R. v. Hammer Date:, 2017 BCPC 144

Citation: R. v. Hammer Date: 20170516 2017 BCPC 144 File No: 39585-2-C Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JOSEPH WILLIAM HAMMER RULING RE: Section 51(3) C.D.S.A. NOTICE OF THE HONOURABLE JUDGE J. T. DOULIS Counsel for the Crown: Ms. E. Yao and Ms. A. Murray Counsel for the Defendant: Mr. J. LeBlond Place of Hearing: Prince George , B.C. Date of Hearing: April 6, 2017 Date of Judgment: May 16, 2017

Introduction [ 1 ] On August 5, 2014, the members of the Prince George RCMP Crime Reduction Unit executed a search warrant on a residence on 2369 Redwood Street, Prince George, B.C. for controlled substances and paraphernalia, such as packing materials, score sheets, scales, etc.

The police located and seized a number of items, which they documented and photographed. [ 2 ] Following the execution of the search warrant, Joseph William Hammer was charged under Information 39585-2-C with unlawfully possessing a controlled substance, namely, heroin, for the purposes of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19 ( CDSA ).

The trial commenced on January 25, 2016, and has proceeded intermittently since and is still ongoing. [ 3 ] As part of its case, Crown counsel sought to introduce Certificates of Analyst concerning the drugs the Crown says the RCMP seized during their execution of the August 5, 2014 search warrant. During the trial the following Certificates of Analyst were marked as exhibits for identification only: a. Certificate of Analyst Number 14 28351 V, marked W for identification; b. Certificate of Analyst Number 14 28347 V , marked X for identification; c.

Certificate of Analyst Number 14 28344 V , marked Y for identification; d. Certificate of Analyst Number 14 28349 V , marked Z for identification; and e. Certificate of Analyst Number 14 28345 V , marked AA for identification. (Collectively, the “Certificates”) [ 4 ] On April 6, 2017, at the close of its case, the Crown moved to have the Certificates admitted into evidence. Defence Counsel objected to the introduction of the Certificates into evidence on the basis the Crown had not complied with the notice requirements set out in s. 51(3) of CDSA .

The accused admits having received the Notice of Intention to Produce the Certificates (the “Notice”) together with a copy of the Certificates within the time-lines required by statute. It is the Notice’s delivery process to which he objects. [ 5 ] I do not understand there to be any challenge to the accuracy and reliability of the Certificates and the accused has not sought leave to cross-examine the analyst under s. 51(2) of the CDSA . Issues: [ 6 ] The issues before the court in this motion are as follows: a.

Does the Crown have to prove reasonable notice of its intention to produce the Certificates at trial beyond a reasonable doubt? b. Did the Crown provide the accused with reasonable notice of its intention to produce the Certificates at trial? [ 7 ] The Crown and Defence seek a determination of these threshold issues prior to the Defence making an election to call evidence. In support of their respective positions, they have filed a statement of admissions, made oral submissions and provided case law.

This is my decision as to the reasonableness of the Crown’s notice of its intention to produce the Certificates at trial. History of the Proceedings [ 8 ] Information 39585-2-C sworn August 12, 2014, alleges an offence date of August 5, 2014. The trial commenced on January 25, 2016, and continued on January 26, May 2, July 7 and 8, September 15, 2016 and January 6, April 6, and May 16, 2017. [ 9 ] On April 6, 2017, the Crown and Defence tendered and marked as Exhibit 22 in the trial a document entitled “Admissions of Facts pursuant to

Section 655 Criminal Code of Canada ” (“Admissions”) in which the accused by way of his legal counsel admitted certain facts. The Admissions annexed two documents: (1) the Crown’s disclosure memorandum (“Disclosure Memorandum”) dated September 3, 2015; and (2) the Crown’s Notice dated July 30, 2015, attaching a copy of the referenced Certificates. Background Facts [ 10 ] On September 3, 2015, agent for the Director of Public Prosecutions hand delivered the Crown’s disclosure materials to the Defence Counsel. This was effected by their respective legal secretaries.

The Crown’s disclosure materials were identified and itemized on its Disclosure Memorandum. [ 11 ] One of the many documents included in the Crown disclosure package was the Notice attaching copies of the referenced Certificates. The Notice is addressed to Joseph William Hammer and his co-accused, Joann Bunny Faith Potskin.

It states: Notice is hereby given to you that Crown Counsel intends to produce as evidence Certificates of Analyst numbered: 14 28344 V; 14 28345 V; 14 28347 V; 14 28348 V; 14 28349 V; 14 28350 V; and 14 28351 V Copies of which are appended hereto, in any criminal proceedings against you respecting the charges hereinafter set forth, or any amended or substituted charges thereof, to wit:

Count 1 Joann Bunny Faith Potskin and Joseph William Hammer, on or about August 5, 2014, at or near the City of Prince George in the Province of British Columbia, did unlawfully possess a controlled substance, to wit: Diacetylmorphine (heroin), for the purpose of trafficking, contrary to Section 5(2) of the Controlled Drugs and Substances Act . [ 12 ] The Notice is dated July 30, 2015, and signed by Emily K. Yao, Federal Crown Counsel. Below her signature is the following provision for the accused or counsel for the accused to acknowledge receipt of the Notice and Certificates.

