R. v. DELANEY, 2022 NLPC 0520A00203, MAY 20, 2022.

FACTS: The accused was charged with offences, contrary to sections 320.14(1)(a) and 320.14(1)(b) of the Criminal Code.  At his trial, the Crown sought to introduce a certificate of analysis.  It was served after a pre-trial application, in which the parties agreed the evidence would form part of the trial, was completed.

Section 320.32(2) of the Criminal Code states as follows:

No certificate shall be received in evidence unless the party intending to produce it has, before the trial, given to the other party reasonable notice of their intention to produce it and a copy of the certificate.

The accused argued that the certificate was inadmissible because it had been served after the trial commenced.

HELD:  The certificate was ruled to be inadmissible.  Judge Porter indicated that “[if the evidence heard in the voir dire is meant to also apply to the trial proper, then the trial began with the calling of evidence in the voir dire” (at paragraph 18).  Judge Porter concluded that “[b]ecause the trial had already started before Cpl. Mercer served notice of the Crown intent to tender into evidence the certificates of analysts Chan and Minh, the Crown is not in compliance with the requirements of Criminal Code s. 320.32(2).  As a result, the certificates are not admissible” (at paragraph 20).