Accused’s criminal record was referred to for permissible purpose

Accused was observed by civilian witness and then police officers weaving and swerving between lanes and onto shoulder while driving on highway. Officer detected odour of burnt marijuana in van and on accused’s hands, clothing and breath, and observed that accused had red glassy eyes. Drug recognition evaluator (“DRE”) officer conducted drug evaluation and formed opinion that accused was impaired by marijuana, and analysis of urine sample provided by accused disclosed presence of cocaine and marijuana. Accused was convicted of impaired driving. Accused appealed. Appeal dismissed. Trial judge did not misapprehend evidence when he used “freshly” when referring to odour of burnt marijuana, but rather made permissible and logical inference. It was open to trial judger to infer that accused was impaired at time of events and there was nothing in his reasons to suggest trial judge misunderstood DRE evidence or fact that DRE testing took place after road stop and at detachment. Trial judge was entitled to intervene and limit accused’s cross-examination of police officer and, as accused had ample grounds and opportunity to test evidence regarding momentary or continual nature of lapse, such intervention did not deprive accused of reasonable opportunity to challenge officer on issue. Trial judge’s refusal to permit accused to cross-examine officer on whether passenger in accused’s vehicle, with whom officer had no dealings, was in possession of drugs did not deprive accused of right to meaningfully test veracity and reliability of officer’s evidence as officer had already told court what he knew. Trial judge’s interjection when officer was questioned on accused’s criminal record was clear recognition of limitations and permissible use of such evidence and his awareness of potential prejudice that had to be avoided. Accused’s criminal record was referred to for permissible purpose and there was no evidence it played any role in conclusions he reached. When considered as whole, judge’s interventions and misstatements were modest and limited and did not create appearance of unfairness to reasonable observer and did not deprive accused of fair trial.

R. v. Scarlett (2019), 2019 CarswellOnt 1477, 2019 ONSC 796, M.A. Garson J. (Ont. S.C.J.).

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