37].

Counsel:

Trevor Brown and Eric Granger, for the appellant;

Joan Barrett, for the respondent.

This application and appeal were heard on April 24, 2015, by Cronk, Gillese and Huscroft, JJ.A., of the Ontario Court of Appeal. Gillese, J.A., released the following judgment for the court on June 17, 2015.