R v Bingley: Exposing A Troubling Drug Recognition Regime

When the Ontario Court of Appeal’s decision in R v Bingley, 2015 ONCA [Bingley] (recently heard by the SCC, awaiting decision) was released last April, I was shocked. The case raises intriguing legal issues, sure, but I was perhaps more stunned by the nature of our drug-testing regime in Canada, and particularly the lack of precise testing available to determine whether a driver is under the impairment of drugs. Bingley throws the problems of this regime into sharp relief. The Supreme Court of Canada has turned its attention to some of the problems of this regime during their hearing on this appeal (the webcast can be found here). Below, I explore some of the implications arising out of the ONCA decision and predict a constitutional challenge in light of this decision and the SCC hearing. But first, the facts.

In the early hours of May 7, 2009, Carson Bingley was seen driving his car erratically: he cut off several drivers before launching his car over the centre lane into oncoming traffic. By sheer luck, Mr. Bingley avoided an accident, up until he pulled into an apartment complex and struck a parked car, whose driver called the police. When Constable Tennant arrived on the scene, she noted that Mr. Bingley stumbled when he stood, his zipper was undone, and he had difficulty zipping it up. Constable Tennant observed that Mr. Bingley was physically uncoordinated, swaying from side to side, and rocking back on his heels in an uncontrolled manner. His eyes were glossy and bloodshot, and his speech slurred. He had trouble focusing, and repeatedly stared off into the distance when being asked a question.

Constable Tennant believed that Mr. Bingley was impaired. However, there was no odour of alcohol on his breath, and the results of a roadside test revealed a blood alcohol concentration of 16mgs of alcohol in 100ml of blood: a result well below the legal limit and inconsistent with the observed indicia of impairment. So, Constable Tennant called up Officer Jellinek, a qualified Drug Recognition Expert (note: while these officers have become known as “DREs,” the Criminal Code refers to them as “evaluating officers”; I believe this distinction is important, and will use the term “evaluating officers” in this article). Officer Jellinek administered a number of standard field sobriety tests on Mr. Bingley at the scene. When Mr. Bingley failed the sobriety tests, he was arrested for driving while impaired by a drug.

After Bingley’s arrest, Officer Jellinek conducted an evaluation of Mr. Bingley back at the station, involving a twelve-step procedure that became an exhibit at trial (note: this twelve-step test is outlined in s. 3 of the Evaluation of Impaired Operation (Drugs and Alcohol) Regulations; it should also be noted that this is a widely recognized test that is used throughout North America and Europe). After completing the test, Officer Jellinek concluded that Mr. Bingley was under the influence of cannabis. Officer Jellinek also considered Mr. Bingley’s admission, during his evaluation, that he had smoked marijuana and taken two Xanax in the previous twelve hours. Pursuant to s. 254(3.4)(a) of the Code, he then asked Mr. Bingley to provide a urine sample to confirm his opinion as to the cause of impairment. When asked to give the sample, Mr. Bingley responded: “Yes. What happens if I refuse? I’m DUI, so yeah, I’ll give you the sample.”

Dr. Mayers, a forensic toxicologist, completed a urinalysis of the sample. The urinalysis revealed the presence of carboxy THC (the major psychoactive component of cannabis), in addition to cocaine and Alprazolam. But here’s the rub –the “strongest conclusion” Dr. Mayers could draw from the presence of carboxy THC in Mr. Bingley’s urine was that, at some time prior to giving the urine sample, Mr. Bingley was exposed to some type of cannabis. The cannabis could have been recent, Dr. Mayers concluded, or the exposure could have been days, or even weeks prior to the urine sample. Further, Dr. Mayers testified that while the indicia Mr. Bingley exhibited – poor coordination, slurred speech, swaying, slightly bloodshot eyes – are all consistent with cannabis use, there are also non-toxicological explanations for these symptoms.

Mr. Bingley was tried for driving while drug impaired. He was acquitted, but a summary conviction appeal led to the acquittal being overturned and a new trial ordered. Mr. Bingley was acquitted again at the second trial, but the summary conviction appeal judge allowed the Crown appeal and ordered yet a third trial. Mr. Bingley is appealing this final order.

