On February 23, 2017, the Supreme Court of Canada released its 5-2 majority decision in R. v. Bingley, 2017 SCC 12.
This is a case about impaired driving by a drug, specifically marijuana and a prescription drug Xanax. First, you will need a bit of a background about drive impaired by drug cases and law in order to understand the issue the Supreme Court addressed.
If the police pull you over while driving or find you in the driver's seat of a motor vehicle and the police reasonably suspect you have a drug or alcohol in your body, then they can demand and force you to complete either a Standardized Field Sobriety Test or to provide a sample into a roadside alcohol screening device called an Approved Screening Device (ASD). If you fail either of these tests, the officer will then place you under arrest for impaired operation and then demand you complete either a Drug Recognition Evaluation or a breathalyzer sample back at the police detachment. But, if the office has reasonable grounds to believe your ability to operate a motor vehicle is impaired, even to a slight degree, because of the effects of a drug or alcohol or both, then the officer will place you under arrest immediately and take you to the police detachment for the Drug Recognition Evaluation or a breathalyzer sample.
Police officers need to take special training to complete Standardized Field Sobriety Tests, ASD tests, Drug Recognition Evaluation tests, or a breathalyzer test so some officers may have training to do some or none of these types of tests. If police officers complete special training for drug evaluations, they can call themselves a "Drug Recognition Expert" (DRE) because that is the term the Criminal Code uses for them.
In court, most of the time, witnesses testify about things that they said, they saw, and they did. In other words, their direct observations. Additionally, opinion evidence can also be provided by witnesses. Some opinion evidence is consider lay opinion, which means anyone can give opinion evidence about these areas. Anyone can testify in court about how old they think someone appeared or how intoxicated they thought someone appeared (these things are not facts but opinions based on observations). Special witnesses can be qualified as expert witnesses and then the expert witness can give expert opinion evidence. For example, if a witness can show they have special training, knowledge, and experience in the area of forensic pathology, then the witness can testify in court about the cause of death in a homocide case.
The case of R. v. Bingley was to determine whether or not a police officer who has training and is a Drug Recognition Expert can testify in court as an expert witness and provide expert opinion evidence or if the court would have to decide whether or not the officer can provide this expert opinion evidence. In other words, is the police officer an actual expert or was that just the name or word used to describe them.
The Supreme Court confirmed that a DRE's opinion is not automatically admissible at trial (at para 11-12). They then turned to whether a DRE could be qualified as an expert using the leading cases in this area: R. v. Mohan,  2 SCR 9 and White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23. And at para. 14 the Court summarized:
The expert evidence analysis is divided into two stages. First, the evidence must meet the four Mohan factors: (1) relevance; (2) necessity; (3) absence of an exclusionary rule; and (4) special expertise. Second, the trial judge must weigh potential risks against the benefits of admitting the evidence: White Burgess, at para. 24.
The issue in this case is whether or not a DRE meets the 4th part of the Mohan test, which is special expertise. Mr. Carson Bingley agreed with the other 3 parts of the Mohan test as well as the admissibility analysis as part of the second stage.
The Supreme Court concluded that a DRE does have special expertise and a voir dire (a trial within a trial) is not necessary to determine if the DRE has special expertise or not, in fact, it would be a waste of time (at para. 27-28). But the Court wanted to ensure that evidence beyond the scope of the DRE testing that the witness provides can be scrutinized at para. 29:
It is important to reiterate a DRE’s s. 254(3.1) determination is a result of administering the prescribed evaluation. That is the only expertise conferred on a DRE. The trial judge has an “ongoing duty to ensure that expert evidence remains within its proper scope”: Sekhon, at para. 46. If opinions beyond the expertise of a DRE are solicited, a Mohan voir dire to establish further expertise may be required.
At the same point, the DRE's evidence does not determine guilt or innocence, but it is "merely one piece of the picture for the judge or jury to consider" (at para. 31).
About the author
Michael Dyck is a partner at Rees & Dyck Criminal Defence. He represents clients primarily from Winnipeg, Steinbach, and rural Manitoba. He has extensive experience helping people charged with criminal offences and focuses on building legal strategy with clients. To read more of his articles, please visit his partner's website TomRees.ca.