PROTOCOL II -
FOR CERTIFICATES OF ANALYST NOT IDENTIFIED BY HEALTH CANADA AS DEMONSTRABLY 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.

This protocol applies to you if you have not 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 do not know whether 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. The following rules apply in the case of

• all cannabis certificates issued by the analyst on or between May 8, 1991 and March 8, 2001 (supporting documents remain available), and
• all other drug certificates issued by the analyst on or between February 6, 1996 and March 8, 2001(supporting documents remain available):

1. the Department of Justice will assume that these certificates were appropriately issued and will contest any claim for relief that may be advanced;
2. if you request disclosure of the available supporting documentation, the Department of Justice will provide disclosure to you.

2. The following rules apply in the case of

• all cannabis certificates issued by the analyst before May 8, 1991;
• all other drug certificates issued by the analyst by prior to February 6, 1996:

1. if you request disclosure of the available supporting documentation, the Department of Justice will provide disclosure;
2. if you apply for relief by filing a Notice of Intended Application form, you must also file an affidavit or statutory declaration setting out the basis for your belief that the substance was inaccurately described in the certificate;
3. if you admitted the nature of the substance at trial or pleaded guilty, you must include in your affidavit or statutory declaration the exceptional circumstances why your admission or plea should be set aside;
4. your affidavit or statutory declaration should also indicate the following:

• your plea at trial
• whether you made any admissions about the identification of the substance or its purity
• whether the certificate was tendered in evidence
• whether the analyst testified, and if so, whether you sought leave to cross-examine the analyst
• whether you introduced evidence contesting the identification of the substance described in the certificate or its purity
• whether the prosecution tendered evidence other than the certificate on the identification of the substance or its purity at your trial, and
• how the alleged error in the certificate would have affected your trial result.

5. you should send your completed Notice of Intended Application form to the Department of Justice office address indicated on the form.
6. the Department of Justice will send you an acknowledgement of receipt by registered mail upon receipt of you Notice of Intended Application form.
7. 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.
8. the review of your application for relief will be guided by the following factors:

1. Whether you have established a credible basis for concluding that the substance was inaccurately described in the certificate, and that, had the inaccuracy been disclosed, the result at trial would have been different;
2. Whether you sought leave to cross-examine the analyst at trial or introduced evidence contesting the identification of the substance as described in the certificate.
3. Whether you entered a guilty plea or admitted the nature of the substance at trial. If you entered a guilty plea or admitted the nature of the substance, the Department of Justice will not consent to relief, in the absence of exceptional circumstances showing why your plea or admission should be set aside.