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  • Stephen Biss

St-Onge Makes Contemporaneous Documentation Essential


Excerpt from written argument respecting application of St-Onge to my O'Connor application:

St-Onge and the Constitutionality of Criminal Code section 258(1)(c)

In the matter before the Court it is anticipated that the Crown will rely on section 258(1)(c) to prove its case on the over 80 charge. There may be other ways that the Crown could prove its case.

It is respectfully submitted that Criminal Code section 258(1)(c) is constitutional. These submissions are made on that assumption.

In R. v. St-Onge Lamoureux[1], Justice Deschamps found that 258(1)(c) violates Charter section 11(d). Her analysis can be found in section 4 of her decision:

4. Compatibility of Section 258(1)(c) and Section 258(1)(d.01) with the

Right to Be Presumed Innocent (Section 11(d) of the Charter)

4.1 Do these Provisions Infringe the Protected Right?

[24] A statutory presumption violates the right to be presumed innocent if its effect is that an accused person can be convicted even though the trier of fact has a reasonable doubt (R. v. Vaillancourt, [1987] 2 S.C.R. 636, at pp. 654-56; Downey, at p. 21).

… like the presumption at issue in Oakes, the ones established in s. 258(1)(c) will violate the right to be presumed innocent if they can result in the conviction of an accused in spite of a reasonable doubt that the accused is in fact guilty.

In her constitutional analysis, Justice Deschamps found that the expert evidence, before the Court, indicated:

  • The possibility of an instrument malfunctioning or being used improperly is very real.

  • The ATC recommends that approved instruments be inspected on an annual basis to ensure that they continue to meet the manufacturer’s technical specifications.

  • Calibration and maintenance are essential to the integrity of the breath test program.

It is submitted that Justice Deschamps found that such inspections relate to the purpose “to ensure that they continue to meet the manufacturer’s technical specifications"[2] and that calibration[3] and maintenance are essential to the integrity of the breath test program. She stated:

[25] It is therefore necessary to inquire into the effect of the presumptions of accuracy and identity provided for in s. 258(1)(c) Cr. C. The expert evidence filed in the instant case reveals that the possibility of an instrument malfunctioning or being used improperly when breath samples are taken is not merely speculative, but is very real.

… The Committee states that before collecting a breath

sample, the qualified technician must, among other things, observe the test subject for 15 minutes, conduct a system blank test and a system calibration check, and verify the temperature of the alcohol standard, and that the alcohol standard must be changed after a certain number of calibration checks. The Committee also recommends that approved instruments be inspected on an annual basis to ensure that they continue to meet the manufacturer’s technical specifications. According to the Committee, the calibration and maintenance of instruments are essential “to the integrity of the breath test program” (p. 14). (italics added)

It is submitted that Justice Deschamps in making her 11(d) finding, concluded that there could exist circumstances where an instrument malfunctioned or was used improperly, yet the 258(1)(c) presumption could apply. She specifically noted Hodgson’s report[4] and quoted from the section of the paper referring to “scientifically sound results” and “good laboratory practice”[5]. Parliament recognized the importance of following such practices and procedures. Justice Deschamps stated:

[26] The Committee’s recommendations shed light on the circumstances that might explain how an instrument malfunctioned or was used improperly. Thus, human error can occur when samples are taken and at various steps in the maintenance of the instruments, which, it should be mentioned, are used Canada-wide. Hodgson’s report, which the prosecution itself relied on as a source of the statutory amendments, refers to the importance of proper operation and maintenance:

[T]o achieve scientifically sound results in operational use, user agencies must ensure that approved instruments are operated by qualified personnel using procedures based on good laboratory practice. [p. 83]

(italics added)

Moreover, Parliament recognized the importance of following such practices and procedures in s. 258(1)(c) and s. 258(1)(d.01), since the accused can rebut the presumptions by showing that the instrument was not properly maintained or operated.

Justice Deschamps, noted however, that Parliament did not explicitly make compliance with the Committee’s recommendations a condition precedent to the section 258(1)(c) presumption. She noted that there was no mechanism for the prosecution to establish that instruments are generally maintained and operated properly and there was no evidence that the rate of failure[6] due to improper maintenance or operation is insignificant.

[27] However, Parliament did not adopt the Committee’s recommendations, and the prosecution referred to no alternative mechanisms that would enable a court to find that the instruments are generally maintained and operated properly or that the

rate of failure attributable to improper maintenance or operation is insignificant. The trier of fact could therefore entertain a reasonable doubt about the validity of the test results, since he or she will not have shown why they can be relied on in the case of the accused who is on trial. But a judge who entertains such a doubt will nevertheless remain bound by the statutory presumptions and will be required to convict …

In view of the mechanism for applying the statutory presumptions established in s. 258(1)(c), I find that s. 258(1)(c) and s. 258(1)(d.01) infringe s. 11(d) of the Charter.

(italics added)

It is submitted that Justice Deschamps accepted that in its efforts to combat drinking and driving Parliament may, however, use statutory presumptions if they are justified under Charter section 1.

