IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           Niklas Knudsen has been charged with 5 counts of possession and possession for the purposes of trafficking in various controlled substances.  Two of the counts for which he is charged include fentanyl.  The Crown has produced Certificates of Analysis with respect to those two counts by which it asserts proof that the drugs tested did in fact contain fentanyl.

[2]           Mr. Knudsen is applying for production of the documents underlying the Certificates of Analysis and which led to the brief opinions expressed therein.  Specifically, Mr. Knudsen is requesting production of all lab notes, case file reports, or hand written notes, including the testing folder, specific to the test performed to produce the Certificate of Analysis in this case and all reports produced by the Gas Chromatograph with regard to the tests performed to produce the Certificate.

[3]           The Crown takes no position on this application.  However, the requested records are not in the possession of the Crown but are in fact in the possession of Health Canada, which conducted the testing of the substances for the police.  Health Canada opposes the application.

[4]           The evidence relied on in support of the application is limited to an affidavit that attaches two Certificates of Analyst were prepared by Dan Kerry on December 19 and 22, 2017.  Both Certificates state that Mr. Kerry tested the substances provided to him and that each contained fentanyl.  One of the substances also contained heroin and a derivative of fentanyl, namely 4-Anilino-N-phenethylpiperdine.  The other substance tested also contained methamphetamine.  Neither Certificate includes any quantitative analysis such as to indicate the amount or percentage of fentanyl contained in the substance.  The analysis is qualitative only.

[5]           Mr. Knudsen submits that in order to determine the accuracy of the analysis underlying the opinions expressed in the Certificates, he needs to be able to examine the requested documents with his own independent forensic toxicologist.  Moreover, because the BC Court of Appeal has recently set out a higher range of sentencing for trafficking offences relating to fentanyl in R. v. Smith 2017 BCCA 112, this may give rise to an issue as to the concentration of fentanyl in the substance possessed.  Mr. Knudsen suggests that the concentration level may be relevant in determining whether the substance had become contaminated by fentanyl, which has become prevalent in the illicit drug system.  By that, I understand Mr. Knudsen to be saying that if the concentration level of fentanyl contained in the substance is found to be so minute, an argument may arise at the sentencing stage that he could not have been aware that the substance contained fentanyl as it is likely only present through contamination.

[6]           Mr. Knudsen and Health Canada agree that the records sought are in the possession of a third party and as such, are governed by the regime described in R. v. O’Connor 1995 CanLII 51 (SCC), [1995] S.C.J. No. 98.  Crown entities other than the prosecuting Crown are third parties and subject to O’Connor: R. v. Gubbins 2018 SCC 44, para 20.

[7]           In a third party disclosure application, O’Connor places the burden on the accused to show that the record is “likely relevant”.  Where the accused discharges that burden, the judge will then examine the record to determine whether, and to what extent, it should be produced to the accused.  These thresholds were described in Gubbins as follows:

[8]           While the threshold of “likely relevance” is not onerous, the accused does have to establish the likely relevance of the disclosure beyond mere speculation: R. v. Baker 2017 BCSC 997 at para 42; Gubbins at para 140.

[9]           In addition to engaging the O’Connor disclosure regime, this application is also governed by s. 51(1) of the Controlled Drugs and Substances Act (“CDSA”) which states:

[10]        This section creates a rebuttable presumption that the Certificate is admissible in evidence and, in the absence of proof to the contrary, is proof of the existence of the substance asserted in the Certificate, following an analysis contemplated in s. 45(2). 

[11]        At its core, the application before the court requires a consideration of the interplay between the O’Connor regime and s. 51(1) of the CDSA.

[12]        Mr. Knudsen says that given the brevity of the Certificates, it is impossible for him to ascertain whether there is a basis to challenge the opinions expressed in the Certificates, without first seeing the underlying documents that formed the opinions.  He further says that the documents are necessary in order to have a quantitative analysis done on the substances to address the Crown’s proof of the underlying offence and the range of potential sentence.

