R. v. Phung, 2011 ABQB 427

Court of Queen ’ s Bench of Alberta Citation: R. v. Phung, 2011 ABQB 427 Date: 20110706 Docket: 081316556Q1 Registry: Calgary Between: Her Majesty the Queen Crown - and - Jimmy Phung Accused _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice R.E. Nation _______________________________________________________ 1. Introduction and Issues [ 1 ] During this trial I gave an oral decision which excluded five Certificates of Analyst from being entered as evidence at the trial. I undertook to provide written reasons for that decision. [ 2 ] The issues before the court were:

1. Is fax service of the notice of intention to introduce five Certificates of Analyst into evidence in a drug prosecution sufficient service on the accused’s counsel under s. 51(3) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19 ( CDSA )? 2. Is the wording of the notice of intention deficient so that it is not reasonable notice under s. 51(3) of the CDSA ? 2.

Facts [ 3 ] Five Certificates of Analyst, three dated November 18, one dated November 19 and one dated November 20, all in 2008 (the “Certificates”) identified samples of substances, which were sent out from Calgary on October 18, 2008 after the arrest of the accused, as specific controlled substances. [ 4 ] Constable Pearson testified that he was to serve the Certificates on the accused or his counsel, Mr. Fagan. The Certificates were in the possession of the police and available for service from early 2009. Constable Pearson's practice was not to serve the Certificates until he served any subpoenas for a trial.

In this case, that was early in December, for a trial scheduled to start December 13, 2010. [ 5 ] Constable Pearson went to Court on December 2, 2010, as he understood that the accused was scheduled to appear in Court that day, but neither the accused nor his counsel were there. After Court, the Constable went to Mr. Fagan's office, to attempt to serve him. The office is a secure facility, he buzzed the PA. He talked to an assistant who told him Mr. Fagan was not there, and she would not allow the Constable to enter the office building nor would she accept service of the Certificates herself.

Constable Pearson then called Mr. Fagan at his cell phone number. He got a voice mail greeting and left a message. Later, he again talked to the assistant who advised him that Mr. Fagan was away on holidays. At that point, he contacted the Crown counsel, who undertook to arrange service. [ 6 ] Crown counsel wrote a letter to Mr. Fagan, which attached copies of the Certificates. That letter (the “Crown Notice”) identified the accused's name, the docket number and the next court appearance.

Its wording was as follows: Attached are the Certificates of Analyst regarding the drugs seized from the Rundleside address. (The certificates regarding the drug exhibits seized from Mr. Phung's vehicle and the Citadel address were personally delivered to you back in June, 2010. Please find enclosed the following: 1. Certificate of Analyst V01527 regarding Exhibit DP-7 2. Certificate of Analyst V01576 regarding Exhibit DP-6 3. Certificate of Analyst V01577 regarding Exhibit DP-5 4. Certificate of Analyst V01587 regarding Exhibit DP-4 5.

Certificate of Analyst V01588 regarding Exhibit DP-8 Please take Notice that it is the intention of the Crown to introduce the Certificate of Analyst as evidence in these proceedings, pursuant to section 51(3) of the Controlled Drugs and Substances Act . (this last paragraph was bolded in the letter). We trust the foregoing is satisfactory........ [ 7 ] Patricia Oldford, a legal assistant for the Public Prosecution Service of Canada, swore an affidavit to the effect that on December 9, 2010 she faxed the Crown Notice with the Certificates to Mr. Fagan at his office fax number.

She was aware the number was accurate and operational, as it was the fax number that Mr. Fagan had used to fax his Charter notice in relation to this trial on November 29, 2010. She appended the confirmation that there was a successful transmission of the documents by fax (meaning receipt by the machine at the other end).

[ 8 ] Patricia Oldford also deposed that she was advised that it was normal practice for disclosure documents to be handed to counsel, and from the Crown file it appeared that the Notice Documents (being the Crown Notice and Certificates) were handed to Ms. Funk, agent for Mr. Fagan in court on January 7, 2010 along with disclosure documents. Ms. Oldford also swore that information was given to her about Constable Pearson attempting to deliver the documents to Mr. Fagan. She swore that she was advised by the Crown prosecutor, Shelley Tkatch, that Ms.

