R v Khalif, 2014 SKQB 165
[40] In R. v. Grant, 2001 ABCA 252, [2001] A.J. No. 1257 (QL), the Alberta Court of Appeal stated as follows:
2 We will deal with this case on the certificate issue alone. A proper scientific analysis of a suspected substance is essential. Granted that a lay person can recognize various things such as smell, sights, sounds and speeds, and that such evidence may be admitted, the danger of permitting lay identification of an allegedly illegal substance is manifest and ought not to be encouraged. The chemical or scientific analysis of an illegal substance may well provide, and normally does provide, the court with reliable and trustworthy evidence that the substance was actually illegal according to its components. The certificate of analysis conveys just that. In practice, the certificate ends any debate about what was seized. Were we to uphold the course followed here the certificate of analysis practice will be at risk in future. The police will rely on nothing but opinion evidence given by themselves. That is a step that should only be permitted by Parliament by way of the repeal of the analysis legislation. The use of the certificate has long been entrenched in the Statute, and for good reason, and can only be replaced by expert testimony by a qualified analyst.
[41] This three-paragraph decision provides no details of the facts or circumstances relating to the case, the alleged substance in question. In Bruce A. MacFarlane, Robert J. Frater & Chantal Proulx, Drug Offences in Canada, 3rd ed., looseleaf, vol. 2 (Toronto: Canada Law Book, 2013) at page 13-35, the authors indicate that while not apparent from the courts reasons, what was at issue was the opinion of an officer involved in the seizure of 180 growing marijuana plants. It is to be noted that the Court of Appeal stated in the third and final paragraph of its decision that “we are not to be taken as foreclosing proof by other means in every possible case.”
[42] Cannabis or marijuana has been proven to be a controlled substance on the basis of circumstantial evidence surrounding the circumstances of seizure of the substance and evidence relating to the appearance of the substance by persons claiming familiarity with the product. See: R. v. Labine (1975), 1975 CanLII 1403 (ON CA), 23 C.C.C. (2d) 567, [1975] O.J. No. 235 (QL) (Ont. C.A.), at paras. 13-15, and Marin c. R., 2012 QCCA 254, [2012] J.Q. no 905 (QL), at paras. 45-46. Marijuana being an unrefined botanical product is obviously much more susceptible to lay person identification than a refined product such as crack cocaine. But, in R. v. Campbell, [1998] O.J. No. 2332 (QL) (Ont. C.A.), circumstantial evidence was held sufficient to justify a finding that the substance in question was cocaine. See paras. 7-8.
[43] In R. v. Grunwald, 2008 BCSC 1738, [2008] B.C.J. No. 2464 (QL), affirmed at 2010 BCCA 288, 257 C.C.C. (3d) 53, leave denied [2010] S.C.C.A. No. 299 (QL) (S.C.C.), the court stated:
37 I am of the view that while a certificate of analysis provides the simplest, most convenient and most satisfactory method of proof, the nature of the substance that was seized can be established by other means, particularly when the substance in question is marihuana as opposed to some liquid or powder which may have no identifiable, unique characteristics other than chemical composition.
38 There are cases that have held that in the absence of a certificate of analysis or other form of scientific evidence the trier of fact is entitled to rely on circumstantial evidence when determining whether the Crown has proven that the substance in question is that alleged in the indictment.
Then, after referring to Grant, said at para. 43:
43 This statement is not in accord with the other authorities and in my respectful view, it goes too far. While the Controlled Drugs and Substances Act provides a convenient method of proof by means of a certificate of analysis, I can see nothing in the statute that makes a certificate mandatory or precludes proof by other means. I do not share the concern that accepting other evidence in proof of the nature of the substance in a proper case will lead to a practice of not obtaining certificates of analysis. I do not believe the police would be foolish enough to adopt a practice of dispensing with the best method of proving the identity of a controlled substance.
[44] This decision was followed up by Lee J. in R. v. Do, 2011 ABQB 135, [2011] A.J. No. 630 (QL), where he held the following:
44 Defence counsel relied on R. v. Grant, 2001 ABCA 252, in which McClung J.A. held that a proper scientific analysis of a suspected substance is essential. However, McClung J.A. also indicated that the Court was not to be taken as foreclosing proof by other means in every possible case. Joyce J. in R. v. Grunwald, 2008 BCSC 1738, aff’d 2010 BCCA 288, leave denied [2010] S.C.C.A. No. 299 opined that McClung J.A.’s statement went too far in that while the CDSA provides a convenient method of proof by means of a certificate of analysis, nothing in the statute makes a certificate mandatory or precludes proof by other means. I do agree with Defence counsel that caution must be exercised with respect to drawing analogies with cases where other means have been relied upon to establish that a substance was marijuana.
45 It is trite that in order to convict on circumstantial evidence, a court must be satisfied that guilt is the only reasonable and rational inference to be drawn from the proven facts: R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42 at para. 33. This is a very exacting test. In the present case, the two items given to Cst. Smith were selected by Nguyen from a larger group of spitballs in his hand. Cst. Smith was not able to observe where Nguyen obtained the spitballs, nor where he put them after the deal was complete. The only spitballs found in the car or on Nguyen or the Accused shortly after the transaction were the 40 spitballs in the Juicy Fruit container located in Nguyen’s vest pocket. I am satisfied that the analysis of the two pieces selected from the 40 in the container support the inference that the 40 pieces in the Juicy Fruit container were spitballs of cocaine. The two items sold to Cst. Smith were virtually indistinguishable from the spitballs of cocaine in the Juicy Fruit container. Det. Pilon testified that cocaine dial-a-dopers commonly put their cocaine in containers like the Juicy Fruit container in this case. The cocaine transaction in this case was a dial-a-doper transaction. The items found in the Honda indicate an active dial-a-doper trafficking operation.
[45] In R. v. Nyuon, 2014 ABCA 130, [2014] A.J. No. 384 (QL), the Alberta Court of Appeal held as follows:
Was the substance cocaine?
20 The substance sold to the undercover officer was analyzed and the certificate of analysis confirmed that it was cocaine. However, as none of the substance which remained on the table was seized, there was no analysis of it. The appellant says that in the absence of a certificate of analysis, the Crown has not proved that the substance was cocaine. The appellant relies on a passage from this court’s decision in R. v. Grant, 2001 ABCA 252 where an officer’s description of a substance was found to be insufficient proof. The court warned against the danger of permitting lay identification of illegal substances and stated that such practice should not be encouraged. It further observed that if it were to uphold that course of identification, the certificate of analysis practice would be at risk in the future.
21 In our view the fears expressed in Grant are simply not present here. There was an analysis of the substance sold to the undercover officer and it was found to be crack cocaine. It was similar to the routine practice of testing a small sample of a larger amount. In addition the undercover officer testified that the substance he observed on the table appeared to him to be crack cocaine, and that the chip trafficked to him was very similar to those on the table. There was the evidence of known drug users attending the room for short periods of time while the appellant and Santino were in the room. Finally, the expert testified that drugs are often not packaged because users may want different amounts. There was ample evidence on this record to enable the trier of fact to infer that what was left on the table was the same substance. The trial judge made no palpable and overriding error in his conclusion that the substance was cocaine. This ground of appeal is dismissed.
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