3.13 Release of Exhibits for Testing or Examination

Public Prosecution Service of Canada Deskbook

Guideline of the Director Issued under Section 3(3)(c) of the Director of Public Prosecutions Act

March 1, 2014

1. Introduction
2. Crown Consent to Defence Requests for Release of Exhibits
3. Conditions for Security, Custody, and Continuity of Possession
4. Process for Making an Application
5. Drug Exhibits
6. Exhibits in the Possession of Investigators that have not been Filed in Court
7. Requests by Crown Counsel for the Release of Exhibits for Testing

1. Introduction

This guideline sets out the procedure for the release of exhibits^{Footnote 1} for testing or examination pursuant to s. 605 of the Criminal Code.^{Footnote 2} Crown counsel are also bound by the applicable criminal proceedings rules of the court in their particular jurisdiction.

Section 605 enables an accused to access original items seized for the purposes of testing or scientific analysis. The purpose of s. 605 is to enable the accused to properly prepare or present a defence.

The s. 605 power is discretionary. In order for a court to order release of an exhibit, an accused must provide a factual foundation demonstrating that there is an “air of reality”^{Footnote 3} to the examination sought. The examination sought must have a “meaningful capacity” to advance any available defence.^{Footnote 4} The request must be reasonable in the sense that it must be founded on something more than mere speculation.^{Footnote 5} It must relate to a live issue.^{Footnote 6} “Fishing expeditions” are not permitted.

2. Crown Consent to Defence Requests for Release of Exhibits

Crown counsel may consent in writing to a defence application for the release of exhibits for testing except in the following situations:

where the analysis by the government analyst is not yet completed;
where the proposed analysis will unduly delay the trial;
where the application is brought for an improper purpose;
where the application clearly amounts to a “fishing expedition”; or
where there is a reasonable basis to believe that the independent analyst proposed by the defence is not competent to conduct the analysis.

3. Conditions for Security, Custody, and Continuity of Possession

Crown counsel should request that the judge impose conditions pursuant to s. 605(1) that adequately safeguard the security, custody, and continuity of possession of the exhibit.^{Footnote 7} Accordingly, Crown counsel should seek to have the following terms included in the order:

the name of the person who will have custody of the exhibit;
the means by which the integrity of the exhibit will be safeguarded. This is especially important if the proposed testing is to take place outside of Canada;
the time and place of the analysis or the length of notice to be given to Crown counsel regarding the time and place; and
the names of the persons entitled to be present during the analysis including the person designated by the Crown.

Additionally, Crown counsel may request that the judge permit analysis of only a portion of an exhibit such as a drug exhibit or a water sample.

4. Process for Making an Application

The application must be made to a judge of a superior court of criminal jurisdiction or to a judge of a court of criminal jurisdiction in accordance with the applicable court’s criminal proceedings rules.^{Footnote 8} A justice presiding over a preliminary inquiry is not competent to make an order under s. 605.^{Footnote 9}

An application under s. 605 can be made in connection with Criminal Code charges or charges under any other act of Parliament, unless the other act contains a complete and exclusive procedure dealing with exhibits in criminal proceedings.^{Footnote 10}

5. Drug Exhibits

An applicant may apply to re-analyze a drug exhibit in order to show that the intended analysis can be characterized as quantitatively or qualitatively different from the one initially carried out by the Crown. One example is where the second analysis is designed to assess the purity of the drug exhibit.

Given the nature of drug exhibits, Crown counsel should carefully review the background and professional qualifications of the independent analyst to ensure that the analyst is competent to re-analyze the exhibit.

Wherever possible, only a portion of a drug exhibit should be given to the independent analyst. A sufficient quantity of the drug should be retained in the event that further analysis is ordered by the court on application by the Crown or the accused. Crown counsel should therefore request that the order make provision for the analysis of a part of the drug exhibit only.

A court order authorizing an analyst named in the order to do an independent analysis should be regarded as authorizing the analyst to possess the drug lawfully for the analysis.^{Footnote 11}

The presence of an official designated by the Crown during the independent analysis may be warranted, where feasible, to ensure continuity of possession of the exhibit.

The result of the independent analysis may differ from the result of the analysis conducted by the government analyst. If the independent analyst testifies in court, a government analyst should be present in court to assist Crown counsel. This can be arranged through Health Canada.

6. Exhibits in the Possession of Investigators that have not been Filed in Court

Defence counsel may want to have independent tests done on items that are not deemed to be “exhibits” that have not been filed in court, but that are in the custody of a law enforcement agency (such as handwriting samples, tape recordings, bodily fluids, blood, and computer hardware).

These items may be released for testing in accordance with the Stinchcombe disclosure principles.^{Footnote 12}

7. Requests by Crown Counsel for the Release of Exhibits for Testing

Crown counsel should comply with the normal rules of criminal practice in the province or territory regarding application for release of exhibits for testing. Wherever possible, the initiating documents should be accompanied by a supporting affidavit setting out the basis for the application.

Footnotes

Footnote 1

“Exhibits” refers to items seized that have been filed with a court and does not refer to exhibits that have been seized by the police but that are still in the possession of the investigators.

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Footnote 2

Under s 605 of the Criminal Code, either Crown counsel or the accused may request the release of an exhibit for testing:

605 (1) A judge of a superior court of criminal jurisdiction or a court of criminal jurisdiction may, on summary application on behalf of the accused or the prosecutor, as the case may be, order the release of any exhibit for the purpose of a scientific or other test or examination, subject to such terms as appear to be necessary or desirable to ensure the safeguarding of the exhibit and its preservation for use at the trial.

(2) Everyone who fails to comply with the terms of an order made under subsection (1) is guilty of contempt of court and may be dealt with summarily by the judge or provincial court judge who made the order or before whom the trial of the accused takes place.

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Footnote 3

See R v Gauthier 2013 SCC 32 at para 60 where the Court affirmed the test of “air of reality” in the context of putting a defence to the jury, previously stated in R v Cinous, 2002 SCC 29, [2002] 2 SCR 3. The Court reiterated that “it is not enough to simply identify ‘some evidence’ or ‘any evidence’; the evidence must be ‘reasonably capable of supporting the inferences required for the defence to succeed’.”

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Footnote 4

R v Rhab (1985), 21 CCC (3d) 97, cited in R v W.C.S., 2000 CanLII 28292 (NS SC), R v Hodgson, 1990 CanLII 2106 (BC CA); R c Lawson 2009 QCCQ 7738 at paras 23–25 [Lawson].

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Footnote 5

R v Eagles, 1989 CanLII 205 (NS CA), (1989), 47 CCC (3d) 129 at 136.

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Footnote 6

Lawson, supra note 4 at para 24.

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Footnote 7

Re Klassen and The Queen (1976), 31 CCC (2d) 235 (Sask QB).

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Footnote 8

Note as well that s 683 of the Criminal Code governs the power of the appellate courts to permit the production of new evidence which could include a scientific analysis.

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Footnote 9

Doyle v The Queen, [1977] 1 SCR 597, (1976), 29 CCC (2d) 177, R v Walsh (1981), 59 CCC (2d) 554 (Ont Prov Ct).

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Footnote 10

For example, s 50 of the Controlled Drugs and Substances Act, SC 1996, c 19 does not set out a complete and exclusive procedure for drug exhibits in criminal proceedings. Accordingly, s 605 applies to drug exhibits. See R v Bryers and Mueller (1975), 28 CCC (2D) 466 at 468 (Ont Gen Sess Peace).

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Footnote 11