R. v. Vallentgoed Distinguished on facts - Short Calibration Interval
Sample cross-examination of CFS expert on the facts in R. v. Vallentgoed, why reliabilty can be inferred from the short calibration interval and the independence of the service provider, unlike infrequent re-calibration in aging Ontario and Quebec instruments:
To obtain admissions from the Crown expert to enable argument that Vallentgoed can be distinguished on its facts - particularly respecting:
- recent re-calibration on a regular calibration interval
- calibration by a service provider independent of the police
Q. When Mr. O’Neill and I are presenting our argument to His Honour, there’s a case that I'm sure that the Crown is going to be arguing called Vallentgoed V-A-L-L-E-N-T-G-O-E-D from the Alberta Court of Appeal. And it’s a case that came after the Jackson case in Ontario and my guess is that the Crown Attorney’s going to be arguing it and I'm going to be doing my best to distinguish the facts in that case from our case. And I'm sure the Crown Attorney is going to say well, hey, the facts in Valletgoed had to do with an instrument that received servicing within a day or two of the subject tests for Mr. Vallentgoed, and the Crown Attorney, I think, is probably going to argue that I believe that’s just like this case. Now, one of the aspects of that case that I'm going to be having to deal with is asking the Court to take a close look at the facts in that case and what was going on in terms of the maintenance history of the instrument in Vallentgoed. And so, I'm gonna ask you a couple of questions and I know that you’re not a lawyer and I'm not gonna be asking any legal questions, I promise.
A. All right.
Q. But because we’re going to be addressing this, I'm sure, tomorrow, and because I can just see it coming that I'll be arguing something and either the Court or my fiend will say well, Mr. Biss, you didn’t put that to Mr. Palmentier for help. And so, I'm gonna ask for your help right now. So, there’s a copy of the Vallentgoed case and I just wanna ask you...
A. I'm not familiar with this decision at all.
Q. All right. Could you turn to – more than anything I need your help in understanding what some of the wording is with respect to the repairs and the maintenance on the instrument. What system it was that was being repaired and what was it that was being done. So, could you help, please, just on paragraph 27, the square bracket paragraph 27 of the case. That’s the paragraph that says that “Some of the other maintenance records are true repairs.” Do you see that paragraph?
Q. And is there reference to October 14th, 2011?
Q. And if you’d just read through that paragraph and it says in the last few words in that paragraph, “The instrument was recalibrated.” Now, from a scientist’s perspective, when it says the instrument was recalibrated, does that imply to you a recalibration by the factory or the authorized service centre as opposed to just a control job?
A. It looks like it indicates someone who’s authorized to do that.
Q. All right. But it’s a recalibration. It’s not just control checks?
A. This is the paragraph above 27?
Q. The paragraph of number 27.
A. Oh, sorry.
Q. Paragraph 27 in all itself. The last words say “The instrument was recalibrated.” What I need help with is in understanding the wording there, does it appeared that the description there is an instrument that’s being recalibrated as opposed to an instrument that was receiving an inspection?
A. That appears to be – the language that’s there, I would assume, would mean that the instrument was recalibrated...
Q. All right.
A. ...to its original specifications. It appears to be an Intolimeter...
Q. It’s an Intoxilyzer 5000c I believe
A. Oh, okay. Is that stated in this some place?
Q. Earlier on in the – yeah, at the top of, of – it’s in paragraph 21. They’re talking in 21(f) about an Intoxilyzer 5000c.
A. 5000C. Okay. Yeah.
Q. All right.
A. ‘Cause there’s a reference to another instrument in here.
Q. I think the Vallentgoed instrument was replaced by an IntoxECIR2.
A. Yes, that’s what I see.
Q. May 29th, 2013. But I am – wanted to ask you some questions about prior to that period.
Q. Paragraph 28. Having to do with July 18th, 2012 through to August the 17th, 2012, that’s paragraph 28. Do you see that paragraph?
Q. The wording in – under the entry that’s 10:08:12 – Brett, the services performed, it indicates there “Begin calibration procedure.” Do you see those words? It says “Fastened chassis closed, apply power tool instrument and begin calibration procedure.”
A. Sorry, can you point? I can't find it. And begin to calibrate – okay.
Q. So I – again, I need your help in just understanding what it says there. Begin calibration procedure to a scientist would imply a recalibration of the Intoxilyzer 5000c, not simply control tests or an inspection?
A. Well, in the context of the entire sentence, replace lamp internal breath tubing, clean and lubricate printer, fasten chassis closed, apply power tool instrument and bring calibration procedure. The language there is different from saying the instrument was recalibrated. It appears, in this case, that it’s also being recalibrated but that’s my interpretation of what that sentence means.
