Proof of Controlled Substance

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General Principles

See also: Analysis of Drugs Under the CDSA

Scientific evidence is necessary to establish that a substance is a controlled substance. Mere layperson identification of drugs is not enough.[1]

The usual way of proving the nature of the substance is by a Certificate of Analysis. Under s. 51(1) of the CDSA, the certificate is presumed proof of the nature of the substance.

While a certificate is the most frequent manner of proving the nature of a controlled substance is it not mandatory.[2] Where a certificate is not used the substance can only be proven by the expert testimony of a qualified analysis.[3]

Where several stashes of drugs are found, the court may infer that the drug found in one location matches drugs that were tested and confirmed as being a controlled substance.[4]

Proof of Substance
There is some suggestion that proof of a substance as a controlled substance can in limited situations be possible without a certificate of analysis by means of circumstantial evidence.[5]

  1. R v Grant, 2001 ABCA 252 (CanLII)
  2. R v Khalif, 2014 SKQB 165 (CanLII), at para 38
  3. R v Grant, 2001 ABCA 252 (CanLII) at para 2
  4. R v Nyuon, 2014 ABCA 130 (CanLII) at paras 20 to 21
  5. R v Douglas, 2017 ONCA 609 (CanLII)

Proof by Certificate of Analysis

Certificate of analyst
51. (1) Subject to this section, a certificate or report prepared by an analyst under subsection 45(2) is admissible in evidence in any prosecution for an offence under this Act or the regulations or any other Act of Parliament and, in the absence of evidence to the contrary, is proof of the statements set out in the certificate or report, without proof of the signature or official character of the person appearing to have signed it.
Attendance of analyst
(2) The party against whom a certificate or report of an analyst is produced under subsection (1) may, with leave of the court, require the attendance of the analyst for the purpose of cross-examination.


CDSA

Continuity of possession
53. (1) In any proceeding under this Act or the regulations, continuity of possession of any exhibit tendered as evidence in that proceeding may be proved by the testimony of, or the affidavit or solemn declaration of, the person claiming to have had it in their possession.


CDSA

Certificate of Analysis

Any alleged drugs seized by police are sent to an analyst under s. 45(2) of the CDSA.

Analysis
Designation of analysts
44 The Minister may designate, in accordance with the regulations made pursuant to paragraph 55(1)(o), any person as an analyst for the purposes of this Act and the regulations.
Analysis
45 (1) An inspector or peace officer may submit to an analyst for analysis or examination any substance or sample thereof taken by the inspector or peace officer.
Report
(2) An analyst who has made an analysis or examination under subsection (1) may prepare a certificate or report stating that the analyst has analysed or examined a substance or a sample thereof and setting out the results of the analysis or examination.


CDSA

After the drugs are sent for analysis, a certificate with the results of the analysis of the substance is generated. It may be filed with the court for the truth of its contents with proper notice.

Certificate of analyst
51. (1) Subject to this section, a certificate or report prepared by an analyst under subsection 45(2) is admissible in evidence in any prosecution for an offence under this Act or the regulations or any other Act of Parliament and, in the absence of evidence to the contrary, is proof of the statements set out in the certificate or report, without proof of the signature or official character of the person appearing to have signed it.
Attendance of analyst
(2) The party against whom a certificate or report of an analyst is produced under subsection (1) may, with leave of the court, require the attendance of the analyst for the purpose of cross-examination.
...


CDSA

Where a certificate of analysis has been admitted for the proof of the type of controlled substance that was seized, there is no need to produce the actual drug in court.[1]

Objections to the admissibility of certificates must be made at the time that the certificates are tendered and not after the Crown has closed its case.[2]

Evidence to the Contrary
See "Evidence to the Contrary"

  1. R v Maltese, 1978 CanLII 1695 (ON SC)
  2. R v Dowding, 2004 BCCA 287 (CanLII)

Notice to Admit the Certificate

51.
...
Notice
(3) Unless the court otherwise orders, no certificate or report shall be received in evidence under subsection (1) unless the party intending to produce it has, before its production at trial, given to the party against whom it is intended to be produced reasonable notice of that intention, together with a copy of the certificate or report.


