Ebner v. The Queen, [1979] 2 SCR 996

Supreme Court of Canada

Ebner v. The Queen, [1979] 2 S.C.R. 996

Date: 1979-06-28

Dennis Ebner Appellant;

and

Her Majesty The Queen Respondent.

1979: April 30, May 1; 1979: June 28.

Present: Martland, Ritchie, Dickson, Beetz, Estey, Pratte and Mclntyre JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Criminal law—Narcotic drugs—Trafficking—Analyst’s certificate referring to package bearing different date from one identified by arresting officer as one sent for analysis—No evidence motion granted at trial—Whether accused given reasonable notice of Crowns intention to use certificate at trial—Whether some evidence that substance analyzed same substance as that purchased by police officer from accused.

The British Columbia Court of Appeal allowed a Crown appeal against the acquittal of the appellant upon a charge of trafficking in cannabis marihuana. The appeal to this Court involved the significance of a discrepancy between the certificate of the analyst produced at the trial and the evidence of the arresting officer (a member of the Victoria City Police Force) who purchased a substance alleged to be cannabis marihuana from the appellant. While a security envelope received by the analyst from the Victoria Police Force bore the same number as the security envelope received in return by the Victoria Police Force, the analyst’s certificate stated that the material analyzed had been removed from a plastic bag marked “PL7/Mar/76”. This was in conflict with the evidence of the police officer who said he marked the plastic bag “PL9/Mar/76”.

The certificate was tendered by the Crown and admitted in evidence. No objection was taken by the appellant and after a brief examination of the police officer the Crown closed its case. Counsel for the appellant then moved to have the case dismissed upon the basis that the Crown had adduced no evidence that the substance purchased by the officer from the accused was marihuana. The motion was granted and the appellant was acquitted.

In the Court of Appeal the majority considered that the trial judge had disposed of the case on a no evidence basis and allowed the appeal because they were of the view that some evidence had been put before the Court and that the motion should have failed. Farris C.J.B.C.

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was of the opinion that the trial judge dismissed the charge because no reasonable notice had been given of the Crown’s intention to use the analyst’s certificate—a view not shared by this Court—and therefore the certificate ought to have been excluded. He would have dismissed the appeal.

Held: The appeal should be dismissed.

The appellant argued firstly that because of the discrepancy between the evidence of the police officer and the certificate, that is, the difference in date, the notice given was not reasonable since, because of the discrepancy, it did not refer to matters which were alleged in the information. This argument could not succeed. The Crown gave ample notice, more than four months, of its intention to produce the certificate in evidence. It did so. The Crown did at the trial what it said it would do in the notice, no more and no less. The appellant was fully aware of the contents of the certificate to be produced at trial.

The appellant’s second principal submission could be put in this way. The analyst’s certificate, referring as it does to a package bearing a different date from the one identified by the police officer as the one he sent for analysis, has not established any connection between the appellant and the substance analyzed. Therefore there was no evidence which could go in proof of the charge, that is, that the appellant trafficked in marihuana on the 9th of March 1976.

Section 9(1) of the Narcotic Control Act provides that the certificate is admissible in evidence in a prosecution for an offence under s. 7(1) of the Act. The certificate of analysis was therefore properly admitted and it was evidence that something was analyzed and found to be marihuana. This by itself was not sufficient for as stated in Regina v. Millier and Cyr (1968), 65 W.W.R. 96, at p. 98, (affirmed [1969] S.C.R. 955), “a certificate merely stating that some green plant material was analyzed would be simply meaningless”, and in view of the date discrepancy this certificate said little more. It was vital to the Crown’s case that it show that the substance analyzed was the same substance as that purchased by the police officer from the appellant. If there were no evidence of that fact when the Crown closed its case, the trial judge was correct in acquitting. If, however, evidence existed, the matter should have proceeded and at the conclusion of the trial the trial judge should have weighed the evidence and reached a conclusion.

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There was evidence before the trial judge to identify the substance purchased with the substance analyzed. It was to be found in the certificate itself and the evidence of the police officer which identified the substance purchased with the substance sent to the analyst and the substance received in return. The certificate could not be sufficient in itself since the date discrepancy prevented the certificate alone from establishing a connection between the accused and the substance analyzed. When it was coupled with the police officer’s evidence, however, an evidentiary connection was made, that is, some evidence was provided which connected the accused with the substance analyzed.

Therefore it was error on the part of the trial judge to dismiss the charge upon the ground that he did and the Court of Appeal was right in directing a new trial.