Q. All right. But it would appear to be a calibration procedure...
Q. ...as opposed to just control tests?
A. ...just testing of the linearity of the instrument, yes.
Q. It’s a, it’s a – would appear to be a calibration procedure of the Intoxilyzer 5000C?
A. That’s what it appears to be, yes.
Q. On August the 10th, 2012. And then –
MR. BISS: Sorry, Your Honour. If I could just have your indulgence for a moment?
MR. BISS: Q. In January 22nd, 2013 in paragraph 21 – I’m sorry - yes.
A. Paragraph 21?
Q. Paragraph 21, item G. It’s over on the, the next page after paragraph 21 starts.
A. Oh, I've got it, actually, on the same page.
Q. Oh, I'm sorry. Maybe it printed...
A. This one here?
Q. ...out differently.
A. Certificate of annual maintenance.
Q. Certificate of annual maintenance. This is a certificate from the contractor who is retained to maintain the instruments. Now can I just ask you, contractor who has maintained the instruments, I know you don’t work in Alberta but you do know who the Canadian authorized service centre was back in 2013 for the Intoxilyzer 5000c?
A. Yes, that would’ve been DAVTECH.
Q. DAVTECH in Ottawa?
A. Correct. And/or another – there was another one in Montreal as well.
A. I can't recall the name.
Q. Thomas Electric?
A. Yes, I believe that’s it.
Q. Okay. So, in any case there’s a certificate from the contractor who is retained to maintain the instruments. The indication there is not that this is a certificate coming in-house from the individual police service but it’s coming from an independent contractor who, our inference is, is DAVTECH in Ottawa. Right?
A. Are they mentioned specifically in here?
Q. DAVTECH is not mentioned specifically but the decision does say the contractor who is retained to maintain the instrument.
A. Then we don’t know who it is so it’s an external service provider hopefully who is authorized to do that kind of service.
Q. All right. So, January 22nd, 2013 the certificate of annual maintenance, it appears that there was a certificate at that time that stated – and just the last words of, of paragraph G say “Continues to meet the manufacturer’s specifications.”
Q. So, the implication there would be that, perhaps, it was not a recalibration but it was an inspection of the instrument to make sure that it met the manufacturer’s specifications. Am I reading that correctly?
A. So, it’s not a certificate of calibration. It’s a certificate of the annual maintenance that was done on the instrument.
Q. January 22nd, 2013. And the certificate specifically says that the instrument continues to meet the manufacturer’s specifications.
A. Yeah, that the instrument was tested on that date and continues to meet the – yeah, be in proper working order and continue to meet the manufacturer’s specifications. It doesn’t look like a recalibration.
Q. All right. And you made item number – fourth one I wanted to ask you about is May the 12th, 2013 in paragraph 26. It’s also referred to in the box in paragraph 23. So, in...
A. Paragraph 26?
Q. ...the box that is paragraph 23, there's a reference to 2013/05/12 repair, and the indication there is that - the instrument there is approved modifications performed, routine annual. It doesn’t say anything there about recalibration?
Q. But the statement is there that it’s a routine annual inspection.
A. And some modifications were potentially done.
Q. And then on paragraph 26, there’s a statement in, in the decision that says “The entry for the repair on May 12th, 2013, found – the maintenance log the day after its testing, provided further information about the work that was done on the instrument that day.” And going on further in paragraph 26, there is a statement there. It looks like the Alberta Court of Appeal had before it details of the work that was performed by the entity, whoever it was, this contractor on May the 12th, 2013. The Alberta Court of Appeal had before it, it appears, a copy of the memo from the service provider as to exactly what they did. Is that your inference as well?
A. So, the 16/05/13-Brett? That’s what you’re referring to? The instrument is in the shop for annual maintenance?
Q. Yes, 16/05/13-Brett.
A. All right.
Q. So, in those entries under 16/05/13-Brett...
Q. ...we have a report of what work was done by, perhaps, somebody by the name of Brett...
Q. ...on that servicing that was subsequent to May the 12th, 2013. Right?
Q. And it shows what was done, the details of all of the items that were done by not the factory in this case but by the authorized service centre of the factory?
Q. And it indicates that one of the things that was done was – if we look at the paragraph that – the fourth paragraph that follows immediately after the 21/05/13-Brett entry, it says “While the type of service is shown as repair on the maintenance log, the detail shows that routine annual maintenance is performed.” Have I got that right?
A. Yes, here we go.
Q. Yes. And so, there’s no indication there that when that instrument went to the independent contractor on May the 12th, 2013 that there was a specific reason for the repair other than routine annual. Is that the way you would read that?
