COURT FILE NO.: 18-156AP
DATE: 2019/02/01
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Frederick Scarlett
Appellant
K. De Koning, for the Crown
Frank Miller, for the Appellant
HEARD: January 7, 2019
garson j.
On Appeal from the Conviction of the Honourable
Mr. Justice J. Skowronski on April 11, 2019, at London, Ontario
Introduction
[1] The appellant appeals his April 11, 2018 conviction by Skowronski J. for impaired operation of a motor vehicle contrary to s. 253(1)(a) of the Criminal Code. The decision of Skowronski J. was delivered orally at the end of three days of trial.
[2] These reasons explain why I dismiss the appeal.
Background
[3] For the purposes of this appeal, I need only briefly outline the facts. Many of the facts were not disputed.
[4] On April 18, 2016 the appellant was observed by a civilian witness and then police officers driving his van in an erratic manner while travelling eastbound on Highway 401 in the early morning hours. His vehicle was described as swerving within and between lanes and driving off onto the shoulder repeatedly, almost striking a car travelling in the right hand lane. Suspecting that the appellant was impaired, a concerned citizen, Amber Hussey, a passenger in a motor vehicle called 911 and within a short time, police located the appellant’s vehicle and began to follow him. Police similarly observed his vehicle weaving and swerving between lanes and the shoulder and described the driving as a “gradual slalom” type swerving. A diagram depicting the swerving was made by one of the officers and filed as an exhibit.
[5] For safety reasons, police conducted a “rolling step”[^1] and effectively blocked the appellant in. However, witnesses observed his vehicle start to pullover towards the right, and onto the shoulder at the Wellington Road off ramp approximately five metres from where it had first stopped. After the first officer exited his vehicle, the appellant’s van began rolling away into the shoulder. As two officers approached the front passenger and driver’s doors of the van, the vehicle rolled forward about another foot. Officers banged on the window, yelling commands and eventually opened the driver’s door and after observing the appellant put his left hand between his legs, physically took control of the appellant.
[6] Officer El Sayed detected the scent of burnt marijuana from the van as well as an odour of marijuana from the appellant’s hands and clothing. Once speaking with the appellant, an additional odour of marijuana was detected on the appellant’s breath and later from within the vehicle. The officer also observed the appellant’s eyes to be red and glassy.
[7] The appellant was arrested for impaired operation of a motor vehicle by drug and turned over to a Drug Recognition Evaluator (DRE) officer who conducted a 12-step drug evaluation at the police station and formed the opinion that the appellant was impaired by cannabis. Some of the results of the tests conducted fell within the normal range while others demonstrated effects consistent with what the DRE officer believed to be the consumption of marijuana. Analysis of a sample of urine provided by the appellant disclosed the presence of marijuana and cocaine. The DRE also detected an odour of marijuana on the appellant’s breath and observed bloodshot and watery eyes. A search of the appellant incident to arrest by Officer El Sayed found no items related to drug use or consumption.
[8] Officer El Sayed’s partner gave similar evidence of the driving pattern observed when following the appellant’s van.
[9] In a short four page decision, Skowronski J. found the appellant guilty, noting that the bad driving was the most significant aspect of the case. He accepted the evidence of erratic driving. I will have more to say about his reasons later in my decision.
Grounds of Appeal
[10] The appellant advances four separate grounds for appeal:
(i) The trial judge’s misapprehension of the evidence in his reasons with respect to:
(a) The officer’s smell of “freshly” burnt marijuana (at p. 3 line 8 of his reasons); and
(b) The DRE’s conclusion that the appellant was impaired by a drug “at the time of these events” (at p. 3, lines 13-14 of his reasons);
(ii) The trial judge’s limitations placed on the cross-examination of a police witness by appellant’s counsel;
(iii) The trial judge’s examining the arresting officer on the appellant’s criminal record including drug convictions; and
(iv) In the event that none of the above grounds standing alone would be sufficient to quash the verdict or render the trial unfair, the appellant submits that the cumulative effect of all of the above grounds is sufficient to result in a miscarriage of justice or a verdict resulting from an unfair trial.
[11] I now turn to examine each of these grounds of appeal. Before doing so, I start with a brief overview of the applicable law.
The Law
Appellate Review in General
[12] A trial judge’s finding of fact and assessment of credibility are entitled to a significant degree of deference from a reviewing court. Absent palpable and overriding error or otherwise being clearly wrong, unreasonable, or unsupported by the evidence, such findings and assessments should not be disturbed: see Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; R. v. Horton, 2014 ONCA 616, 116 W.C.B. (2d) 228.