The First Trial

At the first trial, Officer Jellinek was found to be qualified as an evaluating officer to perform the necessary evaluations and tests. The trial judge found that Officer Jellinek’s opinion evidence could be received without a Mohan voir dire. A Mohan voir dire is a mini-hearing held during a trial on the admissibility of contested evidence. In this case, the trial judge would determine whether Officer Jellinek is qualified as an expert and if so, what the “nature and scope of the proposed expert evidence” will be. To qualify a person as an expert, the evidence must meet the Mohan requirements:

1. The opinion must be relevant (includes both logical relevance [the relationship between the evidence and the fact in issue it is being used to establish] and legal relevance [the probative value]);
2. The opinion must be necessary to assist the trier-of-fact in drawing the correct inference (will be satisfied if the expert has information that is likely to be outside the experience and knowledge of the trier of fact);
3. The absence of any other exclusionary rule; and
4. The required qualifications of the proposed expert.

The Second Trial

At the second trial, Officer Jellinek was again found to be well qualified as an evaluating officer. This time, the trial judge found that a Mohan voir dire was necessary. After said voir dire, the trial judge declined to admit Officer Jellinek’s opinion evidence for two reasons. First, the trial judge found that although Officer Jellinek was properly trained and qualified to carry out his DRE duties, he was only certified to do so for the limited purpose of conducting testing and evaluation to determine whether a further demand could be made to provide a bodily fluid sample under s. 254(3.4). Second, the trial judge held that Officer Jellinek was not qualified to give the opinion evidence because there was no evidence that the procedures on which he based that opinion were scientifically based and because Officer Jellinek did not have sufficient scientific training to qualify as an expert. Accordingly, the trial judge found that there was no admissible evidence that Mr. Bingley’s impairment was due to a drug and he acquitted him.

The ONCA Decision

Justice Gillese, for Justice Cronk and Huscroft, held that Officer Jellinek’s opinion evidence was admissible and dismissed the appeal. Justice Gillese refused to accept Mr. Bingley’s submission that the purpose of a s. 254(3.1) evaluation is solely to serve as a precondition to demanding a bodily fluid sample under s. 254(3.4). Section 254(3.1) reads as follows:

If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under paragraph 253(1)(a) as a result of the consumption of a drug or of a combination of alcohol and a drug, the peace officer may, by demand made as soon as practicable, require the person to submit, as soon as practicable, to an evaluation conducted by an evaluating officer to determine whether the person’s ability to operate a motor vehicle…is impaired by a drug or by a combination of alcohol and a drug, and to accompany the peace officer for that purpose (emphasis added).

Justice Gillese made a pointed comment that the two sections, while related, require two separate conclusions:

Section 254(3.1) is not merely a step along the path to s. 254(3.4). That is, it is not merely a precondition to the making of a bodily fluid sample demand…a contextual reading of s. 254(3.1) makes it clear that DRE opinion evidence is admissible to prove the offence without the need for a Mohan voir dire…Had Parliament intended the DRE’s evaluation under s. 254(3.1) to be used solely as grounds for a bodily fluid sample demand under s. 254(3.4), it could have said so expressly (Bingley, paras 38-39).

Moreover, Justice Gillese made it quite clear that in her opinion, the legislation provided that an evaluating officer is an expert, and therefore, a Mohan voir dire is not required:

The DRE opinion evidence called for by s. 254(3.1) is not a screening tool, but rather, a determination of impairment and whether impairment is due to a drug or a combination of a drug and alcohol. By requiring the DRE ‘to determine’ whether the driver is drug-impaired, s. 254(3.1) requires the DRE to reach a conclusion – that is, to form an opinion – as to impairment. It is implicit that the DRE opinion evidence as to impairment is admissible without the need for a Mohan voir dire, and that the court may consider that opinion evidence when determining whether the offence has been made out (Bingley, paras 46-47).

At first blush, I had a plethora of concerns about Justice Gillese’s decision. The rest of this post will be directed to those concerns, and how the SCC quieted (most of) them when it heard the case.

