• Stephen Biss

Attempt to Distinguish from Jackson and Vallentgoed


To support argument that the Maintenance History shows that the instrument was taken "out of service", for "consistently low cal. checks" and as a result "requires calibration". Can the matter not be distinguished from Vallentgoed where the maintenance log revealed that the instrument was taken out of service for routine maintenance and periodic re-calibration?

To support argument that the Maintenance History reveals that the instrument was taken out of service for a specific problem. Can the matter not be distinguished from Jackson para 135 (see green, orange, and blue highlighting below)?

To suggest that there is a problem with the CFS / ATC approach to assessing accuracy and precision if this instrument needed to be taken out of service - the instrument passed the CFS / ATC criteria and yet was taken out of service for some mysterious reason.

To suggest that full documentation of the mysterious reason should be the subject matter of an O'Connor order.

MR. BISS: Q. So, sir, if you could turn to the data from this specific case, specifically Exhibit Number 12. Not – not data, but the... A. Okay. Q. ...reports – the maintenance reports. A. Yes. Q. Exhibit Number 12. A. All right, I’ll just close this. What page? Q. The first page. A. Yes.

Q. May 20th, 2015 under “History” I asked you some things about this before.

A. Yes. Q. It says, “Periodic inspection completed.Consistently low cal-checks.” One would draw an inference from that statement that the reason why it required recalibration was because of consistently low cal-checks. Does that make sense?

A. That’s the interpretation of the writing,yes, based on my opinion, yes.

Q. And it says ‘consistently’ so that would imply more than one.

A. Yes.

Q. It doesn’t say a low cal-check during a subject test, that it’s out of tolerance so we’re sending it for recalibration.

A. There’s no way of knowing that.

Q. But it – it – all right. So, it....

A. That could be in addition to that as well,as the ones that are done during the periodic inspection as well. I don’t know what it means.

Q. But it appears that the decision was made on more than one cal-check. The word ‘consistently’ implies that they’re consistent, which would imply more than one.A. And ‘checks’ indicates more than one as well.Q. Right. So...A. It’s plural.

Q. appears that the decision is made on more than one cal-check and then if we look at the periodic inspections, which is the last page, page 46 from the 20th of May 2015, we don’t have any data, of course, attached to this document, and you indicated that is something you’d like to see. A. As a scientist, yes. Q. But in.... A. The – sorry, the only data we have is the I-T-P and the wet bath simulator test that was done, that was written on here. There may be additional test record cards in addition to that, that might be available. I don’t know. Q. But we don’t have the actual printouts for the wet bath simulator testing. A. Correct. Q. For example. A. Yeah. Q. We see a – someone has entered the value 94.5 as an average with a standard deviation of 0.7 on May the 20th, 2015. A. Yes. Q. So, I’ll just ask you. What’s wrong with this value of an average of 94.5 with a standard deviation of 0.70 that would cause someone to think that there are consistently low cal-checks that it needed recalibration? A. I have no clue. Q. And you.... A. I can’t imagine it’s based solely on that, but I don’t know. Q. All right, so it must have been based on other data that we don’t have. A. You would have to ask the author of this document that question as to what he’s referring to. Q. And find out if there are some other documents that support it, such as the actual printouts. A. Not necessarily the documents, but with

respect to what did he mean by that. What was he referring to. Q. All right. A. All we can do is speculate that yeah, it could’ve been this, could’ve been that, could’ve been this possibly, but without asking, there’s no way to know. Q. But this particular average, of 94.5 that’s reported the 20th of May 2015, there’s nothing wrong with that number. It’s not – if you – if you use the Centre’s way of looking at accuracy and precision, there’s nothing wrong with a 94.5 value, from your perspective. A. Correct. Q. And there’s nothing wrong with a standard deviation of 0.70. A. Correct. Q. And yet, a decision was made to send the instrument out for recalibration, noting consistent low calchecks. A. Yes. Q. Now, if we look at the data itself, in the Cobra data in Mr. Kupferschmidt’s affidavit, Exhibit 2, at Tab 6. Do you have... A. I don’t have a copy. Q. ...a copy of that document? A. I do not have a copy of all that. Q. All right. Perhaps I will walk up beside you and you can look at mine, if that’s acceptable to everyone. If we look at the entry – the last entry on May the 20th, 2015 we can see that there was a cal-check at 95 at a temperature of 34.00 degrees Celsius. A. Yes. Q. Nothing wrong with that, using your

approach to accuracy and precision? A. Well, using the Centre of Forensic

Sciences’ approach, yes. Q. Yes. A. And the Alcohol Test Committee. Q. And another cal-check on May the 20th, 2015 of 96. A. Correct. Q. At a temperature of 34.00 degrees Celsius. A. Yes. Q. Again, no indication there of a problem with accuracy and precision that would – using the Centre’s approach to determining accuracy and precision. There’s not a problem there. A. No. Q. And May the 20th, 2015 there’s another entry at 16:03:27 of a 92 at a temperature of 34.00 degrees Celsius. Again, from – using the Centre’s method of determining whether accuracy and precision are acceptable or not, there’s nothing wrong with that value, of 92. A. Correct. It’s on the low end, but it is acceptable – within the acceptable range. Q. All right. And then we see immediately above that, a calculation of standard deviation of 0.70 on May the 20th, 2015. A. Yes. Q. And that would seem to be based on a measurement at May the 20th, 2015 of a 95 and on May the 20th, 2015 of a 94. There are no simulator temperatures stated but I think that’s – that happens normally when an individual is running a sequence called stability test on an Intoxilyzer 8000C. There is no entry of simulator temperature.

