Supreme Court of Canada

Oliver et al. v. The Queen, [1981] 2 S.C.R. 240

Date: 1981-10-20

Scott Douglas Oliver, Kirt Harold Oliver and William Henderson Appellants;

and

Her Majesty The Queen Respondent.

1981: June 8; 1981: October 20.

Present: Laskin C.J. and Martland, Ritchie, Dickson, Beetz, Estey, Mclntyre, Chouinard and Lamer JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ALBERTA

Criminal law—Evidence—Charge of illegally importing heroin—Doubt as to the nature of the substance—Details of preparation of standard graph unknown by analyst—“Evidence to the contrary” disproved the effect of analyst’s certificate—Narcotic Control Act, R.S.C. 1970, c. N‑1, ss. 5,9—Criminal Code, R.S.C. 1970, c. C-34 as amended, s. 237.

Appeal—Crowns appeal from acquittal limited to questions of law—Trial judge’s determination as to what procedure the analyst followed is one of fact—Trial judge’s determination must prevail—Criminal Code, R.S.C. 1970, c. C-34, s. 605(1)(a).

Appellants were acquitted of illegally importing a narcotic. The trial judge was not satisfied that the known standard graph on which the whole analysis was based was prepared properly and, as a result, he had some doubt as to the nature of the substance alleged to be heroin. The Court of Appeal allowed the Crown’s appeal and ordered a new trial.

Held: The appeals should be allowed.

There was evidence upon which the trial judge could in law entertain a reasonable doubt as to the identity of the suspect substance. Though a certificate of analysis does create a presumption, the words “evidence to the contrary” in s. 9 of the Narcotic Control Act should not be construed so as to confer upon an analyst’s assertions in a certificate any ultimately greater probative value than when those same assertions are adduced under oath in court. “Evidence to the contrary” is any evidence which tends to put in doubt the probative value Parliament has legislatively conferred upon statements contained in a s. 9 certificate.

R. v. Moreau, [1979] 1 S.C.R. 261, referred to.

[Page 241]

APPEALS from a judgment of the Court of Appeal of Alberta allowing the Crown’s appeal from the acquittal of the appellants on a charge of importing a narcotic. Appeals allowed.

Peter B. Gunn, for the appellant Scott D. Oliver.

Alex Pringle, for the appellant Kirt H. Oliver.

P.G. Lister, for the appellant William Henderson.

J.A. Scollin, Q.C., and S.R. Fainstein, for the respondent.

The judgment of the Court was delivered by

LAMER J.—The appellants were charged with, tried jointly and were acquitted of unlawfully importing a narcotic contrary to s. 5(1) of the Narcotic Control Act, R.S.C. 1970, c. N-l, in the District Court of Alberta, in Edmonton.

The Crown’s appeal of the acquittal to the Alberta Court of Appeal was allowed (Clement and Prowse JJ.A., Moir J.A., dissenting) and a new trial ordered.

The three accused are now before this Court as of right pursuant to the provision of s. 618(2)(a) of the Criminal Code of Canada. At trial the Crown filed certificates of analysis, pursuant to s. 9(1) of the Narcotic Control Act:

9. (1) Subject to this section, a certificate of an analyst stating that he has analyzed or examined a substance and stating the result of his analysis or examination is admissible in evidence in any prosecution for an offence mentioned in subsection 7(1), and in the absence of evidence to the contrary is proof of the statements contained in the certificate without proof of the signature or the official character of the person appearing to have signed the certificate.

It will suffice to reproduce here one of the certificates, the others being essentially identical, any variations being of no relevance when considering the issues raised by these appeals:

[Page 242]

ROYAL CANADIAN MOUNTED POLICE CRIME DETECTION LABORATORIES

CERTIFICATE OF ANALYSIS

I, Anthony Paul Sellar of the city of Edmonton in the Province of Alberta, being a person designated as an analyst by the Governor in Council for the purpose of the Narcotic Control Act, being Chapter N-l of the Revised Statutes of Canada, 1970, as amended, DO HEREBY CERTIFY:

THAT, on the 28th day of January 1977, at Edmonton in the Province of Alberta there was produced to me by Corporal R.J. Williams, Edmonton, Alberta, one sealed brown envelope containing one plastic bag containing a second plastic bag containing a white powder which bore the following markings:

(a) On the said envelope:

“RJW

27-1-77

A”

THAT I marked the said envelope:

“APS 77E-566 Jan 28/77”

THAT I performed a chemical analysis on white powder contained inside the said inner plastic bag, and found it to contain Diacetylmorphine (heroin).

