(The most recent version of this paper can be found at www.lawyers.ca/carter. This paper was preared for a LSUC presentation in May 2008)

Introduction

Bill C-2 amends Criminal Code sections 258(1)(c) and (d) deleting any reference to “evidence to the contrary”. Interpretation Act section 25 is not applicable to permit a defence of “evidence to the contrary” because these evidentiary amendments trigger  “conclusive proof”.  Mandatory presumptions of temporal identity rebuttable by broad W.D. evidence to the contrary are replaced by conclusive proof of temporal identity and accuracy rebuttable only by the following narrowly-worded W.D. scientific explanations:

Breath (4 prescribed scientific explanations):

Blood (3 prescribed scientific explanations):

Respecting both breath and blood analysis following a demand, there is a real danger that an innocent person will be convicted. A wrongful conviction may occur if a valid scientific defence does not fall within one of the prescribed scientific explanations or if there are defects in the scientific integrity and transparency of the breath or blood testing system that render these evidentiary shortcuts unfair.

It is respectfully submitted that the amendments are patently unconstitutional, violating Charter sections 11d, 7, and perhaps 15. These paragraphs of section 258 should not be saved under Charter section 1. Parliament’s intention to establish “conclusive proof” respecting an essential and quantitative element of the offence with no defence of “evidence to the contrary” should be rejected.  The section should not be read down unless the Courts can find a way to :

Under Bill C-2 an individual who challenges the accuracy of a breath instrument faces a “conclusive proof” evidentiary shortcut, may be convicted, and no longer has an “evidence to the contrary defence” notwithstanding:

 “the case of an accused who rebuts the presumption of accuracy in s. 258(1)(g) with evidence both that his or her blood alcohol content at the time of the breathalyzer test was different than that indicated by the machine (as required by s. 258(1)(g)) and that it did not exceed the legal limit at the time of testing (as required by the common law).”[2]

The existing law respecting the presumption of accuracy in section 258(1)(g) remains the same. A second presumption of accuracy may arise from the instrument printout under the new section 258(1)(f.1)[3]. However, the new sections 258(1)(c), (d), and (d.1) contain or imply both presumptions of accuracy and presumptions of identity. If constitutional, the concept of a “Carter” defence in a “presumption of accuracy” case will be gone forever.[4] This paper focuses on breath not blood, and on 258(1)(c) accuracy not identity.

 

The Delict Has Not Changed

It is an offence in Canada for someone to drive with over 80 mg/100mLs ethanol in their blood. Parliament has not changed the legal limit for driving with blood alcohol.  The delict remains the same. It is not a criminal offence in Canada for an individual to drive with 75 mg/100mLs ethanol in their blood. If a person drives with  75 mg/100mLs ethanol in their blood then they should be found innocent if tried for over 80.

Parliament could have changed the delict to over  50 mg/100mLs ethanol in blood if Parliament had wanted drivers over 75 mg/100mLs to be convicted. Parliament has chosen not to do so. Driving over 75 mg/100mLS is not an offence known to Canadian law.  The legal limit remains the same.

Parliament could have changed the delict to over  0.080 g/210 L breath alcohol concentration as some  U.S. states[5] have done. Proving  that very different offence might be easier for the Crown.  Parliament has chosen not to do so. The Canadian criminal limit continues to be expressed as a concentration of ethanol in blood rather than breath.

 

Integrity of the Breath Test Program – Transparency and Disclosure

Canadian police services use scientific instruments to sample breath and analyze apparent breath alcohol concentration (apparent BrAC) in an attempt to measure blood alcohol concentration (true BAC). This approach generally will produce an accurate analysis, however, that is not always the result.

Some approved instruments, simulators, and simulator thermometers are better than others.[6] The calibration of each of these approved instruments and accessory equipment affects the accuracy and the verification of accuracy of a breath test. Police services are required to keep proper documentation of the calibration and calibration checks of each of these instruments.[7] Some police services will not disclose calibration and calibration check documents.[8]

Most police services regularly send their instruments to the factory authorized service centre for scheduled maintenance, keeping proper documentation.[9] Toronto Police Service performs its own scheduled maintenance. Some police services will disclose maintenance records, some will not.[10] In the Greater Toronto area there are senior breach technicians who make adjustments to the insides of their own instruments lacking the necessary tools to calibrate[11]. Disclosure of the maintenance log in a Brampton case[12] led to the revelation that a “chopper motor” and the “R18 resistor” had been replaced by a senior breath technician. Cross-examination at trial revealed that he had conducted his own repair to the optical bench of an IR instrument, adjusting internal voltages and standards, and thereby affecting calibration. He did not, however, verify his re-calibrations using 50, 200, 300, and acetone simulators as would have been done by the factory authorized service centre. The accuracy of breath sample analyses at ranges below 100 mg/100 mLs, above 100 mg/100 mLs, or containing an interferent, such as acetone, would thereby be compromised.

Negligent maintenance or calibration of an instrument will not be evident to the defence unless complete maintenance and calibration records are disclosed.

At least one police service has a policy that they will not permit defence professional photographers to photograph their instruments.[13] Some police services will not permit a defence expert to examine their instruments or a professional photographer to photograph their instruments.[14]

 These considerations are important from a full answer and defence constitutional perspective because:

“Proper calibration and/or calibration check procedures are the primary means of assuring accuracy of the Approved Instrument, Approved Screening Device and accessory equipment at the time of use. In addition to these calibrations and/or calibration checks, formal maintenance procedures are essential to the integrity of the breath test program.”[15]

 

Different approved instruments have different hardware and software design. Unfortunately such design and design changes are not transparent and may not be disclosed. Approved instruments used in Ontario are not generally available for purchase or study by defence lawyers or defence experts. Defence experts are not welcome at the training programs offered by some manufacturers.[16] Police services have different protocols for procedure prior to the subject test and during the subject test. Unfortunately, such protocols are not always clear and sometimes are not disclosed. Not all breath rooms have video equipment to adequately record procedure before and during the subject test. Some breath room video cameras do not record the screen of the instrument.[17]

The original software version number of an approved instrument at the time of its evaluation and approval by the Alcohol Test Committee (with subsequent approval by the Minister of Justice) may not have been identified. The source code design of the software, including unique Canadian elements, at the time of evaluation may not have been documented. The evaluator, usually the Centre of Forensic Sciences in Toronto or the R.C.M.P.,  may not have retained their file[18]. Source code design may change dramatically over time affecting the capabilities of the approved instrument to deal with new physiological and environmental presentations. Software changes may not be identified, well-documented, and disclosed by the manufacturer, the Alcohol Test Committee, and the Minister of Justice . Software (also known as firmware) may vary with different provinces, among police services, and from one machine to another. Software safeguards, that we hear about every day in Court (e.g. Internal Standards on the 5000), may not have existed in the software when the approved instrument was evaluated for the Alcohol Test Committee many years ago. The original software version of an evaluated instrument and software changes should be well documented and disclosed.[19]

All of the above considerations affect the ability of an innocent person to make full answer and defence and should be subject to Charter remedies.

My experience leads me to believe that it is not safe to assume that most police services and most police officers always use properly maintained, calibrated, and calibration-checked instruments in accordance with protocol.

It is respectfully submitted that the implementation of a new section 258 evidentiary shortcut that results in “conclusive proof” unless the accused establishes a scientific explanation for an apparent BrAC - true BAC difference requires proven scientific integrity and transparency of the breath testing system. Unless there is full disclosure of the hardware and software design of the approved instrument as originally evaluated, properly documented hardware and software upgrades, availability of instruments for testing by defence experts, opportunity for defence experts to attend factory training, transparency, protocol, and documentation in maintenance and repair, and transparency, protocol, and documentation respecting calibration and calibration checks, the accused cannot make full answer and defence in a Bill C-2 world. 

 

 Integrity of the Breath Test Program - Police Malfeasance

If a breath instrument with a reliable simulator, simulator thermometer,  and fresh current SAS is overstating BAC over several breath tests, then high stand-alone calibration checks or high calibration checks during various ACABA breath sequences should alert senior police officers that something is wrong. The instrument should be taken out of use and sent to the authorized factory service centre for repair, maintenance, and recalibration. However, because of budget restraints, a police detachment might only have one approved instrument.  A senior breath tech, willing to attempt to obstruct justice, could easily dilute a bottle of standard alcohol solution so that its true target became 90 rather than 100. The instrument would be functioning as it was designed subject to a need for recalibration. The instrument could produce breath tests that looked normal but in fact each subject test BAC would be overstated. Alternatively, a breath instrument that was understating BAC could be made to appear accurate by using 110 solution rather than 100. The “conclusive proof” provisions of the new section 258(1)(c) do not seem to contemplate the possibility that a police officer  other than the operator could commit the error.

Assuming the integrity of the approved instrument one also has to consider the integrity of the senior breath technician who is responsible for the weekly change and sealing of the standard alcohol solution according to protocol. One must also consider the integrity of each breath tech who has used the simulator following the weekly change. Perhaps the simulator has been used to calibrate screening devices in the interim. It is my experience that not all police services place a numbered seal  between the simulator jar and the upper part of the instrument.[20] In the event the instrument is running out-of-range calibration checks, in the absence of a seal, there is nothing to prevent a subsequent breath tech from diluting the ethanol in the jar to cook acceptable calibration checks in the 90 to 110 range. Ethanol can also be added by placing a drop of Vodka through the simulator thermometer opening if the instrument is running low calibration checks. Unless the police service downloads, saves, and discloses ADAMS/COBRA data (which records every stand-alone calibration check even if the card for the calibration check is discarded[21]) it is very easy to hide bad calibration checks.[22]

By using the Esc Esc E keyboard sequence on the 5000 it is very easy to change the date and/or time on the machine. This technique could be used, after repair of a defect,  to produce false stand-alone calibration checks or diagnostic checks for any previous date or time. Such fabricated Intoxilyzer Test Records would look like they were generated by the machine the night of the subject test.

