C-2 : Not a Defence

Stephen R. Biss, Barrister & Solicitor

See the most recent list of cases, citations for the cases noted below, and other resources at :

http://www.casebriefs.net

http://www.lawyers.ca/carter  

RAM CHECK 2 videos

PROCESSOR ERRORS videos

STARDATE 25408 videos

Radio Frequency Interference Videos

Ambient Alcohol Video

Ambient GOJO Limonene Video

Precedents 

    Particulars Form 1

    Particulars Factum

    Disclosure Form 1

    Disclosure Factum

    Retrospectivity & Constitutionality Form 1

    Retrospectivity & Constitutionality Factum

Index

1.    What is an Approved instrument?

2.    Necessary Disclosure

3.    Retrospectivity

4.    Constitutionality

What is an Approved Instrument?

See the most recent list of cases and other resources at:

http://www.lawyers.ca/private/Impaired2000/issuesresultsbyjudge.asp?issueno=57

Proof that a machine is an “approved instrument” should mean a lot more than looking at the model number on the front cover or the scrolling LED display, or the printed ticket. It’s easy for a manufacturer to, for example, put a “Hewlett Packard” case onto a “Diablo” chassis distributed as a “Xerox” printer. It’s easy for a manufacturer to change software (firmware) so that the LED screen displays “Intoxilyzer 5000 MA Model” in Massachusetts and  “Intoxilyzer 5000C” in Ontario. It’s easy for the manufacturer  to change various portions of what prints on the evidence ticket, aka the “Intoxilyzer Test Record”. What if a manufacturer creates 17 different versions of an “Intoxilyzer ® 5000C” approved instrument with 17 different combinations of hardware and software (firmware), all different from the originally evaluated two versions of Intoxilyzer®5000?[1]  What are all the modifications they have  made since approval?

Appliances in Canada have serial number plates with model numbers sometimes riveted onto the chassis. Ask the question: What does the “approved instrument” state on the back plate?  

 

Durham Regional Police Service Intoxilyzer metal plate – R. v. Monk

 

The Alcohol Test Committee (ATC) recommended standards require that the units provided for evaluation are commercially available production units. The Intoxilyzer ® 5000C didn’t exist in 1988 and 1989 when it was evaluated. The ATC recommended standards require that instruments shall comply with generally recognized safety requirements. Up until a few years ago it was the Intoxilyzer ® 5000 that was “CSA Approved” in Canada, not the Intoxilyzer®5000C.

Ask the question: Does your “accessory equipment”, the simulator,  bear a CSA or ULC approval sticker? To what model number and file number does the sticker relate?

 

Durham Regional Police Service Intoxilyzer 64-003854 CSA sticker – R. v. Monk

Defence counsel should carefully review the 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

http://www.csfs.ca/contentadmin/UserFiles/File/EtoHEn.pdf

The following are ATC requirements for evaluation of new to-be-approved instruments:

1.    “Instruments shall be capable of performing a system blank test (i.e. a test of the Instrument’s breath sampling and detection systems, and of the ambient air). In this test, Instruments shall indicate interference when contaminants contribute to an apparent blood alcohol concentration (BAC) by more than 10 milligrams in 100 millilitres of blood (mg/100 mL).

 

2.    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.

 

3.    When vapours of known alcohol concentration in the range corresponding to BACs from 50 to 350 mg/100 mL are analyzed, the mean result of thirty consecutive analyses at each concentration in the range shall be within ± 5% of the target value and the precision shall be : at concentrations of 100 mg/100mL or less, the standard deviation shall not exceed 3 mg/100 mL; and b. at concentrations greater than 100 mg/100mL, the coefficient of variation shall not exceed 2.5%.

 

4.    The results of a minimum total of fifty analyses using no fewer than ten human subjects with BACs in the range of 50 to 150 mg/100 mL shall be at least as accurate and precise as the results of near-simultaneous similar tests with an Approved Instrument.”

      (page 104 ATC)

 

Note in 1. that the Intoxilyzer 5000C does not identify all contaminants as interferents, e.g. GOJO containing limonene. The RCMP identified this problem in its  1988 evaluation[2] :

 “There were no problems with acetone detection, in fact the instrument handles acetone very well. Instead a problem surfaced with methanol, the instrument was unable to distinguish this from ethanol although it was able to distinguish isopropanol.”

           “The 5000 will only give an accurate BAC value if the interferent substance is acetone.”  

Note in 1. that some Intoxilyzer 5000C’s being used do not identify an ambient fail at ethanol or interferent room air concentrations of 10 mg/100mls but rather something approximating 20 mg/100mls. Note as well that the zero for such calculations floats and varies with the ambient conditions of the previous air blank which may have occurred hours before.  

There is never any such thing as a true .000 air blank. That indication on the evidence ticket is always printed there even if ambient ethanol or an interferent that mimics ethanol is detected up to about 19 mg/100mls.

Note in 1. and  2. above that there is a lot more to an “approved instrument” than mere ethanol concentration analysis. Post-Breathalyzer “approved instruments” are expected to contain hardware and software that conduct “a test of the Instrument’s breath sampling and detection systems, and of the ambient air”.

Note that the ATC says nothing about “internal standards” or a “self-testing system” that renders all defence requests for internal data, error cards, maintenance logs and calibration logs unnecessary. There is no mention of “internal standards” in the 1988 RCMP evaluation or the 1989 CFS evaluation.[3]

The ATC also requires pre-evaluation documentation that should be safeguarded and available by disclosure or under subpoena in any evaluator’s file:

               “Before an evaluation is commenced, the manufacturer shall provide to the Chair of the ATC the following:

                       a. sufficient details to allow proper use of the equipment;

b. details pertaining to precautions that should be observed in the use of the equipment;

c. performance data relating to the appropriate ATC standards;

d. sufficient identification of the equipment to distinguish it by name from other equipment. Where applicable, the trade mark registration should be supplied;

e. all details pertaining to the theory and operation of the equipment other than those the manufacturer can justify as being proprietary. These details shall be sufficient to allow evaluators to identify potential malfunctions which could adversely affect the results. (If any proprietary information is provided it will be held confidential by the Committee);

f. a statement that the units provided for evaluation are commercially available production units;

g. details of any specific analytical procedure(s) required.”  

The ATC also provides specific guidance as to the methodology of evaluation of a new instrument. Note the references to test solutions of 0, 10, and 20 mg/100mls respecting ambient and breath sampling systems, 5, 10, and 50 mg/100mls acetone, and 50, 100,150, 250 and 350 mg/100mls ethanol calibrations:

1. “Instruments shall comply with generally recognized safety requirements.

Instruments that have been approved by an electrical safety certification body recognized in Canada shall be deemed to meet the requirements of standard l.

Instruments which have not been so approved shall be reasonably inspected for

potential safety hazards. If there is no apparent safety hazard, the Instrument shall be deemed to meet this standard.

2. Instruments shall be capable of performing a system blank test (i.e. a test of the Instrument’s breath sampling and detection systems and of the ambient air). In this test, Instruments shall indicate interference when contaminants contribute to an apparent blood alcohol concentration (BAC) by more than 10 milligrams in 100 millilitres of blood (mg/100 mL).

This standard shall be evaluated by purging the Instrument with vapours containing the equivalent of an apparent BAC of 0, 10 and 20 mg/100 mL. The vapours shall be introduced by a simulator with the Instrument in the blank analysis mode.

A series of fifteen tests shall be conducted at each concentration, with each simulator sample preceded by a normal purge. The Instrument calibration shall be checked (results within 5 mg/100 mL of the target value) before and after each series of tests.

The Instrument shall indicate interference in each test at the 20 mg/100mL apparent BAC. The results at the 0 and 10 mg/100mL apparent BAC shall be subject to interpretation by the Committee. The evaluators shall comment on the results of the tests in conjunction with the theory of the blank analysis mode. (Note: If the Instrument provides numerical values for a blank analysis and gives proper readings with the 0 and 10 mg/100mL vapours, it is not necessary to purge with a 20 mg/100mL vapour.)

Other appropriate volatile substances shall be tested when the detection system is believed to be sensitive to such volatile substances and there is a reasonable possibility of them being present in ambient air.

3. Substances which are produced endogenously and are present in the breath shall not contribute to the apparent BAC by more than 10 mg/100 mL.

 

Tests on twenty alcohol-free human subjects shall not yield a result greater than

10 mg/100 mL.

In addition, the following solutions shall be tested using a simulator maintained at

34.0° ± 0.2°C:

a. aqueous acetone solutions of 5, 10 and 50 mg/100 mL acetone;

b. aqueous solutions containing alcohol (to give an apparent BAC of approximately 100 mg/100 mL) which also contain the acetone concentrations listed in a.