I FURTHER CERTIFY that this Certificate of Analysis is true to the best of my skill and knowledge.

Dated this 16th day of February 1977 at Edmonton in the Province of Alberta.

LAB. FILE NO. 77E-566

(signed) A.P. Sellar ANALYST

The appellants with leave of the trial court cross-examined the analyst. He described the procedure that is generally followed, which comprises five steps, in the following terms:

The combined effect of the first three tests was to narrow the identity of the substance but, even taken collectively, they do not result in a specific test for heroin; and the fourth test is used to quantify the amount of the suspect substance, and only the fifth test was specific to the substance analysed; as regards the fifth test, the substance is placed in a machine which produces a graph.

[Page 243]

What is then done, once this graph is obtained, was described by the analyst as follows:

Q. Well, I presume when you get a graph out of that machine, you in fact compare it to another graph from what you would call a known standard, is that correct?

A. Yes, sir.

Q. And that known standard graph is obtained where?

A. The samples of material that we use as standards, are provided to us by the Health Protection Branch in Ottawa, and tests are run on these particular samples to refer the graphs obtained with literature values to prove their authenticity.

Then, as regards the procedure followed in the present case once the graph was obtained, he testified as follows:

Q. Did you do an analysis of the standard of the graph of which you compared to these?

A. At that time I did not run a standard, no, not on the infrared test.

Q. To be clear, when you were given, or obtained, in either case, the graph, the four graphs resulting from the four infrared tests done in this case, what precisely did you do with them?

A. I compared them to a graph of heroin that was done prior, of the heroin standard, pardon me, obtained from Ottawa.

Q. Who did that analysis, do you know?

A. No, sir.

Q. You don’t know when it was done?

A. Well, it is done periodically, any time a new batch comes in. I believe the standard samples, or standard graphs that are used right now have been run by myself.

Q. Right now?

A. The ones they are using now, yes, sir.

Q. But at this time you don’t know who it was?

A. No, sir.

Q. Did you compare it to anything else? A. Not at that time, no.

(My underlining.)

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The description by the analyst of the procedure usually followed is, to me, clear. There is however some ambiguity as to the procedure in the present case when one considers the passage of the analyst’s testimony which I have underlined. Indeed one could read that passage, as we will see did the Court of Appeal, as indicating that what he compared the graph to was a graph done on heroin in Ottawa and then sent by Ottawa to his laboratory in Edmonton, and not, as the usual procedure he described, to a graph prepared in his laboratory in Edmonton on heroin obtained from Ottawa.

The trial judge, in his reasons, said:

In this case we don’t know anything about the substance that was sent from Ottawa, nor do we know who prepared that standard chart in Edmonton.

The Court I think is entitled to look at the expertise of the analyst and to determine whether or not he in fact performed his duties properly and that as a result of the tests which he performed, whether his opinion is correct. Here I think the weakness in the analysis is in that chart to which the analyst compared the chart from the substance before the Court. We know nothing about that chart. The witness did not prepare it, nor did he apparently know who prepared it.

On the basis of that chart I’m satisfied that the substance is heroin, but the difficulty I have is whether that original chart was one in fact of heroin and who prepared it and other matters relating to proof of that standard chart.

The whole analysis, as I understand the evidence of the analyst, is based upon that standard chart. If that standard chart is not correct in any way, then obviously the results of the tests are faulty. Here I’m not suggesting for a moment that the standard chart was faulty, but what I am saying is that without proof of somebody having prepared that from the known substance being produced before the Court, then that standard chart has not been satisfactorily proven before me.

The result is that I come to the conclusion that I have some doubt as to the nature of the substance, and as such the accused are entitled to be acquitted.

