• Stephen Biss

Distinguishing Vallentgoed on my O'Connor Application

Excerpt from my written submissions:

Distinguishing the Vallentgoed[105] decision

It is respectfully submitted that the facts in Vallentgoed can be distinguished from the facts in the matter before the Court.

Justice Slatter in Vallentgoed noted the expert evidence called by the Crown. The defence did not call an expert:

[16] The Crown introduced expert evidence from Ms. Kerry Blake, a Forensic Alcohol Specialist in the Toxicology Service Program with the RCMP National Centre for Forensic Service Alberta. Her responsibilities include ensuring compliance with and oversight of the Alberta breath testing programs. Her evidence was uncontradicted.

It is respectfully submitted that in the matter before the Court there has been a great deal of expert evidence called by both the defence and the Crown.

Justice Slatter noted the unlikelihood that an instrument could pass diagnostics tests and calibration checks and still produce an unreliable result:

[15] It becomes obvious that the risk being addressed in these appeals is not the simple risk of the instrument malfunctioning. The risk is that the instrument will malfunction, but nevertheless continue to pass the built-in control tests and give a reading within the plausible range: R. v A.K., 2004 ABQB 875 at para. 9, 44 Alta LR (4th) 308, 373 AR 141. For example, the risk is that the instrument is malfunctioning, yet continues to provide an accurate reading when it tests the control alcohol sample. The risk is that the instrument will “fail”, but will not trigger any of the internal controls designed to shut down the instrument in such circumstances. This must be a highly unlikely scenario: Kon Construction Ltd. v Terranova Developments Ltd., 2015 ABCA 249 at para. 17, 20 Alta LR (6th) 85, 602 AR 327.

It is respectfully submitted that there is no empirical study in the scientific literature that supports the hypothesis that built-in tests guarantee reliability. There is no scientific literature that supports this hypothesis other than the 2012 Position Paper. The approach is a matter of policy, not science, and therefore is not adequate to support the section 1 analysis of Justice Deschamps in St-Onge. The 2012 Position Paper is not a consensus[106] document among members of the Canadian society of Forensic Science.

It is also respectfully submitted that this hypothesis does address the issue of traceability and linearity of a measurement result at values other than 100 mg/100mls. Traceability is addressed during a proper calibration or re-calibration, not during a control check. Linearity can only be addressed by re-calibration or inspection using multiple calibrators or reference standards at values throughout the measuring interval of the instrument. There does not appear to have been any evidence to that effect reviewed in Vallentgoed, but that evidence is central to the matter before the Court.

The case relied upon in Vallentgoed paragraph 15, by the Alberta Court of Appeal, Kon Construction Ltd. v Terranova Developments Ltd.[107], contains the following paragraph:

[17] Mechanically generated evidence is accepted by the courts because of various indicia of reliability. First of all, the equipment and software are designed by experts in accordance with scientific and engineering knowledge; at a theoretical level, they should produce accurate results. Secondly, the prototype equipment is tested against known samples to ensure that it does provide accurate results. Thirdly, the field equipment is mass-produced in accordance with the precise design and specifications of the prototype, and each piece is usually tested before it leaves the factory. Fourthly, those who use the equipment follow established standards for maintenance, calibration and operation. Fifthly, the equipment and the data are then used on a day-to-day basis, and are shown by experience to be reliable. Once this threshold of reliability is met, the party tendering the evidence does not have to re-prove the underlying technology in every case: R. v A.K., 2004 ABQB 875 (CanLII) at paras. 4, 10-12, 44 Alta LR (4th) 308, 373 AR 141.

It is respectfully submitted that in the matter before the Court it is not safe to assume that “those who use the equipment follow established standards for maintenance, calibration and operation.” It is also submitted that the Kon presumption above, should be rebuttable by evidence casting doubt on scientific reliability. It is only an inference. There will be cases where the party tendering the evidence will need to re-prove reliability in a manner outside of the presumption or inference.

It is respectfully submitted that section 4(1) of the Weights and Measures Act was not argued in Vallentgoed.

It is submitted that the most significant difference between the facts in Vallentgoed and the matter before the Court has to do with “calibration interval” and who it was that was providing the annual maintenance or inspection. In Vallentgoed, the facts included the following at paragraph 21:

[21] The standard disclosure package in the Vallentgoed prosecution included:

(g) Certificate of Annual Maintenance. This is a certificate from the contractor who is retained to maintain the instruments, certifying that the instrument was tested on January 22, 2013 (4 months before the respondent Vallentgoed’s tests), and that it is “in proper working order and continues to meet the manufacturer’s specifications”.

