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Regina vs. SMITH Part 8
By Hempology | February 6, 2006
kilograms. And in that sense I think there is some surplusage in that it doesn’t really add anything to the count.
If I suppose if if somehow the Crown were to allege that there were three you know, a dozen pounds of marihuana then that might be a problem if we had alleged less than three kilograms, but that’s not the situation.
THE COURT: All right.
Anything else, gentlemen?
All right. Would you ask the jury to come in, please?
THE SHERIFF: Yes, My Lord.
(JURY IN)
THE COURT: Please be seated.
All right. Members of the jury, I have two questions from you. The first one is, “What is the definition in law of the word “trafficking”?”
These are the kind of questions that the final charge I give you will answer, but since you’ve asked I’m going to tell you right now.
And the definition is found in section 5 of the Controlled Drugs and Substances Act of this country. And subsection (2) of section 5 reads as follows:
No person shall, for the purpose of trafficking, possess a substance included in Schedule I, II, III or IV.
Now the particular substance with that is defined in this information, tetrahydrocannabinol is in Schedule II.
That same Act in section 2 defines “traffic” as follows:
“traffic” means, in respect of a substance included in any of Schedules I to IV,
(a) to sell, administer, give, transfer, transport, send or deliver the substance,
(b) to sell an authorization to obtain the substance, or
(c) to offer to do anything mentioned in paragraph (a) or (b)
Now in this case, as I understand the evidence in the Crown’s case, and we’ll hear more about this when counsel address you, but it seems to me that what the Crown is saying is that the transaction in this case falls under the definition under subparagraph (a), that is to say “to give or transfer or transport”.
So I hope that assists you with the law of trafficking. If I understand the Crown, and again, I stand to be corrected, but it is simply the giving of the substance that is proscribed.
So, Madam Registrar, would you mark the jury’s question on trafficking as Exhibit 18, please?
THE CLERK: Certainly, My Lord, Exhibit 18.
EXHIBIT 18: Jury’s question re trafficking
THE COURT: Now your second question, members of the jury, is this, “Is the charge of less than a kilo for the purpose of trafficking or would that be simple possession?”
The answer to the second question, “Would that be simple possession?” is no. The amount that a person may have in if you find a person in possession is irrelevant. The significant factor for you to decide is whether or not the purpose for possessing the proscribed substance is for trafficking or for some other reason.
If you find that the amount in possession was not for the purposes of trafficking, but you have already found in possession, then yes, it is possession, but it has got nothing to do with the quantum. It has to do with the purpose.
But I’ll again I’ll cover that in the final charge.
I hope that is of some assistance to you.
And, Madam Clerk, would you please mark that Exhibit 19?
THE CLERK: Certainly, My Lord, exhibit 19.
EXHIBIT 19: Jury’s question re amount and possession for the purpose of trafficking
THE COURT: All right. Did that clarify it, or did it simply confuse the issue?
All right.
All right. Mr. Fowler, are you ready with your next witness?
MR. FOWLER: Yes, thank you, My Lord.
The Crown will call its next witness and that will be Constable former Constable Defrane.
DENNIS DEFRANE
a witness called by the Crown, sworn.
THE CLERK: Would you state your name in full and spell your last name for the record, please?
A Dennis William Defrane, D-e-f-r-a-n-e.
THE CLERK: Thank you. You may be seated if you wish.
EXAMINATION IN CHIEF BY MR. FOWLER:
Q It is Mr. Defrane now, as I understand, that’s correct?
A Yes.
Q And you you are formerly a member of the Victoria Police department?
A Thirty years.
Q Thirty years and you are now retired, that’s correct?
A Yes.
Q Mr. Defrane, I’m going to ask you to turn your mind back to November of 2000, if you would, do you recall if you were employed by the first of all by the Victoria City Police on in November of 2000?
A Yes, I was.
Q And I’m going to ask you now to go even more specific, to turn your mind to the 15th of November of 2000, do you recall being on duty on that day?
A Yes.
