Motherisk Inquiry Report and O'Connor Production
Excerpt from my written submissions:
The Motherisk Inquiry Report
On December 17, 2015, at about the same time that the Ontario Court of Appeal released its decision in R. v. Jackson, The Honourable Susan Lang, the Independent Reviewer of the Motherisk Hair Analysis Review, completed her review and published her Report. In the Glossary of the Report she separated the concepts:
qualitative (result) A result that provides an indication of drug presence as a positive (yes) or negative (no), rather than providing actual quantitative results.
quantitative (result) A result that is reported containing the actual
concentration of the drug in a sample, indicating a degree of precision and accuracy.
During cross-examination, the Crown’s expert, Mr. Palmentier agreed with those definitions.
In her Report, Justice Lang found that:
The hair-strand drug and alcohol testing used by MDTL was inadequate and unreliable for use in child protection and criminal proceedings.
During the period MDTL operated in a manner that did not meet internationally recognized forensic standards.
The Hospital did not provide meaningful oversight.
The use of the hair testing evidence in child protection and criminal proceedings has serious implications for the fairness of those proceedings.
It is respectfully submitted that the evidence in the matter before the Court reveals that the York Regional Police breath testing system in its breath truck during the period of at least December 2014 to May 2015:
Was inadequate and unreliable for use in criminal proceedings
Did not meet internationally recognized forensic standards
Neither the Alcohol Test Committee nor the Centre of Forensic Sciences provided meaningful oversight
The use of unreliable results will have serious implications for the Applicant.
It is important to note that the Applicant is not attacking Parliament’s scheme (which is conceded as constitutional), or the common law, including R. v. Jackson and R. v. Vallentgoed (both of which we believe can be distinguished), that has built up around that scheme. Rather, the Applicant is asking the Court to consider the important warnings that have come out of the Motherisk Inquiry Report, the Goudge Report, and the Science Manual for Canadian Judges.
One such warning in the Motherisk Inquiry Report relates to the concept of “Use for Forensic Purposes”. Justice Lang states: “What distinguishes a clinical test from a forensic test is the purpose behind the test. If the test is either carried out or used for a legal purpose, it is a forensic test.” It is respectfully submitted that York Regional Police have failed to recognize that they are required by the nature of the process to meet forensic standards.
Justice Lang also warns of the dangers of failing to consider international forensic standards. She notes that:
International forensic standards are articulated in
international guidelines on the science of hair testing (including the consensus statements of the Society of Hair Testing), as well as on the standards of forensic toxicology laboratories generally (including, for example, the guidelines of the Society of Forensic Toxicologists and the American Academy of Forensic Sciences);
the standards that are required to be met for the accreditation of forensic laboratories (including the requirements under ISO 17025:2005, General requirements for the competence of testing and calibration laboratories);
best practices that are commonly accepted and recognized by forensic toxicology laboratories around the world; and
the academic literature on the science of hair testing and the interpretation of hair test results.
In the case before the Court we have evidence of:
International guidelines on the science of evidential breath testing
Canadian standards for good laboratory practice
Canadian recommended standards for Best Practices in evidentiary breath testing
It is respectfully submitted that the Crown’s central theory of instrumental reliability, that each test is separate and independent, and unrelated to any other previous or subsequent action (including original calibration or re-calibration, traceability to reference standards, and linearity checks) is not supported in the international scientific literature of measurement science. Specifically the theory is not supported in good laboratory procedure, particularly forensic laboratory procedure. It is respectfully submitted that the Crown’s central theory on this application is a matter of policy, not scientific opinion.
It is respectfully submitted that the central document relied upon by the Crown and the York Regional Police, the 2012 Position Paper contains no footnotes supporting the thesis of “what information is sufficient”, “sufficient to assess the accuracy and reliability”, “would be recognizable by reviewing”, and “cannot address the working status of an AI”. The document is not a research paper, contains no external references outside the Can. Soc. Forensic Sci. J., has no international references, is not a literature review, and contains no empirical research.
In particular the Position Paper does not deal with traceability or linearity. The Crown did not cross-examine Mr. Kupferschmidt on his extensive evidence respecting linearity.
At page 6 of the Motherisk Inquiry Report, Justice Lang deals with fatal flaws in MDTL’s analytical practices:
1. the Laboratory relied on the unconfirmed results of its enzyme-linked immunosorbent assay (ELISA) tests – a preliminary screening test – both qualitatively
(to distinguish positive hair samples from negative ones) and quantitatively (to calculate the drug concentration in the sample); and
2. the Laboratory had no written standard operating procedures for the hair tests it carried out, thereby calling into question the reliability and standardization of all its testing procedures.
