If you are scheduled to be in an Ontario Criminal Court that is the Ontario Court of Justice:
If you are scheduled to be in an Ontario Criminal Court that is the Superior Court of Justice:
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Discussion of Approved Instruments, Approved Screening Devices, Approved Drug Screening Equipment, Alcohol Standards, and Wet-bath Simulators used by Police in Canada.
Purpose - to assist defence lawyers in examining the "reliability" of aging breath instruments
This site promotes discussion among defence lawyers in Canada. It deals with transparency in the quality assurance and quality control measures used by police respecting evidentiary breath testing equipment. As instruments age, they require maintenance to ensure that all of their systems function in accordance with the manufacturer's specifications. Modern approved instruments measure time, mouth alcohol, breath volume, breath flow, radio frequency interference, ambient conditions, chemical interferents, and other values, and match them against internal and external standards. As time passes, systems and sensors get dirty or unstable, clock batteries weaken, and calibration drifts.
In R. v. St-Onge Lamoureux, the Supreme Court of Canada relied on a paper by Brian Hodgson, entitled The Validity of Evidential Breath Testing. Hodgson stated in that review article:
"Any scientiﬁc device or technique used to measure breath alcohol concentrations must address four fundamental issues in its design: accuracy, precision, reliability and speciﬁcity."
Hodgson defines "reliability" as follows:
"Reliability refers to the ability of the instrument to perform over time without any signiﬁcant drift in accuracy and precision."
The 5000EN instrument depicted on this page was once a reliable evidentiary breath instrument. However, it has not been properly maintained. Calibration of the internal standards has drifted over time. As with an aging automobile that has not been properly maintained, this instrument has become unreliable. The accuracy and precision of either its breath analysis system or its internal standards have drifted. It requires multiple start attempts to get it going. Over time, sometimes it passes and sometimes it fails its startup tests. Sometimes it starts after 2 tries, sometimes after 20, sometimes hours later, and sometimes not at all. Once it is going, however, it passes (at time of use) stand-alone diagnostics, stand-alone cal. checks, stand-alone breath tests, and internal standards.
However, the purpose of a breathalyzer is different from an automobile. A breathalyzer is a scientific and forensic measuring device. It does not simply "work" or "not work". We rely on a breathalyzer to measure guilt or innocence. Measurement of BAC for forensic purposes is a quantitative analysis. An "approved instrument" measures quantities, not simply pass or fail. That quantitative analysis must be reliable across the measurement range of the instrument.
Unlike an automobile, the purpose of an evidentiary breath testing instrument is not to simply get from one point to another, i.e. produce a result. A breathalyzer's purpose is to accurately, precisely, specifically, and reliably measure a whole variety of parameters associated with the prosecution of an excess blood alcohol criminal charge or a refusing / failing to provide an adequate breath sample criminal charge. The instrument does not simply work or not work. It measures for a forensic science purpose. Calibration of all measuring systems or exception thresholds (e.g. RFI, interferent, and ambient environmental conditions) must be in accordance with the manufacturer's specifications. A simple calibration check of ethyl alcohol calibration at 100 mg/100mls ONLY does not provide a complete control check for ethyl alcohol at other concentrations because calibration is a curve; it is not linear. A simple wet-bath or dry gas calibration check DOES NOT constitute a control check for all the other measuring systems or exception thresholds. That's why regular complete inspections and maintenance of breath instruments are so essential to the integrity of breath testing in Canada. Transparency of documentation of such inspections and maintenance is essential to the constitutionality of the Parliamentary scheme - see R. v. St-Onge Lamoureux in the SCC.
The "approved instrument", the breathalyzer itself, is not the only measuring device used in evidentiary breath testing in Canada. Accessory equipment is necessary too, and must be inspected and maintained to check calibration and thresholds for exception messages. Accessory equipment includes simulators and simulator thermometers. Transparency of documentation of such inspections and maintenance is also essential to the constitutionality of the legislative scheme (see R. c. Lopez in QC SC).
The failure of investigating authorities to recognize the forensic purpose behind quantitative analyses used in Court proceedings has resulted in miscarriages of justice in Ontario. The Motherisk Inquiry is a good example of a review of what can go wrong when authorities fail to recognize that most forensic analyses are quantitative rather than qualitative and fail to follow clear standard operating procedures. CFS scientists have acknowledged during cross-examination that Criminal Code sections 253(1)(b), 254 "approved instrument", 254(3)(a)(i), 258(1)(c), and 255.1 require quantitative analysis to determine concentration, rather than the qualitative analysis of a screening device. CFS scientists have also acknowledged that neither the Alcohol Test Committee nor the Centre of Forensic Science provide metrological supervision of police. It is respectfully submitted that if Ontario's approved instruments are not properly and transparently maintained and operated, under proper metrological supervision, so that they are capable of providing scientifically reliable quantitative analysis, then Parliament's breath testing schemes under both Bill C-2 and Bill C-46 are frustrated. Parliament cannot have intended such an unreasonable and unconstitutional application of its scheme.
The Members Only Blog section of this website contains a large number of resources for use by Canadian defence lawyers in defending charges of impaired driving, over 80, and refusal to blow. Under Bill C-46 we will be paying a great deal of attention to the ambient fail systems and the control check systems of approved instruments. It is important that lawyers prepare for cross-examination of Qualified Technicians and government experts. We have created three online courses to help defence lawyers. Before a defence lawyer is approved for members only participation in this blog, he or she must complete the three online courses.
Please find below, a simple explanation of the creation of the Intoxilyzer 8000C calibration curve at the factory or during re-calibration by the Canadian Authorized Service Centre. This video is an excerpt from one of our online courses for defence lawyers.