Q And do you recall anything about your shift that day that relates to the matter that brings you to court today?
A I know it has something to do with marihuana cookies and it happened around here, the courthouse on Courtenay Street, I believe.
Q And do you recall what role you if any, you played in the that matter?
A I believe I transported the accused from the downtown area to the police station.
Q Do you recall having any other involvement in the investigation apart from transporting?
A No.
Q Do you recall specifically if you transported any exhibits that were provided to you?
A I don’t recall.
Q Let me ask you this, Constable, in the your normal course of duties, if an exhibit is placed in if you are operating a police cruiser, and had you been operating one in November of 2000, for example
A Yes,
Q – if an exhibit were placed in the trunk of that cruiser would anyone else have access to that trunk and to the contents of it?
A Well, the person who put it there would have, but while it was in my possession, no.
Q Okay. Constable, once again speaking in general terms from your recollection as your time as a police officer, when you were acting in that in the capacity of a transport, if you had custody of a person and/or exhibits in your vehicle, would your normal procedure be to stop before returning back to the police headquarters, maybe pick up other prisoners, or would you travel directly to the police headquarters?
A Well, that would depend on the vehicle I was using. In this particular case it was a car and I I left this location and went to the station and there was no stop in between.
Q Thank you, Constable.
Let me ask you this, Constable, do you have any recollection yourself of ever handling the exhibits themselves or having any exhibits in relation to that investigation?
A I had no contact with them that I believe.
Q And I’ll ask you very specifically, do you have any did you, in fact, alter any exhibits or add anything, take anything away from any exhibits during that investigation?
A No.
Q Constable, do you remember do you recall the the individual that you transported on that date?
A No, I don’t.
Q Finally, Constable, when and again, I appreciate your recollection obviously over five years is not great on these matters, but do you recall at all returning to the police when you returned to the police station, whether you removed any exhibits from the vehicle and brought them inside the police station?
A I don’t recall.
Q Thank you, constable.
MR. FOWLER: Those are all the questions I have, My Lord.
THE COURT: Mr. Moore-Stewart, cross-examine?
MR. MOORE-STEWART: Yes, My Lord.
CROSS-EXAMINATION BY MR. MOORE-STEWART:
Q Mr. Defrane, do you have any notes from the time?
A No.
Q Have you been able to review any paperwork whatsoever to help you with your recollections before testifying?
A No.
Q You say you think it it had something to do with well something to do with marihuana, and across the street from the courthouse here, is that about what you remember?
A I remember it had something to do with marihuana cookies, and transporting someone from, I believe, it was Courtney Street side of the courthouse, I’m not
Q Okay.
A That’s what I sort of recall.
Q And then you don’t remember anything whatsoever about any exhibits?
A I have no nothing.
Q And you are not even really sure who it was you transported?
A No.
MR. MOORE-STEWART: I have no further questions.
THE COURT: Anything arising?
MR. FOWLER: No thank you, My Lord.
THE COURT: All right. Mr Defrane, thank you very much for coming and helping us with this matter. You are free to go.
(WITNESS EXCUSED)
MR. FOWLER: Thank you, My Lord. That leaves for the Crown’s case, I suppose, just the analyst.
MR. MOORE-STEWART: And, My Lord, before the analyst is called, I have discussed this with my friend, we have the defence expert Dr. David Pate. He’s in the hallway now and I believe my friend has no objection, and it is certainly my application, to have Dr. Pate sit in at this point in the trial to hear the analyst’s testimony, because he’ll be helping us after when we call him with some analysis of the analyst’s testimony.
MR. FOWLER: I don’t have a problem with that, My Lord.
THE COURT: Very well. Leave is granted.
MR. MOORE-STEWART: Thank you.
THE COURT: Have him sit.
MR. MOORE-STEWART: Could you ask Dr. David Pate to come in?
MR. FOWLER: And the analyst is Brian Taylor. He’s also in the hallway. Thank you.
BRIAN TAYLOR
a witness called by the Crown, affirmed.