Unlike the matter before the Court, it is apparent that in Vallentgoed the annual maintenance was being performed by an independent “contractor” – probably the Canadian Authorized Service Centre at the time – “Davtech“ in Ottawa. In the matter before the Court the periodic inspections, with the exception of the thorough inspection of February 15, 2011, have been done in-house by York Regional Police.[108]

It is submitted that a careful review of the description of the maintenance performed on the Vallentgoed instrument reveals that the instrument was re-calibrated or noted as “continues to meet the manufacturer’s specifications” by the independent contractor on each of:

  1. October 14, 2011 paragraph 27 “the instrument was recalibrated”

  2. August 10, 2012 paragraph 28 “begin calibration procedure”

  3. August 13, 2012 paragraph 28 “found to perform within manufacturer’s specifications”

  4. January 22, 2013 paragraph 21(g) “continues to meet the manufacturer’s specifications”

  5. May 12, 2013 and May 21, 2013 paragraph 26 “requires adjustments to be made to channel voltages, internal” and “found to perform within manufacturers specifications”

It is submitted that the annual re-calibrations or inspections in Vallentgoed “within manufacturer’s specifications” effectively dealt with linearity issues. That is not the case in the matter before the Court. Having defined calibration intervals is consistent with the international scientific literature.

The chart in paragraph 21(g) shows that Mr. Vallentgoed’s subject tests were on May 11, 2013, one day prior to the instrument being sent out for service on May 12, 2013 – see paragraph 23 chart “May 16, 2013 Approved modification’s performed, Routine annual.” The Court at paragraphs 26 and 27 contrasted the May 12, 2013 “Repair” with the October 14, 2011 errors requiring repair:

While the type of service is shown as “Repair” on the maintenance log, the detail shows that “Routine annual” maintenance was performed. What is described as “repair” is at most the installation of “approved modifications”. Some of the parts were cleaned or replaced as indicated, and then the instrument was calibrated to meet the manufacturer’s specifications. There was no “repair” in reaction to any actual or perceived malfunction of the instrument.

[27] Some of the other maintenance records are true “repairs”. For example, the record for October 14, 2011 describes the services requested as: “When turned on; two error’s appear: Mem Error c*s, Printer Error”. The problem was diagnosed as “it’s ribbon cable blocking the printer head. The tape holding it down came off, replaced it - cleared the error.” At the same time, other routine maintenance was performed, and the instrument was recalibrated.[109]

In the matter before this Court, the instrument was taken out of service for re-calibration by the factory because of consistently low cal. checks. York Regional Police did not take the instrument out of service for routine maintenance or annual re-calibration.

[92] 2015 ONCA 832 (CanLII), December 2, 2015

[93] Exhibit 5

[94] See Appendix “E” to the Intoxilyzer 8000C Training Aid 2013, Exhibit 20

[95] Exhibit 38 in this matter, Exhibit 31 in R. v. Ocampo

[96] Ibid.

[97] Exhibit 38

[98] Exhibit 3, Tab 2, page 7 of Alcohol Influence Report

[99] Evidence of Mr. Palmentier February 23, 2017

[100] Transcript January 27, 2017 page 132

[101] Please note the difference between scientific evidence and technical evidence at page 48 of “Science and the Scientific Method” by Scott Findlay and Nathalie Chalifour in Science Manual for Canadian Judges.

[102] Exhibit 22, Page 7

[103] Note for example that the “Out of Spec” Anomaly persisted through 2012 to 2014. Note that the instrument was taken out of service on May 20, 2015 for “consistently” low cal. checks.

[104] In the matter before the Court, there does not appear to be anything amiss in the periodic inspection of May 20, 2015, according to the Crown’s expert , during his cross-examination. According to the Crown’s expert, the COBRA data around that time also does not reveal anything unusual , and yet the instrument was taken out of service for consistently low cal. checks.

[105] 2016 ABCA 358 (CanLII)

[106] Note Exhibit 17a and 17b discussion between Mr. Kupferschmidt and Dr. Yamashita, Editor. Note the comment by Dr. Yamashita at page 138: “the ATC has no mandate or authority to enforce the continuous control over individual breath programs proposed by Mr. Kupferschmidt.”

[107] 2015 ABCA 249 (CanLII)

[108] In the international literature, independence of Inspectors is a significant component of ISO 17020 Exhibit 53.

[109] R. v. Vallentgoed, paragraphs 26 and 27.

#argument #Vallentgoed

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