This Notice of Intention to Produce Certificates of Analyst, with Certificates attached, is hereby acknowledged this ____day of __________, 2015 __________________________________________ Signature of accused/counsel for accused [ 13 ] As there were two named accused the Notice included two acknowledgement provisions. [ 14 ] The inclusion of the Notice and Certificates as part of the Crown’s disclosure materials was indicated on the Disclosure Memorandum as “NOI - Certificate dated July 30 - 8 pgs.” [ 15 ] The Disclosure Memorandum includes the following endorsement: Delivery of the attached documents hereby Acknowledged Sept. 3, 2015 “Sharon Toombs” _____________________________________ Signature of the Accused/Counsel for Accused [ 16 ] Sharon Toombs, Mr.

LeBlond’s legal secretary, signed the Disclosure Memorandum acknowledging receipt of the Crown’s disclosure materials on September 3, 2015. There is no suggestion Sharon Toombs was not authorized to accept the Crown’s disclosure materials on behalf of the accused and Mr. LeBlond and sign the Disclosure Memorandum acknowledging receipt of those materials. [ 17 ] Mr. LeBlond was Mr. Hammer’s legal counsel at the time he received the Notice and Certificates and he was Mr. Hammer’s legal counsel at trial. [ 18 ] At trial, on September 15, 2016, Ms. Yao explained that Mr. LeBlond was legal counsel for Mr.

Hammer from the outset of these proceedings. At some point prior to the commencement of the trial, Mr. LeBlond sought to be removed as counsel of record and Mr. Hammer became self-represented. Mr. LeBlond was again retained as Mr. Hammer’s legal counsel on or before September 3, 2015. During this hiatus, the Crown couriered its disclosure materials directly to Mr. Hammer. These disclosure materials included the Notice and attached Certificates. As Mr. Hammer did not sign for the materials, the courier returned them to the Crown.

The Crown then engaged the assistance of the RCMP to deliver the disclosure materials to Mr. Hammer personally. Unfortunately, the RCMP provided the Crown with an Acknowledgement of Service only with respect to the expert report included in the disclosure materials. [ 19 ] When Mr. LeBlond was again retained as legal counsel for Mr. Hammer, the Crown hand delivered to his office a duplicate set of its disclosure materials as evidenced by the Disclosure Memorandum signed by Sharon Toombs on September 3, 2015. [ 20 ] Mr.

LeBlond’s usual practice when receiving a notice of intention and certificates from the Crown is to seek instructions from his client whether to accept service of these documents. If those instructions are given, Mr. LeBlond signs the acknowledgement and takes no issue with the notice. In this case, Mr. LeBlond did not sign the Notice. [ 21 ] When the issue of whether the Crown had properly served the Notice arose in Court on September 15, 2016, the Crown provided the Court and Mr. LeBlond with the affidavit of Ms. Virginia Kaun, who is the legal assistant for the agent of the Director of Public Prosecutions. Ms.

Kaun’s affidavit exhibited the Crown’s Disclosure Memorandum and an internal record of proceedings from the file where she referred to having delivered the disclosure documents. [ 22 ] On September 15, 2016, Mr. LeBlond acknowledged in Court he had a copy of the Notice and Certificates.

[23] It is not clear how many actual pages comprised the Crown’s disclosure delivered to Mr. LeBlond’s secretary on September 3,2015; however, the Disclosure Memorandum suggests it may be in excess of 200 pages. There is no suggestion the disclosure consistedof thousands of pages or boxes of documents. [24] Crown Counsel acknowledges that it typically serves defence counsel with the notice of intention and certificates of analystindependent of its general disclosure package. Relevant Legislation [25] The provisions of the CDSA which are relevant to this issue are as follows: s. 2(1): analyst means a person who is designated as an analyst under

section 44; 45.

(1) Analysis - An inspector or peace officer may submit to an analyst for analysis or examination any substance or sample thereoftaken by the inspector or a peace officer.

(2) Report - An analyst who has made an analysis or examination under subsection (1) may prepare a certificate or report stating thatthe analyst has analysed or examined a substance or a sample thereof and setting out the results of the analysis or examination. ... 51.

(1) Certificate of analyst - Subject to this section, a certificate or report prepared by an analyst under subsection 45(2) is admissible inevidence in any prosecution for an offence under this Act or the regulations or any other Act of Parliament and, in the absence ofevidence to the contrary, is proof of the statements set out in the certificate or report, without proof of the signature or official characterof the person appearing to have signed it.

(2) Attendance of analyst - The party against whom a certificate or report of an analyst is produced under subsection (1) may, withleave of the court, require the attendance of the analyst for the purpose of cross-examination.

(3) Notice - Unless the court otherwise orders, no certificate or report shall be received in evidence under subsection (1) unless theparty intending to produce it has, before its production at trial, given to the party against whom it is intended to be produced reasonablenotice of that intention, together with a copy of the certificate or report. 52.

(1) Proof of notice - For the purposes of this Act and the regulations, the giving of any notice, whether orally or in writing, or theservice of any document may be proved by the oral evidence of, or by the affidavit or solemn declaration of, the person claiming to havegiven that notice or served that document.

(2) Proof of notice - Notwithstanding subsection (1), the court may require the affiant or declarant to appear before it forexamination or cross-examination in respect of the giving of notice or proof of service. Position of the Crown [26] The Crown submits Mr. Hammer did receive reasonable notice of its intention to produce the Certificates, both on September 3,2015 and again in Court on September 15, 2016. As the Crown did not seek to tender the Certificates in evidence until April 6, 2017, theDefence had ample notice of its intention to do so.