Tkatch herself had faxed the Crown Notice and Certificates to Mr Fagan's office on December 7, 2010, and confirmation of successful transmission had been received by her, but as she recognized "that it would not be wise" for her to have personally faxed the documents, she directed Ms. Oldford to re-do it and prepare an affidavit. 3. The Relevant Legislation [ 9 ] The CDSA provides in s. 51(3) that 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....

(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. [ 10 ]

Section 40 of the Canada Evidence Act , R.S.C. 1985, c. C-5 provides that: 40. In all proceedings over which Parliament has legislative authority, the laws of evidence in the province in which the proceedings are taken, including the laws of proof of service of any warrant, summons, subpoena or other document, subject to this Act and other Acts of Parliament, apply to these proceedings. [ 11 ] The Alberta Rules of Court A/R 124/2010

Part 11 deal with the service of documents in a civil lawsuit. They provide in Rule 11.21(1) A document, other than a commencement document, may be served on a person who has specifically provided an address to which information or data in respect of an action may be transmitted, if the document is sent to the person at the specified address and (

a) the electronic agent receiving the document at that address receives the document in a form that is usable for subsequent reference, and (

b) the sending electronic agent obtains or receives a confirmation that the transmission to the address of the person to be served was successfully completed. [ 12 ] The Provincial Court Act , R.S.A. 2000 c. P-31 provides in s. 8(2) that: Where this Act or the regulations do not provide for a specific practice or procedure of the Court that is necessary to ensure an expeditious and inexpensive resolution of a matter before the Court, the Court may (

a) apply the Alberta Rules of Court, and

(

b) modify the Alberta Rules of Court as needed 4. Is fax service of the notice of intention to introduce five Certificates of Analyst into evidence in a drug prosecutionsufficient service on the accused’s counsel under s. 51(3) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (CDSA)? 4.1 Crown's Position [13] The argument of the Crown is that s. 51(3) of the CDSA has been interpreted by the Courts to allow service not only on theaccused, but also on his legal counsel.

Crown argues that it is not unreasonable for all counsel to have a place to ensure that documentscan be delivered and served, as the Alberta Law Society Code of Profession Conduct requires a lawyer to have adequate staff, equipmentand facilities and a support system to efficiently deal with matters. [14] Crown counsel quotes from the fairly recent case of the Alberta Court of Appeal, R. v.

Yonis, 2009 ABCA 336 where thecourt, considering a case about the specifics of the manner of service of Certificates of Analyst on a lawyer's receptionist said thefollowing at para. 14: ...Service of certificates with reasonable notice of intention has been the "bread and butter" activity of drug prosecutions in Alberta fordecades.

It is not difficult for the federal Crown to create, and use, an adequate and informative style of written notice of intention thatincorporates the relevant certificates by reference, and then to effect service of the written notice and copies of the certificates either uponthe accused personally, or by service upon a person at his law office authorized to accept service of documents. [15] Crown counsel argues that service using the fax number of defence counsel should be adequate, and points to R. v. Chow,2004 BCPC 481 and also R. v. Tran; Juan (April 21, 2006, Vancouver Registry No. 164292-1, B.C. Prov. Ct.).

R. v. Chow allowed anaffidavit of the fax transmission of notice and copies of the certificates on counsel, with confirmation as sufficient to comply with s.51(3) of the CDSA, while recognizing that simply mailing them to counsel's office was not sufficient. That Court held that the law ofevidence had to progress along with the development of modern technology where appropriate, and found that the Court can take noticeof the significance and effect of the transmission fax confirmation sheet.

That Court found that it may be open to the defence to argue itwas not received, or there was a problem with the contents, but where the defence has simply put the Crown to strict proof, withoutmore, the statutory requirements were met. [16] Crown counsel also argues that personal service is not designated by the CDSA, merely "reasonable notice".

It is argued thats. 40 of the Canada Evidence Act allows the "laws of evidence in the province in which the proceedings are taken, including the laws ofproof of service of any warrant, summons, subpoena and other document" subject to the Canada Evidence Act and other Acts ofparliament. Crown argues that the laws of proof of service of "other documents" in Alberta are found in the Alberta Rules of Court whichallows for service by fax, under Rule 11.21. 4.2 Defence Position [17] The position of defence is that s. 51(3) of the CDSA requires personal delivery of the notice and certificates.

