Useful cases
| Author | Nathan Baker |
| Pages | 147-170 |
CHAPTER
12
Useful
Cases
R
v
Bingley,
2017
SCC
12
Bingley
was
observed
driving
erratically
and
hitting
a
car.
Officers
arrived
and
saw
signs
of
impairment
but
Bingley
passed
the
roadside
screening
for
alcohol
so
they
requested
a
sobriety
test
conducted
by
a
DRE.
Bingley
failed
this
test
and
was
arrested
for
driving
while
impaired
by
drug.
The
twelve-step
Drug
Recognition
Evaluation
was
completed
at
the
police
sta
tion.
Bingley
admitted
to
using
marijuana
and
taking
two
alprazolam
in
the
last
12
hours
and
his
urine
showed
cannabis,
cocaine,
and
alprazolam.
He
was
acquitted
at
his
first
trial
which
was
overturned
by
the
court
of
appeal
and
a
new
trial
was
ordered.
At
the
second
trial
the
court
found
that
the
admission
of
a
DRE
’
s
evidence
is
not
automatic
and
that
a
voir
dire
under
Mohan
was
required.
Bingley
was
acquitted
because
the
trial
judge
found
on
voir
dire
that
the
evidence
from
the
DRE
was
inadmissible
as
expert
or
lay
opinion.
The
court
of
appeal
ordered
a
new
trial
upon
finding
that
such
evidence
was
automatically
admissible
without
a
voir
dire.
The
issues
at
the
Supreme
Court
were
whether
section
254(3.1)
provides
for
automatic
admissibility,
whether
the
evidence
would
be
admissible
under
the
common
law
if
not
automatically
admissible,
and
if
it
could
be
admissible
as
lay
opinion
if
not
expert.
The
Court
found
that
section
254(3.1)
does
not
provide
for
the
automatic
admissibility
of
a
DRE
’
s
opin
ion
evidence.
As
Bingley
conceded
all
Mohan
criteria
were
met
except
for
special
expertise,
the
issue
is
whether
the
DRE
has
special
expertise.
The
147
DRUG-IMPAIRED
DRIVING
IN
CANADA
Court
found
that
the
DRE
had
knowledge
and
expertise
outside
of
the
trier-of-fact
and
that
knowledge
of
the
underlying
science
is
not
a
pre
condition
because
the
scope
of
a
DRE
’
s
expertise
is
in
the
application
of
the
twelve
steps
and
not
the
scientific
foundation
of
the
test.
The
twelve
steps
are
reliable
based
upon
the
statutory
framework.
The
Court
found
that
the
trial
judge
erred
in
concluding
that
because
the
officer
was
not
an
expert
in
the
scientific
foundation
of
the
test
that
none
of
the
opinion
evidence
was
admissible.
As
the
Court
found
the
DRE
’
s
evidence
would
be
admissible
as
expert
opinion,
it
did
not
consider
whether
it
would
be
admissible
as
lay
opinion.
The
dissent
agreed
that
the
DRE
is
an
expert
for
the
limited
purpose
of
administering
the
twelve-step
evaluation.
The
dissent
disagreed,
however,
that
Parliament
determined
the
twelve-step
evaluation
was
sufficiently
reliable
to
be
admitted
and
suggested
that
it
was
only
endorsed
by
Parliament
as
an
investigative
tool.
The
dissent
held
that
it
should
be
open
for
a
trial
judge
to
refuse
to
admit
such
evi
dence.
The
appeal
was
dismissed
and
a
new
trial
was
ordered.
WEIGHT
ISSUES
WITH
DRE
EVIDENCE
R
v
Wernicke,
2013
BCPC
90
The
weight
to
be
given
to
a
DRE
officer
’
s
opinion
is
something
which
the
trier-of-fact
must
assess.
As
an
opinion,
it
must
be
based
on
proven
fact
and
reasonable
in
the
circumstances.
51
The
evidence
of
Mr.
Wayne
Jeffery,
one
of
the
architects
of
the
DRE
protocol
and
the
person
who
has
trained
almost
all
of
the
DRE
officers
in
Canada,
failed,
in
my
view,
to
establish
the
reliability
of
the
DRE
evalua
tion
as
an
indicator
of
impairment.
Mr.
Jeffery
’
s
evidence
failed
to
estab
lish
any
scientific
basis
for
equating
performance
in
divided
attention
tasks
with
the
ability
to
operate
a
motor
vehicle,
beyond
a
bald
assump
tion
that
impairment
of
ability
to
perform
those
tasks
would
show
impair
ment
of
one
’
s
ability
to
operate
a
motor
vehicle.
He
gave
no
evidence
of
any
tests
that
had
been
done
to
confirm
that
hypothesis.
53
When
it
was
put
to
Mr.
Jeffery
on
cross-examination
that
impaired
coordination
in
performing
divided
attention
tasks
would
not
necessarily
148
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