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REGINAv.LEON EDWARD SMITH Part 1

By Hempology | February 6, 2006

112476-2Victoria RegistryIn the Supreme Court of British Columbia(BEFORE THE HONOURABLE MR. JUSTICE R.D. WILSON) Victoria, B.C.September 29, 30, 2005October 12, 13, 2005

Crown Counsel: R. Fowler

Defence Counsel: R. Moore-Stewart

INDEX

PROCEEDINGS AT TRIAL – 29 September 2005

Submissions: 3

PROCEEDINGS AT TRIAL – 30 September 2005

Proceedings 79

PROCEEDINGS AT TRIAL – 12 October 2005

WITNESSES FOR THE CROWN
DENNIS DEFRANE 88
EXAMINATION IN CHIEF BY MR. FOWLER: 88
CROSS-EXAMINATION BY MR. MOORE-STEWART: 90
BRIAN TAYLOR 91
EXAMINATION IN CHIEF BY MR. FOWLER: 91
BRIAN TAYLOR 109
EXAMINATION IN CHIEF BY MR. FOWLER, CONTINUING: 111
CROSS-EXAMINATION BY MR. MOORE-STEWART: 114
RE-EXAMINATION BY MR. FOWLER: 129

WITNESSES FOR THE DEFENCE
DAVID PATE 132
EXAMINATION IN CHIEF BY MR. MOORE-STEWART ON QUALIFICATIONS: 132
CROSS-EXAMINATION BY MR. FOWLER ON QUALIFICATIONS: 135
EXAMINATION IN CHIEF BY MR. MOORE-STEWART: 137
CROSS-EXAMINATION BY MR. FOWLER: 153
RE-EXAMINATION BY MR. MOORE-STEWART: 159

PROCEEDINGS AT TRIAL – 13 October 2005

Charge to the Jury: 168

EXHIBITS

EXHIBIT 18: Jury’s question re trafficking 87
EXHIBIT 19: Jury’s question re amount and possession for the purpose of trafficking 87
EXHIBIT 20: Document containing H envelope numbers and lab numbers re exhibits 111
EXHIBIT 21: Data printout sample 0013825 113
EXHIBIT 22: Data printout sample 0013816 113
EXHIBIT 23: Data printout sample 0013817 113
EXHIBIT 24: Data printout sample 0013818 113
EXHIBIT 25: Data printout sample 0013819 113
EXHIBIT 26: Data printout sample 0013820 113
EXHIBIT 27: Data printout sample 0013821 113
EXHIBIT 28: Data printout sample 0013822 113
EXHIBIT 29: Data printout sample 0013823 113
EXHIBIT 30: Data printout sample 0013824 113
EXHIBIT 31: Data printout sample 0013825 113
EXHIBIT 32: Data printout sample 0013826 113
EXHIBIT 33: Lab standard operating procedure (2003) 121
EXHIBIT 34: Curriculum vitae of Dr. David Pate 135

MARKED A FOR IDENTIFICATION: Hemp lip balm 121

RULINGS

[RULING RE DEFENCE APPLICATION TO CALL ANALYST] 21
[RULING RE CONSTITUTIONAL QUESTION] 81
Ruling re qualification of witness 136
Verdict 187

