Difference in evidentiary record did not impact right to challenge ultimate reliability

Criminal Law - Disclosure - Miscellaneous

In different proceedings involving driving while under influence of drugs, accused obtained orders for disclosure of rolling logs of drug enforcement officers (DRE). Crown and RCMP bought applications to quash orders. Application dismissed. While presumption created by amendments to regime set in s. 320.31(6) of Criminal Code regarding admissibility of drug evidence is not presumption of guilt, it provides presumption of accuracy of DRE’s opinion when it is corroborated by toxicological analysis, as it was in current applications. When toxicological report is available, rolling log is no longer relevant to challenge DRE’s opinion. There is no presumption of accuracy where DRE’s opinion is not confirmed by analysis of sample. Toxicology cannot confirm or contradict DRE’s opinion, as even where drugs are found in urine this is corroborative rather than confirmatory, and not all drugs are tested for. Difference in evidentiary record did not impact right to challenge DRE’s ultimate reliability based on alleged mistaken drug class call in rolling log when that call has not been corroborated by toxicological testing. Section 320.36(2) does not provide anything more than bare prohibition on disclosure that had been set out in case law.

R. v. Amarelo-Gemus (2019), 2019 CarswellOnt 6480, 2019 ONSC 2675, Robert N. Beaudoin J. (Ont. S.C.J.).

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