4.2 Is the Infringement Justified?

[30] This Court has recognized in a number of cases that a statutory presumption that infringes s. 11(d) of the Charter can nevertheless be justified under s. 1 of the Charter.

It is submitted that Justice Deschamps found the section 1 justification for at least the first “thing”[7] in section 258(1)(c) in “scientific advances” and “scientific value” with a means to rebut the presumption based on science.

[31] Whether a statutory presumption can be justified under s. 1 depends on several factors, including the importance of the legislative objective, how difficult it would be for the prosecution to prove the substituted fact beyond a reasonable doubt, whether it is possible, and how easy it is, for the accused to rebut the presumption, and, as can be seen from the instant case, scientific advances.

(italics added)

[33] Parliament’s decision to resort to the presumptions of accuracy and identity to help combat the problems resulting from drinking and driving is not at issue in this appeal; rather, what are at issue are the means available to rebut those presumptions. Parliament intended to limit the evidence that can be adduced to raise a reasonable doubt about the reliability of the test results. As can be seen from the legislative history, the objective of the amendments, which form part of a scheme whose purpose is to “reduc[e] the carnage caused by impaired driving” (Orbanski, at para. 55), was to give the reliability of the test results a weight consistent with their scientific value.

(italics added)

It is submitted that as a result of St-Onge, the big issue, now before any Court, considering a defence to section 258(1)(c), is whether or not there is evidence[8] that creates a reasonable doubt as to “the reliability of the breathalyzer tests.” “Reliability” is not carved in stone once a type of instrument is declared to be an “approved instrument” by the Minister of Justice. On the other hand, mere proof of improper operation or failure to maintain does not necessarily imply unreliability of the results: “An accused person must link the improper operation or the failure to maintain the breath machine directly to an unreliable result.”[9] (italics added)

It is submitted that when Justice Deschamps used the word “reliability” in the St-Onge decision, she did so in the scientific sense of the word “reliability”. She was not speaking of “reliable evidence” in the legal sense of the word. The big issue is to give the reliability of the test results a weight consistent with their scientific value. Please note that she[10] was speaking of the scientific reliability of the test results, not the reliability of the instrument. She stated:

[34] The reliability of breathalyzer tests was explicitly mentioned in the abstract of Hodgson’s report:

The scientific basis for evidential breath alcohol testing is well established. Experiments derived from a recognized scientific law in physics have proven the scientific validity of breath analysis to determine alcohol concentration in the blood. Instruments designed to measure breath alcohol content are based on technology that is capable of

producing scientifically sound results. Like Canada, every country that embarks on evidential breath alcohol analysis subjects these instruments to a rigorous evaluation process. These processes determine whether the instruments meet the scientific standards for accuracy, precision, reliability and specificity. [p. 83]

(italics added)

It is submitted that in paragraph 36 of St-Onge, Justice Deschamps again noted the objective of the amendments “ to give the results a weight consistent with their scientific value”:

[36] Both Hodgson’s report and the comments of Judge Duncan in

Powichrowski illustrate the problems associated with evidence of breathalyzer test results under the former legislative scheme: such evidence could be rejected on the basis of the testimony of the accused, which was sometimes characterized as subjective recollection. Because it was hard to rely on the test results as effective evidence, the presumptions were less useful than they might have been, and the prosecution was hindered in its efforts to combat drinking and driving. I find that the objective of the amendments — to give the results a weight consistent with their

scientific value — is pressing and substantial.

(italics added)

It is submitted that in paragraph 37 the ultimate casting of doubt is related to the reliability of the results:

[37] Once the objective has been found to be valid, the Oakes test requires that a rational connection be established between the objective and the means adopted to attain it. It is clear from the words of s. 258(1)(c) and s. 258(1)(d.01) Cr. C. that evidence relating directly to the instrument itself or to its operation is now required in order to cast doubt on the reliability of breathalyzer test results. A mere inference based on an individual’s rate of absorption or elimination of alcohol, which is what was required for a Carter defence, is no longer enough. The accused must now raise a doubt that the instrument was functioning or was operated properly.

It is submitted that in paragraph 38, Justice Deschamps again places a focus on the main issue, whether or not the results are reliable. The defence methodology, however, in raising a doubt about whether or not the results are reliable, must relate to deficiencies in the instrument itself or in the procedure followed:

[38] In my opinion, the requirement that the accused adduce evidence concerning the functioning or operation of the instrument is rationally connected with Parliament’s objective. According to the scientific evidence on which Parliament relied, if the instrument functions properly and all the relevant procedures are followed, the results should be reliable. It is therefore logical to provide that the

results can be challenged only by raising problems that can be objectively identified and that relate to possible deficiencies in the instrument itself or in the procedure followed in operating it.

(italics added)

It is submitted that Justice Deschamps stated the relationship between the deficiencies in operation or function and “reliability of the results” in paragraph 41:

[41] It should also be mentioned that the new provisions do not make it impossible to disprove the test results. Rather, Parliament has recognized that the results will be reliable only if the instruments are operated and maintained properly, and that there might be deficiencies in the maintenance of the instruments or in the test process. What the new provisions require is that evidence tending to cast doubt on the reliability of the results relate directly to such deficiencies.

(italics added)

It is submitted that in paragraph 43, Justice Deschamps acknowledged the difference between an instrument that simply works[11] and one that functions optimally. She noted the importance of “assuring the quality of breath alcohol analyses.”

[43] In its recommendations, the CSFS Committee also suggested mechanisms for ensuring that the instruments function properly and for assuring the quality of breath alcohol analyses. It can be inferred from these recommendations that the instruments may not function optimally if the suggested procedures are not followed.

It is submitted that in paragraph 45, Justice Deschamps re-iterated the focus of the new provisions on the issue of “scientific reliability” rather than evidential reliability.

[45] The scientific data presented at the time of the enactment of the new provisions show that Parliament intended to do more than simply adjust the wording that had been interpreted in Boucher. Apart from the theoretical difficulties involved in assessing the credibility of the accused on the basis of test results that are presumed to be accurate, returning to a Carter defence would make it impossible to meet Parliament’s objective. Absent statutory provisions to the effect that the results are to prevail, judges would still be faced with the problem the amendments were actually

intended to solve. If the testimony of the accused concerning his or her consumption of alcohol were accepted, it could raise a reasonable doubt about the reliability of the test results despite the fact that it has now been shown that the success rate of this

defence is hard to justify in light of the scientific reliability of the instruments. It was appropriate for Parliament to enact provisions that would spare the prosecution the burden of tendering evidence of scientific reliability in every case.

(italics added)

Justice Deschamps found the requirement of evidence respecting malfunction or improper operation satisfied the minimal impairment test.

.

[46] I accordingly conclude that requiring evidence aimed at establishing that the instrument malfunctioned or was operated improperly satisfies the minimal impairment test.

It is submitted that when it comes to relevance of evidence respecting malfunction or improper operation, it is clear that Justice Deschamps was referring to malfunction or improper operation at time of use. The instrument must be functioning[12] properly at time of use. The instrument must be operated properly[13] at time of use.

It is submitted that, although evidence is required of malfunction or improper operation at time of use, the real issue is whether the test results are reliable.

[48] The prosecution gains a clear, albeit limited, advantage from the

requirement, since evidence to the contrary is limited to the real issue: whether the test results are reliable. The evidence to be tendered relates directly to an instrument that is under the prosecution’s control. The prosecution must of course disclose certain information concerning the maintenance and operation of the instrument, but it is free to establish procedures for tracking how such instruments are maintained and operated. Moreover, the prosecution has control over the people who maintain and operate the instruments.

(italics added)

It is submitted that it is necessary that the prosecution, the Crown, establish procedures for tracking how such instruments are maintained and operated. This requirement is consistent with the international concepts of “legal metrological control”[14], “metrological supervision”[15], “type approval”[16], and “metrological infrastructure”[17]. In Canada, we have a very clear “type approval” system for “approved instruments” as defined in Criminal Code section 254(1). Other metrological control, metrological supervision, and metrological infrastructure are less clearly defined for evidentiary breath testing in Canada than they are for other measurements.[18] The Alcohol Test Committee has recommended “Best Practices” (Exhibit 11), but apart from the recommendation of inspection contained therein[19] there is no legal requirement that approved instruments be inspected annually to ensure that they continue to meet the manufacturer’s technical specifications. The Alcohol Test Committee does not supervise police. The evidence before this Court is that the Centre of Forensic Sciences in Ontario does not supervise such a metrological infrastructure. The evidence before this Court is that the Centre of Forensic Sciences does not do random “sampling”[20] of aging instruments in service to determine if they still meet manufacturer’s specifications. The police in Ontario are left to their own metrological control, metrological supervision, and metrological infrastructure. The only potential supervision is the Courts. Government has left a void.

It should be noted that Canada has international obligations in “legal metrological control”, “metrological supervision”, and “metrological infrastructure” because it is a member state of both the CGPM[21] and OIML[22]:

The obligations resulting from the OIML Treaty and from the WTO TBT Agreement (obligation to use OIML Recommendations as far as possible, and encouragement by the TBT Agreement to participate in OIML recognition and acceptance arrangements) should also be taken into account, as well as other obligations deriving from regional treaties or agreements.[23]

It is respectfully submitted that the statement of prosecutorial responsibility contained in paragraph 48 of St-Onge is consistent with the OIML responsibility of Canada to govern legal metrology related to public safety in a transparent manner:

3.5 Transparency of metrological information

Element no. 14

Those responsible for publishing or transmitting measurement results to the public may be required to provide justifications as to the relevance and reliability of these measurement results.

Individuals and other interested parties may have access to any measurement result issued on the initiative of the government or transmitted to the government, and related to health, public safety, environment and economics, as long as the communication of this information does not cause an undue prejudice to an individual or to a company or other organization.