Victoria, B.C.
September 29, 2005

THE CLERK: In the Supreme Court of British Columbia, this 29th day of September 2005, calling the matter of Her Majesty The Queen and Leon Edward Smith, My Lord.
THE COURT: Thank you.
MR. FOWLER: My Lord, Richard Fowler on behalf of the Federal Crown.
THE COURT: Thank you.
MR. MOORE-STEWART: My Lord, Robert Moore-Stewart on behalf of Leon Edward Smith.
THE COURT: Thank you.
All right. Counsel ready to go?
MR. FOWLER: Yes, My Lord.
MR. MOORE-STEWART: Yes, My Lord.
My Lord, I apologize right off the bat for short ?? shortsightedness to some degree on my part. I didn’t realize until late in the day that the Constitutional Question notice didn’t get before the court until this morning. And I have ?? and I provided this to my friend yesterday an affidavit of yesterday from Leon Edward Smith as well. This is the original. It is complete with a resume of Mr. Smith’s, and it to some degree fills the position of being a ?? and I’m seeking to have that filed in court today.
That to some degree will serve as an expert’s report in regard to my client Mr. Smith who it will be my intention as early as the first part of any Constitutional Question notice hearing to call him as an expert initially and if the ?? if the ?? what I’m going to seek to tender him as an expert as, and I won’t get into the argument immediately, but I will tell you that I intend to call him as an expert in the area of medical and other beneficial effects of cannabis. And an expert in public opinion ??
THE COURT: Just a moment. I’m sorry, Mr. Moore-Stewart, medical and?
MR. MOORE-STEWART: And other beneficial effects of cannabis. An expert in public opinion on medical marihuana and the public’s view of the effect of the cannabis laws upon society and their disproportionality.
That’s ??
THE COURT: Okay. Just a minute, the third ?? the third area; and the public’s view on what?
MR. MOORE-STEWART: And the public view of the effects of the cannabis laws upon society.
THE COURT: Of the effects . . .
MR. MOORE-STEWART: And their disproportionality.
THE COURT: All right.
MR. MOORE-STEWART: And in the event that he is not so qualified as an expert I would still seek to call him as a witness on his own behalf in regard to the issues in the Constitutional Question notice. He would be our only proposed witness on the Constitutional Question notice hearing.
The other issue before the court in these proceedings is the issue of the defence’s application for leave to call the analyst who did analyses that said THC in various samples that the analyst was given. I have submissions on that issue. It is a discreet issue, and I am in the hands of the court to some degree as to which to take up first.
THE COURT: Why do you need ?? why do you need leave to call a witness?
??????????MR. MOORE-STEWART: I’m ??
MR. FOWLER: My Lord, it is a requirement under the Controlled Drugs and Substances Act. Section I believe it is 51 of that act requires that first of all the Crown is able to prove the nature of a substance by way of a certificate ??
THE COURT: Yes.
MR. FOWLER: — and that section 51(2) indicates:

The party against whom a certificate or report of an analyst is produced under subsection (1) may, with leave of the court, require the attendance of the analyst for the purpose of cross-examination.

THE COURT: Well, that is not what Mr. Stewart [sic] is asking for. He wants to call a witness.
Extended EMR. MOORE-STEWART: Well, I’m ?? I’m asking for leave of the court to have the analyst here for cross-examination.
THE COURT: Oh you are?
MR. MOORE-STEWART: Yes.
THE COURT: It’s ??
MR. MOORE-STEWART: Yes.
THE COURT: You ?? you want me to order the prosecution to present this witness?
MR. MOORE-STEWART: Yes.
THE COURT: I see. All right.
ntry ?(?)?MR. MOORE-STEWART: Actually we ?? we would prefer that.
THE COURT: All right.
MR. MOORE-STEWART: We just want him there for cross-examination.
And I am in the hands of the court to some degree about which of those issues to take up first, so I seek some guidance.
THE COURT: All right. Is there any ?? is there any additional information I need for this ?? for the ?? for the application ??
??????????MR. MOORE-STEWART: For ??
THE COURT: — to cross-examination the analyst?
????ExcerpMR. MOORE-STEWART: Well, there is ?? I’m sure there is going to be issues and arguments both between myself and my friend, it is just which issue do we get into first? Is it the Constitutional Question notice or the application in regard to the analyst?
THE COURT: Well, what is the jurisprudential basis for the cross-examination? Why is this being asked for?

