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.

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Dianne Saxe
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