R. v. Knudsen, 2018 BCPC 363

Citation: R. v. Knudsen 2018 BCPC 363 Date: 20181210 File No: 98821-1 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. NIKLAS KNUDSEN RULING ON APPLICATION OF THE HONOURABLE JUDGE R.P. McQUILLAN Counsel for the Crown: P. Bachra Counsel for the Defendant: P. Riddell Counsel for Health Canada : A. Lord Place of Hearing: Port Coqutlam , B.C. Date of Hearing: November 27, 2018 Date of Judgment: December 10, 2018 Overview

[1] Niklas Knudsen has been charged with 5 counts of possession and possession for the purposes of trafficking in variouscontrolled substances. Two of the counts for which he is charged include fentanyl. The Crown has produced Certificates of Analysiswith respect to those two counts by which it asserts proof that the drugs tested did in fact contain fentanyl. [2] Mr. Knudsen is applying for production of the documents underlying the Certificates of Analysis and which led to the briefopinions expressed therein. Specifically, Mr.

Knudsen is requesting production of all lab notes, case file reports, or hand written notes,including the testing folder, specific to the test performed to produce the Certificate of Analysis in this case and all reports produced bythe Gas Chromatograph with regard to the tests performed to produce the Certificate. [3] The Crown takes no position on this application. However, the requested records are not in the possession of the Crown butare in fact in the possession of Health Canada, which conducted the testing of the substances for the police.

Health Canada opposes theapplication. [4] The evidence relied on in support of the application is limited to an affidavit that attaches two Certificates of Analyst wereprepared by Dan Kerry on December 19 and 22, 2017. Both Certificates state that Mr. Kerry tested the substances provided to him andthat each contained fentanyl. One of the substances also contained heroin and a derivative of fentanyl, namely 4-Anilino-N-phenethylpiperdine. The other substance tested also contained methamphetamine.

Neither Certificate includes any quantitative analysissuch as to indicate the amount or percentage of fentanyl contained in the substance. The analysis is qualitative only. [5] Mr. Knudsen submits that in order to determine the accuracy of the analysis underlying the opinions expressed in theCertificates, he needs to be able to examine the requested documents with his own independent forensic toxicologist. Moreover, becausethe BC Court of Appeal has recently set out a higher range of sentencing for trafficking offences relating to fentanyl in R. v.

Smith 2017BCCA 112, this may give rise to an issue as to the concentration of fentanyl in the substance possessed. Mr. Knudsen suggests that theconcentration level may be relevant in determining whether the substance had become contaminated by fentanyl, which has becomeprevalent in the illicit drug system. By that, I understand Mr. Knudsen to be saying that if the concentration level of fentanyl containedin the substance is found to be so minute, an argument may arise at the sentencing stage that he could not have been aware that thesubstance contained fentanyl as it is likely only present through contamination.

Law Governing Applications for Third Part Records [6] Mr. Knudsen and Health Canada agree that the records sought are in the possession of a third party and as such, are governedby the regime described in R. v. O’Connor (SCC), [1995] S.C.J. No. 98. Crown entities other than the prosecutingCrown are third parties and subject to O’Connor: R. v. Gubbins 2018 SCC 44, para 20. [7] In a third party disclosure application, O’Connor places the burden on the accused to show that the record is “likely relevant”.

Where the accused discharges that burden, the judge will then examine the record to determine whether, and to what extent, it should beproduced to the accused. These thresholds were described in Gubbins as follows: [26] Information will be “likely relevant” where there is “a reasonable possibility that the information is logically probative to anissue at trial or to the competence of a witness to testify”: O’Connor, at para. 22 (emphasis deleted). The “likely relevant” threshold hasbeen described as significant, but not onerous: O’Connor, at para. 24; McNeil, at para. 29.

The reason that the relevance threshold is“significant” is to allow the courts to act as gatekeepers, preventing “speculative, fanciful, disruptive, unmeritorious, obstructive, andtime consuming” requests for production: O’Connor, at para. 24, quoting R. v.