CDSA

Proof of notice
52. (1) For the purposes of this Act and the regulations, the giving of any notice, whether orally or in writing, or the service of any document may be proved by the oral evidence of, or by the affidavit or solemn declaration of, the person claiming to have given that notice or served that document.
Proof of notice
(2) Notwithstanding subsection (1), the court may require the affiant or declarant to appear before it for examination or cross-examination in respect of the giving of notice or proof of service.


CDSA

Service of Notice

Notice upon accused's counsel is sufficient notice.[1]

There is some question of whether service by fax of a certificate of analysis is sufficient, particularly where Rules of Court requires service more than fax.[2]

Service in relation to a proceedings on an information will equally apply to a proceedings on a replacement information.[3]

  1. R v Finlay, 1991 CanLII 1048 (BC CA), ("It has been settled law in this Province for several decades that service of a notice of intention to produce a certificate of analysis and the certificate on an accused's counsel rather than on the accused personally satisfies the requirements of s. 9(3) of the Narcotic Control Act")
  2. R v Phung, 2011 ABQB 427 (CanLII), -- in this case, fax not sufficient
  3. Finlay ("This Court has also held that a notice and certificate served in the course of proceedings on an information that is subsequently withdrawn at the trial and replaced by a second information charging the same offence is valid service and that the certificate of analysis is admissible")

Timing of Notice

There must be "reasonable notice" of the intention to admits the certificate.[1]

Factors to consider whether notice was reasonable include: [2]

  • complexity of the case;
  • time between the arrest and trial date;
  • intervention of holidays and non-work days;
  • accused's access to counsel;
  • the content of the certificate and notice;
  • prejudice created by the timing of notice;
  1. s. 51 of CDSA
  2. MacFarlane, Fraser, and Proulx "Drug Offences in Canada"


Reasonable Notice to Adduce a Certificate of Analysis

The Defence must get "reasonable notice" of the Certificate of Analysis. Reasonableness depends on the complexity of the case, amount of time passed, client's access to counsel, and the degree of prejudice created by the possibly late notice. The Crown must prove that notice was provided with notice of a "true and accurate" copy of the notice.

The Defence can ask for leave to have the Analyst brought into court for examination.

Certificate of analyst
51.
...
Notice
(3) Unless the court otherwise orders, no certificate or report shall be received in evidence under subsection (1) unless the party intending to produce it has, before its production at trial, given to the party against whom it is intended to be produced reasonable notice of that intention, together with a copy of the certificate or report.
Proof of notice
52. (1) For the purposes of this Act and the regulations, the giving of any notice, whether orally or in writing, or the service of any document may be proved by the oral evidence of, or by the affidavit or solemn declaration of, the person claiming to have given that notice or served that document.
Proof of notice
(2) Notwithstanding subsection (1), the court may require the affiant or declarant to appear before it for examination or cross-examination in respect of the giving of notice or proof of service.
...


CDSA

Oral notice accompanied by copies of the certificate served upon a receptionist, or other secretarial staff of the law office should generally not suffice.[1] Service of written notice with a copy of the certificate "may be adequate in certain circumstances".[2]

  1. R v Yonis, 2009 ABCA 336 (CanLII)
  2. Yonis

Proof of Substance by Other Means

Proof of marijuana has in rare cases be establish by "circumstantial evidence surrounding the circumstances of seizure of the substance and evidence relating to the appearance of the substance by a person claiming familiarity with the product".[1] The same has been accepted for proof of cocaine.[2]

However, court caution the use of any "short cuts" to proof that do not require a certificate.[3]

  1. R v Khalif, 2014 SKQB 165 (CanLII), at para 42
    R v Grunwald, 2008 BCSC 1738 (CanLII), [2008] BCJ No. 2464, aff'd 2010 BCCA 288 (CanLII), 257 CCC (3d) 53 at paras 37-38
    see also R v Labine (1975), 23 CCC (2d) 567, [1975] O.J. No. 235 (QL) (Ont. C.A.)(*no link) at paras 13-15
    R c Marin, QCCA 254 (CanLII), [2012] J.Q. no 905 (QL), at paras 45-46
  2. Khalif, supra at para 42
    R v Campbell, 1998 CanLII 2698 (ON CA), [1998] O.J. No. 2332 (QL) (Ont. C.A.) at paras 7 to 8
  3. e.g. R v Do, 2011 ABQB 135 (CanLII) at paras 44-45
    Khalif, supra

See Also