SUBMISSIONS:

t ?(?)????MR. MOORE-STEWART: Oh all right. The ?? the analyst has ?? has come up with a series of certificates all of which say “THC”, that is pretty much all they say. They don’t give a ?? any kind of information about the kind of testing that was done, the ?? any result other than THC, there is nothing quantitative.
THE COURT: Okay. So it is all in the ?? in the certificates themselves? The argument is based on the certificates?
??????????MR. MOORE-STEWART: The argument ??
THE COURT: Or deficiency of it?
??????????MR. MOORE-STEWART: Certainly the argument is based on the deficiency of the certificates and ?? and ?? and what those certificates really mean. Whether they are enough to convict, and it is also ?? there is issues about the testing and such, the sensitivity, the type of the testing that is done. There is a number of essential factual issues that revolve around the issue. There is personal ?? here is a letter that I think is very important. My friend has had it. It is a letter recently received by my client from the Department of Justice because this same issue came up in a prior trial of his where the analyst was not allowed to be called at trial and the Court of Appeal has just overturned it yesterday on that issue, the Dunsdon case as it is referred to. I have those.
???????????????????????????????Post Status ?(?)??????Draft??Publish?????????????????Allow CommeTHE COURT: All right. Well what happened here? What was the basis for your request to cross-examination the analyst in ?? in R. v. Smith?
nts: ?(?)?MR. MOORE-STEWART: In ?? in that case it was a case of cannabis resin that was charged ?? at issue in that case, and cannabis resin has a different testing process than cannabis marihuana, and the issue in the Dunsdon cases had to do with the analyst’s testimony in both cases and whether or not there is ?? what happened is the analyst in those cases decided ?? testified that ?? that the tests that they gave they looked for little bits of marihuana in ?? under the microscope, and if they couldn’t see discreet bits of leaf they couldn’t classify the substance as cannabis marihuana. And then they had another catchall category that they would put it into called “cannabis resin”, and the ?? and the only reason they put it in cannabis resin was because it ?? they couldn’t see the discreet bits, and there was no quantitative tests that they had done, and there was nothing that they could see under the microscope. And basically I should provide you the Dunsdon cases.
They ?? the judge found that the analyst’s evidence was enough to sink the Crown’s case in both cases, because of the insufficiency of the testing for the results that were given at the end of the day. And Ms. Dunsdon won on both matters and Mr. Smith also won on the matter of the case that is referenced in the letter before you.
THE COURT: Right.
MR. MOORE-STEWART: And we think it is equally as essential in this case to have the analyst’s testimony as it was in any of these other three cases. And to not allow it would be I believe an appealable error.
Let me provide you with ??
THE COURT: Okay. Just a minute. What factual basis does it need to ?? to have? Just ?? here is the certificate. We’ve got that. That is fact one.
MR. MOORE-STEWART: Yes.
THE COURT: Okay. What is the next fact?
???? ?NoneMR. MOORE-STEWART: The next fact is ?? is to get testimony as to what that actually means, that ?? that bare statement “THC”.
THE COURT: Right.
? ?Open? ?MR. MOORE-STEWART: What does it mean? What ?? what led ?? the process? What did you test? Does it prove what you say it proves? It’s ?? it appears to be critical in this line of cases.
MR. FOWLER: My Lord, perhaps if I could be of some assistance?
THE COURT: Just a minute. Just a minute.
Closed?????? Mr. Moore-Stewart, is it necessary for me to hear from this analyst before I make a determination of whether or not he should be ??
??????????MR. MOORE-STEWART: I ?? I wouldn’t think so. That would just seem to be bringing him over twice.
THE COURT: Right.
?????AllowMR. MOORE-STEWART: His testimony should be short. Well, maybe not short but his ??
THE COURT: Brief.
Pings ?(?)????????????MR. MOORE-STEWART: — his testimony will be ??
THE COURT: It goes to the analysis itself? The method?
MR. MOORE-STEWART: Yes.
THE COURT: The methodology?
???Text FoMR. MOORE-STEWART: The methodology and ?? and what ??
THE COURT: The scientific in which he [indiscernible/overlapping speakers] ??
MR. MOORE-STEWART: — the results are and what they really mean.
THE COURT: Right.
MR. MOORE-STEWART: Yes.
THE COURT: All right.
rmatting: MR. MOORE-STEWART: That’s ??
THE COURT: It seems to me ?? I’ll hear from Mr. Fowler, but it seems to me this is the one to start with.
Mr. Fowler, what do you say about the cross-examination?
MR. FOWLER: My Lord, I was going to provide Your Lordship with a copy of the Supreme Court of Canada’s decision in R. v. Oliver. I provide that and a copy to my friend. This is, in my submission, the leading case with respect to the procedure in terms of these types of applications. Essentially the case ?? and I think the appropriate paragraph is ?? yes, turning to page 8, My Lord, at the very top, the very first paragraph on that page indicates essentially what the test is here in this case. It ?? it says that essentially the applicant must show evidence to the contrary and the court goes on to define that:

“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.

