Pubdate: Wed, 12 Oct 2016
Source: National Post (Canada)
Copyright: 2016 Canwest Publishing Inc.
Author: Ian MacLeod
Page: A4


A dispute over the admissibility of police "opinions" at
drugged-driving trials lands at the Supreme Court of Canada Thursday
in a case spotlighting an emerging legal dilemma over the hazy science
of marijuana impairment.

With federal legislation to legalize recreational marijuana use
expected next spring, the case of Carson Bingley of Ottawa could
decide if, without a scientific standard, police officers' opinions
about whether motorists were high while driving should be
automatically accepted as expert evidence at trial.

Unlike alcohol impairment, there is no legal blood-concentration
driving limit for the active ingredients in marijuana and other drugs,
nor is there an approved instrument for police to take readings that
will be accepted in court.

A scientific advisory committee is reviewing the international
literature to determine if there is consensus on appropriate
blood-level limits for THC, the major psychoactive component of
marijuana. But new research suggests a blood-cannabis concentration is
not a reliable predictor of how impaired a person is.

This forces courts to rely on the opinions of police officers trained
to spot drug impairment. But opinions are typically only allowed as
evidence at criminal trials if they are made by qualified experts. The
question of admissibility is usually decided during a voir dire
hearing before the presiding judge.

In 2009, Ottawa police charged Bingley with driving while impaired
after he drove the wrong way and collided with a car. An arriving
police officer said he showed signs of intoxication, but there was no
smell of alcohol on his breath.

After an alcohol screening test found his blood-alcohol level was well
below the legal limit, a police drug recognition expert (DRE)
administered a standard field sobriety test, which Bingley failed.

At a police station, he underwent a standardized 12-step drug
evaluation. Bingley admitted to taking two Xanax and smoking half a
gram of marijuana in the previous 12 hours.

Based on his admission and the results of the evaluation, the DRE
decided his ability to drive was impaired by cannabis.

In provincial court, the judge admitted into evidence the DRE's
opinion as a "lay" opinion and dispensed with a voir dire.

The judge found that a 2008 section of the Criminal Code, introduced
as part of the Harper Conservatives' tough-on-crime legislative
agenda, allows police DREs to automatically give expert opinions at
impaired-driving trials, as they do in drunk driving cases.

Still, he acquitted Bingley, ruling there was a reasonable doubt about
his guilt.

The provision's actual wording, however, is not explicit and leaves
open the question of whether Parliament intended DREs' testimony to
automatically be granted expert-opinion status - and evidentiary
weight - by courts.

The Crown successfully appealed Bingley's acquittal and a second trial
was ordered. But the new trial judge interpreted Section 254 (3.1)
differently and held a voir dire to determine whether to qualify the
DRE was an expert witness. He later ruled the officer's evidence was
inadmissible and Bingley was once again acquitted.

The Crown appealed to the Ontario Court of Appeal, which found the
police officer's opinion was admissible under Section 254 (3.1).
Bingley was later granted leave to appeal to the Supreme Court.
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