A. Well, I don’t know what the original problem with the instrument was.
Q. Well, my suggestion is is that there was no indication there that there was a problem with the instrument on May the 12th, 2013. It was just a routine annual trip and I get that from the box before paragraph 23 which refers to 2013/05/12.
A. Well, I’d have to read the entire document and/or somebody can point out - like, there has to be a reason why it was – either it was just sent it for annual maintenance or there was a specific problem because...
Q. All right. But so far in your reading, you haven't seen any indication of a specific problem?
Q. All right.
A. Although there seems to be some other maintenance – October. Okay, sorry. It’s referring to other – sorry, it’s referring to other repair records.
Q. But what also I, I wanted to call your attention to is the very, very end of the, of the – of paragraph 26 it says that during that routine annual that the instrument was calibrated to meet the manufacturer’s specifications. Have I got that right?
A. Right here?
A. Yes. That’s what it says.
Q. And again, that would appear to be it is a recalibration of the instrument by the authorized service centre not just in-house control tests?
A. Well, again, it’s the interpretation of what calibrated means that the instrument has been – had maintenance done to it to bring it back into specifications for the manufacture. Again...
A. ...what calibrated means in this case is up for interpretation...
A. ...and without more information.
Q. But the wording that’s there is that the instrument was calibrated to meet the manufacturer’s specifications.
A. I mean, calibrated could mean that it was adjusted. All the components – once everything was changed was adjusted so that it went back to the manufacturer’s specifications as opposed to actually a physical calibration of the optical bench, if you will.
Q. But the...
A. I can't say that.
Q. But the wording, the wording that’s there is that it was at that point in time, so this would’ve been as of I gather sometime after May the 21st, 2013, the instrument was calibrated to meet manufacturer’s specifications and the word there is calibrated.
A. Yes, that’s what that says.
Q. All right.
A. There’s interpretation of that wording with respect to that – what was done is my concern.
Q. I see, all right. So, it appears to me that with respect to that particular instrument, we have identified in the facts a recalibration on October the 14th, 2011, a recalibration on August the 10th, 2012 and then what – on the routine maintenance of – following May the 12th, 2013, another indication of calibration.
A. Or use of the word calibration.
Q. Well, my suggestion to you is that the fact situation that was before the Alberta Court of Appeal, in the Vallentgoed case, appears to be an instrument that is on an annual calibration interval. In other words, it’s being recalibrated once a year. That’s plain reading of the facts in that case.
A. Unfortunately, we’ve been jumping around from paragraph to paragraph and it’s been difficult for me to read this and put this into some kind of chronological order to see that.
Q. Okay. So, let’s just go back to October the 14th, 2011, paragraph 27. It’s a calibration.
A. All right.
Q. Then August the 10th, 2012, paragraph 28, we’ve got the words “Begin calibration procedure” that we looked at.
Q. And then with respect to May the 12th, 2013 through to May the 1st, 2013, during that routine annual maintenance, we have the wording at the end of paragraph 26 that says “The instrument was calibrated to meet the manufacturer’s specifications.”
A. All right. So, we have recalibrated on the 14th of October, 2011, calibration procedure on August 10th, 2012 and calibrated to meet manufacturer’s specifications on May 12th, 2013.
Q. Yes. But my suggestion to you is that we have an indication here of an instrument that is being recalibrated in each of the three calendar years of 2011, 2012 and 2013?
A. It appears that it’s gone in for its annual service. Whether or not the instrument was actually calibrated, I can't really determine from the material that’s been provided here other than in the one where it says recalibrated, that appears, in my definition and my understanding of that would be that the instrument was recalibrated. The others are possibly just simple calibration procedures that they’ve done as part of an annual inspection but no recalibration of the instrument was done. But I can't confirm that because I didn’t do the service.
A. So it’s a matter of, in law, of course it’s gonna be the language that’s been used and I don’t have any information over and above what’s in this decision about what was actually done in each of those cases.
Q. All right. But I just want to compare a situation where an instrument is receiving a recalibration in each calendar year with a situation where an instrument is calibrated by the factory in 2009, and then as of May 2015, hasn’t been recalibrated until the summer of 2015. It’s a completely different kind of situation in terms of calibration intervals.
A. As far as if all the information is correct and as we interpret it? Then yes, it’s an example of two different calibration intervals.
Q. Yeah. And not only is it an example of two different calibration intervals, but there’s a difference in – well, I suppose in terms of who’s doing work on the instrument because in the Alberta Intoxilyzer 5000c example, we’ve got the work being done by an independent contractor that we think is probably DAVTECH, whereas in the case that we’ve got before the Court, everything is being done in-house by York Regional Police following the servicing by Thomas Electric, which I think was 2011, if I remember correctly. I'm just going back to Exhibit 12, page 9 is an Intoxilyzer 8000c test procedure check sheet done by Thomas Electric in Montreal I believe. Right?