 

4. When vapours of known alcohol concentration in the range corresponding to BACs from 50 to 350 mg/100 mL are analyzed, the mean result of thirty consecutive analyses at each concentration in the range shall be within ± 5% of the target value and the precision shall be:  

a. at concentrations of 100 mg/100mL or less, the standard deviation shall not exceed 3 mg/100 mL, and 

b. at concentrations greater than 100 mg/100mL, the coefficient of variation shall not exceed 2.5%.

 

The Instrument shall be set up and calibrated (or checked for calibration) according to the manufacturer’s operating instructions. If a calibration solution is required and the alcohol concentration is not specified by the manufacturer, an Alcohol Standard corresponding to a BAC of 100 mg/100 mL shall be used. If the calibration tolerance is not specified by the manufacturer, the calibration shall be

adjusted so that results with the calibration solution are approximately evenly distributed around the target value (a minimum of five tests shall have a mean that is not more than ± 2.5% from the target value).

 

Testing shall be conducted on Alcohol Standards with target values at or near alcohol concentrations corresponding to BACs of 50, 100,150, 250 and 350 mg/100 mL. The samples shall be introduced through the normal breath entry port.  

 

5. The results of a minimum total of fifty analyses using no fewer than ten human subjects with BACs in the range of 50 to 150 mg/100 mL shall be at least as accurate and precise as the results of near- simultaneous similar tests with an Approved Instrument.

 

The subjects shall be in the post-absorptive phase and shall have BACs distributed across the range of 50–150 mg/100 mL.” (pages 117-120)

 

It is essential that defence counsel have adequate disclosure to ensure that even if the particular instrument was originally a member of an “approved instrument” class that it continues to share the essential features of that class notwithstanding age, frequent usage, difficult test conditions, normal wear and tear, negligence, and abuse. The features detailed above include far more than simple ethanol calibration through the simulator port at 100 mg/100mls. It is therefore essential to the integrity of the breath testing system that the defence have full disclosure of inspections, maintenance, and modifications. The ATC treats such transparency as indispensible:

 

“V MAINTENANCE AND MODIFICATIONS

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.

 

A. Inspections

All Approved Instruments, Approved Screening Devices and accessory equipment intended for active use in the program shall be individually inspected before being placed into service, and periodically thereafter, to ensure that they initially meet, and continue to meet the manufacturer’s specifications. The recommended interval between inspections is one year. All inspections shall be performed by persons deemed by the Program Director to meet the qualifications described in paragraph V.C. below. Accessory equipment includes simulators, equilibrators or other equipment required for the use or calibration of Approved Instruments and Approved Screening Devices.

 

B. Preventive Maintenance

In addition to periodic inspections some instruments and devices may require additional preventative maintenance which may be performed at the field level. If applicable, the Program Director shall develop a protocol for such maintenance, appropriate to the Approved Instrument, Approved Screening Device or accessory equipment.

 

C. Qualifications of Maintenance Personnel

The Program Director shall ensure that persons performing preventative maintenance and/or periodic inspections on Approved Instruments, Approved Screening Devices and accessory equipment have:

a. Appropriate training in the maintenance of all components of the respective Approved Instruments, Approved Screening Devices and accessory equipment.

b. Detailed manuals for the procedures necessary to determine that the Approved Instruments, Approved Screening Devices and accessory equipment are in proper working order and continue to meet the manufacturer’s specifications. The Program Director shall have the authority to conduct on-site examinations of facilities where maintenance or inspections are performed.

D. Modifications

Any modification to Approved Instruments or Approved Screening Devices must

be approved by the Alcohol Test Committee. Installation of approved modifications shall be performed only by persons authorized by the Program Director. Following any modification, the equipment shall not be returned to active use in the program until it has successfully passed the equivalent of an initial inspection.

 

E. Maintenance Logs

A maintenance log shall be kept for each Approved Instrument, Approved

Screening Device and accessory equipment in active use in the program. Logs

should include the results of all inspections, documentation of the maintenance

history including records of parts replaced and approved modifications to hardware or software.

(ATC pages 113-114)

It is submitted that defence counsel need to be diligent about calling expert evidence to deal with issues relating to whether or not the particular instrument remains a member of the class. Proof of membership in the class will in turn require a clear understanding of the definition of the class including all of the features originally evaluated and approved by the ATC respecting the original instrument or “any modification”.

Note that there are many different software (firmware) versions of Intoxilyzer ® 5000C in use in Canada. The ATC should have a file and Minutes approving each version.  

Necessary Disclosure

See the most recent list of cases and other resources at:

http://www.lawyers.ca/private/Impaired2000/issuesresultsbyjudge.asp?issueno=111

Pre C-2, the only real way for the defence to establish BAC below 80  has been evidence of consumption plus the calculations of an expert. (258(1)(d.1)

Pre C-2 that evidence, if believed, will have a devastating impact on the Crown's case if it is combined with other evidence (see R. v. McDonald[4]) rebutting the 258(1)(g) or common law (R. v. Gibson) presumption of accuracy such as non-identification of the alcohol standard, alcohol standard expiry, alcohol standard temperature less or greater than 33.8 to 34.2C, no more than 50 calibration checks ( R. v. Carles[5]). Pre C-2 "Carter" evidence, if believed, should also have a devastating impact on the Crown's case if it is combined with other evidence rebutting the 258(1)(g) or common law ( see Gibson[6]) presumption of accuracy where there are indications of mouth alcohol bias (invalid sample, burping, vomit, or cough), radio frequency interference bias (ambient fail, unstable reference, range exceeded, high or low cal. checks, invalid sample, or RFI inhibit) or the presence in the breath room of an interferent (such as limonene) which may affect the reliability of the calibration checks. Such attacks on accuracy reinforce the "Carter" evidence but don't replace it. Pre C-2 such attacks on accuracy also negate any attempt by the Crown to use the Intoxilyzer readings to challenge the "Carter" evidence.

It is essential that the defence call expert evidence as to the relevance of the maintenance log, the calibration log, the Intoxilyzer Test Record paper recordings (of stand-alone diagnostics checks, stand-alone calibration checks, and operational errors), and COBRA/ADAMS data in the disclosure application in every over 80 case. The CFS may respond saying that the instrument is self-testing. The defence will then need to call expert evidence that the CFS assertion is novel science that cannot be tested, that there are many systems in the Intoxilyzer as required by the Alcohol Test Committee that are not self-tested and that the self-testing system itself has significant limitations. During litigation respecting the alleged self-testing system, defence and Crown experts will need to conduct a detailed analysis of the instrument's software including source code.

The maintenance log mandated by the CSFS Alcohol Test Committee and the CFS[7] and in the possession of the Crown or police is directly relevant to the issue of whether or not the instrument is an Intoxilyzer 5000C or an unapproved modification thereof, whether unauthorized police officers have tampered deliberately or negligently with the internal standards, DVM, or acetone potentiometers on the main processor board, and whether the RFI inhibit board has been upgraded.

Instruments that have not been regularly maintained may on some occasions produce a passed stand-alone diagnostics test or sometimes generate subject test Intoxilyzer Test Records but such instruments should not be considered to have threshold scientific reliability for the purpose of evidentiary testing. Consider an instrument that regularly crashes on startup at "RAM CHECK 2" (see the 5 RAMCHECK2 videos on YouTube - 0004 through 0008) or "Processor Errors" (see the PROCESSOR ERRORS videos) but upon being struck, banged, tilted, and shaken or upon cold re-start sometimes successfully passes the startup diagnostics or stand-alone diagnostics and prints an Intoxilyzer Test Record subject test card. If that lack of maintenance were disclosed and in the absence of the presumption of accuracy, the Crown would have a hard time establishing any case using that instrument beyond a reasonable doubt. If the pre C-2 presumption of accuracy applies and the maintenance problem is not disclosed, the defence cannot to make full answer and defence by using this evidence to support the "Carter" evidence or to rebut the Crown's attempt to negate the "Carter" evidence using the instrument results in non-certificate cases.  

 

Should the Crown disclose maintenance problems like these?
Intoxilyzer 5000 in need of maintenance. Intrument crashes during start-up diagnostics check following warm up "Not Ready". Operator attempts pressing Green "Start" button. Red "Power" button eventually turns instrument off. Pressing red "Power" button does not immediately re-start. Eventually red "Power" button pushed and blank screen becomes "Not Ready" warm-up mode.

Link to RAMCHECK 2 Intoxilyzer Part 1 Video File 0004

 

Intoxilyzer 5000 in need of maintenance. Second start. Instrument crashes again during start-up diagnostic RAM Check 2 error. Operator solves problem by tilting, shaking, banging, wiggling wires. Instrument resumes diagnostic and prints "Diagnostic OK". Instrument enters idle loop ready for breath test or other keyboard entry. 

