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Regina vs. Smith Part 2

By Hempology | February 6, 2006

THE COURT: Okay. Well, I can understand why quantum ?? quantification would be necessary in that case, but that is not this case, is it?
Extended EMR. MOORE-STEWART: It ?? it ?? it ??

THE COURT: In an amount not greater than three kilos, you are right.
ntry ?(?)?MR. MOORE-STEWART: The ??
THE COURT: You are right.
??????????????ExMR. MOOMR. MOORE-STEWART: — the ?? the issue ??
THE COURT: You are right.
RE-STEWART: In this caMR. MOORE-STEWART: — I ?? I would not concede that it wouldn’t be as ?? just as critical.
THE COURT: Right. No, I’m wrong. I’m wrong. You are right.
Was this the trial judgment at ?? how did ?? is this the same case that Mr. Justice [sic] McKinnon dealt with?
MR. MOORE-STEWART: No.
THE COURT: Different case?
MR. MOORE-STEWART: Different case, same defendant.
THE COURT: Okay. How ?? how did we get this evidence? Dr. Pate. Dr. Pate was the ?? oh Dr. Pate isn’t ??
se it was MR. MOORE-STEWART: There are the expert and ?? or the analyst and Dr. Pate were called in that case I believe. Dr. Pate was called by the defence ??
THE COURT: Oh Dr. Pate was called by the defence.
?? she wasMR. MOORE-STEWART: The analyst was ??
THE COURT: Okay. Do we know anything about the analyst, Mr. Moore-Stewart?
MR. MOORE-STEWART: What? I’m sorry?
THE COURT: Do we know anything about the analyst’s testimony? Doesn’t look like it?
MR. MOORE-STEWART: Oh like whether he came by 51(1) or not?
THE COURT: Right.
MR. MOORE-STEWART: Not unless it says.
THE COURT: There was a cannabis identification operating procedure, Exhibit 4, guideline used by analysts.
charged with cannabis resin, trafficking in cannabis resin in an amount not exceeding three kilograms.
THE Let’s see, certificate of analysis, charged, unlawfully traffic. No, the analyst didn’t testify, Mr. Moore-Stewart. Look at paragraph 2 ??
MR. MOORE-STEWART: Oh.
THE COURT: — the penultimate sentence [as read in]:

The Crown tendered the certificate as evidence. The defence tendered Dr. Pate to examine that certificate and provide what they hoped would be evidence to the contrary.

See we are back to 51(1).
Is there any ?? is there any analogy between an order that the analyst be cross-examined and an order that the informant on a wiretap application be cross-examined?
MR. FOWLER: My Lord, if I may, I would suggest that there is a difference in that Parliament has legislative ?? legislatively created a presumption in the Controlled Drugs and Substances Act as to the validity of the certificate in question in this case. There is no such presumption that rests with a wiretap warrant.
THE COURT: All right, bad analogy.
What do you say, Mr. Moore-Stewart?
COURT: OkMR. MOORE-STEWART: I ?? I’m drawing a bit of a blank on it. I’ll pass.
THE COURT: All right.
MR. FOWLER: My Lord, I ?? I do have one further case that may be of some assistance. I had originally thought of using it for a different purpose, but I think it does actually touch on the issue in question.
It is a decision from our Supreme Court from 1973, again it refers to the sections of the former Narcotic Control Act, but it does on page 2 ?? I’m sorry, I’m not sure of the ?? Justice Hinkson refers to the application under section 9(2), which is essentially the same application that my friend is making today, and indicates how that is to ?? to occur.
THE COURT: Yes, that ?? that looks a bit helpful, Mr. Fowler.
Subsection (2) of 9 of the Narcotic Control Act is the same?
MR. FOWLER: Yes, My Lord, I think substantially, that the wording is almost identical to ??
THE COURT: Right.
MR. FOWLER: — to 51(2) of the current Act.
THE COURT: “Must not and cannot be exercised frivolously.”
