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