Although there were other deficiencies, these two alone were sufficient to render MDTL’s hair tests inadequate and unreliable during this period.
With respect to item 1 at the top of page 6, Justice Lang notes:
It reported its ELISA results – both qualitatively (as positive vs. negative) and quantitatively (in the form of a numerical drug concentration for positive samples). Such a practice is inconsistent with internationally recognized forensic standards and is unacceptable for two important reasons.
It is respectfully submitted that it would be unwise for any criminal Court to confuse quantitative analysis with qualitative analysis. An evidentiary breath test is not a screening test. An approved instrument should not be performing a mere qualitative analysis. The danger is that lack of attention to “strict protocols are followed”, to process (as defined by Mr. Kupferschmidt) by the police may render the analysis qualitative rather than quantitative. As Mr. Kupferschmidt put it:
They are intended to be quantitative if the process is strictly adhered to. If it is not adhered to it becomes a qualitative measurement.
With respect to item 2 at the top of page 6, in the Motherisk Inquiry Report, Justice Lang noted at page 7:
Both forensic and clinical laboratories routinely have standard operating procedures in place for each of the analytical tests they perform. In addition, forensic laboratories are required to maintain contemporaneous documents identifying what steps were taken in respect of a sample, who took them, when and why, as well as any decisions made that might be relevant to the result. This contemporaneous documentation is essential to permit meaningful review of the reliability of the test results.
MDTL was not able to produce any written analytical procedures that were in use for its drug tests from 2005 to 2010. In addition, from 2005 to 2010, MDTL did not maintain contemporaneous documentation of the steps its laboratory personnel performed for a specific sample, including records of who performed which step in the process, what was performed, or when or how it was performed. MDTL’s practices were unacceptable and fell well below expected standards for a forensic laboratory.
In the matter before the Court it is noteworthy that York Regional Police did not video or audio record any of the events in its breath truck. It is therefore impossible to review on video or audio whether or not the operator at the time of the subject tests followed their standard operating procedures. Justice Lang notes the importance of “contemporaneous documents identifying what steps were taken in respect of a sample, who took them, when and why, as well as any decisions that might be relevant to the result.” (Italics added). In the matter before the Court we have:
An absence of information as to why there was an alteration in the Intoxilyzer Test Record of the subject tests as to time of solution change and perhaps as to the officer who changed the solution. 
Missing COBRA data respecting the April 14, 2015 Periodic Inspection.
Missing paper records of the various ACA and ABA tests run during the periodic inspections on February 14, 2015 and following.
It is submitted that much of what is requested in the subpoena, that is the subject of this O’Connor application, is “contemporaneous documents identifying what steps were taken in respect of a sample, who took them, when and why, as well as any decisions that might be relevant to the result.” As quoted above, Justice Lang describes the likely relevance: “This contemporaneous documentation is essential to permit meaningful review of the reliability of the test results.” It is submitted that contemporaneous documentation of the anomalies identified by Mr. Kupferschmidt, including the 50 cal. checks up to and including the Applicant’s subject tests, is essential to provide a meaningful review of the reliability of the tests.
There are other important reasons for consideration of the results as quantitative rather than qualitative. With quantitative analysis there must be considerations of “calibration curve” and multiple “calibrators”. Mr. Kupferschmidt has given extensive evidence about “linearity”. Justice Lang in the Motherisk Inquiry Report noted at pages 52-53:
61. All analytical instruments need to be calibrated. Calibration involves the testing of several samples that contain known quantities of the target compound (referred to as “calibrators”). The results from testing the calibrators are plotted on a graph, called a “calibration curve,” which is then used to calculate the amount of identified drug in the sample.
62. The number of calibrators required depends on whether the test is being run for qualitative or quantitative purposes. A qualitative test simply seeks to determine if the test result is positive or negative, while a quantitative test determines the concentration of the target compound present. If testing for qualitative purposes, only two calibrators are required – one blank calibrator to establish the standard for a negative result, and one calibrator with a known quantity of the target compound to establish the standard for a positive result. If testing for quantitative purposes, at least five calibrators are usually needed – from low to high concentrations – in order to plot a sufficiently reliable calibration curve.
There is evidence before this Court that the Intoxilyzer 8000C uses an electronic calibration curve that is generated, when the instrument is calibrated at the factory or re-calibrated by the factory or the Canadian Authorized Service Centre. The calibration curve is not established at time of use for a subject. The calibration curve is a quadratic expression – a half parabola. It is not a straight line. “Calibration” at the factory (or authorized service centre) requires multiple “reference measurement standards” or “calibrators” from low to high concentrations. Every Intoxilyzer 8000C calibration curve is different. Every re-calibration of an Intoxilyzer 8000C generates a different calibration curve. Over time, the electronic response of an individual instrument to a given concentration in the sample chamber may change but, strictly speaking, the calibration curve, set at the factory remains the same in the software until the next re-calibration at the factory. This is problematic because the instrument is using an old calibration curve to describe a new relationship between what the instrument sees in the sample chamber and the indicated result. In a sense, the corrected or new calibration curve is a shift that can be up or down, left or right, or a rotation on any axis when compared with the old calibration curve. The Defence suggests that the new curve may also stretch when compared with the old one.
