R. v. Do, 2011 ABQB 132

Court of Queen ’ s Bench of Alberta Citation: R. v. Do, 2011 ABQB 132 Date: 20110302 Docket: 081441008Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Khanh Duy Do Accused _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Donald Lee _______________________________________________________ [ 1 ] The Accused is charged with the following offences: 1.

That he on or about the 13 th day of November, 2008, at or near Edmonton, Alberta, did unlawfully traffic in a controlled substance, To Wit: Cocaine, contrary to Section 5(1) of the Controlled Drugs and Substances Act . 2. That he on or about the 13 th day of November, 2008, at or near Edmonton, Alberta, did unlawfully have in his possession property (or proceeds of property) Canadian currency and cell phones of a value not exceeding five thousand dollars knowing that all (or part) of the property (or proceeds of the property) was obtained (or derived directly or indirectly) by the commission in Canada of an

offence punishable by indictment, contrary to

Section 355 (

b) of the Criminal Code of Canada . 3. That he on or about the 13 th day of November, 2008 at or near Edmonton, Alberta, did unlawfully possess a controlled substance, To Wit: N-Methyl-3, 4-Methylenedioxyamphetamine for the purpose of trafficking, contrary to Section 5(2) of the Controlled Drugs and Substances Act. [ 2 ] The Crown chose to call no evidence with respect to Count 3 at the beginning of this trial, and I found the Accused not guilty of Count 3.

The trial then continued with respect to Counts 1 and 2. [ 3 ] The evidence to date in this trial establishes that the undercover officer in this matter Constable John Smith engaged in an attempted drug buy transaction with respect to what he assumed was cocaine. The undercover officer cannot identify the Accused Mr. Do, and at this point Mr. Do’s involvement in the transaction appears to only be that he asked for the $60 agreed price, and was handed the $60 asking price by the undercover officer.

Another individual who was originally a co-accused then handed two items to the undercover officer. [ 4 ] Part way through the trial, Crown counsel advised the Court that the Crown was proposing to call certain evidence that it would rely on to infer this Accused’s involvement with cocaine trafficking generally through an expert witness, and that it would be arguing that other items seized from the driver of the vehicle, not Mr. Do, analysed as cocaine could lead the Court to infer that the two items allegedly given by Mr.

Do to the undercover officer were also cocaine. [ 5 ] It appears that the Notice of Intention that was served on the Accused Mr. Do did not include any analysis of the two items that were allegedly passed by the driver of the vehicle the (co-accused) to the undercover officer. The co-accused has apparently disappeared from the jurisdiction. [ 6 ] Defence counsel now objects to that Notice of Intention as being inadequate as the accused Mr.

Do was not advised of the charge which he had to face because an extra Section 5(2) CDSA relating to the co-accused only was included along with the charge that the accused does face Section 5(1) CDSA. [ 7 ] Defence counsel also argues the relevance of the Crown's intended evidence on the ground that none of it establishes that the undercover officer was actually given cocaine in exchange for money. [ 8 ] In R. v. Grant , 2001 ABCA 252 , McClung J.A. stated as follows:– 2 . . . A proper scientific analysis of a suspected substance is essential.

Granted that a lay person can recognize various things such as smell, sights, sounds and speeds, and that such evidence may be admitted, the danger of permitting lay identification of an allegedly illegal substance is manifest and ought not to be encouraged. The chemical or scientific analysis of an illegal substance may well provide, and normally does provide, the court with reliable and trustworthy evidence that the substance was actually illegal according to its components. The certificate of analysis conveys just that. In practice, the certificate ends any debate about what was seized.

Were we to uphold the course followed here the certificate of analysis practice will be at risk in future. The police will rely on nothing but opinion evidence given by themselves. That is a step that should only be permitted by Parliament by way of the repeal of the analysis legislation.

