A Notice of Intention to Produce Certificates is deficient when it does not specifically identify an attached certificate

R. v. Cormier 2013 NBQB 89 – A New Brunswick QB judge has ruled a Notice of Intention to Produce Certificates was deficient at a possession for the purpose of trafficking Trial.  The Saint John, New Brunswick case involved several counts, with one being PPT for cocaine. In the course of trial preparation as it is customary to do, an officer served a Notice as follows:

 

“WHEREAS you have been charged with an offence under Section 5(2) of the Controlled Drugs and Substances Act, I hereby give notice to you pursuant to section 51 of the Controlled Drugs and Substances Act that it is intended to produce at your trial Certificates of an Analyst and true copies of the said certificate are hereto annexed. No. 11 09013 W, No. 11 09017 W, No. 11 09288 W, 11 09014 W.

DATED this 4th day of January, 2012, at the City of Saint John, County of Saint John and Province of New Brunswick.

 

The officer testified at the voir dire that he had prepared that notice and that it also should have referred to another Certificate of Analyst, 11 09015 W; the only one of the analyst’s certificates that related to cocaine.  The officer testified that he gave that certificate with regard to cocaine to the accused with the Notice of Intention to Produce the other numbered certificates. Thus, the Crown argued that in substance and in effect for practical purposes, the accused knew, or should have known, despite the missing numbers and certificate, that the Certificate of Analyst with respect to cocaine was going to be used at his trial.

From the point of view of the defence, even if the certificate with regard to the cocaine had been given among the papers delivered to the accused, there was no reasonable notice in the Notice of Intention to Produce Certificates that that particular certificate with regard to cocaine was intended to be produced at the trial. 
Section 51(3) of the Controlled Drugs and Substances Act states:  “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.”
The NBQB judge referred to several higher level courts in reaching his decision, including Regina v. Henri (1972), 9 C.C.C. (2d) 52R. v. Breen (1975), 12 N.B.R. (2d) 616; R. v. Morrison (1992), 42 N.B.R. (2d) 271; and R. v. Sturgeon (2006), 299 N.B.R. (2d) 264.  Essentially, the judge reiterated the strict requirement that notice be precisely and properly given to take advantage of any procedural shortcut under the Controlled Drugs and Substances Act.  It was his view to be faithful to the time-honoured principle that no one be convicted of a criminal offence without proof beyond a reasonable doubt and strict compliance with any procedural steps.
For these reasons, he said it was his duty to follow the directions of the Court of Appeal and other higher courts in the country and rule that the Notice of Intention to Produce Certificates was deficient as it did not specifically identify an attached certificate with regard to cocaine, Certificate 11 09015 W.

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