Q. But everything else following 2011 was not being done by an independent contractor but was being done in-house by York Regional Police, namely the periodic inspections?
A. That is correct, yes.
Q. Until the instrument was recalibrated following May 2015?
A. May 20th.
Q. I think it’s about May the 20th...
A. That’s correct.
Q. Now, the question of independence of inspectors is dealt with in the international scientific literature, and, in fact, there is actually an ISO standard having to do with the independence of inspectors. Is that your understanding?
A. I have no idea. You’d have to show me something.
Q. I'm sowing you another document. I'm now – now I'm not talking about ISO 17025, I'm talking about 17020. And I wanna respectfully suggest to you that at page 3, section 4 of that document, there’s a whole section on the question of impartiality and independence of inspection activities.
A. That’s what that appears to be, yes.
Q. Now, why is that important from the perspective of good laboratory practice or good measurement practice?
A. Well, what you’re doing is you’re paying somebody to do the service for you because you’re not qualified to do that or you have no one who’s available to do that. And you’re relying on anybody, whether that’s an external provider such as DAVTECH, to do the work that they say that they’re doing and to return the instrument to the specifications that they say that they done, but as with anything, you’re – as – whether it’s the breach tech who’s performing the tests and the integrity of them providing the information and inputting the information on the computers, you’re relying on their training and the integrity that they do, and the same would be of anybody who does the maintenance on the instrument, but as we know, sometimes things happen even with contractors and forensic labs who don’t do the work they said that they said they did. It’s called dry-labbing, right?
A. So, it’s a matter of – I mean, it says impartiality and independence but, again, you’re asking me to comment on something that, again, I can't really speak to about the organizations who performed the service in this case...
A. ...and their impartiality and independence and whether or not they performed the maintenance that they said they did and/or, you know, did everything that they said that they did.
Q. Yes. All right.
MR. BISS: Your Honour...
A. But this – I, I don’t understand that this would be any different from someone who works for York Regional Police Service who has been trained to do it and they are providing that service and doing the same thing. Could they be doing it correctly? Yes. Could they be doing it incorrectly? That’s also a possibility.
Q. Except that if the servicing place is also a testing and calibration laboratory that has to conform to certain international standards such as ISO 17025, then there is some additional assurance of reliability of the testing and calibration procedure.
A. There’s no guarantees in life.
A. I mean even a calibration laboratory gets backed up and turnaround times, cost-effectiveness – all that could come into play and shortcuts can be taken...
A. ...and you don’t even know about it, right? I mean, there’s always the potential for that. I'm not saying it does, but there’s always that potential, so you’re relying really heavily on an external organization to be impartial and to be independent but that doesn’t take away from the person who’s actually doing it who was trained to do that.
Q. Why is it important for calibration and testing laboratories to be accredited? I mean, that’s an international...
Q. ...concept in measurement science.
A. So, it says that you follow the procedures that you have and that you do what you say you do. Right?
Q. So, for example, if you’re doing what you say you do and you get into a situation where the control check that you run at 40 or 50 milligrams per 100 mls is actually outside of 10 percent or outside of 10 milligrams per 100 mls then there’s an expectation. If you’re an accredited lab then you’re going to stop, report and document according to ISO 17025. Right?
Q. But the problem is that if these kinds – this kind of work is being done in-house, you can't have the same kind of confidence in the reliability of the work that’s being done by the people in-house who don’t have that kind of accreditation.
A. I don’t see why you can't rely on work that’s done in-house if it’s done following the procedures and that person was properly trained.
Q. All right. I want to expand...
A. You’re putting greater value on an external organization than someone who, within an organization, who has been trained to do that.
Q. All right. I want to expand on that concept.
A. Okay. Are we finished with this decision?
Q. Yes, we are. Thank you.
MR. BISS: Your Honour, should we – I mean, I know we don’t usually make case law an exhibit, but should we?
THE COURT: Well...
MR. BISS: I, I don’t know whether...
THE COURT: You’re just using it to inform your argument tomorrow or submissions. I don’t think it needs to.
MR. BISS: All right, Your Honour. The ISO17020...
THE COURT: Yes.
MR. BISS: ...I don’t think we made an exhibit.
THE COURT: No, we can file that one.
MR. BISS: That would be Exhibit 53. I'm sorry. Oh, of, of the ISO, ISO17020.
CLERK REGISTRAR: Thank you.
EXHIBIT NUMBER 53: ISO 17020 – produced and marked.