Okay. Now, does this ?? do they tell us what reasons the judge gave for refusing to permit cross-examination?
MR. FOWLER: I’m not sure how much detail it goes into, My Lord.
THE COURT: Okay. That ?? it ?? he does explain it. It makes sense, doesn’t it, Mr. Fowler? But that’s not this case. So I’m still left with the question. What is the onus on Mr. Moore-Stewart?
MR. FOWLER: Well, I would suggest, My Lord, and as I said, I don’t think it is an exceptionally high one by any stretch, but there is some onus on him to provide Your Honour with an indication that there is some evidence capable of contradicting, I suppose, what is in the certificate of analyst.
Now he’s made reference to the Dunsdon decision that he has placed before Your Lordship and I ?? I think there is an important distinction between that case as well and the case currently before the court, and ask that ?? in Dunsdon the issue was whether or not the substance could possibly or properly be categorized as cannabis resin or cannabis marihuana. And the obvious differences there are in they are treated in terms of disposition under the Act, in terms in fact of the election that is allowed. If it is cannabis marihuana under a certain amount then it is an absolute jurisdiction offence and the accused has no right to elect a trial by judge and jury, for example.
In this case, however, the substance as particularized, is tetrahydrocannabinol that still falls under the same schedule, but it is not subject to the same limiting conditions in terms of amounts and in terms of the absolute jurisdiction provisions. He’s ?? as long as we have been proceeding with that particularization Mr. Smith has always been at liberty to elect judge and jury. The, I suppose, prejudice or in ?? in the sense the jeopardy he has been in has always been the same, and there is no question that that is going to get any worse certainly should the substance be found to be a different variety of marihuana, if you will, or a different variety of cannabis.
Quite frankly, as I understand it, and I’m not proposing to present myself as an expert and ?? but I think my friend has alluded to this as well, tetrahydrocannabinol or THC, as he has referred to it, is essentially the active ?? as I understand it, the active ingredient in marihuana. It is what creates the high, if you will. So in my submission there is not likely to be in that sense the same kind of issues as in Dunsdon. There is not likely to be much question as to whether this is actually ?? actually cannabis resin versus cannabis marihuana. Even if it were, even if the evidence did disclose that this were cannabis marihuana, I suppose the ?? the accused is not in any worse a position in that sense.
The reason that the ?? in fact if ?? if I have read the entire decision in Dunsdon correctly, the reason that the judge in that case inevitably came to the decision that a stay was appropriate, was because the Crown had sought ?? given that the analyst had been called, and given that the judge wasn’t satisfied that he could tell whether or not this was resin or cannabis marihuana, the Crown had sought the leave to amend the information to simply say cannabis simpliciter, and the problem the trial judge had with that is that amending to cannabis simpliciter again took it out of the category of offences that were the ones prescribed with the lower penalties and the ones that were in the absolute jurisdiction of a Provincial court judge.
So in his decision, in his reasoning, he indicates that what would have happened is there would have been prejudice ?? an undue prejudice on the accused because she would have been deprived of a right to elect judge and jury and she would have been facing a stiffer penalty than she would have had the charge been proved as alleged.
In my submission, that is not the case here. There is no suggestion that Mr. Smith is going to face any undue prejudice by any sort of amendment, and in fact, it would only be to his benefit I suppose.
ay. Well, I can understand why quantum ?? quantification would be necessary in that case, but that is not this case, is it?
cerpt ?(?)MR. MOORE-STEWART: It ?? it ?? it ??
THE COURT: In an amount not greater than three kilos, you are right.
??????????MTHE COURT: Well, just a minute. I don’t understand Mr. Moore-Stewart’s argument to be that limited. These are simply examples of where cross-examination has either occurred and information has been made available on 9(1). I don’t understand Mr. Moore-Stewart to be saying that ?? that he’s saying that the facts in Ms. Dunsdon’s case are the facts here. He says he wants to question the scientific method involved here.