It is relatively easy for a senior breath tech to open up the cover of a 5000 using a set of hex keys purchased at a hardware store. Once inside it is a simple matter to tweak the following potentiometers:[23]

R221

Main Alcohol calibration on CPU Board

R33

Potentiometer, Blue, 380 Channel Adjust, to sticker voltage, 6 Vdc +- .02 Vdc, reference channel, 3.80 micron no reactivity with alcohol or other substances found in normal human breath, Pot 1

R99

Potentiometer, Blue, 348 Channel Adjust, to sticker voltage, 6 Vdc +- .02 Vdc, alcohol analysis channel, Pot 2

R38

Potentiometer, Blue, 339 Channel Adjust, to sticker voltage, interference channel, Pot 3

R62

Potentiometer, Blue, DVM Pot 4, Adjust to 340-350, 350 +- .003

R65

Potentiometer, Blue, Acetone Subtract Pot 5

R82

Potentiometer, Blue, Acetone Detect Pot 6

R133

Potentiometer, Gray, Internal Standard 1, .100 +- .002

R134

Potentiometer, Gray, Internal Standard 2, .200 +- .002

R100

Potentiometer, Gray, Internal Standard 3, .300 +- .002

 

Tweaking R221 would void the warranty on the 5000 and might be easily discoverable from high or low calibration checks using a proper SAS, however, tampering with other pots would not be so obvious. A senior breath tech could, for example, deliberately or accidentally reset the DVM R62 and  internal standards R133, R134, R100 to match the machine readings without verifying the instrument’s calibration externally. A senior breath tech could also deliberately or accidentally alter the acetone detect R82 and subtract R65 circuitry as well as affecting the detection of other interferents (including by changing the chopper motor or cleaning the filters). The instrument would probably still run without crashing and report that internal standards had been verified, however, the instrument would have lost its functionality of separating out acetone, acetaldehyde, isopropanol and other interferents and the internal standards system would be meaningless.

A 5000 66 series machine will run a normal stand-alone diagnostics check with the breath tube and RFI antenna removed. An expert from Wisconsin provided an opinion in a Montreal case that she could disable many of the internal systems of a 5000 and the instrument would still appear to run normally and pass diagnostics tests and internal standards tests.[24] One can reverse a plug on the inside of the instrument so that the printer will print backwards but the instrument still “passes” a diagnostics check.

The 5000 and some other approved instruments produce error cards whenever the instrument experiences an error message such as an ambient fail, RFI interference, range exceeded, unstable reference, invalid sample, invalid test, and improper test. Such error cards should obviously be kept,  disclosed, and made available for evidence purposes. It should not be easy for an officer to simply throw an error card or a record of a failed diagnostic check or failed calibration check in the garbage. Paper logs should be kept of every operational error. The electronic log  of the same data should be downloaded, preserved, disclosed, and made available for evidence purposes. Unfortunately, such paper logs are not kept in Ontario and apart from Toronto Police Service, Ontario police services do not preserve the electronic log. This is so notwithstanding  “We will be using COBRA when we institute a quality assurance programme throughout the province.”  promised in a 2000 case[25] and notwithstanding promises contained in the September 1994 Intoxilyzer 5000C Training Manual that such data would be available for defence requests for disclosure.[26] 

Ontario police services and the Centre of Forensic Sciences do not appear to have one clear protocol for authorized access to instrument interiors, maintenance training, and formal maintenance procedures.[27] In Ontario, cannibalization of parts is permitted. [28]

The Alcohol Test Committee of the Canadian Society of Forensic Sciences promotes clear standards respecting training, who should be permitted to repair and maintain, formal procedures, and logs of maintenance.  The ATC sees such standards as essential to the integrity of the breath testing system.

Crown’s Offices do not have a uniform policy respecting disclosure of maintenance documents. If some Ontario Crowns will not disclose maintenance records that the ATC sees are essential to the integrity of the breath test process, then the defence cannot start to make full answer and defence on these possible scientific explanations respecting error.

It is respectfully submitted that the implementation of a new section 258 evidentiary shortcut, that results in “conclusive proof”, unless the accused establishes a scientific explanation for an apparent BrAC - true BAC difference, requires that we assume police integrity in the breath testing system. Unless there is full disclosure of police activity respecting use and abuse of approved instruments and accessory equipment , the accused cannot make full answer and defence. 

 

Integrity of the Breath Test Program – How Do We Best Achieve Accuracy and Precision in Breath Testing?

Jan Semenoff, a Canadian breath instrument author, instructor, and expert[29] postulates the breath testing process as spokes on a wheel. The hub is the target – accurate results obtained. When too many spokes get loose, damaged, or are not there at all the wheel falls off.  The spokes include:

The Alcohol Test Committee of the Canadian Society of Forensic Sciences  speaks of breath tests as a scientific process with proper scientific practices and standards.[30]  The ATC asserts that calibration, calibration checks and formal maintenance procedures are essential to the integrity of breath testing.

Not all “approved instruments” have the same capabilities in identifying/quantifying ethanol, separating ethanol from other alcohols, separating alcohols from other interferents, separating mouth/stomach alcohol from breath alcohol, and excluding environmental sources of error .

If the operator can claim that they are following local (but inadequate) protocol and the Courts narrowly construe “operated improperly” then the defence may not be able to make good use of a scientific explanation for the true BAC-apparent BrAC difference because of a violation of  national or international protocol. 

If the new legislation precludes scientific explanations based on error except “the approved instrument was malfunctioning or was operated improperly” then in police malfeasance (deliberate or accidental) cases the accused may not be able to make full answer and defence.

However, even if we assume the opposite, there are areas of potential error that may result in the conviction of innocent Canadians. Because we generally analyze breath rather than blood it must always be remembered: 

There are possible scientific explanations for large differences between true BAC and apparent BrAC related to the erroneous identification and quantification of interferents or mouth alcohol. There are possible scientific explanations for small differences between true BAC and apparent BrAC related to the ratio between true BAC and deep lung air in the context of body and breath temperature. These explanations may be applicable, even if the approved instrument was not  malfunctioning and was not operated properly.

Under the pre C-2 “evidence to the contrary” approach Courts can review such scientific explanations for the difference and accept them or reject them.  The new legislation severely limits that safety valve.

It is respectfully submitted that, unless the Courts adopt a very wide construction of the words “the approved instrument was malfunctioning or was operated improperly”, the new section 258(1)(c), read in the context of 258(1)(d.01),  violates sections 7, 11(d), and 15 and should not be saved under section 1. Having mandated “conclusive proof”, deleted the “evidence to the contrary” safety valve, and limited scientific explanations to just 4,  Parliament has stepped outside the bounds of section 1 :

11(d)  

In Phillips and the Queen, the Crown conceded that section 258(1)(c) violated the section 11(d) presumption of innocence but was saved by section 1. In Phillips the Ontario Court of Appeal determined that 258(1)(c) created a mandatory presumption that could be overcome by empirical  evidence to the contrary.

In R. v. Gibson, Justice LeBel hinted at the major differences between the old mandatory presumption and C-2 “conclusive proof”:

“As I mentioned above, the wording of the provision gives no indication of a legislative intent to render the fictional presumption absolute or irrebutable in practice.  It also leaves open the possibility of discrepancies between test results obtained at the time of testing and the blood alcohol content of the accused at the time of the offence. Although I will not delve too far into constitutional issues that have not been raised in this appeal, a mandatory presumption that requires the accused to raise a reasonable doubt about a fact that has not been proved by the Crown may prima facie be a limit on the presumption of innocence protected by s. 11(d) of the Canadian Charter of Rights and Freedoms that needs to be justified under s. 1.  For example, in Phillips, the Ontario Court of Appeal, held that the presumption of identity, the equivalent of today’s s. 258(1)(c), was prima facie unconstitutional.  However, the presumption was saved under s. 1 of the Charter, in part because it was rebuttable by means of evidence to the contrary.”[32]

 

7

Possible challenges include:   

“Conclusive proof” replaces “mandatory presumption” and raises the bar to inability to prove an accused innocent let alone raise a reasonable doubt.

Police malfeasance and negligence in tampering with approved instruments and associated equipment, destroying evidence,  maintenance, and calibration.

Police use of antique instruments.

Inadequate video recording equipment including camera location.

            Crown policies of non-disclosure of recordings, records, and data.

15       

Gender, age, and disability bias respecting blood: breath ratios and body or breath temperature.

 

Other Scientific Explanations That Are Not Permitted

Parliamentary or regulatory approval of a machine may afford it a pedigree from which we can draw an inference of reliability or a presumption of accuracy but that does not mean in fact that a machine, that is a member of the class, is always accurate. Some instruments are new, whereas, some are old and not well-maintained and calibrated. Qualified technicians may have a pedigree that permits us to rely on their work, but that does not mean that they and their police colleagues never deliberately, negligently, or inadvertently get it wrong. Police do not always follow the scientific experimental method of transparent apparatus and procedure.   Some scientific explanations for a difference between true BAC and apparent BAC  prima facie may fall within the words “the approved instrument was malfunctioning or was operated improperly” but there are other real errors that don’t.

One problematic area relates to changing design of instruments and protocol.  Suppose someone drives who has a true blood alcohol concentration of 75 mg/100mLs (true BAC). On demand, he or she blows 92 mg/100 mLs (apparent BAC calculated from breath - BrAC) into an approved instrument. The difference occurs because the physiological presentation  or the environmental presentation at the time of the breath test sequence was not adequately contemplated by the existing hardware or software design of the breath instrument and/or the existing protocol for breath testing. Such an innocent person should not be convicted if he or she rebuts any presumption of accuracy with evidence both that his or her blood alcohol content at the time of the breathalyzer test was different than that indicated by the machine (as required by s. 258(1)(g)) and that it did not exceed the legal limit at the time of testing (as required by the common law).”[33]. If there is good evidence of true BAC based on a believable drinking scenario, corroboration,  Heideman testing (in the context of Gibson), and the opinion of a toxicologist, combined with a scientific explanation of the difference, then the trial process should result in an acquittal. Unfortunately, the wording of 258(1)(c) may not permit such scientific explanations.

 There are other explanations for BAC-BrAC differences relating to the accuracy and precision of approved instruments and their proper use that can be established based on scientific evidence. It is submitted that the wording of the new presumptions of both  accuracy and identity in sections 258(1)(c) and (d.1) will prohibit all such scientific explanations for the true BAC-apparent BrAC difference except the four. Contrary to R. v. Crosthwaite [34] the accused will be at the mercy of the technician and the machine and the defence will not be permitted to defend on the basis of proven innocence, let alone raise evidence tending to show reasonable doubt based on scientific explanation unless that explanation for the true BAC-apparent BrAC difference falls into one of the 4 very limited prescribed categories.