[13] A trial judge’s reasons are to be read as a whole and the trial judge need not detail his finding on each piece of evidence so long as there is a logical link between the findings on the evidence and the verdict. The trial judge occupies a unique position in being able to see and hear witnesses and a lifeless transcript and selective review of the trial record cannot replicate the unfolding of the narrative at trial: see R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3; and R. v. Howe (2005), 192 C.C.C. (3d) 480, 2005 CanLII 253 (Ont. C.A.).
[14] My role is not to re-try the case nor to embark on a fresh analysis of the arguments made at trial. Appellate intervention is limited to those circumstances where the reasons disclose that the trial judge was not mindful of applicable legal principles or reached a verdict unsupported by his factual findings: see R. v. Binaris, 2000 SCC 15 at paras. 36-37.
(i) Misapprehension of Evidence
[15] In order for a misapprehension of the evidence to attract appellate intervention, it must go to the substance of the evidence and play an essential part in the trial judge’s reasoning particularly leading to conviction: see R. v. Morrissey, (1995) 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), adopted in R. v. Lohrer, 2004 SCC 80 per Binnie J. at paras. 1-2.
[16] The more important or significant the misapprehended evidence, the more likely the misapprehension will have materially tainted or affected the trial judge’s reasoning process: see R. v. Alboulkhari, 2013 ONCA 581 at para. 33.
[17] The fact that there may exist ample evidence to sustain a conviction is not relevant or determinative if the misapprehended evidence goes to an essential or central part of the trial judge’s reasoning process: see R. v. Beaulieu, (2004) O.J. No. 4107 (C.A.) at para. 7.
(ii) Limits on Cross-Examination
[18] The appellant enjoys at trial a broad right of cross-examination, subject primarily to the boundaries of relevance, repetition, abuse and a residual discretion to limit such cross-examination when the probative value is outweighed by the prejudicial effect: see R. v. Vorobiov, 2018 ONCA 448 at para. 26.
(iii) Questioning relating to the Appellant’s Criminal Record
[19] The appellant has a constitutionally protected right to silence in his criminal trial, which includes the right to not have his criminal record introduced into evidence by the Crown as character evidence. Once introduced, the appellant enjoys a further right not to have any related prior convictions used improperly as propensity evidence to establish his guilt: see R. v. O`Brien, (2011) 2011 SCC 29, S.C.J. No. 29 at para. 26.
[20] The exclusion of general propensity evidence, including prior and related criminal acts, is of particular concern when a jury is involved due to the danger that a juror may become confused and is more likely to use this prior and related evidence to conclude that the person committed the current offence: see R. v. Handy, (2002) 2002 SCC 56, 2 SCR 908 at para 31-36.
(iv) Cumulative Effect of Errors on Trial Fairness
[21] Each of the above grounds, standing alone, may not be insufficient to warrant appellate intervention. However, if examined cumulatively and not in isolation, these grounds may be sufficient to render the verdict and the trial process unfair and result in a miscarriage of justice: see R. v. Lapensee, (2009) 2009 ONCA 646, O.J. No. 3745 (C.A.) at paras. 53-57.
Discussion
(i) Misapprehensions of Evidence
(a) ``Freshly`` burnt marijuana
[22] None of the police witnesses testified that the odour of burnt marijuana was fresh. However, the trial judge used the word “freshly” when referring to the odour of burnt marijuana. At best, I would describe the use of the word “freshly” as a very minor and harmless misstatement of the officers evidence. The record is clear that the odour of marijuana was everywhere in the appellants van, including on his clothing, on his hands, and on his breath. The scent was also described as burnt. The trial judge is entitled to draw reasonable inferences from the facts that he finds. Inserting the word freshly in front of “burnt marijuana”, does not amount to a significant misapprehension and is better and more aptly described as a permissible and logical inference available to the trial judge on the facts.
[23] In any event, such a modest misstatement falls far short of going to the substance of the evidence or playing an essential role in the trial judges reasoning for conviction. By removing the word freshly, the trial judges reasoning remains intact and such removal does not undermine the pivotal or key components of his reasoning process.
(b) DRE`s opinion of impairment ``at the time of these events``.
[24] The DRE officer testified that he formed an opinion, based on the driving, the other officer’s observations, and his own DRE examination, that the accused`s ability to operate a motor vehicle was impaired by cannabis. However, the trial judge noted in his reasons that the DRE concluded that the appellant was impaired by drug “at the time of these events”.
