Supreme Court Finds that Police “Drug Recognition Expert” Evidence Does Not Require a Voir Dire Hearing

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Background

Bingley, the appellant, was observed driving erratically by police. He was apprehended by a police officer who suspected that he was impaired and conducted a roadside screening device test, which Bingley passed. The officer then requested the services of another officer – a “Drug Recognition Expert” (DRE). DRE’s are police officers certified to conduct a 12-step drug impairment analysis as outlined in the Criminal Code regulations.[1] The DRE determined that Bingley was impaired, to which he then admitted. A urinalysis at the police station confirmed the presence of cannabis, alprazolam, and cocaine in his body.

The central issue before the Supreme Court was to what extent the evidence obtained by the DRE was admissible. At trial, no voir dire was required (in a voir dire, the jury is asked to leave and a “mini-trial” occurs to determine whether the evidence should be admitted). Bingley was acquitted despite the evidence. On appeal to the Superior Court, the Court ordered a new trial. At this trial, the Court found that the evidence was not automatically admissible. The Court determined that the evidence was not admissible because the DRE was not trained in the precise science of what he was conducting and acquitted Bingley. The Crown appealed successfully, and the Ontario Court of Appeal subsequently agreed with the Crown, finding that the evidence was admissible without a voir dire.[2] Bingley then appealed to the Supreme Court.

In a 5 – 2 decision, the Supreme Court found that DRE evidence is admissible as expert evidence

The Supreme Court found that the DRE evidence was not automatically admissible; however, it is admissible as “expert evidence” under the common law rules without the need for a voir dire hearing.[3] Trial judges still play an important role as gatekeepers of DRE evidence.[4] Judges are tasked with determining whether the evidence’s “probative value” is outweighed by any prejudicial effect,[5] and should therefore be excluded. Importantly, the Criminal Code and the regulation outlines the DRE scheme as an “investigative tool” for police rather than as a definitive rule on the evidence’s admissibility in court.[6] This further supports the Court’s finding that DRE evidence is not automatically admissible. However, that it is outlined in the Criminal Code regulation indicates that it should be given some additional weight, which the Supreme Court recognizes by not requiring a voir dire.

Nonetheless, the Court acquitted Bingley, deferring to the trial judge’s decision to exclude the evidence.[7]

Analysis: a decision in the shadow of R v Jordan?[8] The need for defence counsel’s vigilance

As you may know, the Supreme Court recently sent a firm message to the provincial and federal governments in its Jordan decision: justice requires swiftness – if trials take too long, the judiciary will acquit possible criminals. In Jordan, the Supreme Court set presumptive thresholds for the completion of criminal trials, beyond which judges will stay the proceedings.[9] The ceiling is 18 months for criminal cases in provincial court, and 30 months for criminal cases in superior courts.

By allowing DRE evidence without a voir dire hearing, the Court has greatly sped up the trial process for many drug-related offences. Statistics Canada indicates that police reported 72,039 impaired driving incidents in 2015. In 2013, impaired driving offences made up nearly 11 percent of the total cases completed in adult criminal court – the most of any type of offence. By speeding-up the rate at which these trials can be completed, the Court is saving a significant amount of precious court time. But the Court makes no mention of this outcome. We are to believe that the quicker trial process that will result was achieved by serendipity.

And notably, the new approach that the Court has dictated – giving the defence the right to cross examine DREs but not the right to a voir dire – is concerning if we are at all interested in getting these cases right. As Nicholas Hay identified in his blog on the case, the science of detecting drugs other than alcohol in a person’s body is far from an exact science. Thus, the exclusion of the voir dire, which would provide a more thorough analysis of the DRE evidence, risks the soundness of the fact-finding endeavor by trial courts.

Perhaps this conclusion is wrapped-up in a desire to speed up Canada’s backlogged criminal justice system. In any event, there are due process/trial fairness concerns lurking that defence counsel ought to be aware of. Counsel need to be vigilant, making sure to thoroughly cross-examine DRE witnesses. DRE evidence is not automatically admissible, and defence counsel need to counter any claims that might be made in trial to the contrary.

 

Notes

[1] Criminal Code, RSC 1985, c C-46, s 254.

[2] R v Bingley, 2015 ONCA 439 at para 44 [Bingley].

[3] Bingley at para 27.

[4] Bingley at para 30.

[5] Bingley at para 30.

[6] Bingley at para 12.

[7] Bingley at para 40.

[8] R v Jordan, 2016 SCC 27, [2016] 1 SCR 631.

[9] R v Jordan, 2016 SCC 27, [2016] 1 SCR 631. For more on this topic, see this blog post by Peter Brady, Michael Rosenberg and Trevor Courtis.

 

This blog post was written by a CCLA-PBSC RightsWatch student. Views expressed do not necessarily reflect the views of the CCLA or PBSC.