Forcon: Forensic Consulting

Forensic Science





Historical Legal Issues

Current Issues




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Current Issues

1.    Legislative Issues

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.

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