[25] In his reasons, the trial judge reviewed the DRE testing, noting that the accused performed some tests properly but fell short on others. He also noted that the DRE officer was also relying on the grounds given to him by other officers and earlier observations of police at the scene. Similar to the earlier alleged misstatement, it was open to the trial judge to reasonably infer from the findings of fact that the accused was impaired at the time of these events. There is nothing in the reasons of the trial judge to suggest he misunderstood the DRE evidence or the fact that the DRE testing took place after the road stop and at the detachment and not the roadside.
[26] In any event, if I treat this as a misstatement, it is again modest and insignificant and does not go to the essence or substance of the trial judge`s reasoning. Evidence of impairment shortly after the time of driving may be capable of a reasonable inference of impairment at the time of driving.
[27] At pp. 3-4 of his reasons, the trial judge makes clear that the bad driving is the significant aspect of the case based on the civilian and police observations of the driving and this is the main pillar or foundation that the trial judge relies upon to make a finding of impairment. The phrase “these events” clearly refers to the timing of the bad driving. He is entitled to make these findings.
(ii) Limits on Cross-Examination
(a) The Hypothetical Regarding Time Police Observed The Driving
[28] The trial judge refused to permit the appellant`s trial counsel to have an officer accept a hypothetical about how long he must have been following the appellant based on his estimated speed and distance travelled.
[29] At p. 43 line 4 of the transcript of Proceedings at Trial on May 3, 2017 and November 23, 2017, the appellant’s trial counsel puts the following question to OPP Officer El Sayed:
Okay. Would you agree with me that if he’s (the appellant) doing 100 kilometres an hour that to travel 10 kilometres would take six minutes? So, at, if at 100 kilometres an hour every six minutes you’re travelling 10 kilometres, that makes sense?
[30] The Crown then objected to this line of questioning, noting that the officer had earlier indicated that he was not sure of the speed of the appellant’s vehicle. The trial judge, accepting that the officer did not note him (the appellant) speeding, sustained the objection because the officer was not able to give a precise speed at which the appellant was travelling and could not say how long it took to travel those 10 kilometres.
[31] The appellant argues that these hypotheticals are commonly used in impaired driving cases as a step to demonstrate that acts of erratic driving are not continual but isolated and therefore constitute evidence of a momentary lapse and not impairment.
[32] The trial judge was entitled to intervene and limit this line of questioning. This is a matter for argument – not repeated questioning. The officer had already testified that he followed the appellant’s vehicle for approximately 10 kilometres. The fact that the officer had already indicated that he did not know how long it took to travel the 10 kilometres was sufficient to render the potential use of the hypothetical next to nil. The extent of the distance travelled, coupled with Exhibit One, provided ample evidence for trial counsel for the appellant to advance such an argument.
[33] Cross-examination permits counsel to challenge evidence and to test the veracity and reliability of such evidence. This Charter-protected right, although broad, is not an absolute right and is subject to the normal confines of relevancy, materiality, and the need for a trial judge to curtail needless repetition or prevent undue lengthening of a trial: see R. v. Murray, 2017 ONCA 393 at para. 92.
[34] In light of the evidence already provided by the officer in both examination-in-chief and cross-examination, the appellant had ample grounds and opportunity to test the evidence regarding the momentary or continual nature of the lapse. The intervention by the trial judge did not deprive the appellant of a reasonable opportunity to challenge the officer on this issue. Rather, the intervention properly recognized the lack of relevance in these circumstances. There was nothing momentary about the extensive weaving seen by both civilian or police witnesses.
[35] In any event, such intervention was harmless, limited and not prejudicial to the appellant and fell far short of creating an appearance of an unfair trial to the reasonable onlooker. There is no reasonable possibility that the verdict would have been different had this line of questioning been permitted to continue: see R. v. Khan, 2001 SCC 86.
(b) The Passenger and Drug Related Items
[36] The appellant sought to cross-examine Officer El Sayed on whether the passenger in the appellant’s vehicle was in possession of any drugs (i.e. marijuana) and drug paraphernalia.
[37] The trial judge intervened and directed appellant’s counsel to move on noting that the passenger was being dealt with by other officers and was not charged with anything or searched by this officer.
[38] Counsel at trial argued that this evidence was relevant to determine if there is any evidence of any drugs on her. Appellate counsel goes further and submits that such questioning is relevant to demonstrate that marijuana was not used in the van and would therefore make it less likely that it had been used proximate to the time of driving.