That’s a reference to the previous Narcotic Control Act obviously, however, the provisions are nearly identical in the current Controlled Drugs and Substances Act.
It says:

This evidence may be in regard to the analyst himself, his qualifications, integrity, or in regard of the procedures he followed to draw his conclusions.

So my submission is that there is an onus or a bar that my friend has to reach in order to satisfy Your Honour [sic] that it is appropriate to call the analyst.
It is not an exceptionally high one, but he does have to present some ?? not ?? I suppose he doesn’t ?? it wouldn’t be required of him to actually present evidence, but he should indicate to Your Lordship that there is some evidence that the presumption that Parliament has provided with respect to these certificates should not be relied upon in this case and that the analyst should actually be called to explain matters.
?(?)???? ?MR. MOORE-STEWART: May I ?? oh, sorry.
THE COURT: All right. Where does evidence to the contrary come from, Mr. Fowler, is that in the section?
MR. FOWLER: My Lord, it is, in fact section 51(1), which is the again provision, which prescribes the use and nature of the certificates indicates that

Subject to this section, a certificate or report prepared by an analyst under subsection 45(2) is admissible in evidence in any prosecution for an offence under this Act or the regulations [et cetera]

Quote:

. . . in the absence of evidence to the contrary . . .

Sorry.

. . . in absence of evidence to the contrary is proof of the statements set out in the certificate or report, without proof of the signature or official character of the person appearing to have signed it.