THE CLERK: Would you state your name in full and spell your last name for the record, please?
A My name is Brian Peter Taylor and my last name is spelled T-a-y-l-o-r.
THE CLERK: Thank you. You may be seated if you wish.
A Thank you.
EXAMINATION IN CHIEF BY MR. FOWLER:
Q Mr. Taylor, you can you tell us where you are employed?
A I’m employed with Health Canada Drug Analytical Services Laboratory.
THE COURT: Excuse me. Just I’m sorry, Mr. Taylor.
Where is your where is your expert, Mr. Moore-Stewart?
MR. MOORE-STEWART: Oh. Dr. Pate.
Would you stand?
THE COURT: Well, if he is going to be of any assistance to you have him sit beside you.
MR. MOORE-STEWART: Oh please.
Would you come sit beside me then?
THE COURT: Sorry.
I’m sorry, Mr. Fowler.
MR. MOORE-STEWART: Thank you, My Lord.
THE COURT: Carry on.
MR. FOWLER: Thank you, My Lord.
Q Mr. Taylor, can you tell us now, turning your mind back to November of 2000, where were you employed at that time?
A At that time I was employed with the Health Canada Drug Analytical Services Laboratory.
Q And again, that was in Burnaby, British Columbia?
A That’s correct.
Q And, Mr. Taylor, are you actually designated as an analyst under section 44 of the Controlled Drugs and Substances Act?
A Yes, I am.
Q And when were you so designated?
A I have a copy of my designation. Originally I was designated under the Food and Drugs Act and the Narcotic Control Act, which was rolled over into the new Controlled Drugs and Substances Act. So originally it was in 1971, I believe, and then the I don’t have the exact dates. I’d have to look it up in my
Q I believe that is fine for our purposes. Can you describe now for us briefly in general terms your duties as an analyst?
A As an analyst I analyze drugs that are submitted by the various police forces in B.C. and Alberta. We look we look for any drugs that are under the Controlled Drugs and Substances Act and report to the police and to the courts.
Q So typically what kind of drugs to you actually analyze?
A Pretty much anything that could be under the Controlled Drugs and Substances Act, steroids, psilocybin, cannabis marihuana, cannabis resin, heroin, cocaine, methamphetamine, any of the and many pharmaceuticals too.
Q And can you tell us a little bit about your background? What kind of educational training have you had to prepare you for this work?
A I have a I have a bachelor of science degree from Simon Fraser University 1970; training on the job by the chemists at our laboratory; I have attended many seminars and presentations; some training that has been put on by Health Canada and by outside sources such as Hewlett-Packard and Agilent Technologies.
Q And can you tell us how regularly you attend such seminars or or [indiscernible/overlapping speakers].
A We have a national training meeting and that is once a year, and we also have they are just as they arise during the course of the year, so probably at least a couple of times a year I attend something.
Q And are there any other ways you keep yourself up to date on current practices in your field?
A Reading literature and plus we get a lot of information on our computers.
Q And you indicated that you had first been certified as an analyst in 1971, have you had have you always worked as an analyst, first of all, since that time?
A Yes, originally I started in the food laboratory and at that time the Food and Drugs Act they were and the the Narcotic Control Act were linked, and so once you were designated as an analyst under the Food and Drugs Act you were also automatically designated under the Narcotic Control Act. I worked in the food laboratory until 1986, about 1986, and then transferred to the drug laboratory and I have been there ever since up to today.
Q Now, Mr. Taylor, can you tell us, at least approximately, how many analyses of marihuana, and perhaps more particularly tetrahydrocannabinol, you have actually conducted over the course of your career?
A Well, when you say tetrahydrocannabinol we don’t normally analyze for that as an individual substance. It is usually we usually find it as part of cannabis marihuana or cannabis resin, so I’ve probably done in the neighbourhood of maybe twenty, 25,000, and I’m just guessing because it has been a number of years, or maybe even more than that now, cannabis type samples.