[39] I disagree. Trial counsel had earlier established that Officer El Sayed had not asked the passenger if she was smoking marijuana and had not charged or searched her. Accordingly, the officer had already given his answers as to his knowledge of any drugs in the possession of the passenger.
[40] In any event, I fail to see how this line of questioning in the circumstances could have deprived the appellant of his broad and liberal right to meaningfully test the veracity and reliability of this officer’s evidence. The officer told the court what he knew and the trial judge was entitled to ask counsel to move on. I reject the appellant’s argument that if the passenger was in possession of marijuana, there was a reasonable possibility that the verdict could have been different. The appellant’s arguments are based on mere speculation regarding time of consumption and other causes for erratic driving.
[41] This intervention was minimal and harmless and there is no reasonable possibility that the verdict would have been different if the intervention did not take place: see R. v. Beven, 1993 CanLII 101 (SCC), [1993] 2 SCR 599.
(iii) Judge’s Examination on Appellant’s Criminal Record
[42] Early on in the Crown’s examination-in-chief of Officer El Sayed, the Crown alerted the trial judge that he was about to elicit hearsay evidence only going in for the purpose of the officer’s grounds, as well as the narrative.
[43] At p. 27 of the transcript of Proceedings at Trial on May 3, 2017 and November 23, 2017, the Crown asks the officer what information he had received from the dispatchers and at line 25 the following exchange takes place:
A. So, at this point we received information that it was a Pontiac Montana van, R.O. was Frederick Scarlett. I also ah, conducted a police records check on the um, male party. Ah, this police records check, identified the male party to have a, uh, a criminal record, um, for drug trafficking and ah, considered to be armed and dangerous.
THE COURT: You don’t have to go that far into the hearsay.
MR. CHRISTAKOS: Your Honour, I, I have a, I believe Mr. Dean is going to cross-examine this individual as to reasons for why, for why the stop happened in the manner that it did, so I think that information will prove.
THE COURT: I don’t the manner of anything at this point so go ahead.
Q. Sure, okay.
A. Okay.
THE COURT: So, you set up at Colonel Talbot.
A. So, we set up at Colonel Talbot…
THE COURT: You had information that this accused had a criminal record including drug charges?
A. Right and ah, the ah, also had information that the ah, the drug, the R.O. or the registered owner of the vehicle was an unlicensed driver, as well, the ah, the validation on the plate was expired. Um.
[44] It is obvious to me that parts of the transcription above are not complete but it allows me to capture the gist of the exchange.
[45] The appellant describes this interjection by the trial judge as the most concerning area of this appeal. The appellant submits that the only logical reason for the trial judge’s intervention regarding the appellant’s prior drug convictions was to use that information as propensity evidence in order to establish guilt.
[46] I disagree. This was not a typical or commonplace road stop of a suspected impaired driver by police. The investigating officer sought back-up support due to safety concerns in light of information he received from police dispatch. A “rolling stop” was initiated which essentially boxed in the appellant’s vehicle. The arresting officer and his partner took physical control of the appellant who was physically restrained during the arrest. It was not unreasonable, in these circumstances, to believe that the manner of detention and arrest may well be a live issue at some point in the proceedings.
[47] The appellant’s trial counsel sat silent as this entire exchange unfolded. Had he felt the Crown’s submissions were unfair or inaccurate, he would have and should have said so, as he was all but invited to do.
[48] The trial judge’s comments were more along the lines of repeating back what the officer had earlier stated rather than a distinct inquiry as to whether the appellant has a drug record. In any event, it is clear that the trial judge was alive to the very limited use of such information (i.e. to explain the reasons for the type and nature of arrest) by telling the officer that he did not have to go that far into hearsay and was eager to keep moving the trial along. His interjection was clear recognition of the limitations and permissible use of such evidence and his awareness of the potential prejudice that had to be avoided. I disagree with the appellant that in these circumstances the trial judge should have expressly stated in his reasons that he was not relying on the appellant’s criminal record for the impermissible use of propensity reasoning.
[49] There is nothing in the trial judge’s reasons that suggest that this evidence played any role in the conclusions reached. His comments make clear he intended to avoid use of this evidence for anything beyond its limited use.
[50] The trial judge’s reasons need only provide a logical pathway or connection between the decision and the basis for that decision. This is a high volume court where trial judges deliver both oral and written judgments on a daily basis. It is unreasonable to require them to explain every detail of every piece of evidence they heard, whether as part of the narrative, or going to an officer’s grounds, or for the truth of its contents.