It is argued thats. 51 and s. 52 of the CDSA are providing the Crown with an evidentiary short cut, not requiring a drug analyst to be called in every drugprosecution. Defence counsel points to cases which stress that strict compliance with this statutory short cut is required, as theintroduction of the Certificate of Analyst is proof of an essential element of a drug related offence. The defence cites R. v. Henri (1972), (BC CA), 9 CCC (2d) 52 (BCCA) and R. v. Bowles, 1974 Carswell Ont. 1332 (Ont. C.A.). Counsel argues that wherethe guilt or innocence of an accused is at risk, the

interpretation of statutory requirements must be strict. [18] Further, the defence argues that impaired driving case law in Alberta, where the Criminal Code provisions required"reasonable notice" of the breathalyser certificates, are of assistance. Cases such as R. v. Northcott, 1995 CarswellAlta. 913 (Alta. Q.B.)and R. v. Duplessis, 2006 Carswell Alta. 2033 (Alta. Q.B.) stand for the proposition that giving the certificate to the accused does notinclude sliding it across the table, or leaving it with the accused, if it was not received, or picked up by the accused. Likewise, it isargued faxing a document to an address, does not show or prove receipt by counsel.

[ 19 ] Defence counsel argues that this Court should not extend service to be electronic, that is something that Parliament should do, if it intends electronic service to be sufficient. Counsel argues that delivery must be directly to the accused or directly to his counsel. The Yonis case is cited as authority that service on a receptionist on the facts of that case was not held to be service on counsel, or sufficient to comply with s. 51(3) .

The Court of Appeal was specific in that case that service on the law office could not be sufficient, without the lawyer's knowledge and consent. [ 20 ] In relation to the argument about the Alberta Rules of Court , the defence argues that those rules are to govern practice and procedure, they are not to deal with evidence. It is argued that procedural enactments to deal with civil matters have no relevance to the federal criminal law. It is also pointed out that these are the Queen's Bench rules, and they are inapplicable or at best optional in Provincial Court in Alberta, where many CDSA prosecutions occur.

It is argued that s. 40 of the Canada Evidence Act relates to rules of evidence, not procedure. [ 21 ] The defence relies on a very recent decision, R. v. Cole , 2011 ABPC 131 where Judge Semenuk held in similar circumstances to this case, that fax service at the fax number for the accused's lawyer was not sufficient service.

He rejected a similar argument by the Crown about the effect of the Alberta Rules of Court . [ 22 ] Counsel argues that evidence sworn to by Patricia Oldford that attests to disclosure, or what the Crown prosecutor did, or what Constable Pearson did is clearly hearsay, and not to be considered by the Court. 4.3 Analysis of the Law [ 23 ] An analysis of the law indicates that strict compliance with s. 51(3) is required as the admission of the Certificates of Analyst proves an essential element of the offence. The focus is on the meaning of "reasonable notice of the intention".

Over the years, Courts have interpreted that section. This has included the

interpretation to allow service on counsel for the accused, as opposed to always insisting on service on the accused. Likewise, case law has stated that service in writing is not necessary, it can be oral. Looking at the cases carefully, and particularly the Yonis case which is binding on this Court, the requirement is that the service on counsel for the accused must be personal, or by service upon a person at his law office authorized to accept service of documents.

The lawyer's knowledge and consent are the overarching concerns with non-personal service, the concern is that the lawyer receives the documents. [ 24 ] I agree with the comments in the Chow case, that the law has to be cognizant of modern technology where appropriate. I disagree with defence counsel who argues that the Court cannot extend fax notification to be sufficient under the wording of s. 51(3) . It is the duty of the Court to interpret the general words "reasonable notice", where the legislation is not more specific.

This may well include expanding how notice occurs, in light of changing times and modern technology. [ 25 ] The focus here, as emphasized in Yonis , is whether there was an authorization to use the fax for service, so that the lawyer had some knowledge of and consent to the process. Previous designation of a fax number for service, or consent and knowledge that the Certificate will be served through a fax number, should generally be sufficient. [ 26 ] This is the reason that the Alberta Rules of Court argument, although ingenious, must fail.

