• Stephen Biss

Attempt to Distinguish R. v. Jackson


To distinguish R. v. Jackson on the basis of a difference in facts. The instrument in Jackson was new. See Jackson paragraph 135 highlight in red. The instrument in the matter before the Court was about 6 years old.

The cross-examiner did a poor job at this point of emphasizing the significance of the Certificate of Calibration in assessing the traceability of measurement results to SI units through the calibration detailed in the Certificate of Calibration. Assuming that the facts establish that calibration was recent, then Justice Watt in Jackson and the ABCA in Vallentgoed are quite correct in identifying that the calibration is reliable. In the matter before the Court, the Certificate showed a date 6 years prior. Problems in calibration, particularly linearity, occur when the most recent calibration, evidenced by the most recent Certificate of Calibration is old. Reliability is enhanced by short calibration intervals. See NASA explanation of uncertainty growth over time.

but the certificate of calibration indicates the status of the instrument at the time the certificate was produced. Q. Yes. A. All right, and in the R. v. Jackson case, the instrument was under a period of warranty at that time. Q. Yes. A. And under the auspices of this certificate right here. Q. Yes. A. And so, again, it – the certificate speaks to the time of the test and the warranty is not a guarantee of the reliability and the accuracy of the instrument at that

time, or over time, but that the proper operating of the instrument is determined each and every time the instrument’s used. And that would be the same with this case here. Right? Any certificate produced you know, or any evaluation that’s done, speaks to the working order of the instrument at that time. And of course, it could change and just because an instrument’s under warranty doesn’t necessarily mean it’s still providing accurate and reliable readings as per the certificate that was done three months, six months, nine months later, and just because it’s under warranty for two years, is not a guarantee of the accuracy and reliability of the test. It just simply means that if something goes wrong with it, it’s going to be fixed for free. But again, that the proper working order of the instrument is determined at the time of the test, through all the procedures we have in place in the breath testing procedures that we use here in Ontario and Canada.

[Comment: But the issue is not "working order". The issue is "reliability of the measurement result". The cross-examiner should have followed up on "under the auspices of this certificate" and critiqued such an interpretation by the expert. The issue is traceability as an element of reliability. Over time there is a real phenomenon called drift which results in uncertainty growth. We are not talking about an automobile that gets from point a to b. We are dealing with a measurement. The point is not "working order" (getting through the sequence), it is reliable measurement.]

MR. BISS: Can I just have the Court’s indulgence, just for a moment? THE COURT: Yes. MR. BISS: Your Honour I – this is a – this document ended up being Exhibit Number 31 on a combined Stinchcombe O’Connor application in front of Justice Tuck-Jackson in a case called Caesar Ruiz Ocampo (ph) some time ago that Mr. Palmentier gave evidence in. Q. In fact, I called you as the witness. A. You did, yes.

Q. And it was an affidavit that was filed jointly between Crown and defence. And I obtained it, and Mr. Doyle obtained it – Mr. Doyle, with the Crown’s office, obtained it from the Jackson case and I just want to ask you

sir, if you’ll take a look at page 12 – ah, page 11 of that affidavit, from Jackson, and page – and actually paragraph 53. Now this is an affidavit from Sergeant Kiss [sic]. A. Kish (ph). Q. Oh, Kish (ph). A. If it’s – you say – it’s spelled like Kiss like the rock group or like a kiss that you would give someone, but it’s actually pronounced Kish. Q. Oh, I’ll have to be [indiscernible] in the future. So, Constable Kiss.... A. How do I know that? Because I’ve worked with him several times with the Intoxilyzer 8000C training courses in Ottawa. THE COURT: It’s going to be very confusing here with Counsellor Biss and Sergeant Kiss. MR. BISS: It got even more confusing, Your Honour, when – in front of Justice Tuck-Jackson when we were arguing about a... THE COURT: Taking about the Jackson.... MR. BISS: and the decision in the Superior Court by Justice Johnson. THE COURT: Right. MR. BISS: All right, paragraph 53. A. Sorry, page 11? Q. Page 11, paragraph 53. A. Yes. Q. “Intoxilyzer 8000C instrument 80 dash 0-0- 4-3-4-5 produced the Applicant’s test results in R. v. Jackson. The instrument was purchased new from the manufacturer and put into service by the Ottawa police in 2010. It was still under certification from the manufacturer at the time of the Applicant’s tests in 2011 and not yet due

for it’s first annual inspection.” So, it would appear that Constable Kiss – it is constable, right? Constable Kiss.... THE COURT: Sergeant, I think. MR. BISS: Oh, sergeant. I’m – my apologies. Sergeant Kiss was telling – when this affidavit was filed – was telling whoever it is who’s reading it, and – that the instrument was still under certification from the manufacturer at the time of the Applicant’s tests in 2011. That’s the information that’s in the affidavit, right? A. That’s what that says. Yes. Q. There’s no clarification there that the – that certification was only applicable at the time of the particular calibration by the manufacturer at the factory. The information that’s being given there in that affidavit is saying that it is still under certification from the manufacturer at the time of the Applicant’s tests in 2011 and not yet due for its first annual inspection. A. That’s what that says, yes. MR. BISS: All right, should we mark that document as an exhibit Your Honour? THE COURT: Can I just clarify though, I think Mr. Palmentier would read that as still under warranty rather than still under certification. A. Sorry, yes. THE COURT: That’s what you told us, that your understanding of the certification – it references a point in time, I gather. A. Yes. The date of that – that certificate was prepared. THE COURT: Okay, so the affidavit of Sergeant – I’m not sure how he turns Kiss into Kish but Sergeant, spelled K-I-S-S, will be our next

exhibit. That’s – where are we at, 30 – 38. EXHIBIT NUMBER 38: Affidavit of Sergeant Kiss – produced and marked.

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