MR. FOWLER: Fair enough, My Lord. It would just be my submission that he ?? he would have to show at least some ?? something based ??
THE COURT: Yes.
R. MOORE-STEWARTMR. FOWLER: — on the facts of this case that warrants that ?? that exploration rather than in fact ??
THE COURT: Right.
MR. FOWLER: — as opposed to making just a fishing expedition, I guess.
THE COURT: Right. That seems to be the problem. Is this ?? is this a legitimate inquiry into ?? into an issue, or is it a fishing expedition to see if there is something? That is what you say?
MR. FOWLER: Exactly, My Lord, yes.
: The ?? MR. MOORE-STEWART: And we say that the ?? the findings of the judges in both of the Dunsdon cases clearly show it is not a fishing expedition. We want to cover a similar, but with its differences ?? a similar sort of inquiry that was so fruitful for the defence in both of those cases. And we think that they establish that it is not frivolous in any sense of the word.
And I do note the ?? I was trying to find it somewhat unsuccessfully, but in the Malmo-Levine case I do remember it was when the Supreme Court was talking about Mr. Malmo-Levine as a self-represented personal defendant and his application in his trial had been to call a number of experts. Mind you they weren’t ?? it wasn’t the analyst in that case, but it was a number of experts and the trial court had decided not to allow him the opportunity. And they were in many ways the same sort of experts that had been allowed to be called, and were called as joint experts by the Crown and the defence in the Caine case and in the Clay case, similar cases in that trilogy.
And they agreed with the B.C. Court of Appeal that where there was ?? where it wasn’t frivolous, where it wasn’t a fishing expedition, that the justice matters should be looked at, and the importance of having the true case that the trier of fact would want, and the evidence the trier of fact would want is of what should be critical importance to the justice system. And I ?? I suggest that those same feelings and those same statements are equally applicable to this.
THE COURT: Okay. Tell me again, what do you want to get from this analyst?

THE COURTMR. MOORE-STEWART: I want to go through the various errors in the procedure that I believe that we’ll be able to introduce through his evidence to prove the conclusions that he came to are not enough to convict. That they are neither quantitative, nor are they sufficient based on the actual testing methods that he did. I want to question the procedures. I want to question the accuracy. I ??
THE COURT: Accuracy of what?
: You areMR. MOORE-STEWART: Of his ?? of his procedures. I want to test ??
THE COURT: Well, are procedures accurate or are conclusions accurate? The procedures may be ??
right.
??MR. MOORE-STEWART: Okay, the ??
THE COURT: — faulty.
??????????MR. MOORE-STEWART: I want to test the faultiness of his procedures and the accuracy of his conclusions. I also ?? as a subsidiary I’m interested in ?? to some degree about contamination and continuity. Contamination ??
THE COURT: Well yes, continuity was one of the issues that Mr. Dannenbaum lost on. What’s the ?? what’s the continuity question. What facts do I have that raises an issue on continuity?
MR. MOORE-STEWART: It is just we are not conceding it at this point, that’s all.
THE COURT: Not good enough, Mr. Moore-Stewart.
??????????MR. MOORE-STEWART: Okay. Well, continuity is a sideline ??
THE COURT: What’s the next one?
?MR. MOORE-STEWART: –MR. MOORE-STEWART: — the ?? we just need to know specifically and exactly what he did and questions about reliability and validity of those procedures.
THE COURT: Okay. Just a moment, Mr. Fowler.
MR. FOWLER: Certainly.
THE COURT: Martin’s doesn’t help me with ?? I can understand. And Dannenbaum looks straightforward to me, I would have come to the same conclusion on those facts, but I don’t think that is what Mr. Moore-Stewart is talking about.
MR. FOWLER: My concern, My Lord ??
THE COURT: Just a moment. Excuse me, I’m sorry, Mr. Fowler.
Mr. Moore-Stewart?
MR. MOORE-STEWART: Yes.
the ?? the issue ??
