Something criminal defence lawyers are often familiar with is the process police use to determine whether suspected narcotics are actually illegal drugs. After all, it can be hard to tell whether that baggy of white power seized from an accused pockets isn’t just flour or baking soda in a bag. While baking soda may often be used as a “cutting” agent, it’s not illegal to possess in any quantity. But to the naked eye, baking soda is essentially indistinguishable from nefarious and illegal substances.
The analysis doesn’t end there. Even if the accused was carrying drugs, the question remains: what kind of drugs? Does the baggy contain cocaine? Ketamine? Perhaps fentanyl? To charge a person with drug offences, it’s important to know. The nature of the substance can significantly change the jeopardy an accused person is facing in a criminal trial. For example, the BC Court of Appeal recently wrote in R. v. Smith that sentences for possession of fentanyl for the purpose of trafficking should start at two to four years. I recently wrote a blog post about how that was not applied in North Vancouver, based on an accused’s exceptional circumstances.
So how do police determine if suspected drugs are illegal drugs?
The short answer is drug labs. In many cases, that drug lab is operated by Health Canada, through its government-run lab with locations across Canada. One of its roles is to provide a Drug Analysis Service for law enforcement agencies. Its analysts conduct a series of tests, take notes, make conclusions, and provide sample results from the tests conducted, among other tasks. The result of the testing is the evidence the Crown prosecution may use in its evidence against an accused.
But the Crown benefits from an evidentiary shortcut. All the law requires of Health Canada to prove its analysts haven’t made a mistake is to produce a Certificate under s. 45(2) of the Controlled Drugs and Substances Act. Unless there is “evidence to the contrary,” that Certificate is proof positive that all the necessary analytical steps were completed properly. Generally, the analysts will not be called into court to be cross-examined, and it can be difficult to tell how Health Canada determined the proper drug analysis steps were followed, and how it decided to produce the certificate.
So what does this have to do with defence lawyers? Well, in our view, the standard process used to prove suspected narcotics are illegal drugs, unless held to proper account, can be rife with error. The problem is that an accused person has to jump through numerous hurdles to get that evidence.
The system is stacked against the defence in this regard. Because the Health Canada laboratory is run by the Crown, but independently of the investigatory body – the RCMP – the records related to the process of testing are not provided in the ordinary course of disclosure. Rather, an application must be brought to the trial judge to obtain an order that this material be disclosed. This is pursuant to the procedure described in R. v. O’Connor. It means extra court time, extra hearings, extra legal materials filed, and a lawyer for the Health Canada lab attending and taking a position.
What a waste of resources for something that is clearly necessary to make full answer and defence. Given that the CDSA contemplates evidence to the contrary being raised, you’d think the law would provide an easier route to do so. But the law doesn’t always make sense. Nor are Governments required to structure investigative institutions in a way that makes defending against a criminal charge more simple.
But I digress.
As defence lawyers, the s. 45(2) provision results in us being told by the Crown “trust us, the evidence we have against your client is accurate and flawless.” But if the Crown’s evidence was always so accurate and flawless, there wouldn’t be a need for trials or defence lawyers. And “trust us” simply isn’t good enough for me. My background in the science of breath testing and blood analysis in impaired driving cases has injected a necessary cynicism into my assessment of any so-called forensic analysis.
This background was what prompted me to bring this application at issue here. And the judge agreed. He made a groundbreaking ruling, which was to the court’s knowledge the first of its kind in Canada. There were no reported decisions involving such an application.
Health Canada drug analysis documents may be relevant in criminal cases
In the current case we applied for Health Canada to disclose a laundry list of items. The problem with the Certificates is that they tell us nothing other than “this powder was this drug.” Or it wasn’t, as the case may be. So the request had to be broad because the information that existed was entirely unknown. And because the defence is bringing an application for unknown items of yet-to-be-determined relevance, the defence has to go first. With no knowledge. Thankfully, the Crown has to respond and give some evidence of what does exist.
After argument and evidence from Health Canada, the request was narrowed to these two things:
- Any typed or handwritten notes, checklists, or other documents prepared by any and all individuals who dealt with the substances including the full name and position of each individual making the document.
- All lab notes, case files, reports, or handwritten notes, including the testing folder, specific to the test in this case.
Normally, to apply for access, we must also argue the “likely relevance” of these documents to our case. But the thing is, without knowing whether or not errors were made in the analysis, defence lawyers are put in the difficult position of being unable to explain what might be discovered within. It could be relevant. It could not be. It’s completely unknown.
For example, perhaps we might discover a step that senior analysts are supposed to conduct was actually undertaken by someone very junior, who didn’t have the experience or qualification to conduct the analysis? Perhaps we might find that the analyst skipped a calibration check or verification procedure. Or samples were handled incorrectly. God forbid, samples could have been switched accidentally or tampered with. We simply do not know.
Justice Brundrett shared our view
In his ruling, the Supreme Court justice determined that the documents “relate to the nature and accuracy of the analysis performed by the Health Canada analysts, as well as the operation of the instruments used.”
The judge continued:
Without this material, it would be very difficult for the defence to verify the accuracy or determine the nature of the analysis carried out because of the limited disclosure the defence receives in a drug prosecution when the Crown is proceeding, as it usually does, by way of certificate.
This case is a huge step toward progress in the right direction for those accused of drug allegations. Now, for the first time, there is precedent by which the actions of drug analysts at Health Canada can be held to account. Astute defence lawyers will no longer have to just trust the word of the Crown that the evidence it has analyzed was done using proper procedure.