Summary

36610

Carson Bingley v. Her Majesty the Queen

(Ontario) (Criminal) (By Leave)

Keywords

Criminal law - Expert evidence, Admissibility.

Summary

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Criminal law - Evidence - Expert evidence - Opinion evidence - Admissibility - Are the opinions of a Drug Recognition Expert (“DRE”) conducting an evaluation of a suspected drug-impaired driver pursuant to s. 254(3.1) of the Criminal Code admissible in evidence without a voir dire in accordance with R. v. Mohan, [1994] 2 S.C.R. 9? - In the alternative, are DRE opinions “lay opinions” as contemplated by this Court in R. v. Graat, [1982] 2 S.C.R. 819, and therefore admissible in evidence without a Mohan voir dire? - Criminal Code, R.S.C. 1985, c. C-46, s. 354(3.1).

Police were called after the appellant, Mr. Bingley, struck a car. Police noted signs of impairment; however, the results of a roadside test revealed a blood alcohol concentration well below the legal limit and inconsistent with the observed indicia of impairment. Therefore, a Drug Recognition Expert (“DRE”) administered standard sobriety tests to Mr. Bingley at the scene. When he failed the sobriety tests, Mr. Bingley was charged with driving while drug impaired. He admitted that he had smoked marijuana and taken two Xanax in the previous 12 hours. A urinalysis revealed the presence of cannabis, cocaine and Alprazolam. Mr. Bingley was tried for the offence of driving while drug impaired. He was acquitted (despite the DRE’s evidence, which the first judge found could be received without a voir dire in accordance with R. v. Mohan, [1994] 2 S.C.R. 9), but a summary conviction appeal led to the acquittal being overturned and a new trial being ordered. At the new trial, a second judge found that the DRE evidence could not be received without a voir dire. On the voir dire, however, the judge determined that the DRE evidence was inadmissible and therefore acquitted Mr. Bingley again. The Crown brought another summary conviction appeal. The summary conviction appeal judge allowed the Crown appeal and ordered yet a third trial. Mr. Bingley appealed in turn, but unsuccessfully.