Moreover, even if the Crown failed to give reasonable notice, the court oughtto “otherwise order” the Certificates be admitted into evidence under s. 51(3) of the CDSA. In support of its position, the Crown relieson the cases of R. v. Leroux, 2003 BCPC 241 and R. v. Lewis 2008 BCCA 266. Position of the Defence [27] The Defence submits the Crown has failed to prove it provided reasonable notice beyond a reasonable doubt. Although theCrown provided timely notice, it was not reasonable because the Notice was buried in the Crown’s voluminous general disclosurematerials. Mr.

LeBlond did not provide the Crown with written acknowledgement of having received the Notice. The defence relies onthe cases of R. v. Santos, 2014 SKQB 5 , [2014] S.J. No. 24 (QL), R. v. Aldaba, [2-14] A.J. No. 1009 and R. v. Phung, 2011ABQB 427 . [28] At the close of the Crown’s case on April 6, 2017, Mr. LeBlond says his argument on the reasonableness of the Notice wasessentially that made on September 15, 2016. [29] Mr. LeBlond is an experienced defence counsel.

Over the years, he has come to rely on the Crown’s practice of serving noticeof its intention to produce the certificates of analyst in a prescribed manner. The Crown typically delivers the notice independent of itsgeneral disclosure package. In this way, the notice is brought to his attention. He first seeks his client’s instructions on whether toaccept service of the notice, then signs the acknowledgement provisions contained in the notice as counsel for the accused and returnsthe signed document to the Crown. In this case, the Crown failed to follow this established practice.

Instead, the Crown’s legalsecretary delivered the Notice as part of the Crown’s general disclosure materials to Mr. LeBlond’s law office. It was not Mr. LeBlond,but his legal secretary who acknowledged delivery of these materials. [30] Mr. LeBlond says the reason for the set procedure with respect to the delivery and acknowledgement of the Crown’s notice ofintention is to clearly establish it made its way into his hands and that he had personally reviewed it. He submits it is dangerous to amasssuch an important document in the Crown’s general disclosure materials.

Section 51 contemplates that unless the Crown can prove clearacknowledgement of the Notice by the accused or counsel for the accused, then the Certificates are inadmissible. The parliamentaryintent of s. 51, as interpreted by the courts, is to ensure the accused or the accused’s counsel knows the certificates of analyst are going tobe produced and relied upon at trial. Armed with this knowledge, the defence can then take steps to have other aspects of the analysisbrought before the court. Section 51(3) as interpreted by Santos, does not sanction a watered down process for providing notice. It is

not enough for the Crown to simple throw the notice in the mailbox along with its general disclosure. In this case, the Crown cannot relyon the acknowledgement of his secretary on the Disclosure Memorandum to prove “reasonable notice”. Analysis [31] Section 51(1) of the CDSA enables the Crown to prove an element of the offence of possession of a controlled substance for thepurpose of trafficking by way of a certificate of analyst. In this case, the Crown seeks to tender into evidence the Certificates to provethe substance Mr.

Hammer is said to have possessed was diacetylmorphine, more commonly called heroin. [32] Section 51(3) of the CDSA requires the Crown to give an accused reasonable notice it will be relying on a certificate at trialrather than the oral testimony of the analyst. In this way, the accused has an opportunity to assess whether to seek to cross examine theanalyst or challenge the certificate.

Issue #1: Does the Crown have to prove reasonable notice of its intention to produce the Certificates at trial beyond a reasonabledoubt? [33] Relying on Leroux, the Crown says it is only required to prove it provided the accused with “reasonable notice” on a balance ofprobabilities.

In Leroux, Judge Challenger states at para. 10, in part: The onus to prove the reasonableness of the Notice of Intention under s. 51(3) of the Controlled Drugs and Substances Act lays upon theCrown to the balance of probability. [34] Judge Challenger does not undertake an in-depth analysis as to why she concluded the Crown’s standard of proof under s. 51(3)is the civil rather than criminal standard. [35] The cases cited by the Defence makes it clear that the Crown’s obligation to provide reasonable notice to produce certificateevidence is no mere formality.

It is a condition precedent to the admissibility of a certificate. In Santos, Justice Gunn states at paras.110-111: [110] The onus remains on the Crown throughout to prove each and every element of the offence beyond a reasonable doubt. Thisincludes a requirement to prove that the substance seized was cocaine as set out in the indictment filed with the court. [111] The CDSA provides a convenient method by which the Crown may satisfy this requirement by permitting the proof to beprovided by the introduction of a certificate of analyst.

There are, however, conditions precedent to the admission of the certificate. [36] In Phung, Justice Nation of the Alberta Court of Queen’s Bench, stated at para. 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 anessential element of the offence. The focus is on the meaning of "reasonable notice of the intention". [37] Still, none of Santos, Aldaba, or Phung, specifically addresses the standard of proof applicable to the Crown’s obligations unders. 51(3) to provide reasonable notice.