Link to RAMCHECK 2 Intoxilyzer Part 2 Video File 0005 

 

Intoxilyzer 5000 in need of maintenance. Following two prior crashes but completion of start-up diagnostic, operator enters Esc Esc D to conduct stand-alone diagnostic check. Instrument crashes again at RAM CHECK 2 leaving test card in printer. Operator solves problem by tilting and banging instrument. Diagnostic resumes and instrument advises "Diagnostic OK" and prints "Diagnostic Passed" card. Card can be kept for evidence that instrument in proper working condition.

Link to RAMCHECK 2 Intoxilyzer Part 3 Video File 0006 

 

Intoxilyzer 5000 in need of maintenance. Following 3 crashes, two rectified by shaking and banging machine, operator enters Esc Esc B breath test sequence. Subject test completed producing Intoxilyzer Test Record as evidentiary "proof" that instrument is working properly. Crown may take position that requested disclosure irrelevant, no need for Crown to disclose maintenance record, operational error cards, or previous crashes because Intoxilyzer Test Record is proof that instrument working properly. (Note: some sound in background is from another Intoxilyzer)

Link to RAMCHECK 2 Intoxilyzer Part 4 Video File 0007 

 

Intoxilyzer 5000 in need of maintenance. Operator runs two groups of stand-alone cal. checks with no simulator attached. Cal. checks at .00. However, instrument prints test cards notwithstanding no simulator, no alcohol standard, no temperature maintenance at 34C. One stand-alone check with Esc Esc C and another with "Start" after adjusting dip switch.

Link to RAMCHECK2 Intoxilyzer Part 5 Video File 008

Note: Intoxilyzer®  is a registered trademark of CMI, Inc. The Intoxilyzer® 5000C is an "approved instrument" in Canada.

Processor Errors Intoxilyzer Video - Would you want to be tested on this machine? Should the Crown disclose maintenance problems like these?

Intoxilyzer 5000 in need of maintenance. After "Not Ready" warm up period instrument crashes at "Processor Check" indicating "Processor Errors" and immediately goes into DVM mode indicating high and fluctuating DVM values. Sample chamber is probably contaminated by dirt or dust. Operator terminates DVM mode by pressing the Red "Start" button. No Intoxilyzer Test Record card is generated.

Link to Processor Errors Video File 0004 

Intoxilyzer 5000 in need of maintenance is re-started using Red start button following crash during prior start-up 0004. Instrument runs through start-up diagnostics and indicates "Diagnostics OK" notwithstanding immediately prior crash and high/drifting DVM values. Instrument enters idle loop ready for normal breath subject test. Instrument's keyboard is defective/detached and one memory battery has been removed. 

Link to Processor Errors Video File 0005 

 

Intoxilyzer 5000 in need of maintenance. After Processor Error crash 0004 and re-start 0005, cal. checks (stand-alone "Start" test button after changing dip switch) show instrument and/or simulator are still unstable with very different cal. checks and one of them below 90-110 range (88 and 96). Operator removes Intoxilyzer Test Record from instrument and destroys it. The only way the existence of the dicarded bad cal. check could be found out by the Defence is through disclosure by the police/Crown of complete ADAMS/COBRA internal data. 

Link to Processor Errors Video File 0008

 

Intoxilyzer 5000 in need of maintenance. Follows processor errors crash, re-start, and bad cal. check 0008. Operator now runs further stand-alone cal. checks obtaining 96 and 103, two results within 90 to 110 range. Operator now feels its is safe to bring subject into breath room to run subject tests since instrument probably will not crash and will probably produce a cal. check in 90 to 110 range. 

Link to Processor Errors Video File 0009

 

Intoxilyzer 5000 in need of maintenance. Following "Processor Errors" crash, re-start , stand-alone varying cal. checks, operator adjusts dip switch to put instrument back into ACABA mode. Instrument is ready for breath test. Excellent air blank 000, cal. check of 99, air blank 000, and subject breath test of 111, air blank 000, instrument indicates "Test Complete" and prints Intoxilyzer Test Record. Flying wings during internal checks make it appear all is 10-4. But is this instrument with its maintenance issues reliable enough to establish conclusive proof?

Link to Processor Errors Video File 0010

The fact that an approved instrument prints a ticket and passes ethanol calibration checks using an alcohol standard doesn't conclusively determine whether or not the breath test is uncontaminated by mouth or stomach alcohol, whether or not there is an interferent adding to the result, whether or not there is RFI adding to the result, or whether the systems built into the instrument to assist in identifying such physiological or environmental presentations are functioning. Modern breath testing instruments contain additional hardware and software systems that assist in their reliability. What is fascinating about each of these videos is that these three instruments, though obviously in need of serious maintenance, appear to pass the diagnostics tests, pass the internal standards tests (the flying wings), and print Intoxilyzer Test Records. With respect to the Diagnostics test itself, many components of these instruments can be physically disconnected and yet the Diagnostics test still prints "Diagnostics OK". Examples include: External breath tube, RFI external antenna, RFI connector on the mother board, Cooling fan, Internal breath tube heater, Solenoid #1, Solenoid #2, Sample chamber heater, Pressure switch, Internal pump, Keyboard, LPT (DATA) port, Reset switch, Start button, Display, External breath tube heater, Dip switches, Part of the Power supply, Printer pin control, I.R. Source, and the Filter wheel motor. Reliability of any approved instrument depends on its state of maintenance. Lack of disclosure of maintenance records should cause concern as to reliability. 

Stardate254508 Intoxilyzer Video - Would you want to be tested on this machine? Should the Crown disclose maintenance problems like these?

Intoxilyzer 5000 in need of maintenance. Instrument runs start-up diagnostics following Not Ready warm-up and passes start-up diagnostics but shows date as "25/45/08". Keyboard or keyboard controller board is defective and detached as can be seen from hanging plug. Intoxilyzer® is a registered trademark of CMI, Inc. The Intoxilyzer® 5000C is an "approved instrument" in Canada.

http://www.youtube.com/watch?v=Dw7EAU1RKGE

 

 

Intoxilyzer 5000 in need of maintenance. Operator cannot correct date error using keyboard so uses dip switches at side of instrument to reset date. Instrument returns to idle loop ready for cal. check or subject test. Intoxilyzer® is a registered trademark of CMI, Inc. The Intoxilyzer® 5000C is an "approved instrument" in Canada.

http://www.youtube.com/watch?v=0TyST6IaOyk

 

 

Intoxilyzer 5000 in need of maintenance. Keyboard or keyboard controller or battery defective and so keyboard detached. Instrument, however, runs 5 acceptable stand-alone cal. checks indicating no errors. Operator using ACA dip switch since keyboard detached. Intoxilyzer® is a registered trademark of CMI, Inc. The Intoxilyzer® 5000C is an "approved instrument" in Canada.

http://www.youtube.com/watch?v=sI6yyGrwbro

 

Intoxilyzer 5000 in need of maintenance. Keyboard completely detached. However, operator runs ACABA subject test that appears normal and produces Intoxilyzer Test Record. Intoxilyzer® is a registered trademark of CMI, Inc. The Intoxilyzer® 5000C is an "approved instrument" in Canada.

http://www.youtube.com/watch?v=NNyMMSDxy98

 

The calibration log is directly relevant because it permits a defence expert to look for bizarre high or low calibration checks over time which may be indicative of radio frequency interference or the presence in the breath room of interferents in the air. The RFI inhibit system and the interferent detection systems on an Intoxilyzer 5000C are not reliable to always detect radio frequency interference from devices that post-date the design of the instrument (eg. mobile phones) and are not reliable to always detect interferents from hand cleaners that post-date the design of the instrument (eg. GOJO with limonene or d-limonene.) Such radio frequency interference combined with ethanol below 80 on the subject's breath may be interpreted by the instrument as BAC above 80. Such limonene or d-limonene may not be flagged as an interferent. Such interferent in the breath room air (similar to ethanol in the room air) may be missed by the the instrument's ambient fail detection system because interferent in the room air during the third air blank of the previous subject test may have elevated the zero value. As such the calibration checks become unreliable. Failure of the Crown to disclose the calibration log over time prevents the defence from learning if these phenomena are occurring due to environmental problems with the breath room rather than the instrument. Notwithstanding proper functioning of the instrument in accordance with its design long ago and correct operator protocol according to the operator's limited training in accordance with government written protocol, there are some environmental presentations that result in large error, because such presentations were never contemplated years before in the design of the instrument or the protocol.  