Notwithstanding the aforementioned ambiguity as to the procedure actually followed, which in my

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opinion is very slight when one reads the passage in context, a reading of the trial judge’s reasons indicates that the trial judge resolved the problem, if any, by making two determinations of fact: one as regards the procedure usually followed in that laboratory, and one as regards the procedure followed in the present case.

As determined by the trial judge, the procedure usually followed by the analyst is that the substance obtained from the Health Protection Branch in Ottawa, and which is expected to be heroin, is run through the laboratory’s infrared spectrophotometric machine to obtain a graph which is then compared to known acceptable “literature values” in order to ascertain that the substance received from Ottawa was in fact heroin and, if so, to then have a working standard graph from the machine. Once a standard graph is so obtained, the graphs of suspect substances are then compared to this standard for the purpose of ascertaining whether the suspect substance is or is not heroin.

As regards the present case, the judge determined that what the analyst compared the graph to was a graph the analyst assumed had been prepared in Edmonton in the usual manner on heroin obtained from Ottawa, and not, as could have well been the trial judge’s finding when considering part of the analyst’s testimony, to a graph obtained from Ottawa.

Also, as the witness had not prepared nor had he overseen the preparation of the standard graph nor did he even know who had done so, all he could testify to, as a result, was that the graph of the suspect substance indicated that it was heroin but only if and to the extent the substance used to prepare the standard graph was itself heroin, a factual prerequisite he could not personally affirm.

The reliability of the fifth test having been put in some doubt, there was an attempt on the part of the Crown in the course of a re-examination to have the expert establish the presence of heroin through the first four tests:

[Page 246]

Q. Now we have gone into a lot of similarities, and ups and downs and waves and all the rest of it. I don’t really follow it too much, I just got a B.A. Maybe you can explain to us all, like myself, and I may be the only one here that doesn’t understand it, so perhaps you can explain how you came to the conclusion that it was diacetylmorphine heroin?

A. By the performance of the tests done.

Q. Well, how did all the tests relate together, can you explain that?

A. Well, when you start off with a Marquis Test, the colour test, if you have a purplish colour, it generally indicates that an opiate may be present, not exclusively, but there would be an opiate suggested.

The second test would be to run an ultra-violet spectrophotometric test. In this particular instance with all four exhibits I did not get a U.V., or ultraviolet scan consistent with heroin. It was more consistent with caffeine. Because of the presence of caffeine that was indicated, I then had to isolate the heroin from the compound, and identify it separate from the caffeine.

Q. So what did you do?

A. This is when I did a column chromatographic procedure, where I would separate basic drugs, such as heroin, from neutral drugs, such as caffeine. The basic extract was then examined by infrared spectrophotometry.

Q. And from your performance of the test—how often had you used this infrared test before?

A. How many times have I used it?

Q. Yes?

A. I believe that model has been there most of the time that I have been using infrared, so maybe a couple of years that that particular model of instrument would be there. So it would be 50 to 100 times both with respect to heroin and with respect to other drugs.

Q. Did you have any difficulty in interpreting the charts that you obtained?

A. Not with these particular ones, no, sir.

And later on said:

Q. Did you do that with the samples you have before the Court today?

A. I did compare them to the standard spectrum, yes.

Q. In your opinion what is the drugs we have here?

A. Diacetylmorphine heroin was indicated in all four exhibits.

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Q. Did you have any difficulty coming to that conclusion?

A. No, sir. Infrared is used by our laboratory as a confirmation test, but because of the other tests that were performed prior to the infrared, we have a very great indication that heroin is indeed present, and we expect it to react the way it did.

Q. So there was no surprise.

A. No, sir.

At best, the conclusion that could be drawn from the first four tests is the strong probability of the presence of “basic drugs”, but which could only be said to be heroin once subjected to infrared spectrophotometry. In passing it should be noted that there was no attempt on the part of the Crown to obtain an adjournment for the purpose of perfecting the infrared spectrophotometric test done on the suspect substance which was being challenged. The Crown, as was its right, preferred relying on the certificate and to argue a limited interpretation as to what may constitute “evidence to the contrary”.