Chaplin, (SCC), [1995] 1 S.C.R. 727, atpara. 32. [27] Nevertheless, the burden on the accused is not onerous. “Likely relevance” is a lower threshold than “true relevance”, and has a“wide and generous connotation” that “includes information in respect of which there is a reasonable possibility that it may assist theaccused in the exercise of the right to make full answer and defence”: McNeil, at para. 44; see also O’Connor, at para. 21. Only afterinformation has been shown to be likely relevant will the courts assess the actual relevance of the record sought.

The courts thenconsider competing interests at the second stage of an O’Connor application: McNeil, at para. 39. It may be apparent “upon inspectionby the court that the claim of likely relevance established at the first stage of the O’Connor application is simply not borne out”: McNeil,at para. 40. [28] There are two reasons why the threshold in an O’Connor application is not onerous. First, the only issue at this stage is likelyrelevance.

The application judge is not determining the admissibility of records, nor has the judge reached the point at which he or sheconsiders competing interests: O’Connor, at para. 24. Second, the accused at this stage is in the difficult position of having to makesubmissions without knowing the contents of the records being sought: O’Connor, at para. 25.

The likely relevance threshold is a first-step inquiry designed to prevent fishing expeditions, but nothing more. [8] While the threshold of “likely relevance” is not onerous, the accused does have to establish the likely relevance of thedisclosure beyond mere speculation: R. v. Baker 2017 BCSC 997 at para 42; Gubbins at para

Section 51 of the Controlled Drugs and Substances Act [9] In addition to engaging the O’Connor disclosure regime, this application is also governed by s. 51(1) of the Controlled Drugsand Substances Act (“CDSA”) which states: Certificate or report of analyst 51

(1) A certificate or report prepared by an analyst under subsection 45(2) is admissible in evidence in any prosecution for an offenceunder this Act or any other Act of Parliament and, in the absence of evidence to the contrary, is proof of the statements set out in thecertificate or report, without proof of the signature or official character of the person appearing to have signed it. [10] This

section creates a rebuttable presumption that the Certificate is admissible in evidence and, in the absence of proof to the

contrary, is proof of the existence of the substance asserted in the Certificate, following an analysis contemplated in s. 45(2). [11] At its core, the application before the court requires a consideration of the interplay between the O’Connor regime and s. 51(1)of the CDSA. [12] Mr. Knudsen says that given the brevity of the Certificates, it is impossible for him to ascertain whether there is a basis tochallenge the opinions expressed in the Certificates, without first seeing the underlying documents that formed the opinions.

He furthersays that the documents are necessary in order to have a quantitative analysis done on the substances to address the Crown’s proof of theunderlying offence and the range of potential sentence. [13] Health Canada argues, both under O’Connor and s. 51(1), that Mr. Knudsen must not only establish likely relevance, but mustalso adduce an evidentiary basis for a challenge to the accuracy of the of the Certificates. As to the latter aspect, it says that Mr.Knudsen has not provided such evidence in the affidavit which was filed in support of this application.

Health Canada also submits thata finding that the requested documents are producible would further impose an unreasonable burden on Health Canada due to the volumeof similar records at risk of production in other cases before the courts. [14] Section 51(1) was enacted to dispense with the calling of experts to testify in cases where the nature of the substance is notreally in issue: R. v.

Oliver (1981) (SCC), 62 C.C.C. (2d) 97 (SCC) at p. 105. [15] An accused is required to obtain leave of the court to require the analyst that prepared a certificate to attend the trial forpurposes of cross-examination in accordance with subsection 51(2). Health Canada asserts that the leave requirement contained in ss.51(2) is analogous to the discretion that ought to be exercised in determining whether to require production of records. That discretionwas described by the Alberta Court of Appeal in R. v. Davis 1983 ABCA 15 , [1983] A.J.

No. 120, 4 C.C.C. (3d) 53 at paras 8-9as follows: [8] In the exercise of this discretion the trial judge must bear in mind, or, the one hand, the considerations of expediency in theprosecution of these social offences which Parliament obviously intended where it enacted provisions for proof of the Crown's case bycertificate evidence. It would be contrary to that Parliamentary intent to require attendance of the technician on unfounded suspicionmerely to enable the defence to engage in a broad fishing expedition to which it is normally entitled in cross-examination.