I was not provided with any appellate decision from this province on the appropriate standard ofproof with respect to service of a notice of intention to produce a certificate. [38] The issue as to the appropriate standard of proof of notice to the accused of the Crown’s intention to produce certificateevidence at trial has most often being addressed in relation to certificate of a qualified technician in impaired driving cases. [39] Section 258(7) of the Criminal Code states: Notice of intention to produce certificate

(7) No certificate shall be received in evidence pursuant to paragraph (1)(e), (f), (g), (

h) or (

i) unless the party intending to produce it has,before the trial, given to the other party reasonable notice of his intention and a copy of the certificate. [40] The significant difference between s. 51(3) of the CDSA and s. 258(7) of the Criminal Code is the inclusion of the limitingwords in the former: “unless the court otherwise orders.” In R. v. Demers, 2007 SKQB 348 , Justice Mills of the Queen’sBench for Saskatchewan comments (at para. 14) that s. 258(7) of the Criminal Code and s. 51(3) of the CDSA, although worded slightlydifferent, have the same import. In R. v. Van Boeyen, (BCCA), the appellant court considered the proceduralrequirements for notice under s.754(1)(

b) of the dangerous offender provisions then in force. Justice Hinds reviewed jurisprudence on s.258(7) of the Criminal Code and 9(3) of the Narcotic Control Act, R.S.C. 1985, c. N-1 (the predecessor to s. 51(3) of the CDSA), alongwith other statutory provisions requiring the Crown to give notice to an accused person. Justice Hinds found these notice provisions“not dissimilar”. [41] The issue of whether the civil or criminal standard applied with respect to the Crown’s obligation to provide reasonable noticewas considered, but not decided, in R. v. Graham, 2012 BCSC 1455 .

Graham was a Crown appeal from the trial judge’sdecision to exclude a certificate of a qualified technician from evidence in an impaired driving case.

The trial judge found the Crownfailed to prove service of its notice of intention to rely on the certificate pursuant to s. 258(7) of the Criminal Code. [42] In considering the Crown’s requisite standard of proof under s. 258(7), the appeal judge in Graham referenced R. v.Egger, wherein Sopinka J., for the Supreme Court of Canada held: When admission of the evidence may itself have a conclusive effect with respect to guilt, the criminal standard is applied. [43] Justice Bretton also cites the following passage from R. v. MacKinnon, (ON CA):

Before setting out those reasons, we wish to make it clear that in order to meet the requirements of s. 258(7), a provision that addressesthe admissibility of the certificate into evidence, it is only necessary that the trial judge be satisfied, on a balance of probabilities, that thecertificate given to the accused is a copy.

With respect, the learned Justice on appeal erred in applying the criminal standard of proof tothat question. [44] Justice Bretton goes on to state at para. 20: I recognize that in this case the decision on the voir dire from which the Crown appeals was decided only on the basis of s. 258(7) and itmay be appropriate to isolate that issue, in which case, I would tend to agree with the observations of the Ontario Court of Appealin MacKinnon.

I do, however, leave that issue to be decided on another day given my lack of opportunity and need to deal with it furthergiven that I am satisfied here that the evidence has proven service of the notice to the criminal standard. [45] In R. v. Heppner, 2010 BCSC 1989 , Mr. Justice Crawford acknowledged the divergent authorities in B.C. on thestandard of proof of service of notice. Heppner was also a Crown appeal against an acquittal in an impaired driving case.

The Crownargued the trial judge failed to distinguish between proof of service of notice documents tendered in evidence at trial, and proof beyond areasonable doubt of the elements of the offence. Justice Crawford referred to MacKinnon and a number of other cases and stated atpara.10: I have not read all the cases but I am inclined to the view that the proper standard is not beyond a reasonable doubt but on a balance ofprobabilities. [46] On October 22, 2014, the Alberta Court of Appeal handed down its decision in R. v.

Redford, 2014 ABCA 336, wherein itconsidered the applicable standard of proof with respect to the notice requirements of the Crown’s intention to rely on certificateevidence in an impaired driving case. Madam Justice Paperny comments on the standard of proof for notice under s. 51 (3) of the CDSAat para. 6: In the case of a Certificate of Analyst under ss. 51 and 52 of the Controlled Drugs and Substances Act, SC 1996, c 19, the presumptioncreated under s. 51(1) operates “in the absence of evidence to the contrary”.

The certificate therefore does not provide conclusiveevidence of the nature of the substance seized. Additionally, unlike the breathalyzer Certificate of Analyses, there are no qualificationsor limitations placed on the type of evidence that is required or permitted to be produced to rebut this presumption. As well, the noticeprovision in s. 51 (3) is prefaced with “unless the court otherwise orders”. The court therefore has discretion to admit certificates of druganalyses, notwithstanding non-compliance with the notice provision. The CDSA does not identify the applicable standard of proof.

Ithas been suggested, however, that the balance of probabilities standard would be sufficient: BA MacFarlane et al, Drug Offences inCanada, 3rd ed, Vol 2 (Aurora, Ont.: Canada Law Book, 1996-), ch 13 at 13-14, citing R v MacKinnon (2003), (ONCA), 177 OAC 188. [47] In Redford, the appellate court distinguished between the findings of fact that are elements of the offence and auxiliary findings. Citing R. v.

Morin, (SCC), Justice Paperny noted (at paras. 14-15) that at the fact-finding stage, individual items ofevidence must be established on a balance of probabilities: [14] The general rule is that preliminary questions that are a condition of admissibility are assessed on a balance of probabilities.