THE COURT: You are right.
??????????????????????PMR. MOORE-STEWART: — I ?? I would not concede that it wouldn’t be as ?? just as critical.
THE COURT: Right. No, I’m wrong. I’m wrong. You are right.
Was this the trial judgment at ?? how did ?? is this the same case that Mr. Justice [sic] McKinTHE COURT: From what you tell me it seems to me that you may go through a cross-examination of this expert and the expert may give evidence that is going to set out his procedures. You may ask him whether there is another way to do it, he may not accept that, and so what you are going to be left with after all the cross-examination, unless he is confronted with another hypothesis ??
non dealt MR. MOORE-STEWART: Oh ??
THE COURT: — that we won’t gain anything, because all we’ll have is the certificate and the analyst is going to say, “This is what I did. And this is the result I got. And scientifically that is the way it is.”
with?
MR. MR. MOORE-STEWART: I don’t believe that I’ll have any difficulty presenting another hypothesis for various stages of the procedures [indiscernible/overlapping speakers] ??
THE COURT: But if he rejects it where are you?
MR. MOORE-STEWART: Well, we may be able to call evidence in rebuttal.
THE COURT: Well, you don’t ??
MOORE-STEWMR. MOORE-STEWART: Or ?? or be able to ?? to ??
THE COURT: You may call evidence to ?? to contradict ??
ART: No.
THE COURT: DMR. MOORE-STEWART: — or maybe to contradict ??
THE COURT: — that?
ifferent cMR. MOORE-STEWART: Yes. It should be a fruitful ??
THE COURT: We may not be fishing, but we are certainly on the boat.
MR. MOORE-STEWART: Every indication from the case law that I have been reading, the two Dunsdon cases, the Smith case, suggest that there are fruitful areas here for the defence. It is one in three times out of three here.
THE COURT: Yes.
MR. MOORE-STEWART: It is anything but a fishing expedition.
THE COURT: The trouble is they were ??
MR. MOORE-STEWART: It is critical.
THE COURT: — he was already there. How did he get there is what I have to decide.
If we go back to ?? let’s suppose that Dunsdon ?? the facts in Dunsdon were that the accused said to the judge, “This analyst did this. And I have evidence that that’s an erroneous way to proceed and I want to put those two conflicting positions before the trier of fact.”
And so the judge said, “All right, I’m satisfied that you have raised an evidentiary issue here that will have to be resolved by the trier of fact and I’m going to allow cross-examination”, so the cross-examination occurred and bingo that is precisely what came out.
ase?
MR. MOORE-STEWART: Different case, same defendant.
THE COURT: Okay. How ?? But as I understand Mr. Fowler’s resistance to producing this analyst for cross-examination ?? is that why? You know, “Show me that there is an issue that the trier of fact has got to resolve between the methodology of this analysis and the methodology that is more appropriate in the scientific community.”
MR. MOORE-STEWART: The methodology of the analyst in Dunsdon was found faulty.
THE COURT: Yes.
how did wMR. MOORE-STEWART: Both times. Two different analysts, same lab, twice in a row. And it was found critical in Mr. Smith’s case that we should have been able to have the analyst there because of the judicial opinion of the Court of Appeal. And this happened yesterday that they dismissed the case. I don’t have it in front of me. Just the letter from ?? from the Crown and I ??
THE COURT: Well, was that ?? was that a consent dismissal?
MR. FOWLER: It was, My Lord.
THE COURT: Yes, that is not very helpful.
But I have the point. I mean right now it seems to me that the law that is binding upon me is the law in Dunsdon, but the difficulty is that that was dealing with subsection (1) and I’ve got an application under subsection (2).
And the only ?? the only case you’ve given me on this is ?? is Mr. Justice Hinkson’s as ?? when he was a judge of this court that dealt with precisely this issue, right?
MR. FOWLER: I believe so, My Lord, yes.
