HTTP/1.0 200 OK Content-Type: text/html Silence Greets Invitation To Appeal Drug Convictions
Pubdate: Sat, 02 Mar 2002
Source: National Post (Canada)
Copyright: 2002 Southam Inc.
Author: Tom Blackwell


Narcotics Tests Flawed

When Health Canada discovered that one of its drug testers had botched the 
analysis of contraband in more than 200 narcotics cases, officials braced 
for a flood of appeals and re-trials.

But months after the department advertised the flawed tests across Canada, 
not a single person affected by the affair has launched an appeal of their 
possibly tainted conviction, stunning the government and defence lawyers.

An invalid drug analysis certificate would result in almost any drug case 
collapsing -- if someone bothered to challenge it -- one lawyer said 
yesterday. In fact, several cases involving problematic tests that were 
still in progress were dropped by prosecutors because of the flawed 

"It's still out there and people can still come forward. But we haven't had 
a call from the public since [the ads were published] and we wonder if 
anything will ever come of it," said Dorette Huggins, a Justice Department 

The Justice Department even assembled a special team of lawyers to tackle 
the fallout. It was a "completely unprecedented" situation and no one knew 
what to expect, said Ms. Huggins.

The unusual affair began about a year ago when Health Canada discovered an 
analyst at its Toronto Drug Analysis Service had improperly conducted 
numerous tests between 1991 and 2001 on substances submitted by police as 
alleged illegal drugs.

The flawed tests included 192 to determine if something was a banned drug, 
and 13 on the purity of the substance. The problems included wrongly 
identified samples, lack of evidence to justify a positive test result and 
significant errors in entering data on the tests, said Justice David 
Griffiths in a report commissioned by Health Canada.

The government had no way of matching the flawed tests to specific cases, 
because the certificates bore only an exhibit number. So it published ads 
in newspapers across the country asking people who might have been affected 
to call the Justice Department. Similar notices were sent to defence lawyers.

Of the 192 people who called in, it was determined that 116 were convicted 
in cases that involved problematic tests. The Justice Department sent those 
people documents to fill in and file to indicate they wanted a review.

Three people responded, although two of the notices were incomplete, said 
Ms. Huggins. No one has actually followed up with a formal appeal.

"It does surprise me," said Brian Greenspan, a top Toronto defence lawyer. 
"Quite frankly, in a drug case, if there is no proper evidence of analysis, 
the drug case fails ... Each of those [affected] cases ought to have been 
reviewed and analysed."

He said it might have been wise for the Justice Department to supply a free 
lawyer to anyone it identified as having been affected by the problems.

But Ms. Huggins said the department followed the recommendations from Judge 
Griffiths on how to deal with the affair.

Among the steps taken, prosecutors were advised not to rely on any of the 
certificates issued by the analyst, whether flawed or not. Where samples of 
the drug were still available, they were re-tested. But where it was not 
possible to re-test the substance, and the test was required, the Crown 
counsel were instructed to withdraw the case entirely, according to Judge 
Griffiths' report.
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