Assuming the section 258(1)(c) conditions precedent apply, Bill C-2  permits evidence to the contrary scientific explanations  only where, for example, someone drives who has a true BAC of 75 mg/100mLs  but who blows an apparent BrAC of 92 mg/100 mLs because:

1.      The breath instrument malfunctioned during the test sequence,

2.      The operator did not follow protocol during the test sequence

3.      The accused consumed alcohol following the offence, or

4.      The accused engaged in bolus drinking.

The new section 258(1)(c) creates conclusive proof that cannot be overcome by scientific explanation evidence to the contrary combined with Carter/Heideman/Gibson evidence to the contrary except respecting scientific explanations 1 through 4. I propose that the ”conclusive proof” and four limited scientific explanations in the new section 258(1)(c) also violate Charter section 7 because an innocent accused cannot make full answer and defence to prove his or her innocence, let alone raise a W.D. reasonable doubt unless the scientific explanation for the true BAC-apparent BrAC difference falls within the prescribed four. Precluded physiological scientific explanations for the difference related to blood breath ratios, body temperatures, and breath temperatures differing among persons of different gender, age, height, health, and perhaps race may result in discrimination prohibited by Charter section 15.

 

 

Carter Evidence to the Contrary

Canadian lawyers and Judges are familiar with the Carter approach to rebutting the presumption of identity or accuracy by evidence of an accused, drinking buddies, and receipts (if any), evidence of controlled alcohol testing to establish elimination rate, and the opinion of a toxicologist of a range of true BAC below 80 mg/100mLs at the time of driving. That approach has permitted trials of reasonable length and reasonable cost for both the Crown and defence. The Carter safety valve has made it largely unnecessary for Judges and lawyers to become “experts” in the fields of breath alcohol science. Detailed scientific explanations for the differences between true BAC and apparent BrAC have been helpful in some cases in bolstering reasonable doubt but most Carter defences have not required the expense and time of dueling Crown and defence experts in such complex areas as specificity and radio frequency interference.

Bill C-2 opens up a brave new world wherein Judges and lawyers will need to become familiar with the operation and malfunction  of various kinds of hardware and software. Trials will double and triple in length and the cost of defending an evidence to the contrary over 80 may jump from an average of $9000 to $20000 (my estimate)[35].

There are those that think that Carter defences are invitations to perjury and that the Carter approach brings the administration of justice into disrepute. A few weeks ago, I listened to a Crown opine, off the record, that he really didn’t understand how the Court could say in Judgment that the 5000 was “reliable” but find W.D. reasonable doubt based on a shaky drinking scenario. From the same case, I overheard the accused and another member of the public, in the men’s room, wondering out loud if the Judge had been paid off by defence counsel.   I thought the Judgment was well-structured and strictly in accordance with the current law. In the absence of a scientific explanation component to evidence to the contrary, perhaps Parliament has valid concerns for the public’s perception of the administration of justice.

We have discussions in the current law over the use of breath readings in rejecting evidence to the contrary. Perhaps, we should litigate the real accuracy and precision of those breath readings. Based on Parliament’s direction, lawyers and Judges may need to cease the current approach: assuming reliability, but having a W.D. reasonable doubt. We should adopt a principled approach to scientific explanations for apparent BrAC-true BAC differences that raise W.D. reasonable doubts.

However, if we abandon the Carter safety valve then we must ensure that the truly innocent have practical ways to defend themselves. Any new legislation, if it is to be saved by Charter section 1, must be construed and applied in such a way as to permit all defences based on science that tend to show a true BAC below 80 mg/100mLs and not just the four. “Conclusive proof” is not a helpful concept because it complies that a black and white issue has been established obviously and conclusively. The concept may be useful with regulatory offences or with respect to something as clear as the existence or non-existence of a licence but is very dangerous if applied to the very difficult and important litigation process of determining true BAC in the context of the spokes of the wheel postulated by Jan Semenoff.

If the replacement for Carter does not protect the right of an accused to make full answer and defence based on a scientific explanation for the true BAC – apparent BrAC difference, then the new legislation offends Charter section 7 as well as 11(d) and should not be saved by section 1.

 

“the approved instrument was malfunctioning or was operated improperly”

Time

The new legislation does not define the time of malfunctioning or the time of improper operation. Prima facie it implies “when the analyses were made“ or at the time of “determination that the concentration of alcohol in the accused’s blood exceeded 80 mg of alcohol in 100 mL of blood”.

If so construed and applied the new legislation would include defences based on breaches of protocol at the time the sample is received into the instrument (the B in the ACABA test sequence[36]) but  would it include breaches of operator protocol during the first air blank (A), the calibration check (C), the second air blank (A), the third air blank (A) that follows the subject test (B), the instrument’s reporting of “Test Complete”, or the printing of the test record? 

A possible example of immune from attack (because of time of breach) operator error would be breach of protocol respecting the checking of actual simulator temperature during the calibration check (the C in ACABA). A standard alcohol solution with a target value of 100 is only a standard if it’s temperature in the simulator is 34° ± .2 °C. The simulator temperature is not checked automatically by the approved instrument, it must be visually checked by the operator examining a narrow and difficult-to-see mercury column on the simulator thermometer (Guth 34C or Mark IIA).

Operator error may occur during the ACABA sequence or long before. Contrary to the opinion of some qualified technicians, mouth alcohol bias can occur without the instrument hardware and software design triggering an “Invalid Sample” message during the test sequence.[37] Mouth alcohol bias is the main reason why  we have protocols related to a 15 or 20 minute deprivation-observation period and two tests 15 minutes apart with 20 mg/100mls agreement.

A possible example of immune from attack (because of time of breach) operator error would be breach of protocol respecting the 15 or 20 minute deprivation and observation period before the ACABA test sequence.

Instrument “malfunction” (if it can be described as “malfunction”) or error can occur at any point during the ACABA sequence or long before that time.

A possible example of immune from attack (because of time) malfunction would be a zeroing error that occurred at the conclusion of the final A in the previous subject test or the previous stand-alone check on the 5000. That could have occurred hours earlier.[38]

Another possible example of immune from attack (because of time) malfunction would be a setup error in the preparation of the approved instrument, the simulator, the simulator thermometer, or the standard alcohol solution perhaps days earlier.

 

 “Malfunctioning”

The new legislation does not define “malfunctioning”.  At first glance the section implies that the instrument stopped running, crashed, or broke down. Do the words imply hardware only or hardware and software? Perhaps it means “the instrument was not functioning as it was designed”. 

If so construed and applied the new legislation would include defences based on aberrant machine behaviour not in accordance with its design, evident at the time of the subject test, but would it include “inadequate hardware or software design” relative to the physiological or environmental presentation of the particular accused in the particular breath room?  What if the instrument is functioning the way it was designed twenty years ago, but there are defects in the design that cause it to misreport some physiological or environmental presentations? A good design of hardware and software in 1988 may be bad design in 2008.

What if the “approved instrument” is a member of an antique class that is multiple generations behind current science and technology and has been abandoned by other jurisdictions because it is just too old? If the instrument continues to function as it was designed twenty years ago but the instrument lacks  proper mouth alcohol detection or specificity for ethanol hardware and software, then its function may be inadequate by today’s standards, however, the instrument may still be functioning as it was designed.

What if the “approved instrument” has been repaired by a local police officer using cannibalized parts from a scrap machine and the police officer does not recalibrate the instrument using test solutions of 200, 300, acetone, and acetaldehyde? The instrument may still appear to “run” and produce a breath test result, but accuracy (both quantum and specificity) is suspect. This is not an apparent “malfunction” because the instrument still will produce a BAC result.

 

”Approved Instrument”

Can “the approved instrument was malfunctioning or was operated improperly” be construed and applied if the instrument or the SAS that was malfunctioning was not the “approved instrument” but rather an accessory to the “approved instrument”:

·         The simulator or the simulator thermometer (separate instrument, separate manufacturer, separate maintenance, not approved by regulation) was malfunctioning. The simulator is not an approved instrument.

·         The standard alcohol solution was defective (stored separately, refrigerated, separate manufacturer, defect discovered months later on lab analysis). The standard alcohol solution is not an approved instrument.

 

Operator

 In addition to the problems with time, malfunction, and approved instrument,  there is a problem with the concept of who “operated improperly”. If the section is construed and applied such that the person who “operated” must be the qualified technician who conducted the ACABA test sequence then it is not a permitted scientific explanation if:

·         Another breath tech who last changed the solution did not properly log the change.

·         Another breath tech used the same SAS 100 times two days earlier while calibrating approved screening devices, failed to change the SAS in the simulator, and did not log the SAS use in the approved instrument calibration log.

·         Another breath tech did not log, report, or react appropriately to operational errors experienced by the approved instrument such as “unstable  reference”, “internal standard failed”, or “range exceeded”.

 

The “approved instrument” has a special pedigree

The old “Breathalyzer” is still in use in Ontario. It is still an “approved instrument” in versions 900 and 900A. The operator manually turned a dial to visually centre a meter. The operator would attempt to read a needle to obtain an analysis. It has never been removed from the approved instruments regulation.

The Breathalyzer 7410 with printer is an “approved instrument” in Canada even though it is a fuel cell instrument virtually identical to the Alcotest 7410, our screening device. The 7410’s have no mouth alcohol detection hardware or software. Though specific to alcohols they are not specific to ethanol.

The 5000 64 series was evaluated in Canada in 1988 and 1989. Since that evaluation our colleagues in the United States have used, and some discontinued using, two further generations of 5000 66 series and 5000EN. The 5000EN has 5 filters to aid in ethanol specificity, the 5000 64 and 66 series have three. In some states the Americans are now using the Intoxilyzer ® 8000, three generations of instrument beyond the 5000 64 series. Our lowly 5000 64 series and 5000 66 series instruments are antiques. Our “C” model did not obtain Canadian Standards Association approval until a few years ago.[39][40]

In the field of medicine, doctors prefer to rely on instruments that are “state of the art”. There are strict bio-engineering standards in force for  medical instruments that protect the public from inaccurate diagnoses. Unfortunately those strict standards for hardware and software design don’t seem to apply to breath instruments.[41]

Better breath instruments are those that are transparent:  whose manufacturers clearly identify them,  obtain standards certification, provide clear documentation as to hardware and software, including upgrades, and who are willing to stand behind their product.