The use of the certificate has long been entrenched in the Statute, and for good reason, and can only be replaced by expert testimony by a qualified analyst. [ 9 ] However Grant went on to state that in allowing this appeal the Court was not to be taken as foreclosing proof by other means in every possible case. [ 10 ] MacLeod J. discussed this latter concept in R. v. Paquette , 2010 ABQB 519 and stated: –

13 It was argued that the presumption of innocence does not permit me to convict on the basis of speculating that all of the materialwhich looked like cocaine in the possession of Mr. Paquette is the same as the sample of the substance tested and certified in Exhibits 3,11 and 16. 14 All of the certificates of analysis are in the same form. They certify, with respect to each of the sealed packages, that the analystopened it and removed a sample which he analyzed and determined was a controlled substance.

In the case of the cocaine, that meansthat he opened envelopes containing 45 baggies (Exhibit 3), 23 baggies (Exhibit 11) and 30 baggies (Exhibit 16). 15 From the certificate I am able to find only that the analyst sampled some product from one baggie from each of the exhibits. I amasked to infer that all of the other baggies contained the identical substance to the baggie which was analyzed. 16 The packaging of the product as sent to the analyst and as examined by Detective Hudacin was as likely as not done by Mr.Paquette himself.

Whoever did it determined what it contained and tampering with the contents would go unnoticed. Moreover,Detective Hudacin confirmed in his cross-examination that in his experience there are instances where sellers hold out substances to becocaine when it is not. 17 While I can speculate with some confidence that more than three bags of the seized product was cocaine that is not the same asbeing satisfied beyond a reasonable doubt. That is not the end of the matter, however. 18 I have read both R. v. Grant and R. v. Cao carefully. In R. v.

Grant the Court of Appeal warned against the substitution of policeopinion for the essential scientific analysis of a suspected substance. On the other hand, in allowing the appeal the Court made it clearthat it was not to be taken as foreclosing proof by other means in other cases. In this case, the Court has had the benefit of the expertopinion of Detective Hudacin... [11] Further, in R. v. Grunwald, 2008 BCSC 1738, aff'd 2010 BCCA 288, leave denied [2010] S.C.C.A.

No. 299 stated:– 36 I turn next to the law with respect to the ways in which the Crown can prove that the accused possessed marihuana other than bychemical analysis of the substance seized. Defence submitted that a chemical analysis is a mandatory requirement. Crown submits thatother evidence may provide proof of the nature of the substance, depending on the circumstances and the strength of that evidence.

Thisis an important issue in this case because of the attack on the continuity of the substances seized prior to analysis. 37 I am of the view that while a certificate of analysis provides the simplest, most convenient and most satisfactory method ofproof, the nature of the substance that was seized can be established by other means, particularly when the substance in question ismarihuana as opposed to some liquid or powder which may have no identifiable, unique characteristics other than chemical composition. 38 There are cases that have held that in the absence of a certificate of analysis or other form of scientific evidence the trier of fact isentitled to rely on circumstantial evidence when determining whether the Crown has proven that the substance in question is that allegedin the indictment. 39 In R. v.

Woodward, (ON CA), [1975] O.J. No. 91, the Ontario Court of Appeal held that the opinion evidenceof a police officer that the substance he seized was marihuana was admissible although on its own it was not entitled to considerableweight. 40 In R. v. Labine, (ON CA), [1975] O.J. No. 235, the Ontario Court of Appeal again held that the trial judgewas entitled to conclude the substance in respect of which the accused was charged with trafficking was marihuana, based on thecumulative effect of the circumstantial evidence despite the absence of a certificate of analysis.

In that case, the circumstances includedthe following: the price paid for the cigarettes in question; the fact that the cigarettes were described as a green-brown colour, and a

witness who was familiar with marihuana described the marihuana cigarettes as being of that colour; the number of children whoapproached the appellant and the exchanges that took place between the appellant and the children; the effect that the cigarettes had onpersons who smoked them; evidence that the dance hall in which the cigarettes were smoked reeked of marihuana; evidence that theappellant was found in possession at his residence of a quantity of marihuana which was proved to be such by a certificate of analysis,and evidence that the appellant had in his possession a pipe for smoking marihuana, and baggies of the type that are used for packagingmarihuana. 41 In R. v.