Part 11 of these Rules is a comprehensive guide describing how to effect service of documents. It does not allow fax service of commencement documents in a civil action, except under the restrictive provisions of Rule 11.3, if the contract which is subject of the action allows service that way. Rule 11.21 applies only to documents after the commencement documents have been received and a party (or their counsel) has specifically provided the address (fax or electronic) as an address for service of court documents.

Thus, the service is recognized to keep up with technology, but it is also, because the person provides that electronic number, and is thereby consenting or aware that he is responsible to look there for service of documents. [ 27 ] Criminal law lacks the exact type of procedural requirement as in the Alberta Rules of Court , to provide an address for service.

Unless a document (for example, a notice of designation of counsel) sets up an electronic number for service, or there is some indicia of knowledge and consent by counsel to accept fax service, it cannot be said that service by fax is reasonable notice under s. 51(3) as it has been interpreted to this point by the Alberta Court of Appeal. As a result, I find the service by fax in this case is not sufficient.

[28] I feel compelled to comment on the parts of the affidavit of the legal assistant, Patricia Oldford, that includes hearsayevidence. This type of hearsay has no weight, and no place in evidence in a criminal prosecution. The legal assistant deposed of attemptsof the police to serve Mr. Fagan, these paragraphs of her affidavit are double hearsay, what she was advised by Crown counsel, thatCrown counsel was advised by the police officer. She went on to give hearsay evidence about what Crown counsel told her about earlierfaxing the Crown Notice and Certificates (not what the legal assistant herself observed).

She also deposed that Mr. Fagan received whatshe defined as the notice documents (here the Crown Notice and the Certificates) because she was advised it is normal practice to handthem to counsel or their agent in court. She deposed that on the court file "it appears" that on January 7, 2010 the documents were givenwith two disclosure packages to Ms. Funk, acting as agent for Mr. Fagan. Again, this is hearsay evidence. It is also inaccurate. TheCrown Notice is dated December 9, 2010, so could not have been given to anyone in court on January 7, 2010.

This is exactly the reasonthat the relaxation of any service requirements have to be considered cautiously, and the hearsay rule exists, to prevent inaccuracies, andto be sure the person who actually knows the facts gives evidence of things of such impact to the accused as the service of Certificates ofAnalysts. [29] So in conclusion, the fax service is not sufficient to comply with s. 51(3) of the CDSA, as on the facts of this case, it is notreasonable notice. Section 51(3) allows the Court to order otherwise.

The only evidence before me of the reason for this type of servicewas the fact that the Crown had not considered service until two weeks before trial, one attempt was considered on the accused, but as hewas not in court the attempt was on his counsel's office. There are no grounds for the Court to order otherwise, the fax appears to be as aresult of time constraints totally brought into play by the conduct of the police and Crown counsel. The only evidence that would suggestdefence counsel knew of the certificates or had received them is hearsay and inadmissible in this trial. 5.

Is the wording of the Notice of Intention deficient so that it is not reasonable notice under s. 51(3) of the CDSA? [30] Defence counsel argued that even if fax service was allowed, there were problems with the Crown Notice that made itmisleading, confusing and prejudicial, and thus it was not reasonable notice as required under s. 51(3) of the CDSA to be admissible attrial. [31] The defence took the position that the Crown Notice set out five Certificates of Analyst, but stated the intention of the Crownwas to introduce the Certificate of Analyst (the emphasis being that certificate is in the singular).

The defence relies on the Cole casewhich dealt with a similar circumstance where the letter outlined six certificates and had identical wording in the last paragraph, usingthe singular of "certificate".

Judge Semenuk in that case held that the notice was confusing and misleading and failed to meet thestandard of precision and accuracy required in criminal proceedings, as it did not clearly and precisely bring home to the accused that allsix certificates would be produced at his trial. [32] Defence counsel also argues that nowhere in the fax is it indicated that it is "copies" of the Certificates that are included, letalone "true copies" and without this indication, there is an absence of evidentiary foundation on which the court can conclude thecertificates sent by fax "were in any way connected with these proceedings".