The government should provide the public with an independent and impartial source of advice about the validity, credibility and reliability of metrological information. The national metrological infrastructure, defined in 3.2.2, shall provide the expertise needed for this advice, and shall be appropriately funded by the government to accomplish this.

Element no. 15

The national metrology institutes defined in Element no. 3 shall be a source of independent and impartial expertise on questions related to the validity, credibility and reliability of metrological information mentioned in Element no. 11.[24]

It is submitted that notwithstanding the clear ruling by the Supreme Court of Canada in St-Onge, that things 2 and 3 of section 258(1)(c) are unconstitutional, as violating Charter 11(d) but not saved by section 1, Crowns still sometimes take the position that there is an obligation on the defence to raise a “real doubt” such that the Court concludes the deficiency is somehow connected to the unreliable over 80 indication and that the accused’s BAC was really under 80. With respect, those requirements are gone. The big issue in any 258(1)(c) analysis is not BAC above or below 80, and what caused the error, but rather scientific unreliability of the measurement results, the quantitative analysis, in the first place. Defence methodology in raising a doubt about that big issue must involve malfunction or operator error or both.

In her analysis of why thing 2 is not saved by section 1, Justice Dechamps stated:

4.2.2 Connection Between the Deficiency and the Determination of a

Level Exceeding .08

[51] Whether the impairment resulting from this requirement is minimal is

open to debate. The accused must prove that if his or her blood alcohol level exceeded the allowable maximum, it was because the instrument malfunctioned or was operated improperly. The burden of doing so seems at first glance to be quite heavy. No expert evidence was adduced to show how this connection can be proved. It is conceivable that evidence that an instrument has produced erratic results could raise a doubt that the results concerning an accused are reliable. However, it would be difficult for the accused to identify a specific malfunction and prove that it resulted

in a reading according to which his or her blood alcohol level exceeded the legal limit. One can only speculate about the type of expert evidence the accused would need to produce for this purpose, but it would certainly have to be much more specific than the evidence needed to prove that the instrument was malfunctioning or was operated improperly.[25]

It is conceded that the defence must, as a starting point, according to thing 1, prove (or raise a reasonable doubt) that the instrument was malfunctioning or was operated improperly. The alleged malfunction or improper operation cannot be trivial. Mere possibility of malfunction is not enough. The deficiency must relate to reliability of the measurement results. Justice Deschamps states:

[52] At this step in the defence process, it must be accepted that the judge will not consider evidence showing a connection between a deficiency and the determination that the blood alcohol level of the accused exceeded the legal limit unless the accused has already proved that the instrument was malfunctioning or was

operated improperly. At this stage, if the arguments made by the defence are frivolous or trivial, they will not cast doubt on the proper functioning or operation of the instrument, and the defence must fail.

…The mere possibility that the instrument had malfunctioned was not evidence to the contrary that could cast doubt on the reliability of the results.

In the matter before the Court the expert called by the defence has identified many anomalies[26], which cause him concern. The anomalies include:

A Periodic Inspection on 20-Jun-12 where linearity of calibration was out of spec. by 14% at 50 mg%

A Periodic Inspection on 11-Sep-13 where linearity of calibration was out of spec. by 12% at 50 mg%.

A Periodic Inspection on 07-Oct-14 where linearity of calibration was out of spec. by 12.5% @ 40 mg%

A General Diagnostics Fail and low control checks on 14-Feb-15

11 Failed Control checks and an RFI failure on 14-Mar-15

2 General Diagnostics Failures on 4-Apr-15

Periodic Inspections with no linearity checks on 06-Mar-15, 14-Apr-15, and 20-May-15.

Many of these anomalies go directly to the issue of the instrument’s function or malfunction – specifically its proper calibration or lack thereof, across the measuring interval, on the date of the subject tests. We know that the instrument was taken out of service on May 20, 2015 and sent for re-calibration by the manufacturer for “Consistently low cal. checks, requires recalibration”[27]. Assuming the Crown’s theory that all of the low cal. checks and other anomalies indicated in the disclosed COBRA data[28] are trivial, there is no good explanation as to what low cal. checks triggered the decision to take the instrument out of service and send it to the manufacturer[29] for re-calibration.