It is respectfully submitted that Justice Lang makes it clear at pages 52-53 that multiple “calibrators” or “reference measurement standards” are required for a quantitative analysis instrument. Multiple “calibrators” are not necessary with qualitative analysis. The applicant respectfully submits that this concern expressed by Justice Lang and the evidence of Mr. Kupferschmidt about the importance of regularly and carefully checking linearity using multiple reference standards is consistent with all of the international measurement science literature.
It is respectfully submitted that the Crown’s theory that every subject test stands on its own and that calibration is adequately and completely checked at time of use, is policy rather than science. Linearity of the calibration is a genuine and ongoing issue for any analytical instrument.
ibit 31, Tab 1
 BIPM Exhibit 47 and OIML Exhibit 31
 Exhibit 18, page viii, third paragraph
 Exhibit 31, Tabs 6 and 7
 Exhibit 31, Tab 7, Page 4, Items 1 and 2
 Exhibit 21
 Exhibit 23
 Exhibit 18, VIM 1.16
 Exhibit 18, VIM 2.41
 Exhibit 30, NRC Laboratory Practice
 Exhibit 48 NIST document explaining traceability of a measurement result
 Exhibit 9 and Exhibit 22
 Page xix
 Transcript January 27, 2017, page 33.
 Exhibit 22, page 4
 See references at page 240 of Exhibit 22.
 Exhibit 22, page 4.
 A good example would be the apparent failure of YRP to take any action whatsoever with respect to the Periodic Inspections (Exhibit 12) of June 20, 2012 page 28, of September 11, 2013 page 34, and of October 7, 2014 page 40 which clearly revealed cal. checks at 50 or 40 mg/100mls well outside of the +/- 10% tolerance shown on their own inspection form. See Kupferschmidt anomalies Exhibit 14. See also “no requirement with respect to the ATC …” Transcript October 27, 2016, Mr. Palmentier in-chief, page 100, line 25.
 Exhibit 22, Pages 4-5.
 Exhibit 31, OIML R 126, Tab 6 and Tab 7
 Exhibit 30, National Research Council of Canada, Recommended Practices
 Exhibit 11 and Exhibit 35 both of which contain Best Practices for periodic inspection in accordance with manufacturer’s specifications
 Exhibit 46
 Exhibit 7, Tab 3
 Page 101 last paragraph
 Page 102, 2nd last paragraph
 Page 102, 2nd last paragraph
 Page 102, last paragraph
 Exhibit 22
 Exhibit 8, Hodgson, evidence June 12, 2007
 Transcript October 3, 2016, Page 12 line 27
 Exhibit 3, Bartels affidavit, tab 3, pages 2 and 4. It is respectfully submitted that commentary by the Crown expert, Mr. Palmentier as to which officer did what and when, in this regard, is speculative until we hear at trial from the actual officers involved. The 8000C Training Aid Procedure for physically changing the solution and “Configuring the Standard” contemplates this activity being done by one qualified technician, Exhibit 20, pages 83 to 93 of 238. Unfortunately York Regional Police does not comply (Exhibit 7, Tab 3, page 4, paragraph 4) with CFS recommended use of a paper alcohol standard log pages 84 and Appendix “E” of the 8000C Training Aid.
 Exhibit 14, during cross-examination on February 23, 2017, Mr. Palmentier had no possible explanation for the non-existence of this data in COBRA other than it might have been redacted.
 Exhibit 14
 Exhibit 26 “Analytical Theory”
 See Exhibit 18 VIM 2.39
 Ibid. VIM 5.6
 Ibid. VIM 5.12
 See “Calibration Procedure for the Intoxilyzer 8000” in Exhibit 26.
 Transcript January 27, 2017 at page 80 and page 83, Cross-examination of Mr. Palmentier
 Mr. Palmentier during cross-examination on February 23, 2017 was unable to identify any empirical study that would back up such a hypothesis. There is no such empirical study identified in Wigmore on Alcohol. The CFS does not do “sampling” of aging approved instruments to test such a hypothesis.
 Transcript October 3, 2016 at Pages 14, 15, 23, 24, 25, 41, 50, 51, 71, 72, 90, 100