LEGAL SAGA ENDS FOR ‘CARELESS’ DRIVER

Case shows difficulty proving drugged driving

OTTAWA • 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 was the end of a long legal saga for Carson Bingley that started with erratic driving on an Ottawa 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-yearold 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 and then hit a parked car in a nearby parking lot.

Bingley was originally criminally charged with driving while drug-impaired after allegedly failing a roadside sobriety test administered by a 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 such things as physical coordination, eye movement, blood pressure, pupil size and muscle tone. The evaluation, which is 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 officer 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 a driver’s system. Nor are there 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 if they reasonably suspect a driver 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.

His case, he said, illustrates the problems when it comes to allegations of drugged-impaired driving and the need for reliable tests to prove 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,” he said. “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 traffic offence plea is an indictment of the druggeddriving testing regime.

“It probably says more about how you can successfully prosecute a case eight years later,” said Brown. “The careless driving resolution is an appropriate one, particularly considering the passage of time since this odyssey began.”

However, Brown 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. Both resulted in not guilty verdicts.

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. The Crown successfully appealed.

At the second trial, the judge didn’t recognize the DRE as an expert witness. This time the evidence was ruled inadmissible and Bingley was again acquitted.

Both a summary conviction appeal court and the Ontario Court of Appeal found that a DRE’s evidence was automatically admissible as expert evidence.

Bingley challenged the Ontario Court of Appeal’s finding to the Supreme Court, which upheld the ruling that DREs don’t need to be vetted by a judge since their expertise had been established by Parliament.

Sgt. John Kiss, who is manager of the Ottawa police impaired driving counter measures program and a member of the Ontario Association of Chiefs of Police working group on DREs, said he was “surprised” prosecutors agreed to the plea to a traffic offence in the longrunning case.

Kiss said not all was lost, since the Supreme Court decision was still 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 police hoped the oral fluid screeners would be a “silver bullet” much like roadside alcohol breath tests. That won’t be the case, although Kiss said their eventual approval should simplify roadside testing.

It’s little comfort for Bingley though, who estimates the legal fight has cost him tens of thousands of dollars in legal fees and lost wages.

About a week after his arrest for allegedly driving while drug-impaired, he was charged with dealing drugs. He later pleaded guilty to possession of marijuana for the purpose of trafficking and spent a year under house arrest followed by time on probation.

“It cost me a lot of money and a lot of stress,” Bingley said. “I’m happy it’s done. I’m happy with the outcome.”

FACEBOOK Carson Bingley