The defence takes the position that the Crown’s theory of triviality in this regard is, with the greatest of respect, speculative, particularly in the absence of careful review of the items under subpoena. In particular, if the 11 cal. checks below 90 in the last 50[30] prior to and including the subject tests, are not trivial then accuracy of the instrument, at the 100 mg/100mls level, at time of subject tests, averaged 93.28 (well outside of +/- 3% or 3 mg/100 mls[31]) and precision of the instrument at time of subject tests was a standard deviation of 3.86 (well outside of standard deviation of 3.0 or better[32]). Using the Hodgson definition of “reliability”, there is evidence of significant drift in accuracy and precision of the instrument over time, when compared with the earliest periodic inspection of this instrument by Thomas Electric[33] or when compared with the ATC type evaluation by Teri Martin.[34]

It is respectfully submitted that Justice Deschamps in her judgment in St-Onge has made triviality of an anomaly a real issue that needs to be explored at trial. The Crown will take one position; the Defence will take another. We don’t want the experts to speculate as to “simple” explanation (the Crown’s thesis) or malfunction or operator error (the defence thesis). The parties need to litigate that issue by resort to evidence (which will be produced primarily through officer’s notes) and opinion evidence based on evidence of what likely caused the anomalies, not speculation as to which possible cause is the “simplest”. In the matter before the Court, the anomalies:

Relate to the primary function – quantitative calibration of the instrument, they are called “cal. checks”

Are numerous, this is not a case of a single low cal. check while the simulator was heating up

Are not clear “outliers”, this is not a case of cal. checks of 000 or 040 or 050.

Are “consistent” with each other, note reason why instrument taken out of service on May 20, 2015, “Consistently low cal checks”[35]

Include low cal. checks of 90, 91,92, 93, 94

Include low cal. checks of 86, 87, 89

Include general diagnostics fails – a general diagnostics fail during a subject test includes the instrument’s “Diagnostics Analytical Test”[36] which includes a test of very short term (over seconds) drift.[37]

It is submitted that Justice Deschamps has made it clear in St-Onge that, for constitutional reasons, Crosthwait should not be interpreted and applied in such a way as to require that the defence, under the new section 258(1)(c), raise a doubt “that the accused’s blood alcohol content at the time of the offence was below the permissible limit”:

[55] … Moreover, this Court has not had to consider the

constitutionality of the presumption of accuracy until now. I therefore endorse, in the context of the new provisions on the presumption of accuracy, the following comment that Arbour J.A. had made in dissent in St. Pierre, and with which Iacobucci J. agreed (para. 22):

To the extent that Crosthwait, supra, held that “evidence to the contrary” in s. 258(1)(c) means evidence tending to show that the accused's blood alcohol content at the time of the offence was below the permissible limit, it should not be applied in a case such as the present one. [para. 21]

[56] Insofar as the majority in St. Pierre followed the approach adopted by Pigeon J. in Crosthwait with respect to the requirement that the accused show that his or her blood alcohol level did not exceed .08 in order to rebut the presumption of accuracy, their reasons must be reconsidered to take the constitutional argument into account. Although the requirement that the accused raise a doubt that his or her blood alcohol level in fact exceeded .08 could be justified when there were no limits on the evidence the defence could tender to cast doubt on the test results, it constitutes an excessive burden in the context of a statutory scheme under which the evidence must relate directly to the functioning or operation of the instrument.

It is respectfully submitted that defending against the section 258(1)(c) presumption now has to do with challenging the scientific value of the measurement result produced by the approved instrument through a review of operator error and/or instrument malfunction. The key issue in any section 258(1)(c) analysis has to do with the scientific reliability of the measurement result. In other words, the issue is: Are the indications on the instrument a scientifically reliable measurement result – a quantitative analysis for a forensic purpose? That is a question of measurement science based on all of the scientific literature. As a result of Ste-Onge, once the defence has successfully raised a reasonable doubt about the scientific reliability of the measurement process, the defence does not have to show a connection between any malfunction or operator error with the disputed results.

[57] A consideration of the advantages and disadvantages of the second requirement of s. 258(1)(c) reinforces the conclusion that this requirement is not justified.

…As a result, being the party that has to prove that there is no connection after the accused has adduced evidence to show that the instrument malfunctioned or was operated improperly does not impose a significant additional burden on the

prosecution.

[58] Moreover, it is important to note that, where the accused raises a reasonable doubt that the instrument functioned or was operated properly, this simply means that the prosecution loses the benefit of the presumptions under s. 258(1)(c). The prosecution can still tender additional evidence to prove that, despite the proven deficiency, the blood alcohol level of the accused exceeded .08 as shown by the test results.

[59] In these circumstances, having regard to Parliament’s objective of giving priority to the reliability of the test results, I conclude that requiring an accused to prove not only a malfunction or improper operation of the instrument that is serious enough to raise a reasonable doubt, but also a causal connection between that malfunction or improper operation and the determination that the blood alcohol level of the accused exceeded the legal limit, constitutes a serious infringement of the right to be presumed innocent. This infringement cannot be justified in a democratic society.

It is submitted that Justice Tuck-Jackson in R. v. Ocampo dealt with both “materiality” and “relevance”.

