Canada: Certificate Of Analysis Ok As Evidence Despite Minor Error And Delay?

Last Updated: August 24 2012
Article by Dianne Saxe

A court accepted a Maxxam certificate of analysis into evidence in an environmental prosecution, despite a minor error in an internal chain of custody, and a two month delay in issuing the certificate. The decision is useful for anyone who takes samples, analyses them or uses the result in court.

In R. v. Metalore Resources Limited, 2012 ONCJ 518 (CanLII), Metalore was charged with illegally discharging oil field fluids into a pit in the forest. The relevant samples were legal samples properly taken by a provincial officer and submitted, under a legal chain of custody, to Maxxam Analytics laboratory. Each sample bore a unique identifier which was traced to the certificate of analysis. The prosecutor wanted to introduce the certificate of analysis into evidence, to prove that the fluids caused contamination.

Certificates of analysis by provincial analysts, so designated by the Ontario Minister of the Environment under the Environmental Protection Act, are admissible into evidence in an environmental prosecution without further proof. However, this special provision does not apply to analyses by private laboratories. Accordingly, the prosecution must prove that a private certificate satisfies the business records exemption of Section 35 of the Ontario Evidence Act, in order to have the certificate introduced into evidence without calling each and every person in the lab who handled the samples.

Two Maxxam employees were called in support of the introduction of the certificate of analysis, the person who generated the certificate from Maxxam's Laboratory Information System, and the manager of the lab. At least 16 other people had handled the samples, and errors were possible (but not proven) at each stage. The first witness had made a minor error in the handling of the samples; on an internal document, she wrote that she had forwarded eight samples to the second lab, when she had only sent seven.

Metalore argued that the certificate of analysis was not admissible as a business record under the Ontario Evidence Act. The prosecutor argued that laboratory analyses are precisely the sort of records that are admissible as business records, and that any remaining concerns should go to weight, not to admissibility.

After a lengthy hearing, the court allowed the certificate of analysis to be admitted as evidence. He accepted the evidence of the two Maxxam witnesses that their internal lab protocols were sufficient to produce reliable results and had been followed on this occasion.

"[155]            ....  I am able to conclude, on a balance of probabilities, that the information recorded into the LIM system and subsequently downloaded into Exhibit B represented a systematic procedure whereby, in routine and regular fashion, the Ontario soil and vegetation samples underwent analytical testing for cations and anions to assess their chemical composition.  The testing procedures employed with respect to those samples were similar to the common testing protocols performed thousands of times each year in the Calgary "inorganics" laboratory.  There were extensive and scientifically established quality assurance protocols in place to ensure accuracy of the results and Ms. Thum opined that the results obtained in respect of the Ontario samples were similar to the reliable results that are obtained by the laboratory on a regular basis in respect of the performance of routine soil sample analyses.

[156]              I am satisfied that the data recorded in Exhibit B was data recorded in the same way as soil sample analyses are recorded on a daily, routine and systematic basis in the laboratory.  The samples are analyzed through the use of calibrated and sophisticated instrumentation to detect the level of cations or anions in the sample.  The information resulting from the analysis is then automatically downloaded into the laboratory information management system.  The procedure is completely automated and therefore minimizes the impact of human error on the accuracy of the results. 

[157]              The various steps in the testing process are routinely entered into the laboratory computer system.  Each time an analyst takes a step in the testing procedure, following the standard operating procedure in force in Maxxam's "inoranics" laboratory, that act or event is immediately recorded into the LIM system.  Based on Ms. Thum's evidence, if a mistake was made by an analyst in a step in the analytical process, the mistake or oversight would be flagged by the computer such that it could be corrected. 

[158]              After carefully reviewing the contents of Exhibit B in the context of the totality of the evidence in this proceeding, I find that the said document contains a record of a number of acts performed by various analysts employed by Maxxam's "inorganics" laboratory, on each of the seven Ontario soil and vegetation samples, between March 2nd, 2009 and May 8th, 2009, in the process of determining the results of the chemical analysis of each of the samples.


[164]              The statement of the results is an objective process, which does not involve the application of human education or experience and thereby render a subjective opinion.  The results stated are simply a communication of the information detected by the ICP and IC instruments after the samples were entered into these machines for analysis by the various analysts.  The totality of the evidence establishes that Exhibit B is a document which not only summarizes the various acts or events in the overall testing process relative to the Ontario samples, but actually calculates the results using certain scientific parameters built into the computer software.  Accordingly there does not appear to be any information contained in Exhibit B which would fall into the category of expert opinion evidence, in the form of a diagnosis, impression, or recommendation, which would require the adduction of such evidence through a duly qualified expert at trial.


[177]              There is ample evidence before me to reasonably infer that Exhibit B was made by a number of employees who pursuant to the terms of their employment worked together with a common goal; to accurately complete the chemical analyses of the subject samples and produce the results of the analyses in writing to the Ontario Ministry of Natural Resources in a timely manner.  Since Exhibit B was made pursuant to a regular business duty associated with the operation of a chemical laboratory, it may be presumed to be inherently reliable in accordance with the dicta of Griffiths J. in Setak.


[188]              The said exhibit discloses the fact that Maxxam had a system in place to record the handling and continuity of the seven Ontario soil and vegetation samples herein.  Based on the verbal evidence I have received in this proceeding, I am of the view that to the extent that Exhibit B contains hearsay pertaining to the issue of the continuity of the subject samples and the analytical tests to be performed thereon, Exhibit #4 confirms that both the entrant of the record pertaining to the continuity of  the subject samples and the hearsay informant were acting in concert in the "usual and ordinary course of business in entering and communicating an account of an act, transaction, occurrence or event" at the time of the making of the record.

[189]              In conclusion, having analyzed the eight requirements for admissibility of a record under subsection 35(2) of the OEA, I am of the view that Exhibit B may be properly described as a business record which is sufficiently reliable to meet the threshold of admissibility under the said subsection, as an exception to the hearsay evidence rule."

In a nutshell, the trial justice decided that Maxxam's certificate of analysis was reliable enough to be used as proof of the contamination, because of Maxxam's careful and systematic quality control process. His lengthy analysis of the Maxxam certificate sets a useful benchmark for anyone who analyses samples, or uses the results in court.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Dianne Saxe
In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions