In R. v. Bingley,1 the Supreme Court of Canada attempted to resolve the evidentiary quagmire posed by s. 254(3.1) of the Criminal Code.2
In 2008, the Criminal Code was amended to give police the lawful authority to compel persons suspected of driving while impaired by drugs or a combination of drugs and alcohol to submit to an evaluation by an “evaluating officer.”3 While s. 254(5) makes it an offence to refuse to participate in an evaluation,4 whether and how the results of such an evaluation could be used as evidence in court was (and potentially remains) far from clear.
An evaluating officer is defined as “a certified drug recognition expert accredited by the International Association of Chiefs of Police.”5 Subsection 254(3.1) allows a peace officer, if they have reasonable grounds for believing that a person is committing or has in the previous three hours committed the offence of impaired driving, to demand that person submit to an evaluation 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.”6 If on completion of the evaluation, the officer has reasonable grounds to think that the person was driving while impaired, they may also demand that person provide a bodily fluid or blood sample.7 Refusing to comply with this demand is also an offence.8
The Drug Recognition Expert’s (“DRE”) evaluation is allowed if there are reasonable grounds for believing that the offence of impaired driving has been committed under paragraph 253(1)(a), and the evaluation is conducted for the purpose of determining impairment. If impairment is found, the person will, barring some intervening factor, be charged with impaired driving. Admitting the results of the evaluation as evidence of impairment at trial, however, is problematic.
As an inference drawn from observed facts, the conclusions drawn by an evaluating officer are undeniably an opinion. As a general rule, witnesses are only allowed to testify to facts—what they saw or did. Any conclusions or inferences that can be drawn from those facts should be drawn by the trier of fact.9 There are two exceptions to this broad prohibition: lay opinion evidence may be tendered in accordance with the rules in Graat v. The Queen;10 expert opinion evidence may be tendered in accordance with the standards most recently stated in White Burgess Langille Inman v. Abbott and Haliburton Co.11
DRE testimony must come within one of these exceptions to be admissible. As the opinion of a DRE is based on expertise outside of the general knowledge held by lay persons, it is clearly not admissible as lay opinion evidence.12 Attempts to have DREs testify as experts had, prior to Bingley, met with mixed results.13 The trial judgement in this case found that the DRE testimony could not be admitted without the validity of the underlying science first being established in accordance with the established procedure for admitting expert evidence.14 The Ontario Court of Appeal resolved the issue of admissibility by interpreting s. 254(3.1) as providing for the automatic admission of DRE testimony. Because the Criminal Code provides for a DRE evaluation for the purposes of determining impairment, the Ontario Court of Appeal found that the statute implicitly provided for the admission of such evidence.15
In Bingley, the Supreme Court of Canada was required to consider the validity of the appellate Court’s statutory interpretation and, if necessary, decide whether DRE testimony is admissible as expert opinion or lay opinion evidence. Chief Justice McLachlin, with Justices Abella, Moldaver, Côté and Brown concurring, found that the Criminal Code does not provide for the automatic admission of DRE testimony, but that s. 254(3.1) and the accompanying regulations show that Parliament is satisfied with both the science underlying DRE evaluations and the qualifications of officers who have been certified as specified by regulation, such that a voir dire is not necessary.16 In dissent, Justice Karakatsanis, with Justice Gascon concurring, found that while it may have accepted the science behind DRE analyses in an investigative context, Parliament has not accepted it as sufficient for the purposes of a criminal trial.17
In the majority decision, McLachlin C.J.C. quickly dispelled any notion that Parliament intended to abrogate the common law rules of evidence, noting that “[c]lear and unambiguous language is required to displace common law rules, including rules of evidence,” and that the language of s. 254(3.1) was not sufficient to show Parliament’s intention to alter the rules of evidence.18 After canvasing the rules governing the admission of expert evidence, as set forth in R. v. Mohan,19 WBLI, and other decisions, she discussed the fourth Mohan criterion—the requirement that expert evidence be tendered by an appropriately qualified expert and that, where expert testimony relies on novel science or science used for a novel purpose, the underlying validity of that science must be proven.20 This is the part of the Mohan test which DRE evidence often fails to satisfy.
McLachlin C.J.C. found that the DRE in Bingley, Constable Jellinek, definitely possessed expertise outside of the knowledge of the trier of fact, and that the Constable’s lack of knowledge of the scientific foundations of the DRE evaluation did not necessarily preclude qualification as an expert.21 While it is necessary to prove the scientific validity of a test or methodology relied on by expert testimony when the science is novel, McLachlin C.J.C. found that the s. 254(3.1) and the Regulations demonstrate Parliament’s satisfaction with the reliability of DRE evaluations for the purpose of determining impairment.22 The majority concluded that this satisfies the fourth branch of the Mohan test, and that “[w]here it is clear that all the requirements of a common law rule of admissibility are established…the trial judge is not obliged to hold a voir dire.”23
This decision invites criticism on several fronts. It is possible that the standards of statutory interpretation used to reject the appellate court’s interpretation of s. 254(3.1) are different from those used to support the majority’s interpretation. Additionally, and as argued by the Criminal Lawyers’ Association of Ontario24 and the Canadian Civil Liberties Association,25 an interpretation of s. 254(3.1) that compels acceptance of the scientific validity of DRE evaluations is likely not Charter26 compliant.
One person’s nuance is often another’s duplicity. After stating that Parliament only alters the common law rules of evidence by expressed intent, and ruling that the wording of s. 254(3.1) was not sufficient to show Parliament’s intent to do so, McLachlin C.J.C. found that same wording to be sufficient to show that the fourth step of the Mohan analysis was not required. Karakatsanis J. dissented on this point, finding that, absent clear statutory indication that DRE evidence is admissible, the common law rules of evidence have not been displaced.27 It is worth noting that, after finding that s. 254(3.1) does not allow for the automatic admission of DRE testimony, McLachlin C.J.C. then forwarded an interpretation which, as the dissent notes, effectively allows for the automatic admission of DRE testimony.28 It is reasonable to conclude that the fourth Mohan criteria is the only barrier to the admission of DRE evidence—such evidence will always be relevant, necessary, and not subject to another exclusionary rule when tendered in an impaired driving trial.
There is a distinction to be drawn between the majority and appellate court judgements. The Ontario Court of Appeal would have allowed the words “to determine” to indicate Parliament’s intent to completely bypass the laws of evidence. McLachlin C.J.C. found that same passage sufficient to indicate that a portion of the Mohan test is de facto satisfied. But if this distinction has substance, it is lost on the author.
A further problem with the majority decision is that it interpreted s. 254(3.1) in a manner that is more than likely unconstitutional, where a constitutional interpretation is available.29 McLachlin C.J.C. stated that “[a]ny challenge to the underlying effectiveness of the evaluation would require a challenge to the legislative framework itself.”30 In doing so, she acknowledged the potential for a Charter challenge. However, where a statute is ambiguous, as s. 254(3.1) clearly is, it should be interpreted with regard to Charter principles and in a Charter compliant manner.31
The majority found that Parliament has determined that a DRE evaluation “is sufficiently reliable for the purposes of determining impairment.”32 McLachlin C.J.C. also prohibited the use of the discretionary judicial power to exclude evidence that is more prejudicial than probative to exclude DRE evidence on the grounds that the underlying science is unreliable, and that the evidence is therefore highly prejudicial.33 If a reasonable doubt as to the reliability of DRE evaluations can be raised, this risk of wrongful conviction is very real. The majority interpretation potentially engages s. 7 of the Charter in a variety of different manners. The Criminal Lawyers’ Association of Ontario noted that the right to full answer and defence could be violated.34 The Canadian Civil Liberties Association noted that the right to a fair hearing and right to not be found guilty unless the evidence demonstrates guilt beyond a reasonable doubt could also be implicated, and argued that both of these principles of fundamental justice combine to constitutionalize the need for evidence to be scrutinized for admissibility and cogency.35 While the intervenors’ criticisms were directed at the appellate interpretation, they tellingly apply equally to the Supreme Court’s ruling.