The Crown Notice, it is argued, merely says: “attached arethe Certificates of Analyst", without indicating where or from whom they were received, whether they are originals or copies, and if thecopies were checked against the originals. [33] Defence again relies heavily on the Cole case, where Judge Semenuk held that because the notice made no reference tocopies, there was no evidence that the certificates attached to the affidavit of service were copies of the original certificates tendered inevidence by the crown.

He found this was fatal, it was not reasonable notice required under the CDSA, and excluded the Certificates. [34] Crown counsel argues that these arguments are overly technical, and the Crown Notice, taken as a whole, referenced in thefirst paragraph that the Certificates related to the drugs seized at Rundleside (as opposed to in the car or on the person of the accusedwhich certificates were previously delivered). Each Certificate is linked to a particular sample, which gives the defence counselinformation to link the Certificate to the particular substance seized. [35] The Crown points to R. v.

Demers, 2007 SKQB 348 , 306 Sask. R. 1 (Sask Q.B.) where Mill, J. referring tobreathalyser certificates, held that the service requirement under the impaired driving laws is so the accused can know the case he has tomeet. Thus, unless the copy the accused receives, or that is attached to the affidavit of service is in some way different from the original,actual evidence that the copy is a true copy is not required unless some evidence arises to raise a reasonable doubt on that question.

[36] The Crown also relies on cases such as R. v. Glass, (SK CA), [1973] 5 W.W. R. 761 (Sask. C.A.), R. v.Gazica 2002 ABCA 217 (Alta. C.

A) and R. v. Bachmann 1987 ABCA 105 , 78 A.R. 282 (Alta. C.A.). Gazica dealt with acertificate for an impaired driving offence. The issue there was whether the accused had to be notified of the exact offence in respect ofwhich the certificate may be produced. The Court went back to the general proposition that the notice has to be reasonable in thecircumstances. It must not be misleading, confusing or other wise prejudicial. No particular form of notice is required.

In Bachman, theCourt considered an issue of the reasonable notice required in s. 51(3) of the CDSA, and in general, reiterated at para. 9 that the Crownshould try to be as precise as possible, but failure to do so does not always vitiate a notice. [37] Here, I am guided by the general overarching considerations set out by the Court of Appeal, that the question is fact specificand the question is "reasonable notice" of the intention of the Crown.

Here, five Certificates of Analyst were provided under cover of aletter which referenced that they are related to the drugs seized from the Rundleside address, and each Certificate is related to an exhibit,which is the designation given by the police in their investigation and the disclosure. This was a sixteen count indictment, the Crownwas clear it was the charges relating to the Rundleside property, which included two charges of possession for the purpose of trafficking:one related to cocaine, the other related to ecstasy.

In the circumstances, where the certificates are related to exhibits in the Crowndisclosure, and the Crown Notice sets out the drugs are the ones in the Rundleside property, I find this is reasonable notice. There is anerror in the Crown Notice when it refers to certificate and not certificates.

However, it cannot be said that reading the Notice as a whole,it is not clear, or that it is misleading, confusing or otherwise prejudicial because of the use of the singular, not the plural of the word"certificate". [38] In relation to the argument that the Crown Notice stated that the Certificates were attached, instead of saying copies, or truecopies, I find this is an argument based on semantics. Clearly, with a fax transmission, anything sent is a copy.

I do not find that swornevidence in relation to fax service requires a detailed discussion of comparing the original to the copy. [39] As a result, I would not exclude the Certificates due to any defect in the Crown Notice as a result of the use of the singular,not the plural, or the failure to use the word copies, in relation to sending a fax of documents. These are not reasons to hold that theCrown Notice did not result in reasonable notice as required by s. 51(3) of the CDSA in this case. 6.

Conclusion [40] Because of the discussion and conclusion set out in paras. 23 to 29 above, the five Certificates tendered by the Crown inrelation to Counts 14 and 15 on the indictment were excluded from evidence at trial. Heard on December 13, 14, 17, and 21, 2010 and June 2 and 3, 2011. Dated at the City of Calgary, Alberta this 6th day of July, 2011. R.E. Nation J.C.Q.B.A.

Appearances: Shelley Tkatch, Public Prosecution Service of Canada for the Crown Patrick C. Fagan, Q.C. and Eleanor Funk for the Accused