Court File and Parties

Date: October 9, 2013 Ontario Court of Justice

Between: Her Majesty the Queen — and — Larry David

Before: Justice M. Greene

Reasons for Judgment released on: October 9, 2013

Counsel: S. Thompson ……………………………………………………………… for the Crown B. Alvares ………………………………………………………………… for Mr. David

Introduction

[1] Mr. Larry David is charged with failing to comply with a recognizance (x4), possession of marihuana and possession of cocaine. In order to prove that Mr. David was in fact in possession of cocaine and marihuana, the Crown sought to introduce into evidence two certificates of an analyst confirming the nature of the substances allegedly seized from Mr. David and from a vehicle alleged to belong to Mr. David. Counsel was served with a notice of intention to admit the two certificates pursuant to section 51 of the Controlled Drug and Substances Act (CDSA) on May 14, 2013.

[2] Counsel for Mr. David does not dispute that the notice was served on May 14, 2013 along with the two certificates. Nor does he take issue with the timing of the notice. Counsel for Mr. David argued, however that the notice provided was inadequate and as such the certificates are inadmissible as proof that the items seized were in fact cocaine and marihuana.

Relevant Legal Principles

[3] Section 51 of the CDSA allows the Crown to prove the nature of drugs seized through a Certificate of an Analyst instead of calling as a witness the person who actually tested the item. Essentially, section 51 of the CDSA provides the Crown with a short cut in proving the nature of the substance seized in drug cases. As section 51 provides the Crown with a shortcut in proving an essential element of the offence, strict compliance with the section is necessary. Nonetheless, as was noted by Justice Durno in R. v. Basi, unreported, October 29, 2010 at paragraph 10, appellate courts have consistently refused to invalidate notices on mere technical objections.

[4] The distinction between a technical objection to the notice as opposed to the adequacy of the notice relates to whether or not the notice served its purpose. In other words, if the notice is sufficiently clear and precise so as to notify the opposing party of what documents the Crown intends to rely on, notice will be considered sufficient and proper. A proper notice must be clear, accurate and provide with some clarity the nature of the documents that the Crown proposes to rely upon. The notice must not be confusing or ambiguous. Ultimately, the notice must be sufficiently clear so that the defendant knows the case he/she has to meet (see R. v. Alderson, [2006] O.J. No. 1899 (O.C.J.), R. v. Henri, [1972] B.C.J. No. 706 (B.C.C.A.) and R. v. Basi, supra.).

[5] Courts have found notices of intention to introduce documents at trial to be confusing where the notice was unclear as to the exact document the Crown sought to adduce into evidence and where the relevant documents were not attached to the notice. In such cases, it has been held that there was no clarity as to which documents the Crown intended to introduce into evidence (see R. v. Marsh, [1974] O.J. No. 2309 (Co.Ct.), R. v. C.S., [1997] O.J. No. 6090 (Prov.Crt.) and R. v. Tran, [1998] O.J. No. 6497 (Prov.Crt.). Notice has also been found to be insufficient where there is a lack of clarity in the notice due to the presence of misleading and/or ambiguous statements within the notice (R. v. Henri, [1972] B.C.J. No. 706 (B.C.C.A.)).

Application to the Case at Bar

[6] In the case at bar, the notice of intention served on May 14, 2013 stated that it related to the case of R. v. Larry Avlon David. It further stated that he was being "notified that this is intended to produce in evidence against you, in the above-noted prosecution, the Certificate(s) of an Analyst, of which that (those) hereto attached is a(are) true copy (copies), as proof of the statements therein contained". The notice further referenced two certificates by their certificate number and that the certificates were attached to the notice. The certificates were in fact attached to the notice and served on counsel for Mr. David.

[7] Counsel for Mr. David argued that the notice document was insufficient because it was confusing and failed to notify Mr. David in which trial these certificates would be used and thereby interfered with his ability to make full answer and defence. Counsel for Mr. David argued that as Mr. David was facing other outstanding charges, the failure to indicate which case these documents related made the notice unclear.

[8] There is evidence that Mr. David was arrested on September 3, 2011 for a number of different charges including possession of cocaine, possession of proceeds of crime and possession of cocaine for the purpose of trafficking. There is also evidence that on September 12, 2011 when Mr. David was arrested on the charges that are presently before the Court, the above noted charges were still outstanding. I note, however, that while there is evidence that as of September, 2012 when Mr. David was arrested on these charges that Mr. David did in fact have other outstanding drug related charges, there is no evidence before the court that on May 14, 2013, when the notices were filed, that those charges were still outstanding. No other evidence was called by counsel to establish that Mr. David had another outstanding charge on May 14, 2013 other than the charges that are presently before the Court. In my view, this absence of evidence undermines the defence position that the CDSA notice filed could be confused for other outstanding charges.

[9] In addition to there being an absence of evidence as to whether Mr. David was in fact facing a second set of charges on May 14, 2013 when the notice was served, there is also, in my view, information in the notice and attached documents that would have made it clear to Mr. David and his counsel to which charges these documents related. In particular, I note that both certificates note the name of the officer that seized the item. This should have provided some guidance to counsel as which charges were in issue. I appreciate that P.C. White was also involved in the arrest from 2011, but the second officer, P.C. Macsteven was not.

[10] Moreover, both certificates included a police seal number to identify the item seized. Both P.C. White and P.C. Macsteven testified at trial and, reading from their notes, recited the seal number as part of their evidence. These numbers corresponded to the seal numbers of the two certificates that were attached to the notice. While I appreciate no evidence was led that counsel in fact received the officer's notes, I am satisfied that I can infer that counsel was in possession of these notes and therefore the seal number, because had the police officers' notes not been provided, I have no doubt that counsel would have raised this with the court. Moreover, counsel referenced the police officers' notes during the course of his cross-examination of the officers. The presence of the seal number on the certificates, therefore, in my view, provide further detail to the defendant as to what charges the notice and the certificates related.

[11] Obviously it would be a better practice for the Crown to include on the notice of intention the charges and trial date that the notice and certificates relate to but I am unable to find that the notices in the case at bar were misleading or confusing. I am satisfied that there is sufficient detail in the notice and the attached certificates for counsel to have figured out to which case these certificate belonged. Firstly, because there is no evidence that on the date of service Mr. David had more than one outstanding charge and secondly, because the content of the certificates made it clear which charges the notice and the certificates related.

[12] The certificates are therefore admissible for proof that the substances seized were cocaine and marihuana.

Released October 9, 2013

Justice Mara Greene