SILENCE GREETS INVITATION TO APPEAL DRUG CONVICTIONS

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
certificates.

"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
spokeswoman.

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.