DeWolfe, [1979] B.C.J. No. 1655, the trial judge accepted the opinion of an experienced narcotics officer that thesubstance in question was a particular type of marihuana. The trial judge said: [13] The next question is the question of whether or not the material seized was marijuana. Corporal Simpson, as I have mentioned,indicated in his evidence that he had considerable expertise in narcotics. He had taken numerous courses in all areas really of marijuana.He stated that the bag or that the bags which were seized and contained the plant like material contained Columbian marijuana.

In otherwords, his expertise was refined to the point where he was able to venture an opinion as to the kind, not only the fact that the substancewas indeed marijuana. Ordinarily a police officer's opinion would not be given much weight on this point. But, in my mind the weightmust vary with respect to the degree of expertise of the person giving the opinion. I find that Corporal Simpson has had a great deal ofexpertise and I am prepared to accept his opinion. 42 It is to be noted, however, that in R. v. Grant, 2001 ABCA 252 , [2001] A.J.

No. 1257, the Alberta Court of Appeal heldthat proper scientific analysis is essential. In a very brief oral judgment, Mr. Justice McClung, giving the judgment of the court, said this: [2] ... A proper scientific analysis of a suspected substance is essential. Granted that a lay person can recognize various things such assmell, sights, sounds and speeds, and that such evidence may be admitted, the danger of permitting lay identification of an allegedlyillegal substance is manifest and ought not to be encouraged.

The chemical or scientific analysis of an illegal substance may wellprovide, and normally does provide, the court with reliable and trustworthy evidence that the substance was actually illegal according toits components. The certificate of analysis conveys just that. In practice, the certificate ends any debate about what was seized. Were weto uphold the course followed here the certificate of analysis practice will be at risk in future. The police will rely on nothing but opinionevidence given by themselves.

That is a step that should only be permitted by Parliament by way of the repeal of the analysis legislation.The use of the certificate has long been entrenched in the Statute, and for good reason, and can only be replaced by expert testimony by aqualified analyst. 43 This statement is not in accord with the other authorities and in my respectful view, it goes too far. While the Controlled Drugsand Substances Act provides a convenient method of proof by means of a certificate of analysis, I can see nothing in the statute thatmakes a certificate mandatory or precludes proof by other means.

I do not share the concern that accepting other evidence in proof of thenature of the substance in a proper case will lead to a practice of not obtaining certificates of analysis. I do not believe the police wouldbe foolish enough to adopt a practice of dispensing with the best method of proving the identity of a controlled substance. 44 In the case at bar there are certificates of analysis confirming that the samples taken by Constable Mulroney and submitted foranalysis were marihuana. The issue is whether those samples were from the materials seized from Mr. Grunwald.

The ultimate question,as I earlier stated, is whether the Crown has proven beyond a reasonable doubt that Mr. Grunwald was in possession of marihuana. [12] Despite Grunwald’s position that the evidence did not establish that the material submitted for laboratory analysis was thematerial found in his truck, and that the Crown failed to prove that he possessed marijuana, the Court of Appeal affirmed the convictionin Grunwald 2010 BCCA 288. Leave was denied [2010] S.C.C.A. No. 299. Conclusion [13] In my view, the issue raised may deal with the weight rather than the admissibility of the evidence.

The Crown may wellhave difficulty proving its case, but as long as the Crown can make a logical argument as to why the disputed evidence is relevant, itseems to me that the evidence can be heard during the course of the trial, subject to it's exclusion for Charter violations and subject tofinal argument.

Heard on the 1 st day of March, 2011. Dated at the City of Edmonton, Alberta this 2 nd day of March, 2011. Donald Lee J.C.Q.B.A. Appearances: Patricia Giroux for the Crown Sid M. Tarrabain, Q.C. Tarrabain & Company for the Accused