Thelower standard applies when a trier of fact is deciding a preliminary question of fact, such as whether an admission was the statement ofthe accused. . . the assessment of similar fact evidence . . . and opinion evidence . . . [15] Even highly incriminating pieces of evidence must meet the standard of balance of probabilities . . . [Citations omitted] [48] Justice Paperny points out (at para. 17) there are only a few recognized exceptions to this general principle, namely: (

a) thevoluntariness of confessions to a person in authority; (

b) the admissibility of statements made by a young person; and (

c) the availabilityof the presumption in s 258(1)(

d) of the Criminal Code where samples of the accused’s blood have been taken and analysed to establishblood/alcohol content. [49] Redford has been referenced by courts in multiple jurisdictions. I understand the courts in Alberta, Saskatchewan, Manitoba andOntario now require the Crown to prove reasonable notice of its intention to rely on certificate evidence on a balance of probabilities:Redford, R. v. Dean, 2017 ABPC 37 , R. v. Vader, 2017 ABQB 48 ; R. v. Wheaton, 2015 SKPC 102 and R. v.Daoust, 2015 SKPC 144 , citing R. v. Bear, MBQB No 42 of 2014; R. v. Fryza, 2016 MBQB 55 ; R. v.

MacKinnon (ONCA). [50] In considering the authorities referred to above, I find the Crown must prove that it gave reasonable notice of its intention toproduce the Certificates on a balance of probabilities and not the more stringent standard of beyond a reasonable doubt. Issue #2: Did the Crown provide the accused with reasonable notice of its intention to produce the Certificates at trial? [51] As set out above, the Crown bears the onus of establishing the requirements of s. 51(3) have been met on a balance ofprobabilities. The accused is not required to establish the Crown failed to comply with s. 51(3): R. v.

Burnett, 2008 BCPC 183 ,para. 9. [52] No particular form of notice is required: Phung, para. 23 and Santos, at para. 119. There is no statutory requirement in s. 51(3)that a notice with respect to the use of certificate evidence be given in any prescribed manner: Phung, at para. 36, citing R. v.Gazica 2002 ABCA 217 .

It is, however, essential the notice be reasonable in time and substance and must not be misleading,confusing or otherwise prejudicial: Leroux, at paras. 14 and 16; Santos at para. 109; Burnett at para. 16. [53] In Leroux, at para. 16, Judge Challenger references the following oft-cited passage from R. v. Good, 1983 ABCA 141 ,

in which Mr. Justice McClung states: Appellate courts have consistently, and rightly, refused to invalidate notices on mere technical objection that the procedure leftsomething to be desired. The utility of these provisions in simplifying the production of evidence thereby reducing the time and cost ofcriminal prosecutions is not to be diluted by an insistence on perfection: R. v. Morrison (1982), (NB CA), 70 C.C.C.(2d) 193, 42 N.B.R. (2d) 271. The real test is that the notice must be reasonable in time and substance and must not be misleading,confusing or otherwise prejudicial.

It must clearly and precisely bring home to the accused that the certificate may be used in relation toa charge arising from the incident. No particular form of notice is required and there is no inflexible legal presumption that anyexplanatory words accompanying service will dilute the clear wording of the notice. Some words may. For example, advice given asuspect in direct contradiction to the form of the notice could well support a finding of ambiguity. Whether notice is reasonable shouldbe a question of fact in each case where the objection is taken.

Then all evidence pertaining to the issue must be weighed by the trialjudge before the certificate will be deemed admissible in evidence. However, given a printed notice clear and impactive on its facetogether with early and proper service thereof, a finding of confusion or ambiguity in the absence of defence evidence to that effectwould be rare indeed. [54] In Santos, Justice Gunn referenced R. v. Dillon, [2005] O.J. No. 2516, a decision of Justice Casey Hill of the Ontario SuperiorCourt involving the admissibility of the certificate of a designated counterfeit examiner under the Criminal Code.

In Dillon, Justice Hillheld that reasonableness of notice respecting the Crown’s intention to rely on certificate evidence must be assessed in light of thepurposes of that notice.

He cites the following considerations: a. to enable the accused person to know precisely the nature of the case against him or her thereby providing an adequate opportunity tomake full answer and defence; b. the notice must be precise and accurate and reasonably certain so that an accused person is alerted with certainty as to the procedureto be invoked; c. to permit adequate deliberation time as to whether an application to the court ought to be made for an order requiring attendance ofthe analyst for the purpose of cross-examination; d. simplifying the production of evidence; and e. reducing the time and cost of criminal prosecutions. [Citations omitted] [55] In Leroux at para. 23, Judge Challenger references R. v.

Sharma [1999] B.C.J. No. 2621, in which Justice Holmes states: Reasonable notice must be determined after a consideration of all the circumstances of a particular case. Relevant considerations includewhether the defence has been misled, prejudiced, or is rendered unable to marshal a defence … Notice is intended to "bring home to the accused" the fact that a Certificate of Analyst will be employed, and the notice must bereasonable as to time and substance, and not misleading or confusing or otherwise prejudicial ...

Was the notice misleading or confusing? [56] There is no evidence the Notice was misleading or confusing. Mr. Hammer was charged with one offence under oneInformation. The Notice enumerates the Certificates the Crown intends to produce at the trial of that offence. Each Certificate relates toa police exhibit bearing a unique identification number, which appears on the Major Exhibit Flowchart. The Major Exhibit Flowcharthas been referred to at various times throughout the trial and marked as Exhibit 24.

The Defence Counsel had a copy of Major ExhibitFlowchart at the outset of this trial and it is listed as one of the documents included in the Crown’s disclosure package delivered onSeptember 3, 2015: see Exhibit 22, Appendix “A”, reference to “Major Exhibit Flowchart (1)(5)(9)”. [57] There is no comparison in this case to the situation in Aldaba, where the trial judge refused to admit the Certificates of Analystat trial on the basis the Crown’s notice of intention to do so was inadequate as to both time and substance. The charges on the notice inAldaba were referenced only by

section numbers of the Criminal Code.