Q Now I’m going to ask you to turn your mind back to November of 2000 again, in particular I believe it was November 21; did you receive any particular exhibit envelopes on that date?
A Actually on November the 20th I did.
Q Ah, I apologize.
And do you recall well; first of all, I don’t suppose you have recorded the H numbers that those envelopes were designated?
A I just because they were old samples I had some difficulty getting the getting my notes from our archives, and so we just had them faxed over to Victoria this morning. So I have a copy of my original notes, which I can refer to and give you dates and stuff like that if if I’m that’s all right.
MR. MOORE-STEWART: Are there copies for the defence?
A Yes, there are. Yes.
MR. FOWLER:
Q Perhaps first of all I can ask you when exactly did you make those notes with reference to the
A I made them at the time I received the exhibit envelopes.
MR. FOWLER: I wonder then, My Lord, if we might have him refer to those notes and certainly provide my friend with a copy?
THE COURT: Yes, let’s go to the best accuracy we can.
A Okay. These are the copies. There is two copies [indiscernible/coughing].
MR. FOWLER:
Q Thank you. So do you have a copy of your notes now?
A Yes, I do.
Q Can I ask you then to tell us what the H number on the envelopes you received that day were?
A Okay. There were there were a number of them. Should I go individually through each one or how would you like me to do it?
Q Well, first of all, perhaps you can tell us how many you received?
A I believe there were I’d have to count them. Well, they are they go from our lab numbers go from 0013815 through 0013826 so 16, I guess, is it? Did I do my math right there, 16, or am I wrong here.
Twelve, try that, it’s better. I did my math wrong, sorry.
Q It sounds like it makes a little more sense.
Now when you refer to those lab numbers is that are those numbers different from the H numbers that I was referring to earlier?
A Yes, they are. They are they are assigned by our laboratory.
Q And where does the H number come from?
A The H number comes from the exhibit envelope itself.
Q All right. Okay. So can you tell us then there are 12 H numbers then I presume, can you tell us which numbers you actually received that day?
A Okay. I’ll just list them then, is that acceptable?
Q If that perhaps that would be the
A Okay.
Q – safest thing to do please.
A Okay. H1507392, which our lab number is 13836 0013826.
THE COURT: I’m sorry; you are going too fast.
A Oh, I’m sorry.
THE COURT: Would you go back to the H number, it is what?
A H150
THE COURT: Yes.
A – 7392.
THE COURT: 7392, yes.
MR. FOWLER:
Q And perhaps, Mr. Taylor, if I could interrupt just to make it a little easier?
A Sure.
Q If it appears that the first four digits of those numbers all appear to be the same maybe you could just read out the last three if that would assist His Lordship?
A Is that acceptable?
THE COURT: And what is the lab number that you gave us?
A 0013826, that relates to that H envelope.
THE COURT: 826?
A Yes.
THE COURT: All right. Yes, let’s use the last three numbers because the the first four first four numbers after the H are consistent throughout, correct?
A That’s correct, yes.
THE COURT: All right. Would you would you [indiscernible/coughing].
A Okay. The next one I have is 391, then 390, eight 389, 388, 387, 386, 385, 384, 383, 382, and finally 381.
MR. FOWLER:
Q Now can you tell us where you received those envelopes from or who you received them from?
A I received them what happens is when the police send in the exhibits I receive them from our exhibit control clerk that works at our laboratory. She keeps them secure in a safe and then when they are assigned to me I go in to her and she hands them to me, and then I take them to my analyst’s bench, and when I’m when they are not when I’m not actually physically using them I keep them in my own personal safe.
Q And are you given an indication of which police force has forwarded the envelopes to the lab for analysis?
A That information is usually just on the exhibit envelope.
Q And was that information on the exhibit envelopes you received?
A Yes, to the best I can recall, yes.
Q And would that information also be recorded on the same labels you were
A Yes, that the
Q [indiscernible/overlapping speakers]?
A – exhibit control clerk would be the one who puts the information that is on the labels, that are the photocopy here, and that would be directly transcribed from the exhibit envelope.