The problem is that when a new instrument came along with “bells and whistles”, a supposedly easy Start button,  and a three digit readout to replace the old dial Breathalyzer, Canadians were all very impressed. One green Start button did just about everything, we thought. Since the 5000 had a mouth alcohol detection algorithm, we thought we could rely on it to screen out mouth alcohol bias. Since it had interferent hardware and software, we assumed it was always ethanol specific. Since it had acetone subtract capability, we didn’t need to worry about convicting innocent diabetics. Since it had an ambient fail system, we thought we didn’t need to worry about room air ethanol. The shielded case and the RFI alarm looked impregnable. The box looked sealed and had a key lock, so we thought no one would ever tamper inside. 

Unfortunately the Alcohol Test Committee could only do “black box” testing. In other words, they could take two instruments supplied by the manufacturer and submit one to the RCMP and one to the CFS for hands-on testing.  The instruments supplied were not identified on the case as 5000C’s. They appear to have been 5000 64 series instruments which were in production in 1988 and 1989. One of them had a serial number that started with a 65-[42] which probably indicates that it was a prototype.  There does not appear to have been any disclosure of software documentation to the Alcohol Test Committee. As such the ATC and its evaluators could not do “white box” testing, whereby the software source code is scrutinized to make sure:

a)      That the software version is identified so that future changes can be identified/documented, and

b)      That the software functions the way Canadian experts want it to.

Prior to approval of the “5000C” in Canada, there was confusion as to what constituted a “5000C”.[43] Correspondence was exchanged[44] and a particular software version number was promised.[45] Just before approval, the manufacturer wrote to the Department of Justice, to alleviate the federal government’s concerns respecting identification, and  confirming that “5000C” would be indicated on the back of the instrument .[46]

Unfortunately, many of the instruments in Ontario are probably 5000 66 series rather than 64 series. Ontario has at least three different software versions in use, none of which is the pre-approval  “154.02”. Unlike my 5000EN which clearly states 5000EN on the serial number plate, many Ontario instruments have “Model  5000” stamped on the rear serial number plate, not “Model 5000C”. Some  of  the 5000’s in use in Ontario MAY have different hardware and software from that evaluated for the Alcohol Test Committee.[47]  Unfortunately, one of the two evaluators from 1988-1989, the Centre of Forensic Sciences in Toronto, cannot disclose any file on the 5000 that it evaluated prior to ATC approval.[48]

It is interesting that in the Minutes of the Alcohol Test Committee, deciding that the 8000C be approved in Canada, one member of the Committee thought it important to find out from the manufacture what the software version was of the instruments evaluated.[49] Nobody seems to have mentioned “white box” testing.  

 

Physiological and Environmental Presentations, Wrongful Convictions

 

It is submitted that the greatest potential for wrongful convictions under Bill C-2  will be in the following areas:

1.      Mouth alcohol bias

2.      Interferent bias

3.      Radio frequency interference bias

4.      Police negligence  

v

Mouth alcohol bias can produce apparent BrAC readings that are significantly greater than true BAC. I personally have the experience of blowing 303 mg/100mLs on an 5000 with a true BAC of 116 to 120 mg/100mLs. The experiment was conducted on an instrument that was not malfunctioning and that was operated by a senior toxicologist following protocol. The 303 apparent BrAC result and the true BAC are well-documented. The 303 apparent BrAC  result was recorded on video. The mouth alcohol detection algorithm on these instruments is useful but is not infallible. Special attention should be paid to vomit, belching, burping, coughing, and stomach valve issues such as GERD. In Canada, we have some protection through the protocols requiring a 15 or 20 minute observation and deprivation period, two tests 15 minutes apart, and truncated 20 mg/100mLs agreement. Such protocols, however, are only effective if the observation and deprivation period  is meticulous. Mouth alcohol bias will usually be obvious if a reading is ridiculously high in a controlled alcohol test or if one breath test is much higher than the other. However, it is still very possible to have two erroneous breath tests more than 15 minutes apart within 20 mg/100mLs of each other:

     

In a controlled alcohol setting, such elevated results are obvious if seen in the context  of the actual alcohol consumed (4 large beers, 155 lbs., over 5 ˝ hours in the above example) or in the context of many diverse readings.[50]

Interferent bias relates to substances that have an IR signature similar to ethanol in the portion of the IR spectrum used by that particular instrument to detect ethanol. In the case of the 5000 there are many alcohols and other interferents that have IR signatures in the 348 and 380 channel range that look very much like ethanol. These include substances that may be in the breath and substances that may be in the air. The 339 channel does not help flag some of these interferents.  Special attention should be paid to the subject’s occupation (painter, plumber, printer, floor finisher), the subject’s hobbies (boat fuel and furniture refinishing), and whether or not the subject‘s body is producing acetone or acetaldehyde. Police services need to stop using cleaning chemicals that contain limonene or d-limonene in breath rooms.[51] Limonene and d-limonene have IR signatures that overlap that of ethanol in the 348 and 380 range and may not be detected as interferents using the 339 filter.

Radio frequency interference bias can have a devastating effect on sensors that amplify weak electrical signals such as those coming from each of the 5000 348, 380, and 339 channels.  Police radios, cell phones, and wireless devices use very different frequencies than were used when these instruments were designed and evaluated. As components wear out, radio noise may be generated on the inside of the instrument. Some RFI interference may trigger an alarm on the machine; other RFI interference may not trigger the alarm but may play havoc with the apparent BrAC. One 8000 in Florida reported RFI in the breath room 35% of the time it was used to conduct breath tests.[52] Canadian 5000’s record and save to memory such RFI operational errors in the same manner as Florida 8000’s. Canadian police need to start extracting such data from their instruments and disclosing it.

Police negligence is a possible cause of error if police officers have any opportunity whatsoever to tamper with the inner workings of an approved instrument or accessory equipment including simulators. Even if the instrument seems to run properly following such adjustments and passes a simulator check test there remains the distinct possibility that the officer has compromised the internal standards, the interferent detection system, or the radio frequency interference system. Repairs and maintenance should be conducted only at the authorized factory service centre according to strict Alcohol test Committee standards.

 

Conclusive Proof

The results of an analysis by a qualified technician using an approved instrument are quantitative data.  They are based on a scientific analysis or lack thereof. They are different from a black or white, yes or no issue such as the existence or non-existence of a firearms licence. Proof of a quantitative reading above 80 mg/100mLS is an essential element of the Crown’s case in an over 80 prosecution.

 

In R. v. Suttie,  [2004] O.J. No. 3345, Goudge, J.A. of the Ontario Court of Appeal used the concept of “conclusive proof” only in the context of an absence of “evidence to the contrary”:

“17 …In effect, it makes the written statement of the qualified breathalyser technician admissible as some evidence of the truth of the assertions in the certificate. These include that two breath samples that were taken at the specified time and place; that the samples were analyzed by an approved instrument as defined in s. 254(1) of the Code; that the technician had ascertained the instrument to be in proper working order; and what the results were of the two analyses.

18     The second consequence is that these facts are deemed to be established or conclusively proven in the absence of any evidence to the contrary.”

 

In R. v. Silva, [1988] M.J. No. 654, Swail Prov. Ct. J., of the Manitoba Provincial Court (Criminal Division) considered “conclusive proof” in the context of proof of service:

“28     Were it necessary, I would hold that the words "and in either case shall be deemed to be sufficient and conclusive proof of notice" in subsection (2) of 276, and the whole of subsection (3) of Section 276 are in clear contravention of Section 7 of the Canadian charter of Rights and Freedoms, and ultimately of no force and effect pursuant to Section 52 of the Charter. This would in any event appear to be substantially the conclusion which Mr. Justice Ferg reached in the Paul case. I don't believe however that it is necessary for me to go that far in this case. This is so because, in my view, a proper interpretation of the pertinent sections of the Manitoba Highway Traffic Act would indicate that subsection 5.1 of Section 225 overrides the deemed "conclusive proof of service" in both subsection 2 and 3 of Section 276.”

 

In R. v. Schwartz, [1988] 2 S.C.R. 443 the Supreme Court of Canada per McIntyre J. considered “conclusive proof” in the context of the existence or non-existence of a firearms licence:

“80     In my view, however, these principles cannot be of assistance to the appellant here. There is no reverse onus imposed upon the accused by s. 106.7(1), despite the words which are employed in the section. The holder of a registration certificate cannot be made subject to a conviction under s. 89(1). He is not required to prove or disprove any element of the offence or for that matter anything related to the offence. At most, he may be required to show by the production of the certificate that s. 89(1) does not apply to him and he is exempt from its provisions. Far from reversing any onus, s. 106.7 provides in subs. (2) that a document purporting to be a valid registration certificate is evidence and, therefore, prima facie proof of the statements contained therein and in the case at bar conclusive proof, as provided in s. 24(1) of the Interpretation Act, R.S.C. 1970, c. I-23, set out hereunder:

 

24. (1) Where an enactment provides that a document is evidence of a fact without anything in the context to indicate that the document is conclusive evidence, then, in any judicial proceedings, the document is admissible in evidence and the fact shall be deemed to be established in the absence of any evidence to the contrary. 

As Hart J.A. stated in R. v. Conrad (1983), 8 C.C.C. (3d) 482 (N.S.C.A.), at p. 487, dealing with a charge under s. 87 of the Criminal Code:

 

The crime is to carry a weapon concealed, and all persons who do so are guilty of the offence. Certain persons are, however, exempted from this prohibition [page486] provided they establish their right to exemption before the court. The requirement that they affirmatively establish their privilege of possessing and carrying a restricted weapon does not, in my opinion, interfere with or impede their right to be presumed innocent. The existence of their privilege is not a fact which must be negatived [sic] by the Crown beyond a reasonable doubt in proving the offence charged. No presumption of guilt arises from the combination of ss. 87 and 106.7(1) of the Criminal Code. This is not a situation where a person is deemed to be guilty of an offence unless he establishes his innocence. He is in fact deemed to be not guilty of an offence under s. 87 if he holds a permit of exemption, but the burden is cast upon him to establish that he falls within the exemption given to him. [Emphasis added.] 

Although the accused must establish that he falls within the exemption, there is no danger that he could be convicted under s. 89(1), despite the existence of a reasonable doubt as to guilt, because the production of the certificate resolves all doubts in favour of the accused and in the absence of the certificate no defence is possible once possession has been shown. In such a case, where the only relevant evidence is the certificate itself, it cannot be said that the accused could adduce evidence sufficient to raise doubt without at the same time establishing conclusively that the certificate had been issued. The theory behind any licensing system is that when an issue arises as to the possession of the licence, it is the accused who is in the best position to resolve the issue. Otherwise, the issuance of the certificate or licence would serve no useful purpose. Not only is it rationally open to the accused to prove he holds a licence (see R. v. Shelley, [1981] 2 S.C.R. 196, at p. 200, per Laskin C.J.), it is the expectation inherent in the system.”

 

In R. v. Jakobsen , [2007] O.J. No. 1890, J. Douglas J. of the Ontario Court of Justice considered “conclusive proof” in the context of the existence or non-existence of a driver’s licence:

“39     First, section 260(5), unlike section 260(4), does not indicate that evidence to the contrary can displace the evidence of the Certificate. The Crown has noted this difference, but did not press the point that such a Certificate cannot be challenged by evidence to the contrary. I do note, though, that section 25(1) of the Interpretation Act contemplates occasions where the language of the enactment suggests a document can be "conclusive evidence". As well, R. v. Schwartz [1988] 2 S.C.R. 443 (S.C.C.) upheld a Criminal Code provision respecting proof of a firearms license by a form of certificate as conclusive proof. Such a license is not that much different than a driver's license, one either has it or one does not. Other arguments, such as I thought I had one or I should have had one, are just that, other arguments, ones about intent, mistake of fact, etc., and not one's arguments about the existence or not of the actual licence. Hence the argument could clearly be made that a section 260(5) certificate is conclusive proof of the absence of the needed licence, even if not conclusive proof of guilt.”

 

In R. v. Maltese, [1978] O.J. No. 3325, Van Camp J. of  the Ontario High Court of Justice used the concept of “conclusive proof” only in the context of an absence of “evidence to the contrary”:

“13     The first case worthy of note is R. ex rel. Williams v. Jeschke (1963), 43 C.R. 27, which involved a charge of selling an article of food containing a poisonous substance. Section 29(1) of the Food and Drugs Act, 1952-53 (Can.), c. 38, provided that "A certificate of an analyst ... is admissible in evidence ... and is prima facie proof of the statements contained in the certificate ...". After reviewing the authorities and expressly stating that prima facie proof as used in s. 29(1) could be considered synonymous with prima facie evidence, the Court had this to say at pp. 33-4:

 

This leaves me with one remaining question. Did this cream contain the poisonous substance dieldrin? The Crown's position is that this has been proved by the analyst's certificate which so states, see supra, and the Crown relies on s. 29(1), supra, that is, the certificate is prima facie proof of the statements contained therein. So, the statement in the certificate that an analysis of the cream showed dieldrin residue content on butter fat basis .53 p.p.m. is prima facie proof of that fact. However, that is not conclusive proof. If the contents of the certificate were conclusive proof of the facts therein stated then there would be no need for me to go further with this judgment as the final ingredient of the charge would have been established. Parliament, in enacting s. 29(1) has not gone that far. 

 

I would like to read, and now do, Section 667 of 15 Halsbury, 3rd ed., p. 372, under the heading "Certificates Admissible by Statute". 

 

"By statute also, various matters are provable by the certificates of public officers. Statutory certificates of this nature should be distinguished from certified copies of documents, which are received as secondary evidence of the original documents. The evidential effect of a certificate given in accordance with a particular statute depends on the wording of that statute. The certificate may be declared to be conclusive evidence or sufficient evidence of the particular facts of which proof may be given by certificate, or it may be declared only to be evidence or prima facie evidence of those facts. The effect of the expression used may vary in accordance with its context in the statute; thus a certificate declared to be sufficient evidence has in certain contexts been considered to be conclusive whereas in other contexts it has been held to mean prima facie evidence which will be conclusive only if there is no evidence to the contrary." 

 

Adopting the latter portion of the foregoing paragraph I am satisfied that s. 29(1) of the Act means that the certificate is only conclusive proof of the statements contained therein if there is no evidence to the contrary. If there is evidence to the contrary and as a result thereof a reasonable doubt has been raised, then the accused is entitled to the benefit of that doubt and is entitled to be acquitted. “

 

Where’s the Science?

It is submitted that we should have no difficulty, with Parliament enacting or the Courts creating at common law, a presumption of accuracy respecting breath tests rebuttable by evidence to the contrary. Perhaps, in an attempt to avoid any public perception of disrepute in the administration of justice, Parliament should insist that there be a science component to both the presumption of accuracy and to evidence to the contrary. A presumption of accuracy that presumes good science, makes no sense whatsoever, unless we have a fair and transparent breath testing system. That means that police should use properly identified good- quality approved instruments: hardware and software and accessory equipment in accordance with nation-wide standards and protocol. Instruments and procedure should be photographed and videotaped. Police should openly disclose all documentation and data that support the pedigree and good-working order of their approved instruments and accessory equipment. However, if an accused is to have a meaningful opportunity to make full answer and defence by leading evidence to the contrary to rebut the presumption of accuracy, police should preserve and openly disclose all documentation and data that question the pedigree and good-working order of the approved instruments and accessory equipment.

Unfortunately, such complete disclosure is often not available. Complete disclosure is necessary, if an innocent accused is to be expected to raise science-based evidence to the contrary.

It is respectfully submitted that the Bill C-2 amendment to section 258(1)(c) should be declared unconstitutional as violating Charter sections 11d, 7, and perhaps 15 and should not be saved by section 1 because the concept of “conclusive proof” goes much further than is necessary to establish a science-based presumption of accuracy rebuttable by science-based evidence to the contrary. Limiting scientific explanations to the prescribed four is unnecessary to achieve that purpose and will result in innocent convictions.

If as I propose, the Courts declare the new section 258(1)(c) of no force and effect, then they should develop a Gibson- based common law presumption of accuracy, still retaining the existing 258(1)(g) presumption of accuracy, rebuttable by evidence to the contrary. In order to give effect to Parliament’s intention to add a science component to the presumption of accuracy and evidence to the contrary the Courts should:

 

Stephen R. Biss
Appendix 1

Existing section 258

New section 258

(1) In any proceedings under subsection 255(1) in respect of an offence committed under section 253 or in any proceedings under subsection 255(2) or (3),

258. (1) In any proceedings under subsection 255(1) in respect of an offence committed under section 253 or subsection 254(5) or in any proceedings under any of subsections 255(2) to (3.2),

 

(a) where it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a motor vehicle, vessel or aircraft or any railway equipment or who assists in the operation of an aircraft or of railway equipment, the accused shall be deemed to have had the care or control of the vehicle, vessel, aircraft or railway equipment, as the case may be, unless the accused establishes that the accused did not occupy that seat or position for the purpose of setting the vehicle, vessel, aircraft or railway equipment in motion or assisting in the operation of the aircraft or railway equipment, as the case may be;

no change

(b) the result of an analysis of a sample of the breath or blood of the accused (other than a sample taken pursuant to a demand made under subsection 254(3)) or of the urine or other bodily substance of the accused may be admitted in evidence notwithstanding that, before the accused gave the sample, he was not warned that he need not give the sample or that the result of the analysis of the sample might be used in evidence;

(b) the result of an analysis of a sample of the accused’s breath, blood, urine or other bodily substance — other than a sample taken under subsection 254(3), (3.3) or (3.4) — may be admitted in evidence even if the accused was not warned before they gave the sample that they need not give the sample or that the result of the analysis of the sample might be used in evidence;

 

(c) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), if

no change

(i) [Not in force]

no change

(ii) each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken,

no change

(iii) each sample was received from the accused directly into an approved container or into an approved instrument operated by a qualified technician, and

no change

(iv) an analysis of each sample was made by means of an approved instrument operated by a qualified technician,

no change

evidence of the results of the analyses so made is, in the absence of evidence to the contrary, proof that the concentration of alcohol in the blood of the accused at the time when the offence was alleged to have been committed was, where the results of the analyses are the same, the concentration determined by the analyses and, where the results of the analyses are different, the lowest of the concentrations determined by the analyses;

evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accused’s blood both at the time when the analyses were made and at the time when the offence was alleged to have been committed was, if the results of the analyses are the same, the concentration determined by the analyses and, if the results of the analyses are different, the lowest of the concentrations determined by the analyses, in the absence of evidence tending to show all of the following three things — that the approved instrument was malfunctioning or was operated improperly, that the malfunction or improper operation resulted in the determination that the concentration of alcohol in the accused’s blood exceeded 80 mg of alcohol in 100 mL of blood, and that the concentration of alcohol in the accused’s blood would not in fact have exceeded 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed;

 

(d) where a sample of the blood of the accused has been taken pursuant to a demand made under subsection 254(3) or otherwise with the consent of the accused or pursuant to a warrant issued under section 256, if

(d) if a sample of the accused’s blood has been taken under subsection 254(3) or section 256 or with the accused’s consent and if

 

(i) at the time the sample was taken, the person taking the sample took an additional sample of the blood of the accused and one of the samples was retained, to permit an analysis thereof to be made by or on behalf of the accused and, in the case where the accused makes a request within six months from the taking of the samples, one of the samples was ordered to be released pursuant to subsection (4),

(i) at the time the sample was taken, the person taking the sample took an additional sample of the blood of the accused and one of the samples was retained to permit an analysis of it to be made by or on behalf of the accused and, in the case where the accused makes a request within six months from the taking of the samples, one of the samples was ordered to be released under subsection (4),

 

 

(ii) both samples referred to in subparagraph (i) were taken as soon as practicable after the time when the offence was alleged to have been committed and in any event not later than two hours after that time,

(ii) both samples referred to in subparagraph (i) were taken as soon as practicable and in any event not later than two hours after the time when the offence was alleged to have been committed,

 

 

(iii) both samples referred to in subparagraph (i) were taken by a qualified medical practitioner or a qualified technician under the direction of a qualified medical practitioner,