So what essentially that section does is it ?? it gives Crown the ability to simply proffer the certificate as proof of exactly what it alleges, that the substance in question was analyzed in this case as tetrahydrocannabinol.
THE COURT: Well, that was the issue of the ?? I don’t know this case. I guess I should. But that is talking about the ?? about the weight, if you will, of the certificate. That’s not what he’s ?? that is not what Mr. Moore-Stewart is asking for. [Indiscernible/coughing] because I want to test his methodology.
MR. MOORE-STEWART: Yes.
THE COURT: And does the Supreme Court of Canada say, “Well you are going to have to place some evidence before me that the methodology is wrong”? I ?? that is what he’s seeking to accomplish surely is evidence to the contrary.
MR. FOWLER: My Lord, the use of the phrase in subsection (1) of section 51 absence ?? “in the absence of evidence to the contrary” means that this certificate should be accepted by the court as proof of what it alleges, unless there is some evidence to the contrary.
THE COURT: I agree.
MR. FOWLER: There ?? and in subsection (2) then it ?? it of course makes it incumbent upon my friend to seek leave of the court to cross-examine the analyst. I think the reasons for that are obvious. There are many cases where there is not really any serious contention as to what the substance is once it has been analyzed, and there is no useful purpose served by bringing an analyst over from Vancouver to sit here for a day, take the time of the jury and everyone else to basically tell us what we already know.
THE COURT: Yes.
MR. FOWLER: As I say, I don’t think there is an exceptionally high bar that my friend has to meet, but there is, in my submission, some requirement that he provide some indication that there really is a reason to bring this analyst over, a reason to expect ??
THE COURT: There is a real issue?
MR. FOWLER: Exactly.
THE COURT: All right.
None? ?ConMR. MOORE-STEWART: Your Honour ??
THE COURT: What do you say about that, Mr. Moore-Stewart?
vert Line Breaks?? ????MR. MOORE-STEWART: — first of all I want to hand you a case, R. v. Dunsdon, January 5th, 2005, Judge McKinnon, and I’m going to ask you to turn to page 8. It begins at paragraph 22 ?? the ?? oh, and paragraph 26 here ?? where they are really ?? he really begins the discussion of the evidence of the ?? Mr. Lam, who is the analyst.
He says that his ?? Mr. Lam’s evidence went far beyond his completing the certificate of analyst, including his analysis of the samples. It ?? it talked about how ?? the significance of his conclusions and how it helped in the understanding of those certificates.
And on paragraph 27 he specifically deals to ?? with evidence to the contrary, in that case said that it was the evidence of the analyst that could lead the trier of fact to the conclusion that ?? with a reasonable doubt as to the analyst’s conclusions, and that that, in fact, constituted evidence to the contrary.
THE COURT: Was Mr. Lam testifying pursuant to an application under 51(2) or the ?? or was he part of the prosecution’s case, Mr. Moore-Stewart?
??????????MR. MOORE-STEWART: I ??
THE COURT: That’s the ?? I’m having the same problem with this ??
??????????MR. MOORE-STEWART: I don’t honestly ??
THE COURT: — as I have with Mr. Fowler is that subsection (1) deals with what it seems to me to be is one notion, subsection (2) deals with a different notion.
??????????MR. MOORE-STEWART: I ??
THE COURT: I’m not asking ??
MR. MOORE-STEWART: — I take the point of your question but I don’t have an answer for it.
THE COURT: So we don’t ??
??????????MR. MOORE-STEWART: I don’t know ??
THE COURT: — know how Lam happened to be there.
MR. MOORE-STEWART: I don’t know how Lam happened to be there.
But one of my arguments here, other than Lam’s extremely ?? extreme significance in this, is that one of the things that I think is important to look at and actually I can’t ?? it would take a moment for me to put my finger on the exact portion of the Malmo-Levine case that is or will be before you soon, the recent Supreme Court of Canada case of marihuana. And in the Malmo-Levine case the Supreme Court of Canada agreed with the British Columbia Court of Appeal that the trial judge erred in excluding expert evidence because the request was not frivolous.
Now in our case having the analyst ??
THE COURT: Sorry. Sorry. The trial judge erred?
MR. MOORE-STEWART: Because the request to do that was not frivolous.
THE COURT: Not frivolous. I see.
??URLs to MR. MOORE-STEWART: That was the test. And the analyst, we submit, is critical to our case. That indeed denying the appearance of the analyst while requiring the defendant to produce qualified expert witnesses with experience studying cannabis resin would be unreasonable, and that the only realistic expert possible for the defence may be the analyst in the first place, and that to deny the expert evidence, while convicting the defendant for not providing that information at trial would be a gross error of ?? of justice.
And that there is a unique set of questions before the court, THC charges. The request for the analyst here is not pointless, irrelevant, and it is not meant to provide any repetitive evidence or be excessively long. And it is the only realistic opportunity that we have to be able to rebut essential issues that will be before the court.
And we believe that it ?? to some degree to require more, I mean I can provide you another case where the ?? my friend may have to wait for a copy because I seem to only have two, but the earlier Dunsdon case ??
THE COURT: Well, give it to him and tell me what it says.
MR. FOWLER: I’ve actually got a copy of my own, My Lord. I can ??
MR. MOORE-STEWART: You have a copy. Okay.
The earlier Dunsdon case ??
THE COURT: Thank you.
Ping ?(?)???? ?????????MR. MOORE-STEWART: — which agreed with the total essentiality of the ?? in this case, page 3, the evidence of ?? I’ll read you paragraph 4:

It appears from the evidence that I have, both from Exhibit 4, the Cannabis Identification Operating Procedure, which is the guideline used by analysts that produce the certificate, and the evidence of Dr. Pate, that these two subdivisions of cannabis are types of cannabis that can be identified by sight and be quantified. Because if you cannot quantify the drug, then you can not come within either [Schedule II], Schedule VII, or Schedule VIII for the purposes of the offence that Parliament was attempting to create based on the amount of drug in an accused’s possession.

Well look, here we have a paragraph saying that quantification is critical and there is no quantification.
The ?? they go on about the essential ?? the essentialness to the case in the next paragraph, about definitions and the standard operating procedures.
THE COURT: So what ?? sorry, Mr. Moore-Stewart, what was the ?? what was the charge?

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