A Series of 5 ACABA Sequences where RFI was applied during the Air Blank & Flying Wings Preceeding the C in ACABA in the third Sequence Only:

An ACACACACACA Sequence where RFI was applied during the Air Blank & Flying Wings Preceeding the third C in ACACACACACA Only:

 

Link to An Example of Phantom Alcohol Cal. Checks of 21 and 34 Induced by RFI with No Alcohol Standard or Source of Alcohol 

Links to a Series of 8 ACABA Sequences for a subject with No Alcohol, 100 alcohol standard, RFI during 2nd A and flying wings:

  1. Phantom 1 (008, 000, 000)

  2. Phantom 2 (019, 000, INHIBITED-RFI)

  3. Phantom 3 (INHIBITED-RFI, INHIBITED-RFI)

Experiments with Radio Frequency Interference (RFI)
RAM CHECK 2 Intoxilyzer: Note infrequency of RFI Inhibit Error Message, note bizarre and inconsistent effects, note "AMBIENT FAIL", "UNSTABLE REFERENCE", bizarre cal. checks, and run on air blanks may be indicators of the presence of RFI. Experiments run with absolutely no source of ethanol present. 

 

Intoxilyzer 5000 in need of maintenance. Intoxilyzer® is a registered trademark of CMI, Inc. Instrument in ACACACACACA mode. Print inhibit on. No simulator, no source of ethanol or interferent. RFI from two Cobra walkie-talkies Channel 3 00 used, one transmitting, another receiving, so you can hear when "Talk" is pressed. The Intoxilyzer® 5000C is an "approved instrument" in Canada.

http://www.youtube.com/watch?v=7OdPUBtOwt8

 

Same as above but slightly better quality video.

http://www.youtube.com/watch?v=TJlCulHhbvM

 

Intoxilyzer 5000 in need of maintenance. Instrument in ACACACACACA mode. Print inhibit on. No simulator, no source of ethanol or interferent. RFI from two Cobra walkie-talkies Channel 3 00 used, one transmitting, another receiving, so you can hear when "Talk" is pressed. Intoxilyzer® is a registered trademark of CMI, Inc. The Intoxilyzer® 5000C is an "approved instrument" in Canada.

http://www.youtube.com/watch?v=GrFI9M27AGk

 

Author's Original 66 Intoxilyzer: Note infrequency of RFI Inhibit Error Message, note bizarre and inconsistent effects apparent when instrument screen is closely monitored by breath room camera for later analysis. Note some blowing after tone stops and RFI sometimescontinued to be  applied just before final analysis of "Subject Test". note "INVALID SAMPLE may be indicator of the presence of RFI. Experiments run with absolutely no alcohol on breath of operator/subject. 
Intoxilyzer 5000 in need of maintenance. Instrument in ABA (Using EscEsc B) and ACABA mode. Print inhibit on. 100 alcohol standard at 34.0C . RFI applied at various positions at back of instrument during B in sequence. RFI from two Cobra walkie-talkies Channel 3 00 used, one transmitting, another receiving, so you can hear when "Talk" is pressed. Intoxilyzer® is a registered trademark of CMI, Inc. The Intoxilyzer® 5000C is an "approved instrument" in Canada.

http://www.youtube.com/watch?v=HVM3Z9QDcSA

 

Similar to above

http://www.youtube.com/watch?v=IsarJbW6_1Y

 

Similar to above

http://www.youtube.com/watch?v=oD2fpbiOkRQ

Mississauga Toronto Ontario lawyer Stephen R. Biss speaks about the effect of cell phones on the reliability of the evidentiary breath instruments used in Ontario Canada. Radio frequency interference from a transmitting Nokia 3500 cell phone causes an apparent blood alcohol concentration beyond 700 mg/100mls on an Intoxilyzer 5000 64 series product number 564 CA model similar to the Intoxilyzer 5000C used by police in Ontario Canada.

http://www.youtube.com/user/bisss2002#play/uploads/15/C6P2D8kCQuE

Experiments with Ambient Ethanol

Processor Errors Intoxilyzer: Note the failure of the "Ambient Fail" system to preclude ambient ethanol in excess of 20 mgs/100mls
Intoxilyzer 5000 in need of maintenance. Instrument in ACACA mode. Print inhibit on. A sequel to two longer videos. Experiment using cold extra simulators at 40 mgs/100mls and 100 mgs/100mls gradually warmed to simulate slow changes in ambient ethanol in room air. Instrument does not trigger "Ambient Fail" because the change is gradual. Intoxilyzer® is a registered trademark of CMI, Inc. The Intoxilyzer® 5000C is an "approved instrument" in Canada.

http://www.youtube.com/watch?v=Bm0v0KEyT_g

 

Experiments with Ambient Limonene in Hand Cleaner

Processor Errors Intoxilyzer: Note the failure of the "Interferent" system to preclude ambient interferent from interfering with quantification of ethanol.
Intoxilyzer 5000 in need of maintenance. Experiment to explore the effects of a hand cleaner such as GOJO containing limonene in the ambient air respecting reliability of the alcohol standard. 100 SAS in simulator at 34.0C. Operator runs ACACA mode. Cal. check drops from 103 to 81, 96, 85 when hand cleaner in air near breath tube on prior air blank and then returns to 111, 105. Note that 111 is outside of acceptable range. It appears that ambient hand cleaner in the breath room can reduce an apparent cal. check by 20 mg/100mls. Although the breath test result itself may be reduced, the reliability of the simulator/alcohol standard has been compromised and so the breath test itself is not reliable. If the instrument is, for example, reading 11 mgs/100 mls too high and the problem is not with the simulator (note the 111 cal. check), then this inaccuracy may be masked. Cal. checks could be in the normal 90 to 110 mgs/100mls range only because the cal. check reliability was compromised by the ambient limonene and the instrument's response thereto. Intoxilyzer® is a registered trademark of CMI, Inc. The Intoxilyzer® 5000C is an "approved instrument" in Canada.

http://www.youtube.com/watch?v=LkWZHttQSLE

 

Intoxilyzer 5000 in need of maintenance. 100 alcohol standard at 34 C. Exposure to mixture of room temperature 50 alcohol standard and GOJO containing limonene bubbled into breath tube during air blanks plus GOJO on hands near flask air entry. After initial AMBIENT FAIL ACACA cal. checks now reading as low as 62 mg/100mls or even lower if INTERFERENT flag at 24 mgs/100mls. 0 has been raised by ethanol and limonene during air blanks far above 20 mg/100 mls threshold. In the process GOJO/limonene has either contaminated sample chamber, tubing, simulator or 100 alcohol standard or instrument's interferent add/subtract circuitry has been affected ultimately result in in 145 cal. check and 144 cal. check when room air used as ambient. Quaere: does contamination of an instrument and accesory equipment by an ambient interferent necessitate a change to the alcohol standard? Is it therefore necessary that the police log and the Crown disclose every "INTERFERENT" error (cards and COBRA/ADAMS) since the last solution change and prior to the subject test so that the defence will have full notice that the alcohol standard may have been unreliable? Intoxilyzer® is a registered trademark of CMI, Inc. The Intoxilyzer® 5000C is an "approved instrument" in Canada.

http://www.youtube.com/watch?v=bxkUYu2S7wM

 

As above but no AMBIENT FAIL or INTERFERENT flags. If this is the breath room video and previous AMBIENT FAIL and INTERFERENT flags never disclosed by Crown we would never know that the 100 alcohol standard has been compromised if the instrument is reading 20 to 35 mg/100mls too high and is overstating BAC by 20 to 35 mgs/100mls..

http://www.youtube.com/watch?v=YhyBstpbaao

 

Intoxilyzer 5000 in need of maintenance. Experiments with GOJO hand cleaner containing limonene partially dissolved in cold 50 mg/100mls alcohol standard bubbled into breath tube during some air blanks. Effects on cal. checks with 200 alcohol standard. Sometimes but not always "Interferent" flag. Cal. checks far below and far above acceptable. Simulator/tubing/Intoxilyzer reliability compromised because cal. checks no longer reliable. Intoxilyzer® is a registered trademark of CMI, Inc. The Intoxilyzer® 5000C is an "approved instrument" in Canada.

http://www.youtube.com/watch?v=QtM3EBsM0pc

 

As above with 100 standard.

http://www.youtube.com/watch?v=SSO6E9Ijm28

Both small and large differences between apparent BAC and true BAC can result in innocent convictions (see www.lawyers.ca/carter).

Pre C-2, the SCJ decision of Morissette J.in R. v. Harrington[8] creates some challenges for the defence on disclosure requests, unless the defence calls expert evidence contradicting the policy (which seems to have become scientific opinion without any Daubert analysis of novel science) of the CFS that all that counts is the evidence of the subject test:

8     The evidence of Officer Walker, the expert in these types of instruments in Ontario, testified that it does not matter how many previous tests had been done on the approved instrument but rather what matters is the check in question.