APPEAL from a judgment of the Court of Appeal for British Columbia[1], allowing an appeal by the Crown against the acquittal of the appellant upon a charge of trafficking in cannabis marihuana. Appeal dismissed.

Jeffrey Green and Melvin Hunt, for the appellant.

D.R. Kier, Q.C., for the respondent.

The judgment of the Court was delivered by

MCINTYRE J.—This is an appeal from the British Columbia Court of Appeal which allowed a Crown appeal against the acquittal of the appellant upon a charge of trafficking in cannabis marihuana. It involves the significance of a discrepancy between the certificate of the analyst produced at the trial and the evidence of the arresting officer who purchased a substance alleged to be cannabis marihuana from the appellant.

The appellant was charged that he did on the 9th day of March 1976 traffic in cannabis marihuana. At his trial, which took place on March 10, 1977, he pleaded not guilty. The Crown called only one witness, a Corporal Lawson of the Victoria City Police Force, who gave evidence of making a purchase of a bag of green plant-like material from the appellant for $20. He swore that he took the bag to the police station and marked it with his initials “P.L.” and the date “9/Mar/76”

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on the inside of the bag. He then sealed the bag with a piece of tape and put his initials “P.L.” on the tape and the date “9/Mar/76”. He then placed the bag in a security envelope numbered E. 96092 and filled in the form on the front of the envelope in his own handwriting. This process involved writing his name, his regimental number 163, and the words “Victoria City Police, 625 Fisgard Street, Victoria, B.C.”. He then put the envelope in his locker at the police station. On March 26, 1976, he removed the envelope from the locker, placed it in a larger envelope, and sent it by registered mail to the Health Protection Branch in Vancouver where the analyst whose certificate was sought was located. The registration receipt issued by the Post Office bore No. 3818. He testified that on April 28th he received an envelope containing the security envelope together with an original and a copy of a certificate of analysis through the mail. He tendered the security envelope in evidence at the preliminary hearing. He compared the original certificate of analysis with the copy which accompanied it. On October 26, 1976, more than four months before the trial, he served the appellant with a copy of the certificate and a notice of intention to use the certificate in evidence. He swore that the security envelope and its contents, which he received back from the analyst, were the same articles which he had sent for analysis. He recognized them by his handwriting on the envelope, his name and service number, and the number of the envelope. He recognized the bag containing the purchased substance, which had been enclosed with the security envelope in the larger envelope, by his initials and the date “9/Mar/76” which he had put upon it.

At this point I should say that I have examined the original exhibits filed at the trial and I observe that the security envelope bears, in addition to the writing recognized and identified by the police officer, in the section “Name of Analyst”, the handwritten inscription “B. Walker” and beneath it the number 9818-5. The handwriting is in writing not dissimilar from the signature of the analyst appearing on the certificate of analysis and the number 9818-5 written on the security envelope is the number of the analyst’s certificate. I set out below the certificate and the notice of intent to produce.

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It will be seen at once that while the security envelope received by the analyst from the Victoria Police Force bore the same number as the security envelope received in return by the Victoria Police Force, that is No. E96092, the analyst’s certificate says that the material analyzed had been removed from a plastic bag marked “PL 7/Mar/76”. This, of course, is in conflict with the evidence of the police officer who said he marked the plastic bag “PL 9/Mar/76” and it is this discrepancy which has caused these proceedings.

The certificate was tendered by the Crown and admitted in evidence. No objection was taken by the appellant and after a brief examination of the police officer the Crown closed its case. Counsel for the appellant then moved to have the case dismissed upon the basis that the Crown had adduced no evidence that the substance purchased by the officer from the accused was marihuana. The motion was granted and the appellant was acquitted.

Despite some uncertainty in the trial judge’s reasons and some disagreement in the Court of Appeal as to the reason for acquittal, it seems clear to me that the trial judge acquitted the appellant upon concluding that the Crown had adduced no evidence of guilt. Certainly the appellant’s motion was to that effect. The reasons for judgment concluded with these words:

In order to come within the meaning of the Statute, I rule that there must be a compliance, a sufficient compliance, with the provisions of the Statute, to enable the Accused person to know precisely the nature of the case against him. The Crown has failed to do that, in my judgment, and is not, therefore, entitled to rely on the Certificate of Analysis of the analyst, and, accordingly, there is no evidence, apart from the Certificate, to implicate the accused with the offences as charged, and, accordingly, I must allow the motion, and dismiss the charge.

