Navigation Links
The Federal Prosecution Service DESKBOOK
[ Previous | Table of Contents | Next ]
Part VII
POLICY ON CERTAIN EVIDENTIARY ISSUES
Chapter 38
Table of Contents
38 RELEASE OF EXHIBITS FOR TESTING OR EXAMINATION
38.1 Introduction
This chapter explains the policy, law and procedure on the release of exhibits for testing or examination.
Under section 605 of the Criminal Code, Crown counsel or the accused may request the release of an exhibit for testing:
605. (1) A judge of a superior court of criminal jurisdiction or a court of criminal jurisdiction may, on summary application on behalf of the accused or the prosecutor, as the case may be, order the release of any exhibit for the purpose of a scientific or other test or examination, subject to such terms as appear to be necessary or desirable to ensure the safeguarding of the exhibit and its preservation for use at the trial.
(2) Every one who fails to comply with the terms of an order made under subsection (1) is guilty of contempt of court and may be dealt with summarily by the judge or provincial court judge who made the order or before whom the trial of the accused takes place.
38.2 Statement of Policy on Defence Requests for Release of Exhibits
Crown counsel may consent to a defence application for the release of exhibits for testing except in the following situations:
- where the analysis by the government analyst is not yet completed;
- where the proposed analysis will unduly delay the trial;
- where the application is brought for an improper purpose; or
- where there is a reasonable basis to believe that the independent analyst is not competent to conduct the analysis.
Crown counsel should attempt to ensure that conditions are imposed by the judge pursuant to subsection 605(1) to address adequately the security, custody, and continuity of possession of the exhibit1. Accordingly, Crown counsel should seek to have the following terms included in the order:
- the name of the person who will have custody of the exhibit;
- the means by which the integrity of the exhibit will be safeguarded;
- the time and place of the analysis or the length of notice to be given to Crown counsel regarding the time and place;
- the names of the persons entitled to be present during the analysis including the person designated by the Crown.
38.3 Guidelines for Application of Policy
38.3.1 General
There is a conflict in the case law as to whether section 605 allows for the release of exhibits for tests only if the tests are to be conducted in Canada. In Re Klassen and The Queen (1976), 31 C.C.C.(2d) 235 (Sask.Q.B.) it was held that testing may take place only within Canada. In R. v. Morin (1985), 6 W.C.B.(2d) 12 (Ont. H.C.J.), it was held that whether the testing is to take place outside Canada is simply a factor to be considered. The Morin approach is preferable, since the issue is essentially whether the integrity of the exhibit can be maintained, wherever testing is to occur.
The application must be made to a judge of a superior court of criminal jurisdiction or to a judge of a court of criminal jurisdiction. A justice presiding over a preliminary inquiry is not competent to make an order under section 6052.
An application under section 605 can be made in connection with Criminal Code charges or charges under any other act of Parliament, unless the other act contains a complete and exclusive procedure dealing with exhibits in criminal proceedings. Section 50 of the Controlled Drugs and Substances Act does not set out a complete and exclusive procedure for drug exhibits in criminal proceedings3. Accordingly, section 605 applies to drug exhibits.
The criteria developed in relation to subsection 50(2) of the Controlled Drugs and Substances Act4 provide an appropriate basis for determining whether an order ought to be granted under section 605. Under the subsection 50(2) test, the applicant must demonstrate that there is a specific basis, either in law or on the facts of the case, which requires such an order for the proper conduct of the case for the prosecution or the defence. The specific basis must relate to a “live issue
” in the case; the application must not be a mere “fishing expedition
”.5
38.3.2 Drug Exhibits
When applying to re-analyze a drug exhibit, the applicant must show that the intended analysis can be characterized as quantitatively and qualitatively different from the one initially carried out by the Crown. One example is where the second analysis is designed to assess the purity of the drug exhibit6.
Given the nature of drug exhibits, Crown counsel should carefully review the background and professional qualifications of the independent analyst to ensure that the analyst is competent to re-analyze the exhibit.
Wherever possible, only a portion of a drug exhibit should be given to the independent analyst. A sufficient quantity of the drug should be retained in the event that further analysis is ordered by the court on application by the Crown or the accused. Crown counsel should therefore request that the order make provision for the analysis of a part of the drug exhibit only.
A court order authorizing an analyst named in the order to do an independent analysis should be regarded as authorizing the analyst to possess the drug lawfully for the analysis7.
The presence of an official designated by the Crown during the independent analysis is necessary to ensure continuity of possession of the exhibit.
The result of the independent analysis may differ from the result of the analysis conducted by the government analyst. If the independent analyst testifies in court, a government analyst should be present in court to assist Crown counsel. This can be arranged through Health Canada.
38.4 Requests by Crown Counsel for the Release of Exhibits for Testing
Unless exceptional circumstances require an ex parte application, Crown counsel should comply with the normal rules of criminal practice in the province or territory. Wherever possible, the initiating documents should be accompanied by a supporting affidavit setting out the basis for the application.
38.5 Additional Reference
R. v. O'Quinn (1976), 36 C.C.C. (2d) 364 (B.C.C.A.): Where a substance is unavoidably consumed in its entirety during the Crown's analysis, an accused is not deprived of the right to make full answer and defence.
1 Re Klassen and The Queen (1976), 31 C.C.C. (2d) 235 (Sask. Q.B.).
2 R. v. Walsh (1981), 59 C.C.C. (2d) 554 (Ont. Prov. Ct.) and Doyle v. The Queen (1976), 29 C.C.C. (2d) 177 (S.C.C.).
3 R. v. Bryers and Mueller (1975), 28 C.C.C. (2d) 466 (Ont. Gen. Sess. Peace).
4 Subsection 50(2) of the Controlled Drugs and Substances Act allows a party against whom a certificate of an analyst or other document is being produced to apply to the court to have the analyst attend court to testify.
5 See note 3.
6 See note 3.
7 Re R. v. Vales (1979), 46 C.C.C. (2d) 269 (Ont. H.C.).
[ Previous | Table of Contents | Next ]