THE COURT: Okay. The first thing is I can’t decide this frivolously, that ?? the law seems clear on that.
e get thisMR. MOORE-STEWART: Nor unfairly I would think, unfairly to the accused. The criminal justice system is supposed to be all about defending the rights of the accused. To give fair answer and defence and it won’t be allowed, I ?? in fact, if ?? if our application is turned down.
THE COURT: Well, that ?? I don’t think this sets any kind of a precedent because if Mr. Fowler is right, if there is an evidentiary basis, however slim, then you will have crossed that minor threshold, but Mr. Fowler’s position is where is there any indication that there is a conflict that the trier of fact is going to have to resolve?
evidence?MR. MOORE-STEWART: In the Dunsdon ??
THE COURT: And you say ??
Dr. Pate. Dr. Pate wMR. MOORE-STEWART: — in the Dunsdon cases ??
THE COURT: No, no, the Dunsdon case isn’t this case.
as the ?? MR. MOORE-STEWART: No, but ?? but they show by analogy that ?? that it is ?? they show errors in the procedure.
THE COURT: In that case.
oh Dr. PatMR. MOORE-STEWART: In that case. Yes, it is a different case, but they ??
THE COURT: Okay.
MR. MOORE-STEWART: — certainly show that it is not frivolous.
THE COURT: Okay. Show me where in this particular case ??
e isn’t ??MR. MOORE-STEWART: We haven’t had the analyst ??

ost StatusMR.THE COURT: — there is a scientific method ??
MOORE-STEMR. MOORE-STEWART: We haven’t had the analyst to testify about that. That is why if we are ?? if we are deprived of the opportunity to do that, we are deprived of the opportunity of a fair trial just because we can’t do that to the trier of fact.
THE COURT: You see, the trouble with that argument, Mr. Moore-Stewart, seems to me is that in all cases all the defence would have to do is say, “Look, I want to cross-examine”, and the judge would say, “Well, that sounds fair.”
WART: TheMR. MOORE-STEWART: It defends ?? like here we ?? here we have a novel charge, THC. We have the analyst’s procedures taken into serious question in the last three cases and there is the novelty of this procedure. There is the question of, “What does it really mean?” There is the question that there is no quantitative results whatsoever and that could be critical. That was critical in Dunsdon; that could be critical here. The ?? we have no idea about essential issues about contamination that can be entirely real.
THE COURT: Well, Parliament has dealt with that. Show me where there is a possibility of it then you’ll get your order.
re are theMR. MOORE-STEWART: Well, we don’t know ??
THE COURT: That is all I’m asking you do to.
expert anMR. MOORE-STEWART: It’s ?? it’s not ?? okay. I can’t again ??
THE COURT: Show me some evidence.
d ?? or the analyst andMR. MOORE-STEWART: — show you contamination without the expert. Maybe with the expert I can show you that there is a danger that the lab is contaminated enough that THC if they are doing it ?? sensitivity testing that maybe it comes up, they are in a marihuana lab, right. It is quite possible that one testing could contaminate another testing. Depends on perhaps the sensitivity. I do know that some tests can be incredibly sensitive, others not so, that ?? that could be a real issue.
And I can’t again give you the evidence without the analyst here. All I can point out is that it’s a real non-fishing expedition kind of cross-examination that I want to give this fellow.
THE COURT: Have we got the certificates here?
MR. FOWLER: I have copies, My Lord, yes.
THE COURT: May I see one, please?
MR. FOWLER: Certainly.
I would say there are I think ?? I believe a total of 12 of these, but they all essentially say the same thing.
THE COURT: One ?? one ?? one will do, because they are ?? they are generally a standard form, aren’t they, Mr. Fowler?
MR. FOWLER: Yes.
THE COURT: What are we set for, five days?
MR. FOWLER: I believe so, yes, My Lord. We start on the Tuesday of ?? following the long weekend.
THE COURT: Oh, that is a short week?
MR. FOWLER: Yes.
THE COURT: How many witnesses has the Crown got?

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