In the Court of Appeal all three judges predicated their opinion on the assumption that what the analyst in Edmonton compared the graphs of suspect material to was a graph of heroin prepared in Ottawa. Prowse J.A. then said:

I see no reason why a reference standard prepared by the Department designated by the Parliament of Canada to administer the relevant legislation relating to drugs and narcotics should not be accepted by the Courts, in the absence of evidence to the contrary, as a proper reference standard for determining the nature of a substance falling within such acts. No attack was made on the standard and no evidence was adduced which would raise a doubt as to its accuracy. In fact, as soon as the defence inadvertently strayed into an area where the analyst was about to point out the difference between a heroin and cocaine chart the questioning abruptly changed course.

He then concluded that the appeal should be allowed and a new trial ordered.

Moir J.A. took the view that the Crown was relying on hearsay:

…as the control graph was made up by some unknown person in some unidentified department in Ottawa using some unidentified substance…

and would have dismissed the appeal.

[Page 248]

Clement J.A. dealt with the issue as follows:

No evidence was tendered that the substance was not heroin or other narcotic falling within the indictment. What must be examined is the evidence of Sellar to determine whether it can sustain a reasonable doubt on the accuracy of the prima facie case: that is to say, did it sufficiently rebut the fact of which the certificate was prima facie proof, namely that the substance with which the respondents were charged with importing was a narcotic, viz. heroin.

He then analysed the evidence and concluded:

In the end, Sellar affirmed his conclusion that the substance he analyzed contained heroin. I find nothing in the evidence which could support a reasonable doubt on this conclusion. I would allow the appeal and vacate the acquittal.

I am in agreement with Mr. Justice Prowse that a new trial must be ordered.

With deference, I do not think that the issue dealt with by Prowse and Moir JJ.A. in the Court of Appeal arises. Indeed, as this was an appeal to their Court by the Crown, the issues of law that could be considered were those that arose from the facts as they had been determined by the trial judge. The determination as to what procedure the analyst followed is one of fact and can only be set aside pursuant to an appeal by the Crown when, as a matter of law, there is no evidence upon which the determination arrived at could reasonably have been predicated.

Such is not the present case.

As said earlier, the trial judge determined that the analyst compared his graph to a graph he the analyst assumed had been prepared in his laboratory; the judges in the Court of Appeal, either because they thought the trial judge had determined otherwise or because they made their own determination on that point of fact, dealt with the appeal as if the analyst had compared his graph of the suspect substance to a graph sent to his laboratory by Ottawa. The trial judge’s determination, whether we agree with it or not (and with which in passing I might say I agree), must prevail, as the

[Page 249]

Court of Appeal was, on an appeal by the Crown from an acquittal, limited to entertaining questions of law alone (s. 605(1)(a)).

As a result the question whether an analyst need verify a standard of some official character furnished by the government in Ottawa before relying on it to draw a conclusion with respect to suspect substances does not arise; and neither arises the question whether evidence that he did not so verify the Ottawa graph may or may not be, as a question of law, “evidence to the contrary”, as those words are meant in s. 9 of the Narcotic Control Act.

Indeed, as said earlier, the trial judge had determined that what the analyst compared the graph of the suspect substance to was not, as assumed by the Court of Appeal, a graph prepared in Ottawa, but was a graph the analyst assumed had been prepared from a substance received from Ottawa. Having so determined, the judge, at the trial’s end, had before him evidence tendered by the analyst that his opinion, as stated both in Court and in his Certificate, was founded on an assumption on the analyst’s part that the chart had been prepared by someone qualified, having followed acceptable procedure and on a substance that was in fact heroin.

The issue before the Court of Appeal was whether there was some evidence upon which the trial judge could in law entertain, as he did, a reasonable doubt as to the fact that the suspect substance was heroin. When considering only the analyst’s opinion evidence given in court, in my opinion there clearly was.

As the Crown had relied on the presumption enjoyed by the analyst’s certificate, the only remaining question was whether evidence of the fact that he predicated his certificate on such an assumption could be “evidence to the contrary”, as those words are intended in s. 9.I think so.

“Evidence to the contrary” is any evidence which tends to put in doubt the probative value Parliament has legislatively conferred upon the statements contained in a s. 9 certificate. This

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evidence may be in regard to the analyst himself, his qualifications, integrity, or in regard of the procedures he followed to draw his conclusions. Section 9 has been enacted to dispense with the calling of experts to testify in cases where the nature of the suspect substance is not really in issue. Though, at the outset, a certificate does create a presumption, the words “evidence to the contrary” should not be construed so as to confer upon an analyst’s assertions in a certificate any ultimate greater probative value than when those same assertions are adduced under oath in court.