9     There is an apparent lack of probative link between any other time the instrument is functioning and this case at hand. The case law supports the Crown's argument that maintenance logs are irrelevant to the issue of evidence to the contrary and, accordingly, the appeal is granted.

10     The respondent seeks a new trial in order to address a stay of proceedings on the basis that there was still a live s. 7 Charter issue before the trial judge. I disagree.

11     On the basis that the maintenance records were irrelevant to the issue of "evidence to the contrary" in this case, a stay is inappropriate.

The CFS policy seems to be that the “instrument’s self-testing design and protocol for use permit an effective basis to evaluate the operation, working order and calibration of a given Intoxilyzer ® 5000C in any given test.” That policy assumes that the CFS has knowledge and possession of the "instrument's self-testing design". Any "self-testing" design, if such artificial intelligence exists, is a function of the instrument's software (firmware).

Quaere: By taking this policy is the CFS indicating that they have knowledge and possession of the "self-testing" source code - the plain language version of the software (firmware) that drives the "self-testing" system? If so, the CFS experts can expect to be cross-examined on this source code and there will be requests for disclosure of this source code.

The experience of the writer is that old poorly maintained Intoxilyzer 5000's can produce subject test cards or passed diagnostics cards with parts missing or disconnected and following computer crashes rectified by banging and shaking the instrument. Video examples are available. If the banging, shaking, or re-starting never appears on video and/or operational error cards off video are discarded how can one know the contextual reliability of the approved instrument and its accessory equipment?

Quaere: Is the CFS prepared to share the source code with defence experts so that there can be a fair consideration of whether such artificial intelligence exists and its limitations? Does the artificial intelligence extend to the mouth alcohol detection system, the RFI inhibit system, and the interferent detection system?

Quaere: Is the CFS prepared to share an Intoxilyzer 5000C with the defence bar or will the Attorney General permit a member of the defence bar or a defence expert to purchase or borrow an Intoxilyzer 5000C for independent black box[9] testing?

 Requests for disclosure of Intoxilyzer data should be custom-designed to fit the particular fact situation. Counsel should consult with an expert before making such a request. Stinchcombe letters will be much more effective if counsel can point on a litigated disclosure application to a particular problem shown on video, in the breath tech’s notes, or on an Intoxilyzer Test Record.

The following is a sample draft of a letter following up on a disclosure request for electronic data, Intoxilyzer Test Record cards (of stand-alone diagnostics, stand-alone cal. checks, and operational errors), the maintenance log, and the calibration log:

  1. Electronic Data: The defence alleges that the electronic data stored by the Intoxilyzer respecting stand-alone diagnostic tests, stand-alone calibration checks, and operational errors is relevant evidence that should be safeguarded and disclosed to the defence. The relevance of this data is described in the Intoxilyzer 5000C:ADAMS page of the Intoxilyzer 5000C Training Manual September 1994 (See Intoxilyzer 5000C: ADAMS page) :

  “ADAMS … will be able to respond immediately to defense lawyer requests for disclosure. … any activity done on the Intoxilyzer is permanently recorded in its’ memory.”

  In 2000, Cst. Jeff Patrick of Toronto Police Service testified in R. v. Kuster[10]:

“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.”  

In R. v. Vandermeer, [2007] O.J. No. 5349 Ready J. found at paragraph 31:

“It is clear from the evidence that this material is provided to defence counsel on request in Toronto, Halton and Kitchener, and the material also discloses from the manual from the Intoxilyzer that it refers to software that would allow that this data on the machine, this electronic data could be downloaded by the defence over the phone, and they referred to it as a ‘valuable defence piece of evidence to assure the proper working order and the accuracy of the Intoxilyzer’ and the integrity of the whole process involving the Intoxilyzer.”

Prior to the Minister of Justice signing the approval making the Intoxilyzer ® 5000C an “approved instrument”  in Canada, the Alcohol Test Committee had received an undertaking from the manufacturer, CMI, that the instruments would have “Keyboard communications capability” (See letter from CMI dated April 20, 1990.)  The “Keyboard communications option” described in the Intoxilyzer ® 5000 Breath Analysis Instrument Operator’s Manual clearly indicates that any instrument with this option “has been modified for operation with a keyboard and features a communications interface to a central computer… The second section stores a maximum of 50 calibration checks. The third section stores a maximum of 50 diagnostic checks. The fourth section stores a maximum of 50 operational errors.”(See 3 page Excerpt from “Standard Keyboard and Communication Operation for the INTOXILYZER 5000® Alcohol Breath Analysis Instrument”.)

If a local police detachment has not yet purchased or contracted for the use of the necessary ADAMS/COBRA software to download and analyze this data then the defence alleges Crown or police neglect to safeguard against the loss of relevant evidence. If the local police detachment has not yet purchased this software there is no reason why other options could not be explored such as:

a)    purchase of the software by the Attorney General, another Ministry, a larger police service, or the Centre of Forensic Sciences,

b)    purchase of the software by the Attorney General or another Ministry in trust for a defence lawyers’ association, a defence lawyer, a corporation providing support services to defence lawyers, or a defence expert,

c)      ship the Intoxilyzer to the Canadian distributor/service centre  to use their COBRA software to download data (see R. v. Van de Veen [2003] A.J. No. 1212)

d)    request the assistance of Cst. Jeff Patrick of Toronto Police Service who has a free version of the software and a free null modem cable that enables him to download the data from any Intoxilyzer

If the software is purchased or licensed in trust for the defence , the defence is prepared to pay the reasonable cost for the purchase or use of such software. If the Intoxilyzer is shipped to the Canadian distributor/service centre the defence is prepared to pay the reasonable costs.

In 2000, Mr. Bruce Walker of the Centre of Forensic Sciences indicated to the Court in R. v. Kuster:

“COBRA is essentially the exact same as the ADAMS. It will provide the opportunity for the downloading of the information which can be used to administer the programme, provide statistics. We will be using COBRA when we institute a quality assurance programme throughout the province.”  

  1. Copies of all paper Intoxilyzer Test Record recordings of diagnostic tests, calibration checks, and operational errors for 30 days prior to and following the subject tests.

The defence alleges that the paper Intoxilyzer Test Record recordings of stand-alone diagnostic tests, stand-alone calibration checks, and operational errors generated by the Intoxilyzer are relevant evidence that should be safeguarded and disclosed to the defence. Such paper records document normal machine functioning and abnormal machine functioning. They provide a context within which one can evaluate the reliability of a particular instrument and a particular analysis. If an instrument has a history of crashes but on a few occasions produces documentation that appears reliable, that doesn’t mean that the instrument or its analysis is reliable on those few occasions.

If ADAMS/COBRA electronic data has been lost or the Crown has neglected or refused to provide it then we must fall back on a request for copies of the three part Intoxilyzer Test Record cards generated by the instrument and hopefully safeguarded by the police. In particular we are looking for records of stand-alone calibration checks, stand-alone diagnostic checks, and operational errors. Operational error Intoxilyzer Test Record cards would include the following:

                  a.    INHIBITED RFI

b.    INTERNAL STD FAILED

c.    UNSTABLE REF

d.    AMBIENT FAILED

e.    RANGE EXCEEDED (during air blank)

f.     INVALID SAMPLE

g.    INTERFERENT

h.    RANGE EXCEEDED (during subject test)

i.      INVALID TEST

      High or low calibration checks, ambient fails, unstable reference, range exceeded, interferent, or invalid sample  may indicate radio frequency interference or the presence of an interferent.  The presence of an environmental interferent could inter alia destroy the reliability of an external calibration check or negate the ambient fail system.  

  1.  Maintenance Logs, Calibration Logs, and Accessory Equipment Logs  

We suggest that the availability and relevance of these documents is described in the judgment of Pugsley J. in R. v. Neil Campbell [2005] O.J. No. 3037.  

We repeat our request for disclosure of such documents as described by Justice Pugsley. We infer that the Crown concedes that these documents exist.  

We respectfully disagree with the decision of the Court in R. v. Nicolle[11]. In that decision Justice Stone found as a result of receiving evidence from Dr. Langille:  

 10      Dr. Robert Langille testified for the Crown, and supplied evidence that the Crown argues makes Mr. Daley's requested disclosure irrelevant. What I take from his evidence includes the following:

 11      The Intoxilyzer 5000C is an approved instrument which appears to have the blessing of the scientific community as to its ability to determine the amount of alcohol in a person's blood. When it leaves the factory it is calibrated to do its job. As distinct from the Alcotest 7410 GLC, the approved roadside screening device, an Intoxilyzer cannot be recalibrated by its operator, the qualified technician. If it goes out of calibration for some reason, it must be sent to someone properly trained by the manufacturer to be recalibrated. It is expected to do its job as built. The analysis system is a self-contained unit which the operator will not interfere with.  

