Supreme Court of Canada Series: R. v. Bingley (DRE Experts)

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, [1994] 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). 

Related articles

• Supreme Court of Canada Series: R. v. Anthony-Cook (Joint Recommendations) (MichaelDyck.ca)
• Supreme Court of Canada Series: R. v. Jordan (Unreasonable Delay) (MichaelDyck.ca)
• Supreme Court of Canada Series: R. v. Safarzadeh-Markhali (Pre-Sentence Custody Credit) (MichaelDyck.ca)
• Supreme Court of Canada Series: R. v. St-Cloud (Tertiary Ground for Bail) (MichaelDyck.ca)
• Supreme Court of Canada Series: R. v. Nur (Mandatory Minimums for Firearms) (Michael Dyck.ca)
• Is Marijuana Use Impaired Driving? (MichaelDyck.ca)
• Maclean's Article Tackles Impaired Driving by Drug Issue (MichaelDyck.ca)

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.

Steinbach Regional Secondary School: November 16, 2016

I am speaking to the Law classes today at the Steinbach Regional Secondary School. I am going to have a little contest for the kids in the class. The winner will be contacted by email after the contest closes on Saturday, November 19, 2016 at 12:00 noon.

Step 1

Click here to go to the CanLII Connects website if you haven't been there already.

Step 2

Fill out the form below to enter to win a $50 gift card of your choosing (e.g. Tim Hortons, Starbucks, 7-11).

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.

Supreme Court of Canada Series: R. v. Anthony-Cook (Joint Recommendations)

On October 21, 2016, the Supreme Court of Canada released its unanimous decision R. v. Anthony-Cook, 2016 SCC 43.

The issue in the case was whether or not it was appropriate for the sentencing judge to impose a different sentence than was being recommended by both the Crown Attorney and the defence lawyer. When both lawyer agree on what the punishment should be, it is called a joint recommendation. Joint recommendations help the justice system work more efficiently because an accused person is prepared to plead guilty and save the Crown Attorney the burden of proving the offence at a trial (even if they have a strong case) and in exchange, the accused person gets some sense of certainty about what punishment they will receive. Having said that, there are no guarantees at sentencing, and the sentencing judge always has discretion to impose any fit and appropriate sentence he/she deems.

The Supreme Court outlined what the previous tests used called the fitness test or the public interest test before outlining what the proper test should now be at paragraph 32:

Under the public interest test, a trial judge should not depart from a joint submission on sentence unless the proposed sentence would bring the administration of justice into disrepute or is otherwise contrary to the public interest. 

The Court then outlined some principles for judges to consider when they have concerns about a joint recommendation:

1. "trial judges should approach the joint submission on an “as-is” basis" (para. 51). So if the joint recommendation did not include a probation order, the judge should not decide to add it. But mandatory orders (like DNA or a weapons ban) can be added even if counsel failed to address them. They are, after all, mandatory.
2. "trial judges should apply the public interest test when they are considering “jumping” or “undercutting” a joint submission" (para. 52). The same test should apply if the judge is considering imposing a sentence that is higher or something that is lower than the joint recommendation.
3. "when faced with a contentious joint submission, trial judges will undoubtedly want to know about the circumstances leading to the joint submission — and in particular, any benefits obtained by the Crown or concessions made by the accused" (para. 53). Judges should accept joint recommendations even if they think the sentence may be too light if the Crown Attorney gained more or if the accused lost more.
4. "the judge should notify counsel that he or she has concerns, and invite further submissions on those concerns, including the possibility of allowing the accused to withdraw his or her guilty plea, as the trial judge did in this case" (para. 58). if the judge is not satisfied with the joint recommendation, he/she must allow both counsel to make further submissions to address the judge's concerns before deciding on the sentence.
5. "if the trial judge’s concerns about the joint submission are not alleviated, the judge may allow the accused to apply to withdraw his or her guilty plea" (para. 59). This is especially appropriate where both counsel have proposed an illegal or improper sentence.
6. "trial judges who remain unsatisfied by counsel’s submissions should provide clear and cogent reasons for departing from the joint submission" (para. 60). Clear and articulated reasons will help counsel determine how to proceed in future cases that are similar and is valuable if the case is appealed for the appeal court to review.

Ultimately, the Supreme Court imposed the sentence that was the joint recommendation of the two lawyers after concluding it passed the test for joint recommendations: it would not bring the administration of justice into disrepute and it was not contrary to the public interest.

Manitoba's previous leading case on joint recommendations was R. v. Sinclair, 2004 MBCA 48. Many of the same principles the Supreme Court have laid out are similar to what we had already. But it is interesting to note how the sentencing judge should consider allowing the accused to withdraw a guilty plea if the joint recommendation is not going to be followed. Also, approaching joint recommendations on an "as-is" basis is a slight change, perhaps. Overall, the Supreme Court emphasized the value of joint recommendations to the justice system and how sentencing judges should be careful about when and exactly how to impose a different sentence.

Related articles

• Supreme Court of Canada Series: R. v. Jordan (Unreasonable Delay) (MichaelDyck.ca)
• Supreme Court of Canada Series: R. v. Safarzadeh-Markhali (Pre-Sentence Custody Credit) (MichaelDyck.ca)
• Supreme Court of Canada Series: R. v. St-Cloud (Tertiary Ground for Bail) (MichaelDyck.ca)
• Supreme Court of Canada Series: R. v. Nur (Mandatory Minimums for Firearms) (Michael Dyck.ca)

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.

Maclean's Article Tackles Impaired Driving by Drug Issue

Charlie Gillis just posted an article on Maclean's called "Is Canada ready to deal with stoned drivers?" that tackles the issue of impaired driving by drugs, especially marijuana because of the Federal Liberal Government's position on legalizing recreational marijuana use in 2017.