[13]        Health Canada argues, both under O’Connor and s. 51(1), that Mr. Knudsen must not only establish likely relevance, but must also adduce an evidentiary basis for a challenge to the accuracy of the of the Certificates.  As to the latter aspect, it says that Mr. Knudsen has not provided such evidence in the affidavit which was filed in support of this application.  Health Canada also submits that a finding that the requested documents are producible would further impose an unreasonable burden on Health Canada due to the volume of similar records at risk of production in other cases before the courts.

[14]        Section 51(1) was enacted to dispense with the calling of experts to testify in cases where the nature of the substance is not really in issue: R. v. Oliver (1981) 1981 CanLII 204 (SCC), 62 C.C.C. (2d) 97 (SCC) at p. 105.

[15]        An accused is required to obtain leave of the court to require the analyst that prepared a certificate to attend the trial for purposes of cross-examination in accordance with subsection 51(2).  Health Canada asserts that the leave requirement contained in ss. 51(2) is analogous to the discretion that ought to be exercised in determining whether to require production of records.  That discretion was described by the Alberta Court of Appeal in R. v. Davis 1983 ABCA 15 (CanLII), [1983] A.J. No. 120, 4 C.C.C. (3d) 53 at paras 8-9 as follows:

[16]        In my view however, while no doubt similar, the considerations on such a leave application, which relate to the expediency issue and limiting the need to call experts at trial, are not precisely the same considerations that arise on an application such as the present one, where only documents are sought.  Indeed, it seems to me that the mischief sought to be remedied by s. 51(1), as described in Oliver, is not similarly engaged in the present application.

[17]        The question nonetheless arises as to whether the accused is required to establish on an evidentiary basis that there is cause to doubt the accuracy of the Certificates in order to succeed on this application.  In that regard, Mr. Knudsen and Health Canada rely on two seemingly contradictory cases. 

[18]        Mr. Knudsen relies on the case of R. v. Koumoutsidis 2017 BCSC 2129.  In that case, the accused sought disclosure of the worksheet packages prepared by Health Canada in relation to the exhibits it received for analysis.  The application in that case is virtually identical to the present application. 

[19]        At the time of bringing the application, the accused had retained an expert for the purpose of evaluating the analysis conducted by Health Canada.  However, the accused had not filed an affidavit from his expert or any other supporting material explaining the likely relevance of the Health Canada records.  As in the present case, the accused said that he was in a Catch-22 position of not being able to provide a basis for the application without first receiving some minimal level of disclosure.

[20]        The court noted that there did not appear to be any previous reported cases dealing directly with disclosure of analyst records from Health Canada labs but that cases from the impaired driving context may be somewhat helpful because that regime has a rebuttable presumption similar to the CDSA in s. 258 of the Criminal Code.  However, the court also noted that the certificates provided in an impaired driving case provide more information than the certificates provided under the CDSA, thus providing some support to the Catch-22 argument advanced by the accused.

[21]        The court then concluded that the documents should be disclosed.  In reaching that conclusion the court said at para 31:

[22]        And at paras 34 and 36:

[23]        Health Canada seeks to distinguish Koumoutsidis partly on the basis that the accused had retained an expert by the time of bringing his application, whereas Mr. Knudsen in the present case has not.  It further says that in Koumoutsidis the judge did not consider the impact of s. 51(1) on the O’Connor test.

[24]        Health Canada relies on the Ontario case of R. v. Moore (June 1, 2018) Toronto 17-15997031.  In that case, the accused sought an order that the Crown provide “a proper scientific report that tells a sufficiently coherent story of the analytical chemistry, or to inform the court that such a report does not exist”.  The court declined to order disclosure of the documents sought, as the application did not meet the test of “likely relevant”, nor did it overcome the presumption in s. 51(1) of the CDSA. 