The inference that police officers in Ontario never tamper with the insides of or the calibration of an Intoxilyzer is directly contradicted by the evidence of police officers cross-examined in R. v. Monk in Durham and in R. v. Papaioannou[12] in Peel. There are similar indications in Halton disclosure. Toronto Intoxilyzers are maintained by Cst. Jeff Patrick, not by the factory authorized service centre. Ontario has never fully implemented the recommendations of the Alcohol Test Committee that “formal maintenance procedures are essential to the integrity of the breath test program.”(Alcohol Test Committee page 113):

C. Qualifications of Maintenance Personnel

The Program Director shall ensure that persons performing preventative maintenance and/or periodic inspections on Approved Instruments, Approved Screening Devices and accessory equipment have:

a. Appropriate training in the maintenance of all components of the respective Approved Instruments, Approved Screening Devices and accessory equipment.

b. Detailed manuals for the procedures necessary to determine that the Approved Instruments, Approved Screening Devices and accessory equipment are in proper working order and continue to meet the manufacturer’s specifications. The Program Director shall have the authority to conduct on-site examinations of facilities where maintenance or inspections are performed. (ATC page  113)

With respect to the Court in R. v. Nicolle, and the position taken by Dr. Langille, there is a lot more to the proper functioning of an approved instrument than simple ethanol calibration using a controlled representative sample in the sample chamber at 100 mg/100 mls. Evaluation of such proper functioning should be done taking into consideration all of the factors considered by the Alcohol Test Committee during the initial evaluation of a new class of approved instruments or modifications thereof. Instruments such as the Intoxilyzer®5000C contain systems inter alia related to processor errors, radio frequency interference, unstable reference, interferent detection and subtraction, automatic adjustment of zero, ambient fail, mouth alcohol detection algorithm, dirt in the sample chamber, and internal standards. All of these systems and others need to be properly inspected and maintained if the instrument is to function as intended and approved by the Alcohol Test Committee and the Approved Breath Analysis Instruments Order. The defence needs to know from maintenance records and calibration records whether complaints have been made with respect to failure of any of these systems, whether the complaints are recurring, what action has been taken to correct the problem, and whether appropriate repairs or upgrades have been undertaken by qualified maintenance personnel using reliable parts.

For example, by studying the disclosed maintenance log in R. v. Papaioannou the defence learned that a breath technician, of Peel Regional Police Service had changed the “chopper motor”. That led to further inquiries and cross-examination of the breath tech which revealed that he had made repairs to the main controller board of an Intoxilyzer®5000C,  soldering in a chopper motor and a resistor using cannibalized parts. Subsequently he adjusted the internal standards on the controller board without any external verification other than ethanol at 100 mg/100mls.[13] He did not conduct external verifications at other simulated BAC levels or using acetone. In another matter in Halton, it was apparent from stand-alone diagnostics Intoxilyzer Test Records from the client’s matter and another client in a different year that there had been a software upgrade.  The disclosed maintenance log was missing information that should have been contained therein; i.e. related to a hardware upgrade. A software upgrade without the corresponding hardware upgrade was an indication to the defence that there was a serious potential problem with the instrument and further inquiries were warranted. In other cases maintenance logs have revealed complaints of high or low calibration checks.  Bizarre calibration checks or other recurring complaints in a maintenance log may also indicate that the error is with the environment in the breath room rather than the approved instrument or its accessory equipment. Missing calibration log entries or conflicting photocopied versions of the calibration log combined with a police practice of tracking Alcohol Standard on a breath room white board, also combined with “Carter” evidence, have led to Crown withdrawal.

Your Stinchcombe letter should be drafted after consultation with your expert and should not use boilerplate. Use transcripts and previous disclosure based on your own experience.

Retrospectivity

See the most recent list of cases and other resources at:

http://www.lawyers.ca/private/Impaired2000/issuesresultsbyjudge.asp?issueno=106

It has always been a criminal offence in Canada to possess an orange. Section 253(b).

The Criminal Code provides in the original section 258(1)(c) that proof that an individual possessed an apple is proof that the individual possessed an orange in the absence of evidence to the contrary. This section is constitutional because of the “evidence to the contrary” provision. (Phillips and Gibson[14])

As the result of a case called St. Pierre, Parliament enacted section 258(1)(d.1) of the Criminal Code that makes it clear that an apple is an orange in the absence of evidence tending to show that it is not an orange (as opposed to just a different fruit). (R. v. Cvitkovic,  [1998] O.J. No. 50). This St. Pierre amendment reinforced the real essential element of the offence - orangeness.

As a result of case called Boucher, Parliament replaced sections 258(1)(c) and (d.1) with a new enactment in 258(1)(c) that proof that the individual possessed an apple is conclusive proof  that the individual possessed an orange unless there is evidence tending to show all of these three things:

i.              That the apple is red.

ii.            …..,

iii.           And that the apple is not an orange.

It is respectfully submitted that this provision is not evidentiary, it is substantive. Expert evidence from 3 defence experts reveals: “Non-red Apples are not always Oranges.” Conclusion, Parliament has EFFECTIVELY created a new criminal offence and amended section 253b:

“It is a criminal offence to possess an orange,  or an apple that is not red.”

The amendment is either the creation of a new criminal offence (which may be within Parliament’s jurisdiction) or a substantive provision masquerading as an evidentiary provision. In either case the legislation should not be construed and applied retrospectively, because effectively, a new substantive offence has been created.

It has always been a criminal offence in Canada to possess a fish in excess of one metre. Section 253(b)

The Criminal Code provides in the original section 258(1)(c) that proof that an individual possessed a fish in excess of an “approved yardstick” is proof that the individual possessed a fish in excess of one metre in the absence of evidence to the contrary. This section is constitutional because of the “evidence to the contrary” provision. (Phillips and Gibson)

As the result of a case called St. Pierre, Parliament enacted section 258(1)(d.1) of the Criminal Code that makes it clear that a fish in excess of an “approved yardstick” is a fish in excess of one metre in the absence of evidence tending to show that the length of the fish did not exceed one metre (as opposed to just a different length than a metre). (R. v. Cvitkovic,  [1998] O.J. No. 50). This St. Pierre amendment reinforced the real essential element of the offence – length greater than one metre.

As a result of case called Boucher, Parliament replaced sections 258(1)(c) and (d.1) with a new enactment in 258(1)(c) which states that proof that a fish is in excess of an “approved yardstick” is conclusive proof that the fish is in excess of one metre unless there is evidence tending to show all of these three things:

i.              That the “approved yardstick” malfunctioned or there was operator error,

ii.            That the malfunction or the operator error resulted in the determination that the fish exceeded one metre,

iii.           And that the fish did not exceed one metre.

It is respectfully submitted that this provision is not evidentiary, it is substantive. Expert evidence from 3 defence experts reveals: “A yard is not the same length as a metre, but about 90% of the time an “approved yardstick” is reliable in establishing a length longer than one metre. Conclusion, Parliament has EFFECTIVELY created a new criminal offence and amended section 253(b):

“It is a criminal offence to possess a fish in excess of one yard.”  or

“It is a criminal offence to possess a fish apparently in excess of one metre.”

The amendment is either the creation of a new criminal offence (which may be within Parliament’s jurisdiction) or a substantive provision masquerading as an evidentiary provision. In either case the legislation should not be construed and applied retrospectively, because effectively, a new substantive offence has been created.  

Constitutionality

See the most recent list of cases and other resources at:

http://www.lawyers.ca/private/Impaired2000/issuesresultsbyjudge.asp?issueno=96

See also the materials filed in the Superior Court of Justice (Toronto) application by Joseph Neuberger and Alan Young in R. v. Nagle, Padley, Lazarus, and Khan. The following is a combination of some of their materials, and CLA web site materials, with some revisions. The draft below could use improvement.

Draft Notice of Application and Constitutional Issue

TAKE NOTICE that an application may be brought at 10:00 a.m. on the 4th day of December, 2008 at Courtroom no. 203, 7755 Hurontario Street, Brampton, Ontario, for an order for:  

a declaration that ss. 258(1)(c), (d.01) and (d.1) as amended by the Tackling Violent Crime Act, S.C. 2008, c. 6 are of no force or effect, and  

allowing the Applicant to proceed with the defence to the s. 253 charge of “over 80” pursuant to ss. 258(1)(c) and (d.1), as they existed prior to the proclamation of the Tackling Violent Crime Act, S.C. 2008, c. 6.

