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

Table of Contents

1. Introduction

This guideline sets out the procedure for the release of exhibitsFootnote 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:

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:

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.

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