Court of Appeal for Ontario

Date: 2017-11-27 Docket: C63168

Judges: Feldman, Tulloch and Benotto JJ.A.

Between

Her Majesty the Queen Appellant

and

Druin Nuttall Respondent

Counsel

Kevin Wilson, for the appellant

Anya Shahabi, for the respondent

Hearing

Heard: November 22, 2017

On appeal from: the acquittal entered on December 12, 2016 by Justice Clayton Conlan of the Superior Court of Justice, sitting without a jury.

Appeal Book Endorsement

[1] The Crown seeks to appeal the acquittal of the respondent of possession for the purpose of trafficking cocaine. He was convicted only of simple possession. The Crown must show an error of law that might reasonably have had a material bearing on the acquittal: see R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609.

[2] The errors relied on by the Crown are the trial judge's exclusion of the expert evidence regarding cocaine trafficking and the finding that the respondent was a heavy cocaine user which the Crown says was not based on any evidence.

[3] In our view the trial judge made no error on either count. He was entitled to exclude the evidence of the police expert. He applied the correct test in law and determined that the evidence would be of no assistance to the court. That is the gatekeeper function of the trial judge. He also found there was no basis in the evidence for some of the opinion evidence of the expert, such as no evidence of the presence of a cutting agent for the cocaine. He was entitled to find that it had not been proved, and that the expert evidence would not have made a difference.

[4] The trial judge was also entitled to find that the respondent was a cocaine user, possibly a heavy one, based on his lifestyle evidence and the trial judge's observations of the respondent.

[5] The appeal is therefore dismissed.