While this issue was not raised on appeal, it is also important to note that ss. 254(3.1) and 254(3.4) do not give effect to the DRE process as it was developed by the International Association of Chiefs of Police. As such, if challenged, they may not be supported by scientific studies of the DRE methodology. Subsection 254(3.4) states that if, after completion of the evaluation pursuant to s. 254(3.1), the evaluating officer has reasonable grounds to believe that a person is impaired, the officer “may” demand a fluid sample.36 The Supreme Court has found that a determination made pursuant to s. 254(3.1) is “sufficiently reliable for the purposes of determining impairment,” however, that section does not require the provision of a fluid sample, which may or may not be demanded, at the discretion of the DRE, pursuant to s. 254(3.4).
According to the DRE training manual used by the Royal Canadian Mounted Police, the fluid sample is an essential part of the DRE analysis:
A DRE doesn’t complete an evaluation until they either obtain a specimen from the subject, or formally document the fact that the subject refused to submit to the toxicological test. It is important that the court be aware that toxicology is the final step of the evaluation. It follows the formation of the DRE’s opinion; the opinion is not based on the results of the toxicological analysis…The DRE expects that toxicology will support or corroborate the opinion that they have formed. A toxicological analysis supports the opinion by confirming the presence of a particular drug that is consistent with the DRE’s opinion….
DREs also need to understand that sometimes the toxicological analysis will not confirm the DRE’s opinion. The DRE needs to be honest enough to admit that, when this happens, it may be because their opinion is incorrect. The [DRE] evaluation isn’t an exact science.37
Toxicological analysis of the fluid sample provides an imperfect blind check on the informed but ultimately subjective and fallible opinion of the DRE. Several field studies of DRE evaluations have revealed false positive rates—instances where a DRE incorrectly concludes that a person’s ability to drive is impaired by drugs—that vary dramatically.38 As a Canadian study of DRE accuracy notes, “[f]rom an enforcement perspective, it is important that the judgments of DREs concerning drug use are corroborated by toxicology.”39
As set forth by Parliament, and interpreted by the Supreme Court, s. 254(3.1) effectively allows for the automatic admission of incomplete DRE evaluations as evidence of impairment. The Charter cannot reasonably be expected to tolerate legislation which poses such an obvious and needless risk of wrongful conviction. It is also worth noting that a Mohan voir dire is the ideal venue for uncovering this type of defect in the application of a quasi-scientific methodology.
While the Supreme Court has arguably not resolved the problem of s. 254(3.1), it is worth noting that this problem was created by Parliament. A fair reading of the Hansard reveals that Parliament did not once consider how a DRE evaluation could be admitted as evidence.40 In the wake of Bingley, frequent Charter challenges to s. 254(3.1) of the Criminal Code can reasonably be anticipated. The Supreme Court has likely not considered this provision for the last time.
* BA (University of Saskatchewan), MA (University of Saskatchewan), JD Candidate (University of Saskatchewan).
1 2017 SCC 12 [Bingley].
2 RSC 1985, c C-46.
3 Tackling Violent Crime Act, SC 2008, c 6, ss 18-20.
4 Supra note 2.
5 Evaluation of Impaired Operation (Drugs and Alcohol) Regulations, SOR/2008-196, s 1 [Regulations].
6 Criminal Code, supra note 2. Paragraph 254(2)(a) allows a peace officer to administer a basic coordination test for the purpose of determining whether a demand can be made under s. 254(3.1) (ibid). Paragraph 254(2)(a) compels a person to submit to a screening test by an officer other than an evaluating officer, but is itself not evidence of impairment. While it will often be useful to a peace officer to take this preliminary step, a demand under s. 254(3.1) can be made independently.