[25]        The court held that the application must be accompanied by affidavit evidence, which establishes to the court’s satisfaction that the information sought is likely to be relevant.  The applicant had not done so.  The court referred to the court’s gatekeeper function and that the courts should screen these applications in an effort to prevent the defence from engaging in speculative, fanciful, disruptive, unmeritorious, obstructive or time consuming requests for production.  While the court stated that it was sympathetic to the position of the defence, to accede to the application for disclosure would undermine the express statutory presumption in s. 51(1) of the CDSA.

[26]        It is difficult to reconcile Koumoutsidis and Moore, the latter of which referred to Koumoutsidis and declined to follow it.

[27]        In my view, the more persuasive authority for this court is Koumoutsidis.  I say that because that decision comes from a British Columbia court and from a superior court, neither of which apply to Moore.  The principle of stare decisis compels me to that reach that conclusion. 

[28]        Furthermore, I am not convinced that the judge in Koumoutsidis did not consider the import of s. 51(1) in reaching his conclusion since that section was expressly referred to in the decision, although its interplay with O’Connor not clearly explained. 

[29]        I am also not persuaded that Koumoutsidis is otherwise distinguishable from the case at bar.  While in Koumoutsidis the accused had already retained an expert at the time of the application, I do not see the failure to do so in the present case as being fatal to this application.  Mr. Knudsen has indicated that he intends to retain an expert to review any records that are produced by this application and he should not be faulted for not having done so before even learning whether the present application is successful.  In addition, the submissions made by Mr. Knudsen in relation to the significance of fentanyl being found in the substances, as that issue relates to both the gravamen of the offences and to the sentencing range, persuades me that the “likely relevant” threshold has been met. 

[30]        Health Canada points out that Smith states that ignorance of the makeup of illicit drugs an offender is selling is not a mitigating factor on sentencing.  It further says that there is no legal precedent to support the assertion that the proportion of fentanyl, as opposed to the presence of fentanyl, affects the range of sentence.  While I accept both of those propositions as accurate, I am also not aware of any precedent that asserts that the proportion of fentanyl will not affect the range of sentence.  In my view, Mr. Knudsen is entitled to explore that avenue of inquiry.

[31]        The documents sought by Mr. Knudsen are limited in scope and, when combined with the skeletal information contained in the Certificates, I find that, as in Koumoutsidis, it is appropriate to order disclosure of the documents sought.  In reaching this conclusion, I do not believe that this would impose an unreasonable burden on Health Canada.  I do not mean to suggest that a similar application in every drug case would meet the necessary threshold, but in this case I am satisfied that it has.  In any event, the burden on Health Canada needs to be balanced against an accused’s right to make full answer in defence.  The burden imposed on Health Canada by this decision is minimal.

[32]        I turn next to the second stage of the O’Connor application process.  That is a balancing of the effects of production as between the parties, being Health Canada and Mr. Knudsen.  Health Canada asserts an interest in limiting resources that it expends on producing records such as those sought on this application.  It does not assert any right of privacy over the documents.  The accused’s interest is, of course, in being able to make full answer and defence by production of the documents.  In borderline cases, the court should err on the side of production of the documents to the court: O’Connor, para 152.

[33]        In this case, since Health Canada has conceded that no privacy interests are engaged, and there is no suggestion that the documents in this particular case are voluminous or would place an excessive burden on it or the court in reviewing the documents.  I am satisfied that an order for disclosure of the documents to the court is appropriate.

[34]        As such, there will be an order that counsel for Health Canada provide copies of the following records to the court: all lab notes, case file reports, or hand written notes including the testing folder, specific to the test performed to produce the Certificates of Analysis, and all reports produced by the Gas Chromatograph with regard to the tests performed to produce the Certificates.  Counsel may first review the records for safety, security, and privilege concerns and make any redactions they may feel appropriate before providing them to the court.  Once the court makes a determination of whether the documents are actually relevant, copies of the relevant documents will be provided to Mr. Knudsen.