The trialjudge must also bear in mind on the other hand the right of the accused to make full answer and defence. [9] Within these limits, leave should not be granted unless there is an indication in the evidence, or in affidavit, or in the submissionsand undertakings of counsel, of a material irregularity in the actual testing procedure followed by the technician in the instant case whichif substantiated might provide a legal basis for a reasonable doubt as to the accuracy of any evidentiary statement in the certificate. Anirregularity which could not in law affect the result of the case would not warrant leave.

It should also be shown in support of theapplication that the evidence sought is within the peculiar knowledge of the technician qua technician in the case. [16] In my view however, while no doubt similar, the considerations on such a leave application, which relate to the expediencyissue and limiting the need to call experts at trial, are not precisely the same considerations that arise on an application such as thepresent one, where only documents are sought.

Indeed, it seems to me that the mischief sought to be remedied by s. 51(1), as describedin Oliver, is not similarly engaged in the present application. [17] The question nonetheless arises as to whether the accused is required to establish on an evidentiary basis that there is cause todoubt the accuracy of the Certificates in order to succeed on this application. In that regard, Mr. Knudsen and Health Canada rely ontwo seemingly contradictory cases. R. v. Koumoutsidis and R. v. Moore [18] Mr. Knudsen relies on the case of R. v. Koumoutsidis 2017 BCSC 2129.

In that case, the accused sought disclosure of theworksheet packages prepared by Health Canada in relation to the exhibits it received for analysis. The application in that case isvirtually identical to the present application. [19] At the time of bringing the application, the accused had retained an expert for the purpose of evaluating the analysis conductedby Health Canada. However, the accused had not filed an affidavit from his expert or any other supporting material explaining the likelyrelevance of the Health Canada records.

As in the present case, the accused said that he was in a Catch-22 position of not being able toprovide a basis for the application without first receiving some minimal level of disclosure. [20] The court noted that there did not appear to be any previous reported cases dealing directly with disclosure of analyst recordsfrom Health Canada labs but that cases from the impaired driving context may be somewhat helpful because that regime has a rebuttablepresumption similar to the CDSA in s. 258 of the Criminal Code.

However, the court also noted that the certificates provided in animpaired driving case provide more information than the certificates provided under the CDSA, thus providing some support to theCatch-22 argument advanced by the accused. [21] The court then concluded that the documents should be disclosed. In reaching that conclusion the court said at para 31: It seems reasonable that the accused is entitled to know what testing was conducted and how the analysis was performed.

As theaccused points out, where the Crown relies upon the statutory presumption, its obligation is to raise a reasonable doubt about theanalysis: see R. v. St-Onge Lamoureux, 2012 SCC 57 , at para. 16. [22] And at paras 34 and 36: [34]……………..The relevance of these records is more obvious as they relate to the nature and accuracy of the analysis performed bythe Health Canada analysts, as well as the operation of the instruments used.

Without this material, it would be very difficult for thedefence to verify the accuracy or determine the nature of the analysis carried out because of the limited disclosure the defence receives in

a drug prosecution when the Crown is proceeding, as it usually does, by way of certificate. ………………….. [36] As an aside, I would add that the production of the work product of the analyst, in limited form, in cases such as this, appears to be a reasonable first step which accommodates the accused's right to disclosure from third parties of material that is likely relevant, yet does not impose a more substantial burden on the third party, here Health Canada.

Certainly it is less cumbersome than attendance at trial of the numerous analysts (here 11 analysts) and allows the accused and the court to have a set of facts from which to make informed decisions as to whether there is a basis for further steps, such as cross-examination of the analyst or analysts, release of exhibits for testing, or the calling of defence evidence to impugn the veracity of the analysis carried out by Health Canada. [ 23 ] Health Canada seeks to distinguish Koumoutsidis partly on the basis that the accused had retained an expert by the time of bringing his application, whereas Mr.

Knudsen in the present case has not. It further says that in Koumoutsidis the judge did not consider the impact of s. 51(1) on the O’Connor test. [ 24 ] Health Canada relies on the Ontario case of R. v. Moore (June 1, 2018) Toronto 17-15997031. In that case, the accused sought an order that the Crown provide “a proper scientific report that tells a sufficiently coherent story of the analytical chemistry, or to inform the court that such a report does not exist”.