The Gatekeeper Issue

My greatest concern was that the Court of Appeal’s decision railed against the gradual progression Canadian courts have been making towards greater threshold requirements for the admissibility of expert evidence, and in conjunction, a heightened “gatekeeper” role for judges. During the hearing, this point was made by Trevor Brown, Mr. Bingley’s lawyer, who aptly mentioned that “the use of the phrase ‘to determine’ doesn’t mean that [the evaluating officer] gets to come to court, clothed with the mystique of science and say ‘this is it, I’m the ultimate question in the case.’” For me, Justice Moldaver seemed to all but resolve this issue when he replied: “What we have here is parliament stepping [in to say] ‘if you go through this protocol and you are a trained officer, the reliability aspect of this [evidence] will be covered off. This doesn’t mean that you can’t cross-examine, but you don’t have to go through [a Mohan voir dire] to show that the science behind this is reliable, because we, Parliament, are saying it’s reliable’.” In essence, Justice Moldaver appears to be saying here that while an officer may have reasonable grounds to arrest at the scene, that typically would not be enough to get a conviction. Thus, in order to secure convictions, Parliament has equipped officers with this helpful tool: a qualified evaluating officer and a standard they must follow.

At one point in the hearing, Jasmine Akbarali (as she then was) for the Canadian Civil Liberties Association argued that the Crown’s approach would make the evidence admissible without any gatekeeper scrutiny, which would stop us from, as Justice Doherty implored us to do in R v Abbey, 2009 ONCA “com[ing] to grips with [the risks of the expert evidence] as they apply to the particular circumstances of the individual case” (para 92). The examples she gave were particularly salient: what if an individual evaluating officer has a history of making evaluations that do not accord with the toxicological results? Or, what if the science changes and the evaluator doesn’t keep up with the science? While Justice Moldaver quickly jumped in to point out that these situations would rise to the need for a voir dire, Ms. Akbarali’s point seemed to resonate with the rest of the bench. Mark Halfyard, the lawyer for the Criminal Lawyers’ Association, seemed to pick up on this, and continued to highlight the many situations in the past where it was believed something was good science only to learn that there were significant partiality concerns, and errors on the science, that were leading to wrongful convictions. In reply, Justice Moldaver says that a voir dire could still be held if evidence can be provided that shows that the officer is biased and cannot perform these tests honestly, but that is a very different story than challenging the underlying scientific bases that the regime relies upon. Such a contention would have to be made under a constitutional challenge. The Mohan voir dire, Justice Moldaver surmises, is at its core, a test used to avoid new types of “junk science.” McLachlin later clarified that the test looks at reliability and necessity, and Parliament has already said that an evaluating officer is both reliable and necessary.

In rendering their decision, expect the court to draw out a subtle middle ground here, in which the drug recognition evaluation evidence is not presumed admissible, but expertise and relevance are inferred based on the wording in the Criminal Code and Parliament’s intention in enacting the relevant sections. This would satisfy the criteria of a Mohan voir dire. Moreover, in order to avoid confusion among the jury, expect the court to clarify that these officers are to be referred to as drug recognition “evaluators” as opposed to “experts.”

A Forthcoming Constitutional Challenge

That being said, I do believe that a constitutional challenge is waiting in the wings. Towards the end of the hearing, Justice Moldaver asked Joan Barrett, the lawyer for the Crown, the following: “From a standpoint of wanting to be fair to the accused, parliament has studied this in the US, and the evidence is that it has a 98% reliability rate. Are we able to take anything from the fact that if this were bad science, surely someone would have exposed it by now?” Ms. Barrett answered in the affirmative, and added that the use of evaluating officers began in 1979, was widespread throughout the US by 1985, and is now used widely in Europe. However, upon further examination, some scholars dispute whether this is in fact accepted by the scientific community as the appropriate test. I will now turn to the concerns that I believe will, and should, be subject of a future constitutional challenge.

Impaired by Alcohol vs. Drugs: An Objective vs. A Subjective Regime

Before reading Bingley, I was completely unaware that there was not a more exact form of determining whether a person was impaired by drugs at the time they were driving. While there are some pilot projects in the works (see The Canadian Press’s article, “Police pilot project will test drug-detection systems by asking drivers for their saliva”) science has yet to provide us with a drug detection system comparable to that of the breathalyser test used to determine whether someone’s driving is impaired by alcohol. As the aforementioned article points out, some police forces have found this particularly concerning given the movement towards legalizing marijuana.