[51] The appellant is entitled to a fair trial – not a perfect one: see R. v. Suzack, (2000) 2000 CanLII 5630 (ON CA), O.J. No. 100 (C.A.).
[52] A trial judge sitting alone need not expressly state the findings or use of each piece of evidence or controverted fact, provided his findings as a whole logically connect the evidence to the outcome. The trial judge’s reasons are reviewable based on what he said and not on fanciful speculation of what he might have meant by not expressly saying what he did not rely upon.
[53] Trial judges conduct voir dires on a daily basis and are expected to decide innocence or guilt by purging their minds of some knowledge they may have earlier received: see R. v. Leaney, (1989) 1989 CanLII 28 (SCC), S.C.J. No. 90 (SCC) at para. 38.
[54] The appellant relies on the decision in R. v. Stewart, 1991 CanLII 11753 (ON CA), [1991] O.J. No. 81 (C.A.) to argue that the trial judge’s inquiry created the appearance of an unfair trial. I disagree. In Stewart, the trial judge intervened and had repeated exchanges directly with the appellant (in that case) which were clearly dealing with the trial judge’s assessment of the honesty of the appellant and took place during the course of the appellant’s evidence. They included references to the appellant’s lies and outright dishonesty. The isolated and limited comment of the trial judge in this matter is a far cry from the repeated comments of the trial judge in Stewart. Accordingly, the Stewart case is of little assistance to me in light of the significant factual discrepancy.
[55] The criminal record was referred to for a permissible purpose and there is nothing before me to conclude that the trial judge considered the character evidence of the appellant’s criminal record for any improper purpose or that such evidence created an appearance of unfairness or a miscarriage of justice.
(iv) The Cumulative Effect on The Errors
[56] The appellant argues that even if none of the above grounds in isolation is sufficient to create an unfair trial or result in a miscarriage of justice, I must nonetheless look at the combined effect of these grounds and whether, when considered in totality, they resulted in an unfair trial or the appearance of an unfair trial: see R. v. Murray, (2017) O.R. (3d) 500 (C.A.) at paras. 96-97.
[57] I have already determined that:
(i) The two misapprehensions by the trial judge were minor and did not relate to a material issue in the reasoning process of the trial judge;
(ii) the limits on the cross-examination by trial counsel of Officer El Sayed were appropriate and did not deprive the appellant of his constitutional right to a broad cross-examination to fully test the reliability and veracity of the Crown’s evidence; and
(iii) the trial judge’s comments on the appellant’s criminal record were fleeting and limited and played no part in his reasoning process in determining the outcome.
[58] When considered as a whole, these interventions and misstatements were modest and limited and did not create an appearance of unfairness to the reasonable observer. The facts that the trial judge correctly accepted were capable of establishing beyond a reasonable doubt that at the time of driving the appellant was impaired by drug.
[59] Similarly, these interventions and misstatements did not deprive the appellant of a fair trial. A perfect trial – perhaps not, but indeed a fair one.
Conclusion
[60] This was a strong case for the prosecution. A civilian witness, after following the appellant’s vehicle for about ten minutes became afraid that the driver of that vehicle may hurt someone and called 911. By happenstance, police were already in the vicinity and quickly responded to the call and began to follow the vehicle, making similar observations about the vehicle weaving in and out of its lane, stopped the vehicle by way of a rolling stop due to safety concerns conveyed to the officers from police dispatch. Numerous indicia of impairment existed along with an odour of burnt marijuana. A DRE conducted a series of tests and concluded the appellant was impaired by a drug. The trial judge on the evidence before him was entitled to reach the verdict he did. The evidence of impairment was clear and strong. There was no other plausible or reasonable explanation on the evidence. Any misstatements or interjections by the trial judge were momentary, insignificant and neither individually or cumulatively resulted in the appearance of an unfair trial or a miscarriage of justice.
[61] For the above reasons, the appeal is dismissed.
“Justice M.A. Garson”
Justice M.A. Garson
Released: February 1, 2019
COURT FILE NO.: 18-156AP
DATE: 2019/02/01
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
FREDERICK SCARLETT
REASONS ON APPEAL FROM THE CONVICTION
Justice M.A. Garson
Released: February 1, 2019
[^1]: A rolling stop refers to the police boxing a car in from both the front and the back to ensure the vehicle stops and for officer safety reasons.