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  • Stephen Biss

Bill C-46 Mandates Connection Between Alcohol Standard and Certificate of Analyst


Consider the following words in the new section 320.31 of the Criminal Code that replaces the presumptions of accuracy in the existing 258(1)(c):

a system calibration check the result of which is within 10% of the target value of an alcohol standard that is certified by an analyst;

This section underscores the importance of the relationship between the alcohol standard actually used and the alcohol standard that was certified by the analyst at the CFS. This raises several good issues for the defence:

1. Did the Crown prove the Certificate of the Analyst?

2. Identification of the bottle opened by the QT that changed the solution.

3. Continuity of the alcohol standard between the solution changing QT and the subject test QT.

4. How did the subject test QT know what was the clear liquid in the simulator if he or she didn't change it?

5. Do the identifications match? See R. v. Chung:

R. v. Chung

[2004] O.J. No. 5325

2004 ONCJ 347

64 W.C.B. (2d) 514

Ontario Court of Justice

Newmarket, Ontario

V.A. Lampkin J.

52 Moreover the Alcohol Standard Lot Number is shown on the certificate as: Alcohol Countermeasures Systems Lot #200207D. Bruce Walker's Report states that one of the current manufacturers of the alcohol standards used in Ontario is Alcohol Countermeasure Systems. No issue could be taken with respect to the letters at the end of the word 'Countermeasure' in the Certificate. But the Certificate of the Analyst J.G. Wigmore is to the effect that he examined Alcohol Countermeasure Systems Ethyl Standard Lot Number 200207D and found it to be suitable for use in the Intoxilyzer 5000C. But there is no evidence that Alcohol Countermeasures Systems Lot #200207D and Alcohol Countermeasure Systems Ethyl Alcohol Standard Lot Number 200207D is one and the same. There may be types of alcohol other than ethyl alcohol, for example, methyl alcohol and wood alcohol.

53 Accordingly the Certificate cannot be relied on by the Crown and the 'over 80' charge is dismissed.

#BillC46

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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.