Materiality, in consideration of whether or not the section 258(1)(c) presumption will apply, requires a consideration of the factual and legal issues to be resolved:

25 In essence, materiality speaks to the factual and legal issues that must be resolved by the trier of fact within a given case. In the instant case, for example, it is a live issue (or it is material to the resolution of the case) whether (1) the A.I. was malfunctioning at the time it received and analysed Mr. Ruiz Ocampo's breath samples; and (2) the qualified breath technician operated the A.I. properly at the time it received and analysed the said samples. This articulation represents the statutory characterization of these issues. With the benefit of the refinement provided by the dicta contained in R. v. St.- Onge Lamoureux, supra, these issues may be reframed as follows: is there an objectively identifiable problem, relating to a deficiency, that goes beyond a mere possibility and amounts to a real doubt, with respect to the instrument's (1) functioning or as to its (2) proper operation in the instant case. The credibility and reliability of a witness who claims that the A.I. was functioning or operated properly is a material sub-issue.[38]

It is respectfully submitted that relevance needs to take into consideration the positions of both parties:

27 Relevance is assessed in the context of the entire case and having regard to the positions of the parties. It requires a determination whether, as a matter of human experience and logic, the existence of a particular fact, directly or indirectly, makes the existence or non- existence of a material fact more probable than it would be otherwise. See: R. v. Cloutier (1979), 48 C.C.C. (2d) 1 (S.C.C.).

28 In the instant case, evidence will be relevant to the issues identified above if, as a matter of human experience and logic, directly or indirectly, it tends to show that there exists (or does not exist) an objectively identifiable problem, relating to a deficiency, that goes beyond a mere possibility and amounts to a real doubt, with respect to (1) the instrument's functioning or as to its (2) proper operation. Evidence that is probative of the credibility and reliability (or the lack thereof) of a witness who claims that the A.I. was functioning or operated properly is also relevant.[39]

It is respectfully submitted that since St-Onge, the accused is not under any obligation to raise a reasonable doubt that his or her true BAC was below 80. In her analysis of why “thing 3” in section 258(1)(c) is not saved by Charter section 1, Justice Deschamps stated:

4.2.3 Evidence of a Blood Alcohol Level Not Exceeding .08

[62] As the legislative facts show, however, Parliament’s objective is not stated in such general terms that it can encompass all measures taken to combat drinking and driving. Moreover, care must be taken not to state the objective too broadly: RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199, at para. 144. As I mentioned above, the objective was to give the test results a weight consistent with their scientific value. In this context, I do not see a rational connection between this objective and the requirement of adducing evidence to raise a doubt that the blood alcohol level of the accused in fact exceeded .08. Such evidence is not aimed directly either at the process of taking samples using authorized instruments or at the test results.

It is respectfully submitted that all of Parliament’s legislative scheme for obtaining the evidential test results need to be seen in the same light: “the objective was to give the test results a weight consistent with their scientific value”. Parliament has enacted a constitutional set of steps for obtaining the test results. Those steps include:

An “approved instrument” – section 254(1) – “to measure the concentration”, and

An approved instrument demand – section 254(3)(a)(i) – “will enable a proper analysis to be made to determine the concentration”.

During cross-examination, the expert for the Crown, Mr. Palmentier acknowledged that from a scientist’s perspective, these provision connote “quantitative analysis” rather than “qualitative analysis”:

Q. In section 254 there are some definitions in the Criminal Code and one of the definitions is that for something called an approved instrument. And I’m just going to show you that definition. This is an instrument that is designed to make an analysis to measure the concentration of alcohol in the blood. Does that sound like a quantitative analysis to you or a qualitative analysis?

A. That would be a quantitative result.[40]

Q. And another section in the Criminal Code, section 254(3)(a), that’s the demand section in the Criminal Code. And specifically, (3)(a)(i), it says, “Samples of breath that in a qualified technician’s opinion will enable a proper analysis to be made to determine the concentration, if any, of alcohol in a person’s blood. Does that sound like a quantitative analysis or a qualitative analysis?

A. Quantitative.[41]

It is respectfully submitted that Parliament’s legislative scheme for obtaining screening results do not need to be seen in the same light. Screening results can only be used for screening purposes. The Supreme Court of Canada dealt with the limits on use that can be made of screening results in R. v. Orbanski[42] per Justice Charron:

58 Finally, the limitation meets the proportionality test. As the Crown concedes, the evidence obtained as a result of the motorist’s participation without the right to counsel can only be used as an investigative tool to confirm or reject the officer’s suspicion that the driver might be impaired. It cannot be used as direct evidence to incriminate the driver: see R. v. Milne (1996), 1996 CanLII 508 (ON CA), 107 C.C.C. (3d) 118 (Ont. C.A.), at pp. 128-31, leave to appeal refused, [1996] 3 S.C.R. xiii; R. v. Coutts (1999), 1999 CanLII 3742 (ON CA), 45 O.R. (3d) 288 (Ont. C.A.); R. v. Ellerman, 2000 ABCA 47 (CanLII), [2000] 6 W.W.R. 704 (Alta. C.A.); and R. v. Roy (1997), 1997 CanLII 10524 (QC CA), 117 C.C.C. (3d) 243 (Que. C.A.).