(iii) both samples referred to in subparagraph (i) were taken by a qualified medical practitioner or a qualified technician under the direction of a qualified medical practitioner,

 

 

(iv) both samples referred to in subparagraph (i) were received from the accused directly into, or placed directly into, approved containers that were subsequently sealed, and

(iv) both samples referred to in subparagraph (i) were received from the accused directly into, or placed directly into, approved containers that were subsequently sealed, and

 

 

(v) an analysis was made by an analyst of at least one of the samples that was contained in a sealed approved container,

(v) an analysis was made by an analyst of at least one of the samples,

 

 

evidence of the result of the analysis is, in the absence of evidence to the contrary, proof that the concentration of alcohol in the blood of the accused at the time when the offence was alleged to have been committed was the concentration determined by the analysis or, where more than one sample was analyzed and the results of the analyses are the same, the concentration determined by the analyses and, where the results of the analyses are different, the lowest of the concentrations determined by the analyses;

evidence of the result of the analysis is conclusive proof that the concentration of alcohol in the accused’s blood both at the time when the samples were taken and at the time when the offence was alleged to have been committed was the concentration determined by the analysis or, if more than one sample was analyzed and the results of the analyses are the same, the concentration determined by the analyses and, if the results of the analyses are different, the lowest of the concentrations determined by the analyses, in the absence of evidence tending to show all of the following three things — that the analysis was performed improperly, that the improper performance resulted in the determination that the concentration of alcohol in the accused’s blood exceeded 80 mg of alcohol in 100 mL of blood, and that the concentration of alcohol in the accused’s blood would not in fact have exceeded 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed;

 

 

 

(d.01) for greater certainty, evidence tending to show that an approved instrument was malfunctioning or was operated improperly, or that an analysis of a sample of the accused’s blood was performed improperly, does not include evidence of

 

 

 

(i) the amount of alcohol that the accused consumed,

 

 

 

(ii) the rate at which the alcohol that the accused consumed would have been absorbed and eliminated by the accused’s body, or

 

 

 

(iii) a calculation based on that evidence of what the concentration of alcohol in the accused’s blood would have been at the time when the offence was alleged to have been committed;

 

 

 

 

(d.1) where samples of the breath of the accused or a sample of the blood of the accused have been taken as described in paragraph (c) or (d) under the conditions described therein and the results of the analyses show a concentration of alcohol in blood exceeding eighty milligrams of alcohol in one hundred millilitres of blood, evidence of the result of the analyses is, in the absence of evidence tending to show that the concentration of alcohol in the blood of the accused at the time when the offence was alleged to have been committed did not exceed eighty milligrams of alcohol in one hundred millilitres of blood, proof that the concentration of alcohol in the blood of the accused at the time when the offence was alleged to have been committed exceeded eighty milligrams of alcohol in one hundred millilitres of blood;

(d.1) if samples of the accused’s breath or a sample of the accused’s blood have been taken as described in paragraph (c) or (d) under the conditions described in that paragraph and the results of the analyses show a concentration of alcohol in blood exceeding 80 mg of alcohol in 100 mL of blood, evidence of the results of the analyses is proof that the concentration of alcohol in the accused’s blood at the time when the offence was alleged to have been committed exceeded 80 mg of alcohol in 100 mL of blood, in the absence of evidence tending to show that the accused’s consumption of alcohol was consistent with both

 

 

 

 

(i) a concentration of alcohol in the accused’s blood that did not exceed 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed, and

 

 

(ii) the concentration of alcohol in the accused’s blood as determined under paragraph (c) or (d), as the case may be, at the time when the sample or samples were taken;

 

 

 

 

(e) a certificate of an analyst stating that the analyst has made an analysis of a sample of the blood, urine, breath or other bodily substance of the accused and stating the result of that analysis is evidence of the facts alleged in the certificate without proof of the signature or the official character of the person appearing to have signed the certificate;

no change

(f) a certificate of an analyst stating that the analyst has made an analysis of a sample of an alcohol standard that is identified in the certificate and intended for use with an approved instrument and that the sample of the standard analyzed by the analyst was found to be suitable for use with an approved instrument, is evidence that the alcohol standard so identified is suitable for use with an approved instrument without proof of the signature or the official character of the person appearing to have signed the certificate;

no change

 

(f.1) the document printed out from an approved instrument and signed by a qualified technician who certifies it to be the printout produced by the approved instrument when it made the analysis of a sample of the accused’s breath is evidence of the facts alleged in the document without proof of the signature or official character of the person appearing to have signed it;

 

 

(g) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), a certificate of a qualified technician stating

no change

(i) that the analysis of each of the samples has been made by means of an approved instrument operated by the technician and ascertained by the technician to be in proper working order by means of an alcohol standard, identified in the certificate, that is suitable for use with an approved instrument,

no change

(ii) the results of the analyses so made, and

no change

(iii) if the samples were taken by the technician,

no change

(A) [Not in force]

no change

(B) the time when and place where each sample and any specimen described in clause (A) was taken, and

no change

(C) that each sample was received from the accused directly into an approved container or into an approved instrument operated by the technician,

no change

is evidence of the facts alleged in the certificate without proof of the signature or the official character of the person appearing to have signed the certificate;

no change

(h) where a sample of the blood of the accused has been taken pursuant to a demand made under subsection 254(3) or otherwise with the consent of the accused or pursuant to a warrant issued under section 256,

(h) if a sample of the accused’s blood has been taken under subsection 254(3) or (3.4) or section 256 or with the accused’s consent,

 

 

(i) a certificate of a qualified medical practitioner stating that

no change

(A) the medical practitioner took the sample and that before the sample was taken he was of the opinion that the taking of blood samples from the accused would not endanger the life or health of the accused and, in the case of a demand made pursuant to a warrant issued pursuant to section 256, that by reason of any physical or mental condition of the accused that resulted from the consumption of alcohol, the accident or any other occurrence related to or resulting from the accident, the accused was unable to consent to the taking of his blood,

(A) they took the sample and before the sample was taken they were of the opinion that taking it would not endanger the accused’s life or health and, in the case of a demand made under section 256, that by reason of any physical or mental condition of the accused that resulted from the consumption of alcohol or a drug, the accident or any other occurrence related to or resulting from the accident, the accused was unable to consent to the taking of the sample,

 

 

(B) at the time the sample was taken, an additional sample of the blood of the accused was taken to permit analysis of one of the samples to be made by or on behalf of the accused,

no change

(C) the time when and place where both samples referred to in clause (B) were taken, and

no change

(D) both samples referred to in clause (B) were received from the accused directly into, or placed directly into, approved containers that were subsequently sealed and that are identified in the certificate,

no change

(ii) a certificate of a qualified medical practitioner stating that the medical practitioner caused the sample to be taken by a qualified technician under his direction and that before the sample was taken the qualified medical practitioner was of the opinion referred to in clause (i)(A), or

no change

(iii) a certificate of a qualified technician stating that the technician took the sample and the facts referred to in clauses (i)(B) to (D)

no change

is evidence of the facts alleged in the certificate without proof of the signature or official character of the person appearing to have signed the certificate; and

no change

(i) a certificate of an analyst stating that the analyst has made an analysis of a sample of the blood of the accused that was contained in a sealed approved container identified in the certificate, the date on which and place where the sample was analyzed and the result of that analysis is evidence of the facts alleged in the certificate without proof of the signature or official character of the person appearing to have signed it.

no change

 

 

(2) No person is required to give a sample of urine or other bodily substance for analysis for the purposes of this section except breath or blood as required under section 254, and evidence that a person failed or refused to give such a sample or that such a sample was not taken is not admissible nor shall such a failure or refusal or the fact that a sample was not taken be the subject of comment by any person in the proceedings.

(2) Unless a person is required to give a sample of a bodily substance under paragraph 254(2)(b) or subsection 254(3), (3.3) or (3.4), evidence that they failed or refused to give a sample for analysis for the purposes of this section or that a sample was not taken is not admissible and the failure, refusal or fact that a sample was not taken shall not be the subject of comment by any person in the proceedings.

 

(3) In any proceedings under subsection 255(1) in respect of an offence committed under paragraph 253(a) or in any proceedings under subsection 255(2) or (3), evidence that the accused, without reasonable excuse, failed or refused to comply with a demand made to him by a peace officer under section 254 is admissible and the court may draw an inference therefrom adverse to the accused.

(3) In any proceedings under subsection 255(1) in respect of an offence committed under paragraph 253(1)(a) or in any proceedings under subsection 255(2) or (3), evidence that the accused, without reasonable excuse, failed or refused to comply with a demand made under section 254 is admissible and the court may draw an inference adverse to the accused from that evidence.

 

(4) A judge of a superior court of criminal jurisdiction or a court of criminal jurisdiction shall, on the summary application of the accused made within six months from the day on which samples of the blood of the accused were taken, order the release of one of the samples for the purpose of an examination or analysis thereof, subject to such terms as appear to be necessary or desirable to ensure the safeguarding of the sample and its preservation for use in any proceedings in respect of which it was retained.

(4) If, at the time a sample of an accused’s blood is taken, an additional sample is taken and retained, a judge of a superior court of criminal jurisdiction or a court of criminal jurisdiction shall, on the summary application of the accused made within six months after the day on which the samples were taken, order the release of one of the samples for the purpose of examination or analysis, subject to any terms that appear to be necessary or desirable to ensure that the sample is safeguarded and preserved for use in any proceedings in respect of which it was taken.

 

(5) Where a sample of blood of an accused has been taken pursuant to a demand made under subsection 254(3) or otherwise with the consent of the accused or pursuant to a warrant issued under section 256, the sample may be tested for the presence of drugs in the blood of the accused.

(5) A sample of an accused’s blood taken under subsection 254(3) or section 256 or with the accused’s consent for the purpose of analysis to determine the concentration, if any, of alcohol in the blood may be tested to determine the concentration, if any, of a drug in the blood.

 

(6) A party against whom a certificate described in paragraph (1)(e), (f), (g), (h) or (i) is produced may, with leave of the court, require the attendance of the qualified medical practitioner, analyst or qualified technician, as the case may be, for the purposes of cross-examination.