7 Ibid, s 254(3.4).
8 Ibid, s 254(5).
9 R v Abbey, [1982] 2 SCR 24 at 42, 138 DLR (3d) 202.
10 [1982] 2 SCR 819, 144 DLR (3d) 267.
11 2015 SCC 23, [2015] 2 SCR 182 [WBLI].
12 While the majority in Bingley did not find it necessary to consider the Crown position that DRE testimony could be admitted as lay opinion evidence, McLachlin C.J.C. noted that it is formed “through the application of specialized training and experience in performing a prescribed drug recognition evaluation,” and as such, “cannot be characterized as lay opinion” evidence (Bingley, supra note 1 at para 34).
13 For examples of cases in which DRE expert testimony was admitted, see R v Bois, 2010 ONCJ 420; R v Jansen, 2010 ONCJ 74. For examples of cases where it was not admitted, see R v Steeves, 2010 NBPC 25, 9 MVR (6th) 76, aff’d 2011 NBQB 10, 9 MVR (6th) 103, rev’d 2011 NBCA 88, 18 MVR (6th) 177; R v Wood, 2007 ABQB 503, [2007] 11 WWR 330, rev’g 2006 CarswellAlta 2438 (Prov Ct).
14 R v Bingley, 2013 CarswellOnt 18815 at para 34 (Ct J). The Crown appealed and the Ontario Superior Court reversed (2014 ONSC 2432). Bingley appealed to the Ontario Court of Appeal.
15 R v Bingley, 2015 ONCA 439 at para 47, 325 CCC (3d) 525.
16 Bingley, supra note 1 at paras 11-28.
17 Ibid at para 40.
18 Ibid at para 11.
19 [1994] 2 SCR 9, 114 DLR (4th) 419.
20 Ibid at 25.
21 Supra note 1 at paras 21-22.
22 Ibid at paras 25-26.
23 Ibid at para 28.
24 R v Bingley, 2017 SCC 12 (Factum of the Intervenor, The Criminal Lawyers’ Association (Ontario) at paras 11-14) [CLAO Factum].
25 R v Bingley, 2017 SCC 12 (Factum of the Intervenor, The Canadian Civil Liberties Association at paras 13-24) [CCLA Factum].
26 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].
27 Bingley, supra note 1 at para 49.
28 Ibid at para 55.
29 As Karakatsanis J. notes, requiring DRE evidence to comply with Mohan admissions criteria would not prevent the admission of DRE testimony, it would only require the Crown to call a further expert to testify to the scientific basis of the evaluation until such time as it became accepted science (Bingley, supra note 1 at para 56).
30 Ibid at para 25.
31 Bell ExpressVu Limited Partnership v Rex, 2002 SCC 42 at para 62, [2002] 2 SCR 559.
32 Bingley, supra note 1 at para 25.
33 Ibid at para 30.
34 CLAO Factum, supra note 24 at para 11.
35 CCLA Factum, supra note 25 at paras 19-24.
36 Criminal Code, supra note 2.
37 U.S. Department of Transportation, Drug Evaluation and Classification Training Program (2009) [Unpublished, obtained by access to information request], Session IV at 24 [emphasis in original] [view document].
38 Douglas J Beirness, Jacques LeCavalier & Deanna Singhal, “Evaluation of the Drug Evaluation and Classification Program: A Critical Review of the Evidence” (2007) 8:4 Traffic Injury Prevention 368 at 372-75. This work surveys several American field studies of the DRE program.
39 Ibid at 375. This is the only Canadian study of which the author is aware.
40 See e.g. Debates of the Senate, 39th Parl, 2nd Sess, Vol 144, No 36 (27 February 2008) at 1439 (Hon Terry Stratton); House of Commons Debates, 39th Parl, 2nd Sess, No 25 (27 November 2007) at 1320 (Rob Moore).