Q And perhaps then if you can have a look at those labels again and tell us what police force it was in this case that was reported as forwarding the exhibits?
A Victoria Police department.
Q Thank you, Mr. Taylor. And to the best of your knowledge are the at least the H numbers that come on the envelopes are those unique numbers to those envelopes?
A Yes, they are.
Q And so have you ever received other envelopes with the same H number on it as these that were different?
A I have never, no.
MR. FOWLER: I wonder at this point, Madam Clerk, if we could provide Mr. Taylor with the envelopes that were entered as exhibits, I think they went 3 through 14?
THE CLERK: Certainly.
A Thanks.
MR. FOWLER:
Q And perhaps, Mr. Taylor, I could ask you to have a quick look through the envelopes? In particular if you could look at the H numbers on each, and without the necessity of reading each one out again perhaps you can advise us if those numbers actually correspond with the numbers you read out a few moments ago?
A Would you like me to check each one individually?
Q If if you would
A Sure.
Q – just to yourself look at them and
A Yes, I will.
And this oh there it is, seven.
Yes, they all correspond with my notes.
Q Thank you, Mr. Taylor.
Can I ask you now I believe one of those envelopes and I’m not sure what the number is on it, but one of them has been opened previously, perhaps if you could
A Previously by in court
Q Yes.
A – because they were all opened by me, so
Q Yes, one of the seals I think has been actually opened with scissors.
THE CLERK: If I could assist, Mr. Fowler, it would be Exhibit number 9.
MR. FOWLER:
Q Number 9.
A Number 9, okay.
MR. FOWLER: Thank you, Madam Clerk.
And actually perhaps he could be provided with a pair of gloves?
THE CLERK: Certainly
A Oh here it is.
MR. FOWLER:
Q I’m going to ask you to open that in just a second. Perhaps
A Okay.
Q – I’ll get you to use gloves just to be safe.
A Thank you.
Okay.
Q So if I could ask you to open that envelope and and have a look at the contents?
A There is a certificate in there; there is a cookie inside
Q And
A – and a a tag, which is what we normally do when we receive an exhibit. I put it in the Ziploc bag and what I did was I it has the lab number, which corresponds to the exhibit envelope, and my initials and the date.
Q So I’ll ask you, you do recognize the contents of the envelope?
A Yes. Yes.
Q And do you recall, did you conduct any tests on the contents of the envelope?
A Of this one? Yes, I did.
Q Can you then actually if you’d like to put that exhibit back in the envelope
A Okay.
Q – I think we are done with it, and I can get those out of your way.
A Will I need to keep the gloves or
Q I don’t think so.
A Okay.
Q Not unless my friend is going to ask you to dig in there again.
A Okay. I’ll take them off for now.
So that one was number 821, yes, I did do some tests on that.
Q And, in fact, did you do the tests on all of the samples from those envelopes?
A Yes, I did.
Q Can you describe for us then the tests that you actually performed on those samples?
A Okay. What I what I did on these ones, there was quite a bit of staining on the paper that was in the in the envelope, so what I did is I extracted that oil that was there and I used that, and what what I did is I ran it on a gas chromatograph and I ran it on a GCMSD or a gas chromatograph mass selective detector.
THE COURT: Okay. Well, just a moment.
All right. The first step is the gas chromatograph?
A Yes.
THE COURT: What is the second step, please?
A It’s a gas chromatograph with a mass selective detector attached to it.
And that detector when when the substance goes through, that detector it will give what is called a mass spectra, which is kind of a fingerprint of of the substance.
MR. FOWLER:
Q And were those the only tests that you conducted?
A On on these ones, yes, that is right.
Q So perhaps you can describe for us in layman’s terms, if you will, for those of us who don’t have much experience operating anything more complicated than our toasters in the morning, the the first instrument you described, can you describe for us basically how that works?
A Okay. What what you will need to do basically it is like a big oven, a large oven, with a column inside, a very thin column, which has a coating on the inside of the column.