A large portion of the article focused on a case from Winnipeg, R. v. Manaigre, 2015 MBPC 26, where the Honourable Judge Devine of the Provincial Court of Manitoba articulated a thorough decision on how a Drug Recognition Expert conducts tests on suspected impaired drivers and the shortcomings of these tests. Primary, some parts of the test identify consumption of marijuana and not necessarily impairment.  At para. 81, the Court wrote

Several of the tests sound complicated and very difficult to perform.  I suspect they might well challenge the balance of many completely sober people.

I spoke with Mr. Gillis and voiced some of my concerns about both having impaired drivers on the road (be it from alcohol, drugs, or a combination of both) and also finding a fair and appropriate way of testing the impairment of drivers where the officer suspects the driver has consumed drugs.

Related articles

• Is Marijuana Use Impaired Driving? (MichaelDyck.ca)
• Are you guilty? (MichaelDyck.ca)
• What is the sentencing range for an impaired driving conviction (TomRees.ca)
• Common questions about driving impaired charges and DUIs (TomRees.ca)

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.

Supreme Court of Canada Series: R. v. Jordan (Unreasonable Delay)

On July 8, 2016, the Supreme Court of Canada Released its decision R. v. Jordan, 2016 SCC 27. It was a close decision with a 5-4 majority written by Justices Moldaver, Karakatsanis and Brown.

The issue in the case was whether or not there was too much delay in the criminal proceedings against the accused. The Charter of Rights and Freedoms gives everyone the right to be tried within a reasonable time under section 11(b). This is a critical right in a fair justice system to prevent the government from intentionally dragging a case along while an accused is detained in custody. For Mr. Jordan, his case took 49.5 months (just over 4 years) to finish from the time when he was charged. The lower courts determined the delay was not unreasonable and denied Mr. Jordan's earlier applications for unreasonable delay.

Part of the problem with unreasonable delay is that the only remedy or the only way to fix/address it is by a judge entering a stay of proceedings. In other words, the judge decides to drop the charges. The judge cannot decide to, instead, reduce a sentence for unreasonable delay. That would be an improper and illegal remedy. In other situations, where your right to counsel or your right to be free from unreasonable search and seizure are violated, the judge must decide what evidence, if any, ought to be excluded from a trial. Even if evidence is obtained illegally, the judge may determine to still allow the evidence in. There is another Supreme Court of Canada case that deals with that issue called R. v. Grant, 2009 SCC 32. So, judges may feel that the burden for unreasonable delay should be very high because there is only one remedy and it is a significant one.

The Supreme Court of Canada concluded that courts have become complacent with delay, which may render the right to be free from unreasonable delay toothless. In the introduction at paragraph 4, the Court wrote:

Our system, however, has come to tolerate excessive delays. The circumstances in this appeal are illustrative. Notwithstanding a delay of over four years in bringing a drug case of modest complexity to trial, both the trial judge and the Court of Appeal were of the view that the appellant was tried within a reasonable time. Their analyses are reflective of doctrinal and practical difficulties plaguing the current analytical framework governing s. 11 (b). These difficulties have fostered a culture of complacency within the system towards delay.

The Supreme Court had problems with the previously existing approach and framework laid out in R. v. Morin, [1992] 1 S.C.R. 771. The Court outlined the framework from R. v. Morin at paragraph 30 and commented it was too unpredictable, too confusing, and too complex.

The Morin framework requires courts to balance four factors in determining whether a breach of s. 11 (b) has occurred: (1) the length of the delay; (2) defence waiver; (3) the reasons for the delay, including the inherent needs of the case, defence delay, Crown delay, institutional delay, and other reasons for delay; and (4) prejudice to the accused’s interests in liberty, security of the person, and a fair trial. Prejudice can be either actual or inferred from the length of the delay. 

The Court introduced the new and governing approach at paragraph 46-47:

[46] At the heart of the new framework is a ceiling beyond which delay is presumptively unreasonable. The presumptive ceiling is set at 18 months for cases going to trial in the provincial court, and at 30 months for cases going to trial in the superior court (or cases going to trial in the provincial court after a preliminary inquiry). [47] If the total delay from the charge to the actual or anticipated end of trial (minus defence delay) exceeds the ceiling, then the delay is presumptively unreasonable. To rebut this presumption, the Crown must establish the presence of exceptional circumstances. If it cannot, the delay is unreasonable and a stay will follow.

However, any delays that are caused by the defence are subtracted from the delay period. It only makes sense that the defence does not work to intentionally delay the matter and then argue there has been excessive delay. At the same time, circumstances that lie outside the control of the Crown Attorney can also be subtracted from the delay period. If the total delay is below these ceilings, defence can still make an application for excessive delay if they meet two criteria:

1. it took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and
2. the case took markedly longer than it reasonably should have. 

So, we have a new framework for looking at institutional and systemic delay in the criminal justice system in Canada. In Manitoba, there was a recent decision (that was before R. v. Jordan) that dealt with this exact issue of unreasonable delay. In R. v. Vandermeulen (M), 2015 MBCA 84, the Manitoba Court of Appeal heard a motion for delay after the accused was convicted after a trial. The Court agreed the delay was excessive and entered a stay of proceedings. Manitoba Justice appealed the decision but leave to the Supreme Court of Canada was denied.

Related articles

• Supreme Court of Canada Series: R. v. Safarzadeh-Markhali (Pre-Sentence Custody Credit) (MichaelDyck.ca)
• Supreme Court of Canada Series: R. v. St-Cloud (Tertiary Ground for Bail) (MichaelDyck.ca)
• Supreme Court of Canada Series: R. v. Nur (Mandatory Minimums for Firearms) (Michael Dyck.ca)

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.