After eight years, a pair of trials where he was twice found not guilty, and a trip to Canada’s highest court, an Ottawa construction worker accused of driving while impaired by marijuana has pleaded guilty to nothing more than a traffic offence.
It’s the end of a long legal saga for Carson Bingley that started with erratic driving on Merivale Road in May 2009 and led to a Supreme Court decision that streamlined drugged-driving trials, just as the country moves toward legalizing marijuana by next July.
On Monday, the 36-year-old pleaded guilty to careless driving under the Highway Traffic Act and was given a $1,000 fine and one-year driving prohibition. Court heard he swerved through traffic, drove in an opposite lane, then hit a parked car in a nearby lot.
Bingley was criminally charged with driving while drug-impaired after allegedly failing a roadside sobriety test administered by a specially trained and certified police officer known as a “drug recognition expert” or DRE.
He was taken to the police station, where he then underwent a 12-part evaluation for drug impairment that measures things like physical co-ordination, eye movement, blood pressure, pupil size and muscle tone. The evaluation, used across North America and Europe, was added to the Criminal Code in 2008 by the then-Conservative government.
The results of Bingley’s evaluation — coupled with his admission that he had used marijuana hours earlier and taken two Xanax — led the DRE to conclude he was impaired by marijuana.
But as Bingley’s experience has shown, proving cases of impairment by drugs can be difficult. Unlike alcohol, there are no approved roadside screening devices to determine precise levels of drugs in one’s system. Nor are there currently any legal limits on how much of a drug is too much to drive a car.
In April, the federal government proposed new offences as part of Bill C-46 that will make it a crime to drive with more than two nanograms of THC, the active ingredient in marijuana, per millilitre of blood. The legislation will also authorize police to use oral fluid drug screeners at the roadside to determine whether drugs are present in the saliva of a driver they suspect has been using drugs. However, prosecutions will still rely on the evaluation by a DRE at a police station or the taking of a blood sample.
Outside of court on Monday, Bingley insists he wasn’t impaired by drugs, which motivated him to keep fighting the charges for as long as he has. Bingley said many of his friends told him he should give up and just plead guilty.
Bingley believes his experience illustrates the need for reliable tests to prove someone’s impairment.
“By no means do I think people should be out there driving drunk or under the influence. I have a son, I have a family. I don’t want to see someone get hurt,” said Bingley, who has a dated conviction for possession of marijuana for the purpose of trafficking. “If they have that law, they need to have the proper instrument to calculate that with. You have to have the right instrument.”
But Bingley’s lawyer, Trevor Brown, said he doesn’t believe the Crown’s decision to resolve Bingley’s case with a plea to a traffic offence is an indictment of the drugged-driving testing regime.
“It probably says more about how you can successfully prosecute a case eight years later,” said Brown.
In an emailed statement, the Ontario attorney general’s ministry said the Crown carefully considered the public interest in proceeding with a third trial given the history of the case and Bingley’s current circumstances.
“Plea agreements are about achieving just and appropriate resolutions in criminal matters while ensuring the effective and efficient use of valuable court resources,” the ministry said.
Since being charged in 2009, Bingley’s moved up from his job as an apprentice labourer to a construction supervisor. Bingley’s also the proud father of a one-and-a-half year old, he said.
Eight years of court dates and being in constant legal limbo have been an emotional roller-coaster, said Bingley. He estimates the legal fight has cost him tens of thousands of dollars in legal fees and lost wages.
However, Bingley’s lawyer said he remains concerned about the reliability of a DRE’s evidence given the “weaknesses and frailties” that were exposed during Bingley’s two trials.
In both trials, the successful appeals of the not-guilty verdicts turned on issues surrounding whether a DRE was an expert witness. In the first trial, the judge accepted the evidence of the DRE as a “lay” opinion, but found there was a reasonable doubt as to Bingley’s guilt and acquitted him.
At the second trial, the judge didn’t recognize the DRE as an expert witness following a special hearing known as a voir dire. The DRE’s evidence was ruled inadmissible, prompting another appeal.
Both a summary conviction appeal court and the Ontario Court of Appeal found that DRE evidence was automatically admissible as expert evidence.
Bingley challenged the finding to the Supreme Court, which agreed with the Ontario Court of Appeal that DREs don’t need to be vetted in a voir dire since their expertise had been established by Parliament. Such challenges in every case would be a waste of judicial resources, the court ruled.
Sgt. John Kiss, manager of the Ottawa police impaired driving counter-measures program, said the Supreme Court decision was a win for policing.
“At the end of the day, we achieved a very positive ruling for the Supreme Court as far as road safety goes,” he said.
Kiss said Ottawa policehave 16 DREs, but have been training recruits since 2012 on how to administer the standardized field sobriety testing. Currently 141 officers can conduct the roadside testing to determine whether a driver should be taken for further evaluation by a DRE.
Oral fluid screeners won’t be a “silver bullet” like a roadside alcohol breath test, although Kiss said their eventual approval should simplify roadside testing.
Source: National Post