The court declined to order disclosure of the documents sought, as the application did not meet the test of “likely relevant”, nor did it overcome the presumption in s. 51(1) of the CDSA . [ 25 ] The court held that the application must be accompanied by affidavit evidence, which establishes to the court’s satisfaction that the information sought is likely to be relevant. The applicant had not done so.

The court referred to the court’s gatekeeper function and that the courts should screen these applications in an effort to prevent the defence from engaging in speculative, fanciful, disruptive, unmeritorious, obstructive or time consuming requests for production. While the court stated that it was sympathetic to the position of the defence, to accede to the application for disclosure would undermine the express statutory presumption in s. 51(1) of the CDSA . [ 26 ] It is difficult to reconcile Koumoutsidis and Moore , the latter of which referred to Koumoutsidis and declined to follow it.

Decision [ 27 ] In my view, the more persuasive authority for this court is Koumoutsidis . I say that because that decision comes from a British Columbia court and from a superior court, neither of which apply to Moore . The principle of stare decisis compels me to that reach that conclusion. [ 28 ] Furthermore, I am not convinced that the judge in Koumoutsidis did not consider the import of s. 51(1) in reaching his conclusion since that

section was expressly referred to in the decision, although its interplay with O’Connor not clearly explained. [ 29 ] I am also not persuaded that Koumoutsidis is otherwise distinguishable from the case at bar. While in Koumoutsidis the accused had already retained an expert at the time of the application, I do not see the failure to do so in the present case as being fatal to this application. Mr.

Knudsen has indicated that he intends to retain an expert to review any records that are produced by this application and he should not be faulted for not having done so before even learning whether the present application is successful. In addition, the submissions made by Mr.

Knudsen in relation to the significance of fentanyl being found in the substances, as that issue relates to both the gravamen of the offences and to the sentencing range, persuades me that the “likely relevant” threshold has been met. [ 30 ] Health Canada points out that Smith states that ignorance of the makeup of illicit drugs an offender is selling is not a mitigating factor on sentencing. It further says that there is no legal precedent to support the assertion that the proportion of fentanyl, as opposed to the presence of fentanyl, affects the range of sentence.

While I accept both of those propositions as accurate, I am also not aware of any precedent that asserts that the proportion of fentanyl will not affect the range of sentence. In my view, Mr. Knudsen is entitled to explore that avenue of inquiry. [ 31 ] The documents sought by Mr. Knudsen are limited in scope and, when combined with the skeletal information contained in the Certificates, I find that, as in Koumoutsidis , it is appropriate to order disclosure of the documents sought. In reaching this conclusion, I do not believe that this would impose an unreasonable burden on Health Canada.

I do not mean to suggest that a similar application in every drug case would meet the necessary threshold, but in this case I am satisfied that it has. In any event, the burden on Health Canada needs to be balanced against an accused’s right to make full answer in defence. The burden imposed on Health Canada by this decision is minimal. [ 32 ] I turn next to the second stage of the O’Connor application process. That is a balancing of the effects of production as between the parties, being Health Canada and Mr. Knudsen.

Health Canada asserts an interest in limiting resources that it expends on producing records such as those sought on this application. It does not assert any right of privacy over the documents. The accused’s interest is, of course, in being able to make full answer and defence by production of the documents.

In borderline cases, the court should err on the side of production of the documents to the court: O’Connor, para 152. [ 33 ] In this case, since Health Canada has conceded that no privacy interests are engaged, and there is no suggestion that the documents in this particular case are voluminous or would place an excessive burden on it or the court in reviewing the documents.

I am satisfied that an order for disclosure of the documents to the court is appropriate. [ 34 ] As such, there will be an order that counsel for Health Canada provide copies of the following records to the court: all lab notes, case file reports, or hand written notes including the testing folder, specific to the test performed to produce the Certificates of Analysis, and all reports produced by the Gas Chromatograph with regard to the tests performed to produce the Certificates.

Counsel may first review the records for safety, security, and privilege concerns and make any redactions they may feel appropriate before providing them to the court. Once the court makes a determination of whether the documents are actually relevant, copies of the relevant documents will be provided to Mr. Knudsen.

______________________________ The Honourable Judge R.P. McQuillan Provincial Court of British Columbia