Justice Burrows concluded that an accused should not have torefer to anything other than notice served on him to know exactly what offences in what proceeding the prosecution intends to offer thecertificates. [58] Similarly, there is no misstatements in the Notice, such as in Santos where the Crown’s notice stated the certificates would betendered pursuant to s. 28 of the Canada Evidence Act, R.S.C. 1985, c.C-5, rather than the CDSA, or in Phung, where the notice used thesingular when it ought to have used the plural and failed to use the word “copies” in relation to faxed documents.

Justice Nation rejectedthese technical arguments as semantics and found the wording of the notice was not so deficient as to vitiate reasonable notice. Was the defence prejudiced? [59] In this case Crown hand delivered the Notice to Mr. LeBlond’s legal secretary as part of the Crown’s general disclosurepackage on September 3, 2015.

Almost a year later, on September 15, 2016, Defence Counsel, acknowledged in court, in the accused’spresence that he was in receipt of the Notice and the Certificates. [60] There are a number of binding authorities holding that service on the accused of the reasonable notice referred to in s.9(3) of theNarcotic Control Act, was not required: See R. v. Van Boeyen, (BCCA) leave to appeal to S.C.C. refused 114 C.C.C.(3d) vi). In R. v. Finlay, (BC CA), Toy J.A., concluded that service via fax on the accused's counsel satisfied therequirements of s. 9(3) of the Narcotic Control Act then in force. Toy J.A. states:

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 thecertificate on an accused's counsel rather than on the accused personally satisfies the requirements of s. 9(3) of the Narcotic Control Act:see R. v. Flett (1970), (BC CA), 73 W.W.R. 699 (BCCA). [61] Parenthetically, s. 9(3) of Narcotic Control Act required notice of certificate evidence “before the trial” and s. 51(3) of theCDSA requires notice of the certificate evidence “before its production at trial”.

This change has been held to contemplate notice at orafter the start of a trial in certain cases. See: R. v. E.L., 2011 ABPC 45 , at para. 17 citing from Bruce MacFarlane, Robert Frater, and Chantal Proulx, Drug Offences in Canada (3rd ed.) Vol.2 (Aurora, Ont.: Canada Law Book, 1996-), chap 13 at 13-14. [62] I do not understand the Defence to be arguing that the Crown must prove personal service of the certificates on the accused orthat it ought not to have hand delivered the Notice and Certificates to his office.

A lawyer experienced in defending accused personscharged under s. 5(2) of the CDSA will likely expect the Crown’s pre-trial disclosure to include certificates of analysis and a notice ofintention to produce those certificates.

On the other hand, where the Crown fails to follow an established practice of delivering thenotice and certificates independent of its general disclosure, the defence counsel may wrongly conclude the Crown was not intending toproduce the certificates. [63] In Burnett, Judge Skilnick considered the issue of prejudice arising from the Crown’s delay in providing notice of its intentionto rely on the certificate evidence. In that case, the defence argued prejudice relating to cross-examining some of the Crown’s witnesses.

Judge Skilnick was unable to discern on the facts of the case before him how witnesses could have been cross-examined any differentlyif notice under s. 51 had been given a month earlier. Still, he counsels caution in presuming an absence of prejudice and states at para.21, in part: . . . I think a court must proceed with caution in presuming an absence of prejudice.

Unless it is reasonable to assume that there is noprejudice possible or likely, caution must be exercised to avoid shifting the burden of proof to require an accused to prove his innocenceby clearly establishing that he has been prejudiced in his ability to cross-examine Crown witnesses. [64] In this case, the defence has not argued any general or specific prejudice arising from the Crown providing the Notice andCertificate as part of and not independent from its general disclosure package.

Was the accused unable to marshal a defence? [65] The Defence has not identified how the Crown’s departure from its typical practice of serving the Notice and Certificateindependent of its general disclosure package rendered it unable to marshal a defence. [66] The cases upon which the Defence rely are all distinguishable from the instant case: a. In Aldaba, Justice Burrows found not only was the notice deficient in its form, the Crown has not shown the accused was evenprovided with a copy of the certificates sought to be put in evidence.

With respect to the co-accused Aldaba, the certificates wereexcluded because they were significantly deficient as to form. b. In Santos, the police sent a letter enclosing a notice of intention and certificates of analysis by regular mail to the office of theaccused’s lawyer. The police did not call the lawyer to determine if he was prepared to accept service of the certificates on behalf of hisclient, nor did the police call to ascertain whether the lawyer had actually received the correspondence.

The defence lawyer hadpreviously advised the Crown that he was not prepared to accept service of the certificates without clear instructions from his client to doso. Nevertheless, four days before the trial was to commence, the Crown faxed the notice and certificates to the defence lawyer. Justice Gunn was not satisfied that sending the notice of intention and the certificates by regular mail to the accused’s lawyer wasreasonable notice within the meaning of the legislation.

Also, she considered reasonable notice was not given by fax sent within days ofthe trial when counsel for the accused had made it clear to the Crown that he was not prepared nor instructed to accept service. Moreover, the Crown failed to establish the lawyer actually received the fax. c. In Phung, Nation J. found the service of the notice by fax two weeks before the trial was insufficient service to establishreasonableness.