Now what you’ll do is you’ll extract whatever substance you happen to be looking for from your your sample that you have. You will extract that into a liquid, a volatile or a liquid that easily goes into into a gas when it is heated. And you’ll via mechanical means it will be injected the the liquid that you have extracted will be injected into that column at a very high temperature, so once it hits that very high temperature environment it will immediately be turned a gas.
The gas is then forced through the column. Now the what happens with the usually you’ll have mixture of substances that are going into this column, and what happens is those substances dissolve at different differing rates on the the coating that is on the inside of the column. So in other words, the effect that that has is that it will separate out individual components so they will all travel at a different rate and will come out to the detector, which in this case, in the gas chromatograph is a flame ionization detector.
Now that will come out at a at a differing rate and then you can identify individual compounds that come out. And they can be identified by the computer techniques that we have.
Q So I just want to make sure that I understand you.
A Okay.
Q First of all, if I can put this in really basic terms, what you are saying is the machine essentially will breakdown the components of the sample that you provide
A That’s correct.
Q – separate them out, and then allow you to determine each individually. What
A That’s correct.
Q – by and in order to determine what those components are how is that is that done by a comparison with anything else, is that done by [indiscernible/overlapping speakers]?
A We run for speaking specifically of the gas chromatograph, we run a series of standards every every morning. What we also do is we run what is called an internal standard, which gives a very it gives a fixed result, it comes out at the same time every time. So it comes out every time then you can compare standards, various standards, and the retention times of your samples with that internal standard and it’s it’s very fixed.
So what we’ll do is we’ll run our mixed standards through, compare the retention what is called relative retention times, it is relative to that internal standard, and its it gives a very specific indication of what the substance is.
Q And you described the result as being something like a fingerprint, is it
A Not on a gas chromatograph, no.
Q Sorry.
A That’s on the when you when you
Q Okay.
A – run the gas chromatograph with the mass selective detector that gives you the fingerprint.
Q Okay. And obviously it is good that I’m clarifying this with you. So on this first instrument then the the I’m wondering if you could tell us the result that you get, is that something that
A It’s indicative
Q – is a physical measurement?
A – it’s called indicative, it’s an indicative test. What it is, is it gives you it’s we call it our GC screen, and the reason we call it a screen is because it gives us an indication of what’s in that sample, whatever the sample is, and then we can go from there. Then we run it on a more specific instrument, which is the gas chromatograph with the MDS attached to it, that that one will give you the definitive fingerprint, if you will, of what the substance is.
Q So can you tell us what sort of characteristic it is that you are looking for using this first test? Is it mass of the the sample?
A On the first test, no. It’s purely where the where the the what we call the peak which gives you the that gives you the indication of what’s there, where that comes out. So it is purely a time related situation.
Q Okay. So in other words, it’s I suppose if we could think of having a group of runners, the runners that were perhaps in better shape and faster would, over a period of time, end up further down the line than somebody who ran slower obviously?
A Yes, that’s that that’s kind of an example, yes.
Q Okay. Now do you have did you make any record of the results from that test?
A Yes. Not from the screen. I did make a record of the screen, but because unfortunately because of the archive thing there I wasn’t sure what tests I should bring, so that one I didn’t I didn’t bring that one, because I just found out this morning that is what I had done when I checked my notes.
Q Right. Okay. But do you recall what the results of the test was?
A Yeah, the results of the test would have indicated THC or tetrahydrocannabinol.
Q And perhaps before we go any further I’ll just to be a bit more specific, this particular instrument you were using, had you operated it before?
A Yes, many times.
Q Can you approximate for us how many times you may have used it?
A As many samples as I’ve done, which on a typical year I do maybe 1800 to 2000 samples in a year, and of that probably maybe half of them would be maybe half to two thirds would be used would be run on that type of an instrument, so at least probably 1000 samples in the course of a year.
Q And could you estimate how many of samples would have been marihuana or or a derivative?
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