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The Weights and Measures Act section 4(1) Requires O'Connor Production


Excerpt from my written submissions:

The Weights and Measures Act section 4(1)

It is respectfully submitted that the over 80 offence in section 253(1)(b) is described by Parliament in terms that speak of a “quantity” and a “unit”.[46] The aggravated penalty section 255.1 speaks in terms of a “quantity” and a “unit”.[47] The Crown does not appear to take issue with the defence position that “quantity” VIM 1.1, “measurement unit” VIM 1.9, “International System of Units, SI” VIM 1.16, “measurement” VIM 2.1, “metrology” VIM 2.2, “measurement result” VIM 2.9, “calibration” VIM 2.39, and many other generally accepted metrological terms are defined in the international scientific literature by the General Conference on Weights and Measures (CGPM)[48] through its BIPM Vocabulaire International de Metrologie – the “VIM”.[49] Additional terms related to the legal application of metrology are defined in the “VIML”[50] published by the Organisation International de Metrologie Legale (OIML). Canada is a member state of both the CGPM and the OIML.[51] “Forensic science” is specifically mentioned in the Introduction to the VIM.[52] “Evidential breath analyzers” and terminology directly related thereto are dealt with in OIML R 126 – 1998 and 2012 versions.[53] “Screening devices” are excluded from OIML R 126.[54]

It is respectfully submitted that section 4(1) of Canada’s Weights and Measures Act[55] is a binding interpretation statute that requires that those sections of the Criminal Code of Canada, that refer to quantities and units, be construed and applied in a manner consistent with section 4(1) of the Weights and Measures Act. The Weights and Measures Act section 4(1) requires that all units of measurement used in Canada be determined on the basis of the International system of Units established the General Conference of weights and Measures – the CGPM.

It is respectfully submitted that section 4(1) of the Weights and Measures Act applies to forensic science quantitative measurements made by the police. The police are not exempted under section 3(1) of the Regulations made under the Weights and Measures Act. An approved instrument used for a forensic purpose is not exempted by section 3(1) of the same Regulations.

It is respectfully submitted that section 4(1) of the Weights and Measures Act is a valid exercise of Parliament’s jurisdiction under the Constitution Act, 1867 section 91 (4) “Weights and Measures”. There is a similar section in Article One of the United States Constitution section 8 fourth paragraph. The authority given by each of these constitutions and the provisions of Canada’s Weights and Measures Act are consistent with the principle first established in our legal history by Magna Carta paragraph 35.[56] It is respectfully submitted that the principle of one traceable measure for each of mass, length, and the 5 other SI units[57] is a yet unlitigated principle of fundamental justice under Charter section 7.

It is respectfully submitted that the perspective taken by Mr. Kupferschmidt in his evidence is consistent with the concept of one traceable measure. “Metrological Traceability”[58] of a measurement result is an essential aspect of international, including Canadian[59] and American[60], metrology and is required by section 4(1) of the Weights and Measures Act. “Metrological Traceability” is not contemplated in the policy that every subject test stands on its own.

Footnotes:

[46] Transcript, January 27, 2017, pages 34-35, Cross-examination of Mr. Palmentier

[47] Ibid., Page 35

[48] Exhibit 47

[49] Exhibit 18.

[50] Exhibit 31, Tab 1

[51] BIPM Exhibit 47 and OIML Exhibit 31

[52] Exhibit 18, page viii, third paragraph

[53] Exhibit 31, Tabs 6 and 7

[54] Exhibit 31, Tab 7, Page 4, Items 1 and 2

[55] Exhibit 21

[56] Exhibit 23

[57] Exhibit 18, VIM 1.16

[58] Exhibit 18, VIM 2.41

[59] Exhibit 30, NRC Laboratory Practice

[60] Exhibit 48 NIST document explaining traceability of a measurement result

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