A. Has this been sorted or....

Q. My understanding....

A. I would expect to see more information inhere, associated with the – the I-T-P...

Q. Right. Now, right from the beginning...

A. ...check.

Q. of the difficulties that we had in this case was that York Regional Police needed – York Regional Police, it’s disclosure of the data was not in chronological order.

A. Okay.

Q. So, it did need to be sorted, but....

A. But it hasn’t been redacted in any way?

Q. That’s my understanding.

A. Okay.

Q. It’s not been redacted. It may – it’s been sorted in order of date and time, but it has not been redacted.

A. Okay.

Q. All right? So, in any event, we have a – a cal-check of 94 and a cal-check of 95, which is consistent with an average of 94.5. Just looking at it quickly.

A. Yes.

Q. There’s no mention of temperature, and I was just asking you, when – when stability tests are run, when you’re looking at them in Cobra, it’s not unusual to not see a simulator temperature? Simulator temperatures usually aren’t recorded? That’s my understanding, for stability tests.

A. Correct. There would be no temperature in there...

Q. Okay.

A. ...based on the printout from the wet bath simulator cal-check from 2013, September 11th. Q. Right. A. And the I-T-P, there’s no temperature associated with it, so therefore there would be no temperature recorded in the Cobra data. Q. Either associated with I-T-P or associated with wet bath... A. Correct. Q. ...stability test. Right. So, just going back again, so we have an I-T-P consideration on – stability test run on May the 20th, 2015. I’m at page 56 of Tab 6. I-TPs are 99 and 98. Nothing strange about that. A. No. Q. At least – at least using the evaluation – the approach that you’ve suggested, in terms of looking at how you determine accuracy and precision, and to determine if there’s a problem with accuracy and precision on an instrument – or at least the Centre’s policy. A. Yes. Q. And going back a little bit earlier on May the 20th, 2015 there’s a cal-check of 93 at a temperature of 34.00. A. At 15:46:08, yes. Q. Yes. Nothing there that would cause – from using your approach – would cause anyone to take an instrument out of service for recalibration, using the Centre’s approach to looking at accuracy and precision? A. Correct. Q. And then on May the 20th, 2015 at 3:38:05 there’s a cal-check of 94, with a temperature of 34.00 degrees Celsius. Again, there, based on that data, using the Centre’s approach to determining accuracy and precision, or problems

with accuracy and precision, there’s nothing wrong with those numbers that would lead anyone to take the instrument out of service for recalibration.

A. Correct.

Q. And then going back to – oh, then we have a subject test that takes place on May the 17th, 2015 between4:13:08 – I’m on page 55.

A. That’s the test in question.

Q. That’s – these are Mr. H’s tests.

A. Tests. Okay.

Q. All right. And when you look at those numbers, using the Centre’s approach to determination of –whether there’s a problem with accuracy and precision of the instrument, the calibration checks there are 95 at 34 degrees Celsius on May the 17th, 2015.

A. At 4:13, yes.

Q. Yes.

A. 4:13:08.

Q. Yes, and the – there’s also another cal check of 93 on May the 17th, 2015 at 34.00 degrees Celsius.Have I got that right?

A. Yes. I’m just looking at....

THE COURT: Isn’t there something wrong with the times?

A. Yes, it appears that they’re – it’s all the same for the entire breath test sequence. They’re all 4:13:08.

MR. BISS: Yes.

Q. When a subject test is run and when one is looking at Cobra data, I want to suggest to you that there are two sets of numbers that show up on the Intoxilyzer test records. We can just find an example of one. Actually, I’ll find the one from our particular case. A. All right, so the 4:13:08 refers to when the test was initiated. So, the start of the entry of information, like the tombstone information, with regard to the accused name, the officer who’s doing the analysis, badge numbers, all that kind of stuff, which is at the top of the test record card. Q. Right. A. When that is initiated... Q. Yes. A. ...that is the time that’s printed on the test records card that seems to have carried over on to all the steps. Q. Right. A. But the actual times of all these events, on the test record card go between 4:15:37 and 4:43:52. Q. All right. So.... A. Well, you’ve got – okay, yeah. Q. So, I’m just looking at Exhibit Number 3. A. For His Honour. Q. For everybody’s reference. A. I don’t know what’s – what’s this? Q. At Tab Number 3, the – the fourth page down there is a printout for Mr. H’s test record card which shows a cal-check of 93 and a cal-check of 95 and the number – the time stamp in Cobra seems to be the number that is up at the top right corner of the test record card, which is 04:13:08. A. I said that, yes. Q. Yes. All right. All right, but in any event, whether one looks at the data in Exhibit 2, or at the test record, for Mr. H, there’s nothing wrong with –

again from the perspective of the Centre of Forensic Science – with accuracy and precision as determined by the cal-checks. There’s nothing wrong with accuracy and precision from the Centre’s perspective, with a cal-check of 93 and a cal-check of 95 at 34.00 degrees Celsius. A. That’s correct. Testing can proceed.


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