THE GROUNDS FOR THIS APPLICATION ARE:  

1.    That the Applicant  A   B  stands charged with operating a motor vehicle on or about the 10th day of February, 2008 with excess blood alcohol and while his ability was impaired, contrary to s. 253 of the Criminal Code of Canada.

2.    That the Applicant is scheduled to have a trial on the date of December 4, 2008, Courtroom no. 203, 7755 Hurontario Street, Brampton, Ontario.

3.    That the Applicant intends to raise a defence by calling evidence as to his pattern of consumption of alcohol on the night in question and has secured the opinion of an expert toxicologist to determine and assess whether the Applicant’s blood alcohol level would have been below the legal limit, given the Applicant’s height and weight.

4.    On July 2, 2008, the Tackling Violent Crime Act, S.C. 2008, c.6 was proclaimed in force.  The amendments to ss. 258(1)(c), (d), (d.01) and (d.1) of the Criminal Code limit the use of “evidence to the contrary” to evidence tending to show that that the “approved instrument”  (note the difference between “approved instrument” and  “approved instrument or accessory equipment”) 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 have exceeded 80 milligrams of alcohol in 100 milliliters of blood at the time when the offence was alleged to have been committed.

5.     That, taken together, the new ss. 258(1)(c),(d),(d.01) and (d.1) create a mandatory presumption (described as conclusive proof) whereby an accused could be found guilty of a s. 253(b) “over 80” offence even though there remains a reasonable doubt on one of the essential elements of that offence; namely, whether the accused’s true blood-alcohol concentration (“BAC”) was over the legal limit.  Accordingly, the new provisions infringe s. 11(d) of the Charter.

6.    That, taken together, the new ss. 258(1) (c), (d), (d.01) and (d.1) operate in a manifestly unfair manner by creating an illusory defence that requires an accused person to discharge an impossible burden of proof. The new regime requires that an accused tender evidence relating to information that would not be knowable to the accused as the information in question (i.e the screen messages, error cards, internal data, and instrument history necessary to establish approved instrument or accessory equipment malfunction or screen messages, error cards, internal data, and video, paper recordings, or independent memory of operator or previous operator error) is uniquely in the possession or control of or has not been recorded or safeguarded by third parties or the police.  The design of the protocols for use of the approved instrument and accessory equipment are controlled by third parties or the police. The design, manufacture, modifications, quality control, data recording, maintenance, and repair of approved instrument and accessory equipment hardware and software are controlled by third parties or the police. There are different hardware and software versions of the approved instrument, which may or may not have the approval of the Alcohol Test Committee, as to modifications from the original.  The Minutes of the Alcohol Test Committee are not public documents and are not knowable to the accused. COBRA/ADAMS software to download and analyze data stored by the approved instrument during every diagnostics check, calibration check, subject test, and operational errors is either controlled by the police or third parties, or police and third parties refuse to purchase such software. COBRA/ADAMS software cannot be purchased by defence lawyers or defence experts. Representative samples of the approved instrument cannot be purchased by defence lawyers or defence experts for black box testing. The approved instrument software source code is not available to the defence for white box analysis. Environmental conditions in the breath room and recordings thereof are controlled by the police.  A manifestly unfair or illusory defence violates the principles of fundamental justice in s.7 of the Charter.

  1. That, taken together, new ss. 258(1)(c), (d) (d.01) and (d.1)  operate to severely limit the operation of the “evidence to the contrary” defence by creating a rigid pre-determination of the nature and type of evidence which must be called in order to raise this defence.  In effect, this “pigeon-hole” approach to the weight and quality of evidence can and will operate to deny an accused the right to full answer and defence in cases in which an accused has probative, exculpatory evidence of innocence but is not able to obtain and tender evidence specifically relating to approved instrument malfunction or operator error or is not able to obtain and tender probative evidence specifically relating to the causation of error. Although in some circumstances the defence may be able to provide a possible scientific explanation for the error or may be able to suggest unreliability of the analysis due to some misuse of the approved instrument or its accessory equipment it may be impossible to “pigeon-hole” this error or misuse within the terms “the approved instrument was malfunctioning or was operated improperly”. Possible examples could include misuse of accessory equipment and the alcohol standard rather than the approved instrument, misuse prior to the subject test and analysis rather than at the time of the subject test and analysis, and misuse by someone other than the operator. Assuming that in a rare case the defence can establish approved instrument malfunction or operator error and in rarer cases establish that the analysis was scientifically or forensically unreliable it will be impossible to lead probative evidence that the approved instrument malfunction or operator error resulted in the determination that the concentration of alcohol in the accused’s blood exceeded 80 mg of alcohol in 100 ml of blood.   This severe restriction on full answer and defence violates both ss. 7 and 11(d) of the Charter of Rights and Freedoms.  

  1. That, taken together, the new ss. 258(1)(c), (d), (d.01) and (d.1) create a new statutory mandatory presumption of accuracy that precludes rebuttal by clear evidence contradicting the breath analysis. An example would be a fatality case where police take breath tests from the accused at the hospital and subsequently obtain a warrant for hospital blood samples and records. If hospital or private blood analysis reveals a BAC below 80 (as related back to the time of the incident), that blood analysis is incapable of rebutting a qualified technician breath analysis over 80 (using the presumption of identity). Although the blood analysis would be of probative value respecting the third of the “three things” it would not be of probative value respecting the first and second of the “three things.”  

  1. That, taken together, the new ss. 258(1)(c), (d), (d.01) and (d.1) create a new statutory mandatory presumption of accuracy without Alcohol Standard conditions precedent that the Crown establish beyond a reasonable doubt by certificate or viva voce evidence that the analysis was done by means of an approved instrument ascertained to be in proper working order, by means of an alcohol standard, identified, that was suitable for use with an approved instrument. 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 and are essential to the integrity of the breath test program.

10. That, taken together, the new ss. 258(1)(c), (d), (d.01) and (d.1) create shortcuts that do not reflect  good science and thereby violate Charter section 7.

11.   That, taken together, the new provisions in ss. 258(1)(c), (d), (d.01) and (d.1) enable a breath testing and prosecution system in Canada that treats more harshly those individuals who are female, over 60 years of age, and suffer from a physical disability (such as fever or lung disease) than those who are male, young, and in good health. Individuals with smaller exhaled lung volumes tend to have lower blood breath ratios and larger apparent BAC relative to true BAC. A woman 150 cm in height and aged 60 is likely to have a much lower exhaled lung volume than a 190 cm male aged 20. Since approved instruments used in Canada assume a fixed blood breath ratio of 2100:1, individuals with blood breath ratios of 1900:1 or 2000:1 will generate higher apparent BAC than their true BAC. However, underestimation of apparent BAC will occur with individuals close to the average blood breath ratio of 2300:1. Section 15 of the Charter requires fair treatment of both groups. The previous legislation provided an “evidence to the contrary” defence whereby:

“It is always open to an accused to meet the presumption by “evidence to the contrary” as provided in s. 241(1)(c). For example, evidence of the amount and time of alcohol consumption coupled with the acknowledged margin of error might, in an appropriate case, be capable of rebutting the presumption… in difficult cases, as paragraph 10 of the Agreed Statement of Facts indicates, the ratio between breath samples and BAC may be determined empirically.” (R. v. Phillips ONCA, [1988] O.J. No. 415)

The Agreed Statement of Facts in Phillips acknowledged:

“The determination of the alcohol concentration in blood by means of an analysis of the alcohol concentration in breath using the Breathalyzer is based upon the premise that the former is greater than the latter by a factor of 2100:1. This factor can vary from person to person, but since it is lower than the generally accepted average value of 2300:1, it tends to operate in favour of the accused except in a minority of cases. Only about 5% to 10% of the population may have a factor less than 2100:1, with a very few being as low as approximately 1900:1. This ratio may be determined empirically in any given case.”

Fever, raising mouth temperature above the assumed 34 °C., raises apparent BAC about 6.5% per 1°C. over 34 °C.

 Notwithstanding such empirical determinations, the new provisions do not allow a defence of “evidence to the contrary” where the physiological presentation of the particular subject at the time of the particular test was not contemplated by the design of the instrument or the protocol.

12. That the infringement of the Applicant’s Charter rights are not saved by s.1 of the Charter in the absence of compelling evidence that the amendments were necessary to stem a tide of wrongful acquittals in “over 80” cases where “evidence to the contrary” was led. Accordingly, there is no pressing state objective justifying the infringement, and the infringement is not a minimal impairment on the rights in question.

13.  That the appropriate remedy is to strike down the offending provisions and apply the previous Criminal Code provisions (i.e., ss. 258(1)(c), (d) and (d.1).