At para. 23, Justice Nation states: An analysis of the law indicates that strict compliance with s. 51(3) is required as the admission of the Certificates of Analyst proves anessential element of the offence. The focus is on the meaning of "reasonable notice of the intention". Over the years, Courts haveinterpreted that section. This has included the

interpretation to allow service on counsel for the accused, as opposed to always insistingon service on the accused. Likewise, case law has stated that service in writing is not necessary, it can be oral. Looking at the casescarefully, and particularly the Yonis case which is binding on this Court, the requirement is that the service on counsel for the accusedmust be personal, or by service upon a person at his law office authorized to accept service of documents. The lawyer's knowledge andconsent are the overarching concerns with non-personal service; the concern is that the lawyer receives the documents.

Justice Nation concludes that the Crown failed to prove counsel for the accused consented to fax service, and consequently the noticeserved on counsel in that matter was unreasonable. I note in Phung, there is no discussion of the B.C. Court of Appeal cases of Findlay and Van Boeyen. Also, Phung was decided beforethe Alberta Court of Appeal in Redford ruled the standard of proof with respect to notice of certificate evidence was on a balance ofprobability.

Phung is distinguishable from the case before this court because the Crown did not fax the Notice and Certificates toDefence Counsel, but rather hand delivered them to his legal assistant on September 3, 2015. [67] In Burnett, Judge Skilnick also addressed inability of an accused to marshal a defence as a result of the inadequate notice. Hestates at para. 22: I think a more clear indication of unreasonable notice comes from the third category set out by Justice Holmes, that being an inability to

marshal a defence. How can one marshal a defence about the character of the substance or the sufficiency of the analysis when noticeunder

section 51 is not given until the commencement of trial? How does one even have the opportunity to evaluate whether or not apotential defence exists if an accused doesn’t see the certificate until the day of trial? Where is the opportunity to do those thingsdescribed by Justice Anderson in R. v. Surgeson, supra? I cannot conclude that the Accused had an opportunity to evaluate or marshalany potential defence due to the fact that his counsel’s first opportunity to examine the certificate was on the day that the trialcommenced.

Under such circumstances, the result must be an inability to marshal (i.e. to evaluate, consider, organize and construct) anydefence, which in turn makes the notice unreasonable. On the facts of the case at bar therefore, I am unable to conclude that reasonablenotice of the certificate was effected within the meaning of section 51(3) of the CDSA. [68] In this case, the Defence Counsel had the Notice since September 3, 2015, which was over four months before the trialcommenced. I have no evidence if or when the Notice came to Mr. LeBlond’s attention before the September 15, 2016, court date.

Asof September 15, 2016, the Crown’s investigating officer in this matter, Constable Charron, the exhibit custodian, was under directexamination. Mr. LeBlond did not commence his cross-examination until January 6, 2017. The Crown’s expert witness, Corporal JeffRingelberg did not testify until January 6, 2017; he was cross-examined on his evidence on April 6, 2017, after which the Crown closedits case. The Defence has yet to elect whether to call evidence. If there were any impediments to Mr.

Hammer evaluating, considering,organizing and constructing a defence as a result of the Crown’s departure from its established manner of delivering the Notice andCertificates to Defence Counsel, they are not readily apparent. “Unless the court orders Otherwise” [69] Section 51(3) appears to empower the trial judge to waive the requirement for reasonable notice. The Crown submits that ifthis Court were to find the manner in which the Notice was delivered made it unreasonable, the Court ought to admit the Certificates inany event.

The Crown relies on Leroux, at para. 29, where Judge Challenger writes: Finally, I wish to note that the remedy, in my view, for a defective Notice of Intention, following the authorities I have referred to,would, in any event, be an adjournment. [70] The Crown further relies on Lewis, at para. 7, a drug trafficking case where the Crown gave the defence counsel the certificatesof analysis on the first day of trial. The defence counsel argued the accused had not received reasonable notice under s. 51(3) of theCDSA.

The issue of reasonable notice was adjourned for approximately two months, at which time the trial judge ruled the certificatesadmissible. She held that even if the notice had not been unreasonable, she would have admitted the certificates in any event because thedefence counsel had two months in which to examine them and take any steps arising from his assessment of them. The trial judge isquoted in para. 7 of Lewis to have stated, in part: . . .

The purpose of a notice requirement is to avoid prejudice, and I do not see that there has been any prejudice in this case, and there hascertainly been time to take steps or seek any further disclosure necessary arising from the certificates. [71] As the accused Lewis died before the appeal was heard, the appellate court ordered the proceedings abated and declined to hearthe appeal. [72] In Burnett Judge Skilnick considered when the “unless the court orders otherwise” provision set out in s. 51(3) might beinvoked even though the Crown failed to comply with the statutory notice provisions.

Judge Skilnick states at para. 24: Counsel have not provided me with any authority as to what circumstances might allow for the admission of the certificate despite a lackof reasonable notice. One case might be where an accused, having had the benefit of proper legal advice, makes it clear that he does nottake issue with the character of the substance analysed and admits it to be as alleged. Another might be where an accused appears to beavoiding or evading service of a notice. Absent such a situation, my review of the case law considering this

section tends to suggest thatorders for the admission of the certificate in such circumstances should not be made lightly. [73] Judge Skilnick went on to consider Judge Challenger’s findings in Leroux that the Crown’s failure to give reasonable noticecould be remedied by an adjournment. Judge Skilnick was unable to find authorities to support this proposition: see paras. 27-28. Hestates at para. 29: The general principle regarding the granting of an adjournment is that it is a matter of discretion for the trial judge and should beexercised judicially, R. v. Hazelwood (1994) (BC CA), 67 W.A.C. 44 (B.C.C.A.).

