Court File and Parties
Court File No.: St. Catharines - 2111-998-14-N0492-00 Date: 2014-10-21 Ontario Court of Justice
Between: Her Majesty the Queen — and — Olivia Morgante
Before: Justice D.A. Harris
Heard on: August 29, 2014 Ruling delivered on: October 21, 2014
Counsel:
- D. Anger for the Crown
- D. Hurren for the accused, Olivia Morgante
Ruling
HARRIS J.:
[1] Olivia Morgante is charged with trafficking in a Fentanyl Patch contrary to section 5(3)(a) of the Controlled Drugs and Substances Act.
[2] This is an indictable offence.
[3] Ms. Morgante elected to be tried in the Ontario Court of Justice and pled not guilty.
[4] Mr. Hurren is now, and was at all material times, the lawyer representing her with respect to this charge.
[5] Witnesses for the prosecution have testified that Ms. Morgante went to the Niagara Detention Centre to visit Andrew Gravelle who was a prisoner there.
[6] She told Correctional Officer Dimarcantone that she had three government forms for Mr. Gravelle to sign. She gave the forms to Officer Dimarcantone for inspection. He saw a clear plastic patch attached to one of the forms. He suspected that this might be some form of contraband, possibly a drug. His manager became involved and the Niagara Regional Police were called. The forms and the patch were turned over to Constable Zenga. The patch was subsequently sent off for analysis.
[7] Counsel told me that it was agreed that a certificate of an analyst and a notice of intention to produce that certificate in evidence were served on Mr. Singh, another local criminal defence lawyer who was appearing in a "set-date court" as the agent of Mr. Hurren on behalf of Ms. Morgante.
[8] I have been informed that somehow (the details were never provided to me), these documents were never received by Mr. Hurren.
[9] He has argued that, since he did not actually receive the documents, he was not "given" a copy of the certificate or notice of the prosecutor's intention to produce that certificate in evidence as required by section 51(3) of the Controlled Drugs and Substances Act.
[10] The Federal Prosecutor argued that service of the documents on Mr. Hurren's agent had the same effect as service upon Mr. Hurren himself and that the fact that the agent failed to deliver the documents to Mr. Hurren was irrelevant.
[11] I agree.
[12] Section 51 of the Controlled Drugs and Substances Act states:
- (1) Subject to this section, a certificate or report prepared by an analyst under subsection 45(2) is admissible in evidence in any prosecution for an offence under this Act or the regulations or any other Act of Parliament and, in the absence of evidence to the contrary, is proof of the statements set out in the certificate or report, without proof of the signature or official character of the person appearing to have signed it. (2) The party against whom a certificate or report of an analyst is produced under subsection (1) may, with leave of the court, require the attendance of the analyst for the purpose of cross-examination. (3) Unless the court otherwise orders, no certificate or report shall be received in evidence under subsection (1) unless the party intending to produce it has, before its production at trial, given to the party against whom it is intended to be produced reasonable notice of that intention, together with a copy of the certificate or report.
[13] Section 45(2) refers to a certificate prepared by an analyst stating that the analyst has analyzed a substance and setting out the results of the analysis.
[14] The wording of section 51(3) is almost identical to that in section 258(7) of the Criminal Code which deals with the need for notice before certificates may be received in evidence in drinking and driving cases.
[15] That is pertinent here because some of the cases I am about to refer to dealt with the Criminal Code provision rather than with section 51 itself.
[16] The cases clearly establish that the Crown must prove the giving of reasonable notice on a balance of probabilities and not beyond a reasonable doubt.[^1]
[17] The cases also make it clear that notice may be given to counsel[^2] or to counsel's representative[^3]. The latter includes a law student appearing to fix a date,[^4] but does not include a receptionist in the lawyer's office unless there is evidence proving that the receptionist was authorized to accept service of the documents.[^5] That distinction makes sense when one considers that the law student was acting as an agent whereas the receptionist was not.
[18] I have no hesitation in finding that service of the documents upon Mr. Singh while he was appearing as the agent of Mr. Hurren on behalf of Ms. Morgante was equal to service of those documents upon Mr. Hurren or even to service upon Ms. Morgante herself.
[19] The validity of that service was not affected in any way by the fact that the documents, for whatever reason, did not get to Mr. Hurren.
[20] I find that this situation is no different than if the documents were served on Ms. Morgante and she failed, for whatever reason, to pass them on to Mr. Hurren.
[21] If Mr. Hurren was caught by surprise at trial as a result of the documents not being received by him personally before trial, the remedy would be to grant him an adjournment so that he might have time to review the documents before proceeding further with the trial.
[22] That adjournment has already occurred, albeit for the purpose of allowing me sufficient time to prepare this ruling.
[23] In all of the circumstances, the certificate of the analyst will be received in evidence.
Released: October 21, 2014
Signed: "Justice D.A. Harris"
Justice D.A. Harris
Footnotes
[^1]: R. v. Mackinnon, [2003] O.J. No. 3896 (Ont. C.A.) at para. 2. See also R. v. Basri, [2011] O.J. No. 30 (Ont. S.C.J.), a summary conviction appeal decided by Durno J. at para. 8 and R. v. Oslowski, 2006 ONCJ 488, [2006] O.J. No. 5036 (Ont. C.J.) per Duncan J. at para. 31.
[^2]: R. v. Flett, [1970] B.C.J. No. 553 (B.C.C.A.) at para. 5; R. v. Zinek, [1971] A.J. No. 44 (Alta. C.A.) at para. 11.
[^3]: R. v. Meyer, [1973] B.C.J. No. 768 (B.C.C.A.) at para. 14; R. v. Oslowski, supra at para. 32; R. v. Driffield, [2011] O.J. No. 5329 (Ont. C.J.) per Feldman J. at para. 25.
[^4]: R. v. Meyer, supra.
[^5]: R. v. Yonis, [2009] A.J. No. 1104 (Alta. C.A.) at paras. 12 to 14.