On July 1, 2008, Bill C-2 amended
subsection 258(1)(c) of the Criminal
Code of Canada. The amendments
set out in clause 24(4) limits the use
of “evidence to the contrary” to
evidence tending to show:
• that the breath
testing equipment was malfunctioning
or was operated improperly;
• that the
malfunction or improper operation
resulted in the determination that the
concentration of alcohol in the
accused’s blood exceeded 80 mg of
alcohol in 100 ml of blood; and
• that the
concentration of alcohol in the
accused’s blood would not have
exceeded 80 milligrams of alcohol in
100 milliliters of blood at the time
when the offence was alleged to have
been committed.
Are breath testing instruments
infallible?
The foregoing amendment has
essentially elevated the status of
approved breath testing equipment from
being “reliable instruments” to
“infallible instruments”. The
former has certainly been established
in the scientific literature, however
the latter has not!
The Bill C-2 amendments to the
Criminal Code of Canada now require an
accused to prove that the breath
testing instrument was not working
properly and that the discrepancy
could be accounted for by the
deficiency noted. In order to
determine whether there are some
recognizable scientific issues in the
process of breath testing, it is
essential that additional information
is provided with respect to the
testing of a subject on the night of
his/her arrest.
The breath testing program as it functions in Canada must be
considered to be a system or
a process. It
consists of an instrument,
an operator, a standard
alcohol solution
used in conjunction with a simulator,
and a subject.
In addition, the system employed is
subject to training
considerations and quality
assurance procedures
established and mandated by the
Alcohol Test Committee (ATC) of the
Canadian Society of Forensic Science
(CSFS). The ATC is the principle
scientific advisor to the Federal
Department of Justice in matters
related to scientific practice and how
it associates with blood and breath
alcohol testing.
Is a printout sufficient to know
that an instrument is working
properly?
When scrutinizing the precision,
accuracy, reliability and specificity
ascribed to a given set of breath test
results, it is not only the instrument
that should be the focus. It
must be the process! The simple
production of a printout for a given
subject test is not
wholly determinative of the accuracy
or precision associated with a given
instrument, since there are several
contemporaneous and historical
operational factors to consider in the
process of any evaluation.
Likewise, a single diagnostic test in
combination with a calibration check
and a self test will not cover all
operational considerations. If the
printout and the combination testing
noted above had been intended to be
wholly determinative, the need for
operational records would not have
been mandated by the ATC.
Are there any other factors that
need to be considered?
A realistic assessment of any given
set of breath test results must
therefore give consideration to all of
the component parts described above,
some of which is captured on a video
and audio recording,
plus the long term
performance of the
instrument through inspection of calibration
and service
logs, as well as any
downloaded data
(downloaded to a central computer)
that may have been gathered for a
given instrument both before and after
the breath test results in question.
The timely collection of downloaded
data is of great
importance since most modern
instruments are capable of retaining
information for up to hundreds, if not
thousands, of subject tests,
calibration checks, diagnostic checks
and operational errors. The only
way of capturing all the foregoing
data is to download the stored
information at fixed intervals to a
remote computer running the necessary
software. The section within the
memory regarding operational errors is
extremely critical to any breath test
evaluation. Police departments that do
not have the necessary software can
have the internal data downloaded by
modem via the telephone lines
Is there uniformity within the
province, or across Canada, as to how
things are done by the police?
As result of many disclosure motions
and much trial evidence since July 1,
2008, it is obvious that there are
few, if any, controls placed upon
police departments by the scientific
authority as to the scientific process
that must be followed and the type of
data/logs to be kept for future
reference. When pressed, the
scientific authority indicates that
their requirements are simply
recommendations. This approach
allows police forces to operate their
breath testing programs in their own
unique ways with very little
scientific oversight. The records
gathered and reported by various
police departments are certainly not
comparable one police department to
the next.
Is testing information and quality
assurance data readily available?