60 For these reasons, I conclude that while both Elias and Orbanski were detained for the purpose of s. 10(b), hence triggering the right to counsel, the operational requirements of the statutory regimes in place in Manitoba prescribed a limitation of the right to counsel. This limitation is justifiable in a free and democratic society given the importance of detecting and deterring drunk driving, the highly regulated nature of driving on public roads, the limits placed by the common law on the types of screening that can be conducted at the roadside, and the limited use that can be made of the compelled evidence collected during the screening process.

It is respectfully submitted that Parliament’s legislative scheme for screening results constitutionally permits qualitative analysis, because of the limited use that can be made of the qualitative analysis. These steps include:

An “approved screening device” – section 254(1) – “to ascertain the presence of alcohol”, and

An approved screening device demand – section 254(2) – to enable a proper analysis

During cross-examination[43], the Crown’s expert, Mr. Palmentier, acknowledged that the “approved screening device” definition in section 254(1) connotes, to a scientist, a “qualitative analysis”:

Q. Now, let’s look at the definition in the Criminal Code of something called an approved screening device. It means a device that ascertains the presence of alcohol in the blood. Now I know this question is a bit confusing, because we all know that what we use in Ontario as approved screening devices, they’re also used for Provincial Highway Traffic Act purposes. But that’s not what I’m asking

you.

A. All right.

Q. The wording here, to a scientist, from the perspective of a scientist, the ascertaining the presence of alcohol in the blood, presence of alcohol, as opposed to

determining a quantity and a unit, detecting the presence, is that a qualitative analysis or a quantitative analysis?

A. In - using that wording, it would be qualitative.

Mr. Kupferschmidt during his evidence-in-chief[44] provided a detailed explanation of the difference between “quantitative” and “qualitative” and the application of those concepts to measurements taken by an approved instrument used by a qualified technician:

Q. The next part of the sentence says “...used to measure breath alcohol concentration.” What does the word ‘measure’ mean scientifically?

A. Well, measurement is a, I suppose I could give a definition in this fashion. I’d start off with two terms, qualitative and quantitative. The term qualitative in chemistry or in science would mean the detection of an item or a chemical of interest. It’s simply the detection of. You might have a semi-quantitative approach to your, your methodology. In other words, a semi-quantitative method that is related to breath testing might be a roadside screening device because it gives an indication of a pass, warn or fail but it’s not an indication of a fully quantitative value. So, qualitative refers to the detection of some substance, in this case alcohol. Quantitative refers to the determination of the quality of that substance you detected. And there’s a whole set of different rules that apply to the qualitative approach and the quantitative approach. And so, measurement would be the process by which you determine the quantity of a substance that is detected in a substrate of some sort. It might be pesticides in soil or it could be alcohol in breath. It could be alcohol in blood. The substrate being blood, breath, soil; the chemical being pesticides, alcohol, or whatever the substance of interest might be. So, there is a distinction between those two steps, qualitative, quantitative. And then quantitative meaning measurement of the result – of the sample for the quantity of that particular sample in the substrate.

Q. Well, let’s, let’s suppose that we’re talking about a quantitative measurement. Would the measurements taken by an approved instrument by a qualified technician be quantitative or qualitative?

A. They are intended to be quantitative if the process is strictly adhered to. If it is not adhered to it becomes a qualitative measurement.

The concept of “process is strictly adhered to” or “when strict protocols are followed and the instrument is working properly as per the recommended procedures”, as a condition precedent to a “conclusive proof” presumption can also be found in the evidence of Brian Hodgson before the Standing Committee on Justice and Human Rights, June 12, 2007.[45]

It is respectfully submitted that any construction and application of Parliament’s scheme that confused the quantitative analysis demand sections with the qualitative analysis demand sections would run the risk of creating conflict with Charter section 8 and would not be saved by section 1.

It is respectfully submitted that any construction and application of the words “approved instrument” in the Criminal Code to contemplate a qualitative analysis instrument would invite constitutional scrutiny of Parliament’s scheme.

Footnotes:

[1] 2012 SCC 57

[2] See also ATC Recommended Standards 2013, Exhibit 35, p. 11, V, (a). See also ATC ‘Best Practices” 2014 Exhibit 11 page 11, III, (a)

[3] This Court has heard a great deal of evidence respecting the difference between a “calibration” v. a “calibration check”, “cal. check”, or “control check”. “Calibration” is defined in the International Vocabulary of Metrology (VIM) Exhibit 18 at 2.39.

[4] Exhibit 2 Tab 2, Hodgson, Brian T., “The Validity of Evidential Breath Testing”, Can. Soc. Forensic Sci. J. Vol. 41. No 2 (2008) pp. 83-96

[5] The primary international norm for good laboratory practice is ISO 17025 Exhibit 46. The primary Canadian norm for good laboratory practice is National Research Council of Canada, “Recommended practices for calibration laboratories” Exhibit 30.

[6] It is noteworthy that in the case before the Court, the instrument had a control check failure rate of 22% in the 50 cal. checks preceding and including the accused’s subject tests. See Exhibit 41.

[7] “that the approved instrument was malfunctioning or was operated improperly”

[8] “that the approved instrument was malfunctioning or was operated improperly”

[9] R. v. Lam, 2015 ONSC 2194 (CanLII), at para. 31.

