PROTOCOL I -
FOR CERTIFICATES OF ANALYST IDENTIFIED BY HEALTH CANADA AS UNACCEPTABLE

Health Canada recently identified concerns with some of the Certificates of Analyst issued by one analyst in the Toronto Drug Analysis Service Laboratory. Certificates of Analyst are used to prove the nature of the substance in drug prosecutions. Health Canada has identified issues with respect to 192 certificates regarding the nature of the substance and 13 certificates regarding the purity of the substance. All of these certificates were issued by the same analyst. The Department of Justice is taking steps to notify each accused person found guilty of an offence to which one of these certificates relates.

This protocol applies to you if you have been notified by the Department of Justice that Health Canada has identified an issue with the Certificate of Analyst used in your case. You may wish to consult your lawyer to obtain advice on whether a remedy is available to you.

If you have not been notified by the Department of Justice and do not know if this analyst was involved in your case, you should first contact your lawyer to obtain a copy of the certificate used in your case or the exhibit envelope number in which the substance was submitted for analysis. If you are unable to locate a copy of your certificate or the exhibit envelope number, the Department of Justice will make reasonable efforts to assist. You can also access the following web site to conduct a search of certificates issued by this analyst: www.hc-sc.gc.ca/expo.

1. If you were found guilty of an offence involving an unacceptable certificate and you wish to apply for some form of relief, you must complete a Notice of Intended Application form.
2. You should send your completed Notice of Intended Application form to the Department of Justice office address indicated on the form.
3. The Department of Justice will send you an acknowledgement of receipt by registered mail upon receipt of your Notice of Intended Application.
4. Department of Justice counsel will review your application and advise you in writing whether he or she will consent to the relief sought or, in the case of an application under section 690 of the Criminal Code or an application for a pardon or remission of a fine, whether he or she will forward your application together with an assessment of the new information to the Minister of Justice (where an application has been made to the Minister of Justice to direct a new trial or appeal under section 690 of the Criminal Code), or the Solicitor General (where an application has been made for a pardon, or for the remission of a fine that has been paid). Once a decision has been made you will be notified in writing of the decision.
5. The review of your application for relief will be guided by the following factors:

1. whether the substance involved in your case can be retested and the results of any retesting;
2. whether the identification of the substance was significant to the proof of the prosecution's case;
3. your position at trial, including whether you admitted the identification of the substance, or whether you introduced evidence contesting the identification of the substance described in the certificate, or if the analyst testified, whether you sought leave to cross-examine the analyst;
4. whether you sought access to the analyst's notebooks or data analysis and whether such materials were then available;
5. the seriousness of the offence;
6. what sentence you served;
7. whether there is a reasonable possibility that the defective certificate affected the outcome of your trial or the overall fairness of your trial; and
8. whether trial transcripts or reasons for judgment are available.

6. Where you pleaded not guilty at trial and did not formally admit the identification of the substance, Department of Justice counsel reviewing the application will consent to, or recommend that relief be granted unless, after reviewing the trial transcript, he or she determines that there was evidence independent of the certificate that establishes that the defective certificate could not have affected the result, or where he or she determines that the trial evidence demonstrates the verdict was inevitable.
7. Where you pursue appellate proceedings and, on consideration of the factors in paragraphs 5 and 6, above, it is apparent your conviction must be set aside, counsel reviewing the application will forward the application to the head of appeals, who will consider whether a retrial, an acquittal, or a stay should be requested of the appellate court.
8. Where you and Department of Justice counsel agree as to the appropriate relief, Department of Justice counsel will use reasonable efforts to facilitate the obtaining of such relief in a manner as expeditious and inexpensive as possible.
9. Where you and Department of Justice counsel do not reach agreement as to the appropriate relief, you are free to pursue any relief you choose. The Department of Justice will facilitate your application for relief by:

1. assuming the cost of the transcripts which are reasonably necessary to determine the matter,
2. absent exceptional circumstances, not opposing an application for extension of time within which to appeal, and
3. facilitating the presentation of information to the appellate court through an agreed statement of facts in an application to tender fresh evidence-while reserving its right to contest the admission of such evidence as fresh evidence.

The Department of Justice, in appellate proceedings, may exercise its right to insist on proof of the facts supporting the application and may require that you file an affidavit or affidavits, and be cross-examined on your affidavits.

10. Before applying for a direction from the Minister of Justice for a new trial or appeal under section 690 of the Criminal Code, you should first seek appellate remedies, which will be facilitated by the Department of Justice in the manner explained in paragraph 9, above.
11. Where Health Canada has determined that your certificate is unacceptable with respect to the purity of the substance only, the Department of Justice will not consent to relief unless you can demonstrate that the error figured prominently in the determination of your guilt or innocence, or your sentence.
12. If you pleaded guilty or admitted the nature of the substance at your trial, the Department of Justice will not consent to relief, unless you can show exceptional circumstances why your plea or admission should be set aside.