I do not interpret JudgeChallenger’s remarks as indicating that an adjournment is an absolute remedy, or that the discretion of a trial judge to refuse to grant anadjournment should be fettered in these cases. [74] Judge Skilnick declined to grant the Crown’s application for an adjournment to remedy the defective notice for a number ofreasons, including: a. the failure to give reasonable notice is not a simple technicality; it results in the failure to prove an essential element of the offence.

To grant an adjournment after the Crown has essentially completed its case would be tantamount to giving the Crown a secondopportunity to prosecute the Accused to address an element of the offence which it reasonably ought to have anticipated that it would berequired to prove at the commencement of its case; b. . . . It would also encourage and support the practice of giving notice under

section 51 on the trial date, when appellate courts havesaid that this is a matter of some importance; and c. an adjournment under these circumstances would contribute to further delay in this matter. [75] I do not have to consider whether to exercise my judicial discretion to admit the Certificates unless I find the Crown failed tocomply with the notice provisions set out in s. 51(3).

What is Reasonable Notice? [76] In R. v. Derion, 2012 BCPC 509, paras. 20 - 24, Judge Giardini considered what constituted reasonable notice pursuant to s. 28of the Canada Evidence Act. She found helpful Duncan J.’s decision in R. v. Oslowski, 2005 ONCJ 488 , which is also cited in McWilliams Canadian Criminal Evidence, 4th edition, para: 21:40:40. In Oslowski, Justice Duncan canvasses the authorities onreasonable notice of certificate evidence with respect to a number of offences, including s. 258(7) of the Criminal Code and s. 51(3) ofthe CDSA: [31] Reasonable notice is a concept, not a document . . .

As a concept, it is capable of evolution and must be considered in the existinglegal context. That context includes the advent of full pre-trial disclosure of all relevant evidence to the defence. Such disclosuresubstantially if not wholly fulfills the purposes that this provision, rooted in the pre-disclosure era, was designed to serve . . . A furtherlegal development is the decision of the Court Appeal in R v MacKinnon . . . clarifying that reasonable notice is a question to bedetermined on the balance of probabilities, and not proven beyond a reasonable doubt. . . .

It seems to me that these two developmentsrender much of the earlier case law obsolete and certainly warrant a departure from the punctiliousness of former days. [32] Having said that, there are a number of relevant principles from the decided cases under this and similar provisions in otherstatutes: Notice need not be in writing . . . Notice need not be formal in any way . . . Notice may be given to counsel or counsel’srepresentative . . .

Notice is directed to alerting the other party as to the possibility, not the certainty, that a certificate will be used – it isnotice that the certificate may be used in evidence . . . . [33] Further, there is a consistent line of authority holding that, where no notice at all has been given, the tendering of a certificate at apreliminary inquiry provides sufficient compliance with the notice requirement . . . Since no notice per se was given in any of thosecases, it is apparent that those cases have interpreted the

section as meaning “put on notice”. In other words, nothing, written or verbalhas to be specifically “given”. [34] Finally, whether reasonable notice has been given is a question of fact . . . This is important because, as a question of fact, itsresolution is a matter of reason, logic, common sense and experience applied to evidence, and not a matter of precedent.

Further, like allfacts, it can be established by direct evidence or inference. [35] Accordingly, the issue becomes whether the court is satisfied on a balance of probabilities by direct evidence or by inferencethat, one way or another, the defendant or his counsel was reasonably put on notice that a certificate might be used at his trial. . . [36] Further, quite apart from the above, it is my view that the service of the certificate itself on a defendant represented by counsel(The fact that the accused is represented by counsel is a relevant consideration. . .) satisfies the test as set out above.

After all, in anyother case where a defendant represented by counsel receives a package of disclosure, it goes without saying that it is understood that thematerial may be presented in evidence. Why should the understanding be any different here? Add to this understanding the fact thatproof by certificate is a routine procedure and the certificate’s admissibility as evidence is clearly set out in a well - known statutoryprovision, and the conclusion is inescapable that the test for notice has been satisfied.

Conclusion [77] Having considered the authorities cited above in the circumstances of the case before me, I am satisfied on both the civil and thecriminal standard the accused and his counsel were given reasonable notice of the Crown’s intention to produce the Certificates at trial. There is no evidence or suggestion the Crown tried to hide the Notice and Certificates like a needle in a haystack in voluminousdisclosure.

The accused has had ample time to raise any objection so the analyst could be called for cross-examination or prepare for anyissues raised by the Certificates. [78] In my view, to exclude the Certificates on the basis of non-compliance with s. 51(3) of the CDSA would bring theadministration of justice into disrepute if this

section were interpreted so broadly as to impose upon the Crown the additional burden ofensuring the defence counsel actually scrutinized the disclosure documents it had properly delivered in a timely manner. In conclusion, Ifind the Crown has satisfied the requirements of s. 51(3) of the CDSA. [79] Subject to hearing any further objections to their admissibility, the Certificates will be admitted into evidence and marked as anexhibit at trial. _______________________________ J. T. Doulis Provincial Court Judge