[10] See also R. v. Lam at para. 31., per Goldstein J..

[11] The Crown sometimes draws an analogy to a motor vehicle that gets from point A to point B even though on some occasions the car fails to start. Although a modern measurement instrument may appear to “work” in the sense of getting through its sequence of electronic operations, its primary function is not to get from point A to point B, but rather to provide an accurate, precise, reliable, and specific “measurement”, a quantitative result, an analysis. The Defence Bar sometimes errs and sees any flag, error message, or alarm as a malfunction when in fact it may be an important step (if transparent) in reaching a reliable measurement result.

[12] But “functioning” for an instrument has to do with reliable “measurement” (Exhibit 18 VIM at 2.1) across the “measuring interval” (Exhibit 18 VIM at 4.7) and so “calibration” (Exhibit 18 VIM at 2.39) (which took place on a previous date) or full inspection of calibration (which took place on a previous date) is directly relevant to the “functioning” of an instrument on the subject test date.

[13] But control tests at 100 mg/100mls at time of use are part of proper operation in Ontario and so evidence of the change of that solution by another officer (which probably took place on a previous date) and continuity of the solution between those dates is directly relevant to proper operation at time of use. See R. v. Ocampo 2014 ONCJ 440.

[14] Exhibit 31, Tab 1, VIML 2.01

[15] VIML 2.03

[16] VIML 2.05

[17] Exhibit 31, Tab 2, OIML D1 (2012), at 2.1

[18] See the Fairness at the Pumps Act, 2010 which modified the Weights and Measures Act to mandate periodic “inspection” (VIML A.11, OIML D 20 Exhibit 31, Tab 4, and “verification” (VIML 2.44 and OIML D20). See the gas pump sticker example Exhibit 36 and the government press release April 15, 2010 Exhibit 55 that accompanied the announcement of the Fairness at the Pumps Act.

[19] Exhibit 11, ATC “Best Practices”, Page 11, III, A.

[20] VIML A.9

[21] General Conference on Weights and Measures (CGPM), Exhibit 47, CGPM/BIPM materials, Tab 6, see also Weights and Measures Act section 4(1)

[22] International Organization of Legal Metrology (OIML), Exhibit 31, Tab 8, OIML Convention, and Tab 9, Member States

[23] Exhibit 31, Tab 2, OIML D 1, page 19 at 3.2.2.2

[24] Exhibit 31, Tab 2, OIML D 1, page 32

[25] Prior to St-Onge, Mr. Kupferschmidt, the expert called by the Applicant, provided reports and opinions in Ontario stating that it would be impossible to make such connections. See Crown exhibits 15 and 16. Mr. Kupferschmidt gave evidence in the St-Onge matter at the trial stage.

[26] Exhibit 14, List of Anomalies

[27] Exhibit 12, page 1

[28] Exhibit 2, Tab 6

[29] Exhibit 7, Tab 2, page 9, paragraph 10.

[30] Exhibit 41

[31] Manufacturer’s specification, Exhibit 25, page 1, re Accuracy

[32] Manufacturer’s specification, Exhibit 25, page 1, re Precision

[33] Exhibit 12, pages 8-9

[34] Exhibit 33, page 26, Table 3, Range 99-102 and 97-102, mean 100.2 and 100.2, Std Dev 0.91 and 1.3.

[35] Exhibit 12, page 1

[36] Intoxilyzer 8000C Training Aid, CFS 2013, page 72 of 238

[37] The word “drift“ was explained viva voce by Mr. Kupferschmidt, transcript October 3, 2016, pages 17 to 22.

[38] R. v. Ocampo, [2014] O.J. No. 3960, per Tuck-Jackson, J.

[39] Ibid.

[40] Transcript January 27, 2017, Page 34, Cross-examination of Mr. Palmentier

[41] Transcript January 27, 2017, Page 35, Cross-examination of Mr. Palmentier

[42] [2005] 2 SCR 3, 2005 SCC 37 (CanLII)

[43] Transcript January 27, 2017, Page 34-35.

[44] Transcript October 3, 2016, Pages 11-12

[45] Exhibit 8, Hodgson evidence, June 12, 2007, bottom of page 2. The defence takes the position that “protocols” contemplate VIM 2.6 “measurement procedure”, “working properly as per the recommended procedures” includes proper “calibration” VIM 2.39, and tests obtained are a “measurement result” VIM 2.9. VIM is Exhibit 18.

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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 were "approved instruments" in Canada.
DrugTest® 5000 is also a registered trademark of Draeger Safety, Inc.. DrugTest® 5000 is "approved drug screening equipment" in Canada.
Alcotest® is a registered trademark of Draeger Safety, Inc. The Alcotest® 7410 GLC and 6810 are each an "approved screening device" in Canada.
Datamaster®  is a registered trademark of National Patent Analytical Systems, Inc.  The BAC Datamaster® C  is an "approved instrument" in Canada.