(6) A party against whom a certificate described in paragraph (1)(e), (f), (f.1), (g), (h) or (i) is produced may, with leave of the court, require the attendance of the qualified medical practitioner, analyst or qualified technician, as the case may be, for the purposes of cross-examination.

 

(7) No certificate shall be received in evidence pursuant to paragraph (1)(e), (f), (g), (h) or (i) unless the party intending to produce it has, before the trial, given to the other party reasonable notice of his intention and a copy of the certificate.

no change

 


 

Appendix 2 – 5000 Normal Breath Test Sequence Primer

 

A

Air Blank

.000 Always

“Ambient Fail” error and shut down if >=20 mg/100mLs above last Air Blank

Readjusts 000 on machine if < 20 mg/100mLs above last Air Blank

C

Cal(ibration) Check

Air pumped from 5000 through SAS in simulator to pick up SAS vapour, then into 5000 sample chamber for analysis, then re-circulated to simulator.

Does NOT re-calibrate machine – this is a calibration check, not a calibration.

No error messages if SAS vapour is outside 90 to 110 mg/100 mLs or if vapour is wrong temperature due to simulator failure, simulator thermometer failure, cold headspace in simulator, cold, uninsulated, condensation in or obstructed tubing.

Simulator temperature must be checked by operator looking intently at very narrow mercury column in Guth 34C.

A

Air Blank

.000 Always

“Ambient Fail” error and shut down if >=20 mg/100mLs above last Air Blank

Readjusts 000 on machine if < 20 mg/100mLs above last Air Blank

B

Breath Test (Subject Test)

Subject blows through breath tube.

0 appears before .XXX in indicated breath room when instrument considers sample adequate.

“Invalid Sample” registered if instrument perceives rise > .003 per second and fall > .005 per second.

A

Air Blank

.000 Always

“Ambient Fail” error and shut down if >=20 mg/100mLs above last Air Blank

Readjusts 000 on machine if < 20 mg/100mLs above last Air Blank

 

 


 

Appendix 3 – 5000 Stand-alone Tests and Data Changes Commenced by Keyboard Entry

Esc Esc C

Stand-alone calibration check

Same check as the C in ACABA but done as an ACA sequence.

Performed after changing SAS in simulator weekly.

Optionally performed at start of shift or whenever breath tech wants to check calibration.

Results in an Intoxilyzer Test Record evidence card which should be retained. Should also be recorded in calibration log.

Contains no private information.

Every stand-alone Esc Esc C calibration check is saved as a record in the electronic text file cmicali.txt which should be downloaded and saved weekly before data is overwritten by 50 or 100 tests. Collected weekly by modem or notebook computer and null modem cable.

Disclosure of electronic text file discourages dishonest breath techs from omitting embarrassing entries from the calibration log or destroying embarrassing Intoxilyzer Test records that show failed stand-alone calibration checks.

 A series of failed or higher than usual calibration checks may indicate an instrument that has a propensity to overstate BAC.

Esc Esc D

Stand-alone diagnostics check

Similar but less detailed check as the diagnostics test run by the machine on a cold start.

Looks for corruption in EPROM’s (firmware/software), processor electronics errors, and sample chamber temperature.

Optionally performed at start of shift or whenever breath tech wants to check diagnostics.

Numerous essential systems and circuits on the 5000 can be disconnected yet the diagnostic check will still show a “passed” test.

Results in an Intoxilyzer Test Record evidence card which should be retained.

Contains no private information.

Every stand-alone Esc Esc D diagnostic check is saved as a record in the electronic text file cmiperf.txt which should be downloaded and saved weekly before data is overwritten by 50 or 100 tests. Collected weekly by modem or computer and null modem cable.

Electronic version (but not paper version) also notes DVM value, a high value of which may indicate a contaminated sample chamber.

Disclosure of electronic text file discourages dishonest breath techs from destroying embarrassing Intoxilyzer Test records that show failed diagnostic checks or high DVM values.

Esc Esc E

Change date and/or time

A good way to attempt to obstruct justice by producing false stand-alone calibration checks or diagnostic tests for any date and time desired.

A good way to attempt to obstruct justice by making sure the first breath test is within two hours.

Disclosure of electronic text file discourages dishonest breath techs from producing erroneous stand-alone calibration checks and diagnostic tests.

 


 

Appendix 4 – Breath Temperature Variation

      BrAC Variation = 6.5 % / 1 oC

      Normal Breath Temperature Range:

29 oC - 36 oC (Avg. = 34 oC)

 

Simple Experiment:

·         Ice cubes in mouth decrease BrAC

·         Warm liquids in mouth increase BrAC

 


 

Appendix 5 – Blood Breath Ratio Compromise

 

Ratio Compromise  Assumed: To convert BrAC to BAC - Multiply every molecule in deep lung air by 2100

 

 

Ratio for Individual Accused:  May vary by gender, age, health, and race

·         From person to person.

·         Vary from beginning to end of expiration.

·         Temperature dependent.

·         Vary with type of blood measured.

·         May change over time

·         May be gender dependent.

·         May depend on water concentrations in the body.

 


 

Blood Breath Ratio Studies:

Author(s)

Date

BAC/BrAc Ratio

SD

Subjects

 

 

Mean

Range

 

 

Liljestrand & Linde

1930

~2000

  

  

Haggard &Greenberg

1934

1142

1117-1170

±19

1

 

 

2098

1833-2139

± 44

1

Butler et al

1935

1900

 

 

 

Haggard et al

1941

1307

1180-1423

100

Harger et al

1950

~2100

1583-2927

33

 

 

~2100

1836-2816

± 262

Akiya et al

1951

2287

1921-2739

± 262

Seifert & Gunther

1951

2738

 

6

Greenberg & Lester

1954

2222

1909-2450

± 157

4

Harger et al

1956

~2100

31

Coldwell

1957

2442

66

Brugsh el al

1959

3478

1004-7289

26

Smith

1959

2358

1922-3240

± 454

10

Timmermans

1960

1600

 

 

 

Lereboulleu et al

1961

2023

Begg et al

1962

2062

18

Burnett

1963

2200

 

 

 

Begg et al

1964

2540

2178-2811

± 227

18

Forney et al

1964

2226

4

Freund &O'Hollaren

1965

2614

2272-2778

± 233

2

Enticknap & Wright

1965

2625

2333-2877

± 233

2

Fukui

1969

1787

± 339

36

Noordzij

1969

2350

Harger & Forney

1969

2247

49

 

 

2146

 

49

Franklin

1969

2300

± 140

 

 

2600

± 190

Schaefer & Daubert

1969

1500

 

 

 

Prouty & O'Neill

1971

2479

1634-3177

Jones & Jones

1971

2320

Morales

1972

2384

1634-3177

Yamamoto & Ueda

1972

1950

± 477

35

Rohrschneider

1973

2300

 

 

 

Morales

1974

2372

18

Jones

1974

2392

2120-2950

± 164

15

 

 

2226

1980-2400

± 113

10

 

 

1948

1720-2110

± 110

10

 

1983

1750

 

 

 

Gaffney and Senum

1984

2000

 

 

 

Snider & Dawson

1985

1900

 

 

 

Meylan & Howard

1991

2000

 

 

 

Yaws & Yang

1992

1200

 

 

 

Jones & Andersson

2002

2450

 

 

 

Lindberg et al (Jones)

2007

2250

 

 

 

 

 

 

 

A possible proportion of population for which BAC is overstated by using 2100:1 BBR assumption using 2280 mean, 242 SD - try creating your own curve using data from the table above – see also

http://www.vertex42.com/ExcelArticles/mc/NormalDistribution-Excel.html

   

 

 


 

Appendix 6 – Mouth Alcohol Bias

How to Reduce the Possibility of Mouth Alcohol Bias:

1.      20 minute mandatory deprivation and observation period

2.      Two tests at least 15 minutes apart  with 20 mg/100 mLs truncated agreement

3.      Instrument hardware and software mouth alcohol detection algorithm

a.       Only effective some of the time

b.      “Invalid Sample” error message should result in new 20 minute deprivation and observation period


 

An Example of a Physiological Presentation experiment:  mouth alcohol plus underlying BAC where instrument failed to detect mouth alcohol bias yet instrument functioning normally:


Appendix 7: Interferents

Interferents are substances that mimic ethanol:

1.      Endogenously[53] in the human body, physiological presentation.

2.      May be toxic in the human body, physiological presentation  due to occupation or hobby, e.g. painters, plumbers, printers, furniture finishers.

3.      In the mouth, such as boat fuel in dentures from siphoning.

4.      External, environmental presentation e.g. hand cleaners, paints, floor cleaners in breath room.

Visit and try entering different substances that you think may be interferents:

http://riodb01.ibase.aist.go.jp/sdbs/cgi-bin/cre_index.cgi?lang=eng

 

Check for the IR: liquid film signature for ethanol and the possible interferent. Then look at the portion of the IR signature (fingerprint) in the 3000 range. Does the shape of the graph for the possible interferent resemble that for ethanol? Try layering a suspected interferent IR signature graph over the ethanol graph and looking through both graphs towards a light.  

Ethanol:

·         Acetone:

 

·         Methanol:

 

·         Isopropanol:

 

 11-butanol:

·         Limonene (pink) and Ethanol (green)

·         D-limonene

 

Obtain, for use in Court, diagrams or models of the common alcohols: methanol, ethanol, isopropanol, and 1-butanol molecules and note the  “tail of the dog” CH3  group on each of them: a carbon atom with 3 hydrogen atoms attached. Note also the similar bonds between the oxygen of the OH "head of the dog" group and the carbon.. 

 

Alcohols produce a characteristic dip in the 3.1 to 3.5 µ range of the IR signature (fingerprint). However, so do other substances that mimic ethanol, such as limonene and d-limonene.  

 



[1] Items 3 and 4 are actually contained in section 258(1)(d.1). Prima facie 258(1)(c) seems to prohibit a defence under 258(1)(d.1) and vice versa. I assume that the Courts will construe and apply these sections as working together rather than contradicting each other. Section 258(1)(d.1) does not speak of “conclusive proof”.

[2] R. v. Gibson, 2008 SCC 16, per LeBel J. para. 50

[3] The new section 258(1)(f.1) presumption of accuracy applies when the Crown will likely want to use the Intoxilyzer Test Record: “when it made the analysis of a sample of the accused’s breath”, but not when the Defence would likely want to use it: when earlier calibration checks or operational errors recorded on Intoxilyzer Test Records tend to show an instrument that is overstating BAC.