Perhaps my most prominent concern when reading the ONCA case was that, while they appear similar, the alcohol and the drug testing regimes are quantitatively different. The alcohol regime, which uses a standard form of testing in order to determine whether a driver is impaired, is markedly different from the drug regime, which features an inherently subjective test. For the most part, this was not addressed by the SCC at the hearing (and rightfully so, as this issue does not directly speak to the voir dire issue), with the exception of Justice Brown, who commented: “In the alcohol regime, an officer is determining concentration, which is an objective measure, whereas in the drug regime, the impairment is inherently a subjective measure.” Unlike the alcohol scheme, the drug evaluation intrinsically relies on drawing inferences from certain observed phenomena. However, Justice Brown seemed to accept the Crown’s argument that the drug-regime test is only minimally subjective because of the “objective” twelve-step test that must be applied. However, others are not so certain. In his article, “The D.R.E.: Drug Recognition Expert or Experiment?” Scott Brown notes that:

The officer’s interpretation of the suspect’s behaviour, the interview of the suspect, and performance on the Field Sobriety Tests are all subjective components of the evaluation…[so] clearly, a significant portion of the DRE protocol relies on the subjective interpretation of the examiner….[Moreover] the information the [DRE] receives prior to conducting the evaluation, such as the presence of drugs or paraphernalia found within the suspect’s vehicle or on his person, or information he may have revealed to the arresting officer about past drug use, may bias the DRE in conducting the evaluation.

It should be noted here that Ms. Barrett fully acknowledged during the hearing that there is a subjective element to the evaluation, but argued that the subjective element is only subject to cross-examination and not to a Mohan voir dire. Ms. Barrett explained that once an evaluating officer is certified under the regime, that designation is the functional equivalent of a Mohan voir dire, rendering a voir dire completely redundant. Justice Karakatsanis pointed out later in the hearing that this testing on cross-examination would only have to be done a few times until the reliability of the program is established via a judicial decision. However, those “few times” will feature a tremendous burden on the accused, who will have to call, at minimum, an ophthalmologist, a toxicologist and a medical physician to discuss the various components of the program and to contest the observations made by the evaluating officer. Indeed, a constitutional challenge may be in order.

“Junk Science”?

During the hearing, Justice Moldaver all but dismissed the idea that the drug recognition evaluations could be seen as “junk science.” However, as Chamberlain, Solomon, and Kus point out in their article, “Drug-Impaired Driving in Canada: Moving Beyond American Enforcement Models” while these evaluations may not rise to the level of “junk science,” the science behind the evaluations isn’t as sound as one would hope. According to Chamberlain, Solomon, and Kus, while field studies indicate that drug recognition evaluations are very accurate in identifying drug presence, they are considerably less accurate in terms of the specific category of drugs present in the suspect’s body. In a recent study, the evaluating officers correctly concluded that the suspects were drug positive in 84.1% of the cases, but only correctly identified the drug category in 64.1% of the cases. But perhaps more pertinent, and more troubling is that, “while [the evaluation] may be accurate in identifying drug-positive suspects, it is of far less value in proving that the suspect’s driving ability was in fact impaired by drugs. Most of the steps in the DRE focus on drug presence and not on the impairment of driving ability. It is only the four coordination, balance and divided attention tests (the walk-and-turn, the one-leg-stand, the Romberg balance, and the finger-to-nose tests) that directly assess the impairment of skills thought to be important for driving….This problem has gone unnoticed by the Canadian courts….DRE will not streamline drug-impaired driving prosecutions in Canada or greatly assist the Crown in proving that the accused’s drug consumption impaired his or her driving ability at the time of arrest.” On the whole, the authors seem to be just as frustrated as I was that there is not a more viable means of conducting roadside tests for drug impairment:

Preliminary screening could be conducted at roadside…However, testing for drug impairment is more complex than testing for alcohol impairment. First, not all drugs necessarily or consistently cause impairment. Second, the non-active metabolites of some drugs stay in a driver’s system long after their impairing effects have worn off…Finally, while there is a broad consensus on the impairing impact of alcohol at various BAC levels, views differ regarding the specific level at which the various drugs impair driving ability.

The authors propose two alternatives: a zero tolerance approach, or establishing criminal per se limits for given drugs set a level at which the driving ability of most drivers would be impaired. Perhaps Parliament will make these changes in the future. However, what is clear in the interim is that the court must be delicate with their decision in Bingley and be cognizant of the looming constitutional challenge that will almost certainly follow.