14. That, with respect to the Applicant, whose charges arose prior to the new legislation coming into effect, it would be a violation of ss. 7 of the Canadian Charter of Rights and Freedoms to apply the new provisions governing the introduction of an “evidence to the contrary” defence in a retrospective manner. These provisions constitute a significant modification in both the manner in which the Crown can prove its case, and the manner in which an accused can defend him/herself.  Accordingly it would be contrary to the principles of fundamental justice to apply these provisions retrospectively.

15. That, with respect to the Applicant, whose charges arose prior to the new legislation coming into effect, it would be a violation of ss. 7 of the Canadian Charter of Rights and Freedoms to apply the new provisions respecting the elimination of an “evidence to the contrary” defence in a retrospective manner. These provisions effectively create a new substantive offence of driving with an “apparent”   blood alcohol concentration over 80 milligrams per 100 millilitres of blood in circumstances where the causes of a difference between apparent blood alcohol concentration and true blood alcohol concentration cannot be known by the accused, where the approved instrument and accessory equipment were used unreliably but there is no probative evidence of causation of error, or where physiological presentation or environmental presentation, not contemplated by the design of the approved instrument or the protocol for its use cause the difference. Alternatively, these provisions create an evidentiary shortcut whereby the Crown can conclusively prove a “true” blood alcohol concentration offence with evidence of “apparent” blood alcohol concentration in circumstances where the causes of a difference between apparent blood alcohol concentration and true blood alcohol concentration cannot be known by the accused, where the approved instrument and accessory equipment were used unreliably but there is no probative evidence of causation of error, or where physiological presentation or environmental presentation, not contemplated by the design of the approved instrument or the protocol for its use cause the difference. Whether the new provisions effectively create a new offence or whether the Crown can now conclusively prove the original offence by proof of an apparent offence, the defence no longer has available a broad defence of “evidence to the contrary” which goes to the root of an essential element of the offence, true blood alcohol concentration exceeding the legal limit. Instead a manifestly unfair or illusory defence has been enacted which unfairly limits scientific explanations for differences between true and apparent blood alcohol concentrations and treats reliable approved instruments as infallible approved instruments even when they and their accessory equipment are used unreliably. Accordingly it would be contrary to the principles of fundamental justice to apply these provisions retrospectively.

16. That, to date, there has yet not been any decision rendered on the constitutionality of these provisions, but the lower courts have rendered numerous decisions on the retrospective issue, with some courts ruling that the provisions apply in a retrospective manner and some ruling against this retrospective application.

THE CONSTITUTIONAL PRINCIPLES TO BE RAISED ARE:

17. Do the new provisions in ss. 258(1)(c), (d), (d.01) and (d.1) create a mandatory presumption with respect to an essential element of the s. 253(b) offence?

18. Does the mandatory presumption created by the new provisions in ss. 258(1)(c), (d), (d.01) and (d.1) allow the accused to be found guilty of a s. 253(b) “over 80” offence even though there remains a reasonable doubt on one of the essential elements of that offence; namely, whether the Applicant’s true blood-alcohol concentration (“BAC”) was over the legal limit at the time of the offence?

19. Is the mandatory presumption created by the new provisions in ss. 258(1)(c), (d), (d.01) and (d.1) nevertheless permissible because the existence of the substituted fact (i.e. the apparent BAC at the time of the breath tests) leads inexorably to the conclusion that  “both at the time when the analyses were made and at the time when the offence was alleged to have been committed” that the essential element of the s.253(b) offence (i.e. the true BAC) exists?

20.  Do the new provisions in ss.258(1)(c), (d), (d.01) and (d.1) impose an impossible and unfair burden upon the accused by requiring the accused to tender evidence relating to facts not in his/her knowledge or possession, and by arbitrarily restricting the “evidence to the contrary” defence with a set of rigid evidentiary requirements?

21. Do the new provisions in ss. 258(1)(c), (d), (d.01) and (d.1) create a breath testing system in Canada that treats more harshly those individuals who are short, female, over 60 years of age, or suffer from a physical disability such as lung disease than those who are tall, male, young, and in good health?

22.  Is any infringement of the Charter saved by s.1?

23.  What is the appropriate remedy for any Charter infringement?

STATUTORY PROVISIONS OR RULES UPON WHICH THE APPLICANT/DEFENDANT WILL RELY:

  1. Tackling Violent Crime Act, S.C. 2008, c. 6, ss. 24(4) and (5).

25. Sections 258(1)(c) and (d.1) of the Criminal Code in force prior to July 2, 2008.

26. Canadian Charter of Rights and Freedoms, ss. 1, 7, 15 and 11(d).

 

IN SUPPORT OF THE APPLICATION, THE APPLICANT RELIES UPON THE FOLLOWING:

  1. The Notice of Application and Constitutional Issue.

28. The viva voce evidence of experts, to be called.

29. Such affidavits, scientific papers, or transcripts of expert evidence from other matters that may be filed with the consent of the Crown and defence.

30. Such further and other evidence as counsel may provide and this Court may permit.          

THE RELIEF SOUGHT IS:

  1. A declaration that ss. 258(1)(c), (d.01) and (d.1) as amended by the Tackling Violent Crime Act, S.C. 2008, c. 6 are of no force or effect, and allowing the Applicant/Defendant to proceed with the defence to the s. 253 charge of “over 80” pursuant to ss. 258(1)(c) and (d.1), as they existed prior to the proclamation of the Tackling Violent Crime Act, S.C. 2008, c. 6.  

32. Abridging or extending the time for service of filing of the Notice of Application or supporting materials.

33. Such further and other relief as counsel may advise and this Honourable Court may permit.

The references in the draft Application above to BBR – blood breath ratio (also known as partition ratio) are drawn from the following works:

  1. Crapo, Morris and Gardner. Reference spirometric values using techniques and equipment that met ATS recommendations. Am Rev Respir Dis 1224:659-664, 1981

  1. George, Babb and Hlastala. Ann Biomed Eng 23:48-60, 1995

  1. Hlastala, MP and JC Anderson. Ann Biomed Eng 35: 264-272, 2007  

  1. Jones, AW and L Andersson. Forens Sci Internat 132: 18-25, 2003  

  1. Skåle AG, Slørdal L, Wethe G and Mørland J. Internat Assoc Forens Toxicol, 2002

I respectfully suggest that Crowns and defence counsel should do their best, if at all possible to combine such constitutional issue applications with similar applications on other trials and use affidavits and transcripts from other proceedings.

Stephen Biss

November 18, 2008  

Notes:

Intoxilyzer®  is a registered trademark of CMI, Inc. The Intoxilyzer® 5000C is an "approved instrument" in Canada.
Breathalyzer® is a registered trademark of Draeger Safety, Inc., Breathalyzer Division. The owner of the trademark is Robert F. Borkenstein and Draeger Safety, Inc. has leased the exclusive rights of use from him. The Breathalyzer® 900 and Breathalyzer® 900A are "approved instruments" in Canada.
Alcotest® is a registered trademark of Draeger Safety, Inc. The Alcotest® 7410 GLC is an "approved screening device" in Canada.
 

[1] http://www.lawyers.ca/carter/#_edn19

[2] Evaluation of the Intoxilyzer®5000 Instrument, A Report for the CSFS Alcohol Test Committee, Brian T. Hodgson & M. Delores Taylor, R.C.M.P. Central Forensic Laboratory, Ottawa, Ontario, September, 1988.

[3] Evaluation of the Intoxilyzer®5000, R.A. Hallett and A.A. H. Bell, The Centre of Forensic Sciences Toronto, Ontario, July, 1989

[4] 2008 ONCJ 536 (CanLII)

[5] [2003] O.J. No. 4860

[6] 2008 SCC 16 (CanLII) para. 50

[7] Intoxilyzer 5000C Training Aid, 8.1.3 “Logs should be retained permanently for their evidential value.”

[8] [2008] O.J. No. 3888

[9] Black box testing is experimentation with operation, having representative hardware. White box testing requires disclosure of the software (firmware) source code.

[10] [2000] O.J. No. 6048

[11] [2002] O.J. No. 5229

[12] Unreported, transcript of examination and cross-examination of Cst. Scobie available.

[13]ANY ADJUSTMENT MADE TO THE INTERNAL STANDARDS MAY EFFECT THE CALIBRATION OF THE_INSTRUMENT, YOU_MUST_CONFIRM_CALIBRATION_BY_THE_USE_OF_THE_SIMULATOR._ALL_ADJUSTMENTS_MADE TO CALIBRATION WILL EFFECT THE INTERNAL STANDARDS”, Basic Maintenance and Repair of the Intoxilyzer®5000 Breath Analysis Instrument, page 107, (their capitalization and underlining).

[14] Gibson per LeBel J. para. 76