[4] See the new section 258(1)(d.01).

[5] See California Vehicle Code 23152(b)

[6] My brand new Guth 10-4D digital simulator always reads 34.0° C once it is warmed up. If I insert my Guth 34C mercury simulator thermometer into the 10-4D it reads 34.2° C. If I insert my Mark IIA mercury simulator thermometer into the 10-4D it reads 34.3° C.

[7] Intoxilyzer Training Aid, Centre of Forensic Sciences, paragraph 8.1.3.1

[8] Durham Regional Police, York Regional Police

[9] CFS paragraph 8.1.3.2 and Alcohol Test Committee page 114

[10] Durham Regional Police,  York Regional Police

[11] Durham Regional Police, R. v. Monk, unreported, transcript March 28, 2002

[12] R. v. Papaioannou, unreported, June 6, 2006

[13] Toronto Police Service.

[14] Peel Regional Police

[15] RECOMMENDED STANDARDS AND PROCEDURES OF THE CANADIAN SOCIETY OF FORENSIC SCIENCE ALCOHOL TEST COMMITTEE, Can. Soc. Forens. Sci. J. Vol. 36. No 3 (2003) pp. 101–127

[16] State v. Chun, March 17, 2008 Supreme Court of New Jersey per Justice Hoens:We therefore direct that Draeger make Alcotest training, substantially similar to that provided to Alcotest operators and coordinators, available to licensed New Jersey attorneys and their designated experts. The training shall be offered at regular intervals and at locations within the State of New Jersey, at a reasonable cost to those who attend.

[17] Watching a breath room video that clearly shows the screen on the instrument and has good audio is very useful to a Crown or defence expert in analyzing the point in time at which the instrument would have accepted the sample, the rise and fall of the numbers at each point of the ACABA sequence, and the buttons pushed by the operator. This information could prove extremely useful in calibration, mouth alcohol, interferent, RFI, and refusal cases where the Court is determining evidence to the contrary. Review the recorded presentation of Dr. G. Kupferschmidt at the December 1, 2007 Law Society of Upper Canada Impaired and Over 80 programme.

[18] Letter April 25, 2008 respecting Ontario Freedom of Information application A-2008-00919 respecting Intoxilyzer 65-001001: “Please be advised that access to the requested records cannot be granted, as the information does not exist. Experienced staff familiar with the record holdings of the Ministry conducted a records search at the Centre of Forensic Sciences and no responsive records were located.”

[19] There are at least three different Intoxilyzer® 5000  firmware versions in use in Ontario including 260.13, 260.14, and 260.17. Saskatchewan, Alberta, and Quebec have at least 13 other firmware versions. I believe that there was at least one earlier Ontario firmware version 260.12. An explanation for the change from 260.12 to 260.13 might have been the switch in Ontario from 5000 64 series machines to 5000 66 series machines. In 1990 the manufacturer wrote to the Alcohol Test Committee prior to approval by the Department of Justice indicating a proposed firmware version of 154.02 to replace the then existing firmware version 154.01.  It would appear that the firmware version approved by the Department of Justice was 154.02.

[20] In my experience Toronto Police Service uses a seal, OPP does not. In one case Port Credit OPP used a white board in the breath room to record and communicate SAS changes. The white board information transferred to the handwritten portion of the Intoxilyzer test record did not correspond with the calibration log.

[21] On the difference between disclosure of a few Intoxilyzer test records  v. disclosure of ADAMS/COBRA data see the cross-examination of Cst. Jeff Patrick in R. v. Kuster May 10, 2000, 80 The East Mall: “the only way to get the full history of what happened is to examine the internal memory of the instrument to see the kind of history that is recorded in the internal history of the instrument to make sure that one has all of the Intoxilyzer test records that were produced by the instrument.”

[22] My 5000EN (two generations more state-of-the-art than the 5000 64 series) has a strange propensity to generate calibration checks of 50 and 60 whenever I disconnect it from the simulator, transport it, and re-connect. The 5000EN/simulator system settles down after I run about 10 calibration checks. One wonders why the 5000EN was never approved in Canada. It appears that a similar phenomena happened during the evaluation of the 8000C. Please see the Alcohol Test Committee minutes approving the 8000C.

[23] See my online discussion for lawyers, Judges, and police at “The Naked Intoxilyzer 5000C”. Click on the photograph of the  internal workings of the machine to see where each of these components are located. http://www.lawyers.ca/international/naked_intoxilyzer_5000.htm

[24] Mary McMurray opinion prepared for R. v. Daoust, No. 102060167, Montreal Municipal Court

[25] R. v. Kuster, transcript, May 10, 2000, 80 The East Mall

[26] Intoxilyzer 5000C Training Manual, September 1994, The INTOXILYZER 5000C: ADAMS page noted: “It will be able to respond immediately to defense lawyer requests for disclosure.” … “It will also add continuity and integrity to the breath testing system.”

[27] Intoxilyzer Training Aid, para. 8.1

[28] Intoxilyzer Training Aid, para. 14.4.11

[29] See www.itd2.com, Jan Semenoff provides an excellent continuing education programme for lawyers accredited by the Law Society of Upper Canada as well as that of Virginia, Colorado, and New Hampshire. His book is very helpful with excellent illustrations. He frequently provides expert opinions in the United States and Canada.

[30] Alcohol Test Committee, page 101

[31] Alcohol Test Committee page 101, “The unmodified word alcohol refers to ethyl alcohol”.

[32] Gibson, para. 76

[33] R. v. Gibson, 2008 SCC 16, per LeBel J. para. 50

[34]This does not mean that the accused is at the mercy of the technician: while the certificate is evidence by itself, the facts of which it is evidence are "deemed to be established only in the absence of any evidence to the contrary". Thus, any evidence tending to invalidate the result of the tests may be adduced on behalf of the accused in order to dispute the charge against him. As was pointed out in R. v. Proudlock (1978), 43 C.C.C. (2d) 321, 91 D.L.R. (3d) 449, [19791 1 S.C.R. 525, it is not necessary in such cases that the rebutting evidence should do more than raise a reasonable doubt and, of course, this evidence may be sought in depositions given by witnesses of the Crown as well as in depositions of defence witnesses. Therefore, in my view, the situation here is that the certificate was evidence of the results of the analyses by virtue of the express provisions of the Criminal Code, however, the further question remained: Was there any evidence to the contrary sufficient at least to raise a reasonable doubt?”, page 138

[35] Legal fee jumps from $6000 to $10000, experts (multiple) fee jumps from $3000 to $10000.

[36] (A)ir Blank, (C)alibration Check, (A)ir Blank, (B)reath Sample, (A)ir Blank

[37] Underlying true BAC of perhaps 50 mg/100 mLs, drinking beer, GERD condition, long gentle blow. See video blowing 303 mg/100 mLs with a true BAC of 116 mg/100mLs. See also Appendix 6.

[38] With IR machines there is no such thing as a true “.000”. The ambient fail component of each A in the sequence, the value reported on the C, and the value reported on the B may each be based on a different zero point. That phenomenon becomes very significant in cases where the instrument’s log paper or electronic log show frequent ambient fail  operational errors. If the (C)alibration check has a different zero starting point than the (B)reath test then the breath test’s accuracy cannot be judged based on the calibration check. “.000” does not mean no ethanol has been received into the breath tube during an air blank. The Intoxilyzer never prints any value other than “.000” during an air blank. If the instrument has sucked in room air containing an abundance of ethanol at the conclusion (last air blank – the final A) of the previous person’s test four hours prior, resulting in an inaccurate zero point on the first air blank – the first A for the current subject test, and the instrument fails to report an “ambient fail” upon the introduction of 28 mg/100mLS ambient air, then (assuming this is a “malfunction”) is the “malfunction” at the time “when the analyses were made”? 

[39] The CSA certifications of August 10, 1995, May 8, 1997, and August 4, 1998 under file number LR 102544-1 through -3 referred to the ‘Intoxilyzer’ 5000, not the 5000C.

[40] Alcohol Test Committee page 104 “Instruments shall comply with generally recognized safety requirements.”

[41] My keychain “As seen on TV” alcohol tester, purchased at a department store, apparently is “FDA Registered”.

[42] Evaluation of the Intoxilyzer ®5000, R.A.Hallett and A.A.H. Bell, The Centre of forensic Sciences, Toronto, July 1989, serial number65-001001.

[43] The current Alcohol Test Committee standard reads: “Instruments presented for evaluation shall be commercially available production units. Where the manufacturer produces Instrument variations, through significant modifications of integral components and functions, the Instrument presented for evaluation shall be clearly identified by a model designation.” (page 104)

[44] April 20, 1990, April 23, 1990, January 22, 1991, January 31, 1991, March 4, 1991

[45] April 20, 1990

[46] Letter from Federal Signal Canada, Limited to Ms. C.M. Kane, Department of Justice, March 4, 1991.

[47] On a local breath room video, note whether or not there is a clear plastic cover over the red on/off switch, that is a clear indication of an Intoxilyzer 5000 66 series. Photo 1 from Canadian Standards Association file #LR102544-1 shows an instrument that states Intoxilyzer 5000C on the face plate but has no clear plastic cover over the red on/off switch. Lack of the cover indicates that the instrument submitted to CSA is an Intoxilyzer 5000 64 series. 

[48] Ontario FOI application 2008-00919.

[49] Alcohol Test Committee minutes approving 8000C disclosed under FOI, Action Item #2: “For both evaluators to determine from the manufacturer what software version was used in the evaluation and to ensure that any future upgrades in software can be controlled or disabled.”

[50] 167 @ 22:23, 085 @22:28, 064 @ 22:32, 119 @ 22:36, 197 @ 22:43, 185 @ 22:50, 130 @ 22:55, 081 @ 23:01

[51] Watch your local breath room video for a large orange bottle of GOJO used for cleaning hands after taking fingerprints.

[52] Florida COBRA data of 194 tests on Intoxilyzer 80-000949.

[53]Substances which are produced endogenously and are present in the breath

shall not contribute to an apparent BAC by more than 10 mg/100 mL”. Alcohol Test Committee page 104