In the Court of Appeal the majority considered that the trial judge had disposed of the case on a no evidence basis and allowed the appeal because they were of the view that some evidence had been put before the Court and that the motion should have failed. Farris C.J.B.C. was of the opinion that

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the trial judge dismissed the charge because no reasonable notice had been given of the Crown’s intention to use the analyst’s certificate—a view I cannot share—and therefore the certificate ought to have been excluded. He would have dismissed the appeal.

The appellant raised two principal arguments. He argued firstly, as I understood him, that because of the discrepancy between the evidence of the police officer and the certificate, that is, the difference in date, the notice given was not reasonable since, because of the discrepancy, it did not refer to matters which were alleged in the information. The appellant relied on Regina v. Henri[2] for the proposition that a notice must be reasonable both in time and in content. He argued that the notice in the case before us was unreasonable on the basis of the Henri case. In my opinion, the date discrepancy in the certificate before us in no way approaches the lapses on the part of the Crown found in Henri. The notices in that case were completely inadequate and as Branca J.A. said at p. 56:

If one deliberately tried to draft a notice which would be quite totally and completely confused and confusing and embody complete uncertainty one would be hard put to excel the uncertainties, the inaccuracies, and the confusion contained in each of the notices that I have analyzed.

This is far from the situation here. The Crown gave ample notice, more than four months, of its intention to produce the certificate in evidence. It did so. The Crown did at the trial what it said it would do in the notice, no more and no less. The appellant was fully aware of the contents of the certificate to be produced at trial. In my view, this argument must fail. The weight the certificate was entitled to receive is another question but it is not touched in the notice argument.

I now turn to the second submission. I would put it this way. The analyst’s certificate, referring as it does to a package bearing a different date from the one identified by the police officer as the one

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he sent for analysis, has not established any connection between the appellant and the substance analyzed. Therefore there was no evidence which could go in proof of the charge, that is, that the appellant trafficked in marihuana on the 9th of March 1976.

This argument must be considered in the light of s. 9 of the Narcotic Control Act. Subsection (1) provides that the certificate is admissible in evidence in a prosecution for an offence under s. 7(1) of the Act. The certificate of analysis was therefore properly admitted and it was evidence that something was analyzed and found to be marihuana. This by itself was not sufficient for, as Maclean J.A. said for the British Columbia Court of Appeal in Regina v. Millier and Cyr[3], at p. 98, “a certificate merely stating that some green plant material was analyzed would be simply meaningless”, and in view of the date discrepancy this certificate says little more. It is vital to the Crown’s case that it show that the substance analyzed was the same substance as that purchased by the police officer from the appellant. If there were no evidence of that fact when the Crown closed its case, the trial judge was correct in acquitting. If, however, evidence existed, the matter should have proceeded and at the conclusion of the trial the trial judge should have weighed the evidence and reached a conclusion.

In my opinion, there was evidence before the trial judge to identify the substance purchased with the substance analyzed. It is to be found in the certificate itself and the evidence of the police officer which identified the substance purchased with the substance sent to the analyst and the substance received in return. The certificate could not be sufficient in itself since the date discrepancy prevents the certificate alone from establishing a connection between the accused and the substance analyzed. When it is coupled with the police officer’s evidence, however, an evidentiary connection is made, that is, some evidence is provided which connects the accused with the substance analyzed. The police officer swore to the identity of the articles sent for analysis with those which he

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received in return. He recognized the security envelope in which the certificate and a copy were returned by its number and the notations he had made upon it and upon the bag containing the drugs. The security envelope contained the notation identifying the analyst and the number of the certificate was written upon it. The certificate contained reference to the notations made by the officer on the security envelope. Such notations may provide further evidence of the identity of the substance analyzed and referred to in the certificate. (See Regina v. Millier and Cyr, supra.) The only discrepancy was the two day date difference. It was error to dismiss the charge on the motion presented. In my view, Craig J.A. of the British Columbia Court of Appeal was correct when he said there was some evidence of guilt and that the no evidence motion should have failed.

Whether the trial judge, if the trial had continued, would have found the case proved in the face of the uncertainties caused by the date discrepancy may be doubtful. This is a question, however, which is not before this Court. There was, as I have said, evidence before the trial judge which it was his duty to weigh before reaching a conclusion. It was error on his part to dismiss the charge upon the ground that he did. The majority of the Court of Appeal was right in directing a new trial and I would dismiss the appeal.

Appeal dismissed.

Solicitors for the appellant: Owen-Flood, Cox and Turnham, Victoria.

Solicitor for the respondent: Roger Tassé, Ottawa.