Initially, after the 2008 legislation
was proclaimed, most jurisdictions in
Ontario rejected requests for further
information as being irrelevant to the
matter at hand. In fact, many offices
provided notices that the following
items were irrelevant and would not be
disclosed unless there is an anomaly
identified in the Test Record Card or
unless there are other exceptional
circumstances identified by Defence
Counsel. Specific items were
identified as not being relevant
including: calibration logs for both
the roadside screening device and
approved instruments used to test
subjects at the police station;
maintenance logs for both the roadside
screening device and the approved
instrument; and police/Centre of
Forensic Science( CFS) Training
manuals or materials. The
authorities also argued strenuously
that historical records (quality
control and quality assurance records)
were also not relevant to the testing
of a given subject. In Ontario
there have been many decisions which
support the premise that such
disclosure is not relevant; however
there have been many others that
suggest it is relevant.
Is this approach constitutional?
Part of the litigation process that
has thus far developed, is an inquiry
into the constitutionality of the new
legislation. It is argued that it
should not be up to the accused to
show that he/she is “Under 80”, but
that the state must prove beyond
reasonable doubt that he/she was over
80, putting the onus of proof on the
state rather than on the accused. This
issue is before the Supreme Court of
Canada (SCC) in the matter of R. v
Anic St-Onge Lamoureux. Although
this issue was argued on October 13,
2011, a decision should be forthcoming
soon. Their decision will determine
what happens as we go forward.
Will the Supreme Court’s ruling be
the last word on what happens in the
future?
Likely not! There are three
issues that need to be resolved.
The first is the issue of Bill C-2 and
constitutionality.
Depending upon how that decision is
formulated and force with which it is
given (unanimous versus a split
decision) certain factors may be
resolved, but others may not.
Second, although the issue of
disclosure was not the prime thrust of
this case, it was clear that certain
Supreme Court Justices were unhappy
about the lack of uniformity regarding
disclosure and that it was not always
provided to the same extent in every
case. If the Supreme Court Justices do
not deal with this matter in their
decision, it is certain that there
will be many more years of disclosure
debate before it is ultimately
resolved by them. If the SCC provides
some disclosure guidelines then the
matter may be resolved. If not,
another case will need to be litigated
on this issue, beginning with the
lower courts, again ultimately coming
before the SCC at some time in the
distant future. The third and
final issue is far more insidious,
that is, equal access to equipment and
ultimately the stated science, by
defence and crown counsel.
Is there fair and equal access to
the scientific equipment used by the
police?
No there is not! Regarding the
latest generation of breath testing
equipment, certain manufacturers will
not allow independent scientists in
private practice to acquire federally
approved instruments used by police
departments or government forensic
laboratories. A case in point involves
the use of the Intoxilyzer ® 8000C
as approved for use in the Ontario,
Canada. The manufacturer of this
instrument is CMI Inc. based in
Owensboro, Kentucky. This particular
company will not respond to any
requests to purchase equipment from
those experts in private practice who
are not associated with the
prosecution. In addition, they have
not, to date, allowed any factory
training for independent specialists.
This is in spite of the ATC
requirements that instruments approved
for use are to be “commercially
available”. By restricting access in
this way, the private scientist can
not conduct independent testing of
their products to see if they comply
with the appropriate standards for
breath testing or assess instrumental
features that have not, to date, been
part of ATC evaluations. Manufacturers
may overstate the effectiveness of
these features, especially when it is
known that such features are not part
of an overall evaluation
process. The ATC conducts
a “black box” evaluation, whereas
evaluation of the features and many
other functions within the software
would require a form of white box
testing.
What are the differences between
“black-box”, “white-box” and
“gray-box” tests?
A “black-box” evaluation would be one
where the functionality of an
instrument is investigated. Generally
the tester is only aware of what the
instrument is supposed to do, but not
how it is being done.
A “white-box” evaluation tests the
internal structures or workings of an
instrument. It would include an
understanding of internal software
functions and how it takes an input
and ultimately produces the final
result.
A “gray-box” evaluation would be a
combination of white-box and black-box
testing. The aim of this testing
would be to uncover defects, if any,
due to improper structure or improper
usage of applications.
Why is the access to such
instrumentation by independent experts
so important?
The main reason for equal and fair
access relates to having full peer
review of a given process or
technique. The ‘peers’ doing the
reviewing should not be restricted to
only those who propose the process or
instrumentation but also those who
might differ in their approach to the
science of breath testing. Without
this legitimate quasi-adversarial
approach to scientific procedure,
programs can develop into
results-oriented science. This is not
in the best interests of the judicial
system. There are differences of
opinion among scientists on many
issues. Breath testing is no
exception. It is this creative tension
that often leads to a clear
understanding of the scientific issues
involved and what limitations there
might be to the
technology.