“Evidence to the contrary”, as regards an analyst’s conclusions set out in a certificate, as those words are meant in s. 9, is any evidence upon which a trier of fact could as a matter of law rest a reasonable doubt as to that analyst’s conclusions had he testified as an expert witness in court.

By inserting the words “and in the absence of evidence to the contrary” in s. 9, Parliament has done no more than spell out, as regards s. 9 certificate evidence, what is in fact the law as regards opinion evidence adduced in the traditional way, indeed as regards any evidence, namely, that a trier of fact cannot arbitrarily set aside lawful evidence, that is, not unless there is some evidence to the contrary upon which his so doing may, as a matter of law, be predicated.

We have been invited by respondent to consider numerous pronouncements. by courts and more particularly by this Court concerning the meaning of the words “evidence to the contrary” in s. 237 of the Criminal Code, which deals with the analysis of breath, blood or urine, of motor vehicle drivers.

Those pronouncements are unfortunately of little help to us in dealing with what we are concerned with here. True one does see that at s. 237(1)(c) and (c.1) Parliament has used language analogous to that of s. 9 of the Narcotic Control Act. However, Parliament has gone much further and spelt throughout s. 237 the procedures

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to be followed and the types of approved instruments to be used when proceeding to the taking of samples and the analysis thereof.

By enacting s. 237 Parliament has set up, to use the words of my brother Beetz J., in R. v. Moreau[^1], at p. 272, an elaborate legislative scheme which

…contemplates and provides for elements of positive certainty such as the official approval of certain kinds of instruments, the designation of analysts and qualified technicians, a maximum time period between the commission of the alleged offence and the taking of a breath sample, and the reading by a qualified technician on an approved instrument of a proportion of alcohol in the blood in excess of a specified proportion. Once the conditions prescribed or contemplated by this scheme are fulfilled, a presumption arises against the alleged offender which he can rebut by tendering “evidence to the contrary”.

Indeed the scheme contemplates all kinds of evidentiary short cuts and confers upon various sorts of certificates special probative value which then is further buttressed by presumptions created by the different scientific analyses; but these presumptions operate only if the analyst and other persons involved in the process followed the elaborate procedures, and used the approved apparatus required under s. 237. As a result, what may or may not be “evidence to the contrary” under s. 237 of the Criminal Code is to be determined in the light of that elaborate legislative scheme. Under the Narcotic Control Act the expert is in no way told how to proceed nor is he told to use specifically approved material in the exercise of his art, if his conclusions are to enjoy special probative value. What may or may not be “evidence to the contrary” under one or the other offence must be determined in the light of that difference. The difference of approach by Parliament to the evidentiary problems under s. 237 of the Criminal Code and crimes under the Narcotic Control Act no doubt reflects a recognition by Parliament of the disparity as to the seriousness between the two types of offences and the disparity in the consequences of a conviction under s. 237 of the Criminal Code (usually a fine and some curtailment of one’s driving privileges) and that under s. 5 of the

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Narcotic Control Act which carries a possible term of life imprisonment and, in any event, a minimum sentence of seven years.

I am therefore of the view that there was, as a matter of law, “evidence to the contrary”, upon which the trial judge could entertain a doubt as to the probative value of the certificate’s statement that the substance was heroin; as a result there was, in my view, when considering all of the evidence, parol and certificate, some evidence upon which the judge could have, as he did, a reasonable doubt as to that fact and acquit.

I would allow the appeals of all three appellants, quash the order for a new trial and restore the acquittals.

Appeals allowed.

Solicitors for the appellant Scott D. Oliver: Gunn & Company, Edmonton.

Solicitors for the appellant Kirt H. Oliver: Pringle, Brimacombe, Edmonton.

Solicitor for the appellant William Henderson: Philip G. Lister, Edmonton.

Solicitor for the respondent: R. Tassé, Ottawa.

[^1]: [1979] 1 S.C.R. 261.