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  • Stephen Biss

Toxicology Letter of Opinion Without Accreditation


Purpose:

To establish that the Crown expert opinion is based upon an analysis done by an entity other than the expert or his/her lab

To establish that such a practice is not authorized by the accreditation given to his/her lab

To establish that the expert's lab accreditation includes toxicology but not breath testing

To establish that letters of opinion respecting evidentiary breath testing from the expert's lab no longer carry an accreditation seal

To establish that police services in the United States, including Los Angeles, Dallas, Orange County, Ventura County, and Richmond have accreditation related to evidentiary breath testing

Q. So in other words, if I can be more specific, the opinion that you’ve given, the Toxicology Letter of Opinion that you’ve given is based on an analysis that is done by somebody other than you? A. Yes. Q. By a police service that is other than your employee – employer? A. That’s correct. Q. Now, as I understand it, the Centre of Forensic Sciences in Toronto is accredited by an entity called The American Society of Crime Laboratory Directors [indiscernible]. Is that right? A. Yes, that’s correct. Q. And if I could just show you the document that I believe to be – if I might approach the witness, Your Honour... THE COURT: Yes.

MR. BISS: Q. ...The document that details the scope of that accreditation, am I right in saying that it includes toxicology? A. Yes. Q. But it does not include breath testing? A. That’s correct. Q. And that’s because the Centre of Forensic Sciences does not do breath testing, except I gather, for experimental purposes? A. That’s correct. Yes and further, there is no

accreditation for breath testing currently by the ASCLD Lab or there’s another body, which ASCLD has joined. Q. I thought that there was accreditation for breath testing but just that no Ontario Police services have obtained it yet. A. No, there’s accreditation for laboratories that produce alcohol standards or any other compounds that would be used in breath testing. So since the – for many years we have not provided the alcohol standard, there’s no need for us to obtain that accreditation.

Q. But my point is that the Centre of Forensic Sciences does not have accreditation in respect of breath testing, but it does have accreditation in relationship to toxicology... A. Yes. Q. ...Right? Now, in your report, page 2 of 2, I don’t see any signature down the bottom of page 2 of the 2. Am I right in saying that? A. That’s correct. Q. And not only that, but there’s no certification accreditation seal that’s been placed at the bottom of the report either. There’s no report from the American Society of Crime Laboratory Directors Laboratory Accreditation Board at the bottom of the report.

....

MR. BISS: Q. Now, the reason why I ask that, sir is that – and I’ve noticed that there is no such seal from the ASCLD Lab International Program at the bottom of page 2 of 2, right? A. Yes, that’s correct. Q. The last trial that I did ... with a

similar letter from a toxicological opinion from the Centre of Forensic Sciences contained such a certificate from the American Society of Crime Laboratory Directors Laboratory Accreditation Board. A. That’s correct. Q. And I understand that what happened in between these two reports is that there was a complaint made and the American Society of Crime Laboratory Directors Laboratory Accreditation Board asked the Centre of Forensic Centres to take their seal off their reports of letters of toxicological opinion in relationship to evidentiary breath testing? A. That’s correct. Q. And the reason for that is that the American Society of Crime Laboratory Directors Laboratory Accreditation Board was quite prepared to accept the accreditation of the Centre of Forensic Sciences in toxicology where the Centre of Forensic Sciences was doing it’s own analysis, for example with blood, urine or serum, right? A. That’s correct. Q. But they were not prepared to accept that the toxicological accreditation of the Centre of Forensic Sciences by the American Society of Crime Laboratory Directors Laboratory Accreditation Board would permit the CFS to do letters of opinion where the analysis was done by somebody else, specifically a breath analysis, right? A. That’s correct. Q. And I want to suggest to you that that’s important because your opinion, your legal – I’m sorry, your scientific opinion, your toxicological opinion that you’ve provided to the court is dependent upon information from somebody else? A. That’s correct, yes.

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