What is the purpose of an expert?
The expert is expected to give clear
and unbiased evidence with respect to
issues of interest to a court. A
key task embedded within the
scientific method is to conduct a
review of a particular analysis and to
identify as many sources of error as
possible, review the attempts made to
control or eliminate as many sources
of error as possible, and to estimate
the magnitude of remaining errors, so
that final conclusions are valid and
have a certain level of confidence
attached to them.
Why are performance standards so
important?
Standards provide the foundation
against which performance,
reliability, and validity can be
assessed. Adherence to standards
reduces bias, improves consistency,
and enhances the validity and
reliability of results. This is
where full peer review becomes very
critical, and is especially important
where manufacturers make claims that
are not fully tested by those who use
the technology. Since manufacturers
are not required by evaluators and
those who approve the use of such
instruments to demonstrate their
compliance with ISO standards or any
other form standardization such as
FMEA (Failure Mode and Effects
Analysis), equal access to all experts
becomes even more important. Everyone
who has a role to play in the breath
testing program should have access to
all the equipment used in the process
of gathering evidence against an
accused person.
What are Standard Reference
Materials?
Standard Reference Materials (SRMs)
and the process of "traceability"
determine the accuracy, precision,
specificity and reliability associated
with a given analysis, a breath
analysis.
SRMs are used to help develop accurate
methods of analysis, calibrate
measurement systems used to institute
quality control, determine performance
characteristics, or measure a property
at the state-of-the-art limit, and to
ensure the long-term adequacy and
integrity of measurement quality
assurance programs. Without
controlled access to the equipment in
question, some factors may not be
investigated or fully
categorized.
What is traceability and why is it
important?
Traceability defines the purpose,
protocols and measurement pathways
which support the claims that are
attributed to a traceable reference
material, making a connection with
them to specific standards or stated
references. Traceability is a property
of a measurement result whereby the
result can be related to a reference
through a documented unbroken chain of
recognized and peer-reviewed analyses,
each contributing to the measurement
uncertainty of the final result.
Without access to the equipment in
question one side of the scientific
breath testing equation can never
fully investigate claims reported in
the scientific literature or
statements made by Crown experts on
specific areas of instrumental
performance.
A scientific review of the
traceability, performance, and
reliability of an evidentiary breath
testing instrument cannot be waived by
evidence of the analysis of duplicate
breath tests since both tests may be
compromised by the same error or by
different errors. Two data points
within 20 mg/100 ml truncated are
better than one but they do not
preclude error. Likewise,
traceability, performance and
reliability can not be assessed on the
basis of a single printout.
Falsifiability and testability are the
hallmarks of science. A contention
(e.g. that a kind of approved
instrument is reliable within 10
mg/100 ml) is scientific if it is open
to being empirically tested and
falsified. Although such a contention
can be empirically tested and
falsified using, for example an
Intoxilyzer 5000C, it cannot be
empirically tested and falsified by a
scientist in private practice using an
Intoxilyzer 8000C, if one can not be
purchased.
If the breath testing program within
our respective communities is to
appear to be fair and legitimate,
governments, Crown Attorneys,
evaluators and police departments need
to ensure fair and equal access to the
technology being relied upon.
Without such transparency there is a
very real probability that the system
will slide into a program of
results-oriented science. This would
not be in the interest of anyone,
least of all the Judiciary.
What is the last word?
Referring to the Justice Goudge
report ( Inquiry into Pediatric
Forensic Pathology in Ontario;
Honourable Stephen T. Goudge
Commissioner), he indicates there must
be “best practice” guidelines against
which performance, case by case, can
be measured. Without them, there is
nothing to measure performance on an
objective basis. He warned that
we must guard against confirmation
bias and that work must be
independently reviewable and
transparent. He noted that this
requires care in recording and
preserving the information received,
the steps taken and the materials
preserved. Finally he opined
that such transparency is necessary to
ensure that opinions can be properly
reviewed and confirmed or
challenged. Not being able to
buy the equipment used by the police
and acquire the necessary historical
records to establish that quality
assurance principles have been
followed, seriously curtails the very
transparency discussed by Justice
Goudge in his report.
