DUI Metrology Dictionary

Approved type

VIML 4.13 "definitive model or family of measuring
instruments permitted for legal use, the decision
being confirmed by the issuing of a type
approval certificate"

Other definitions from OIML V 1:2013 (E/F):

2.04
type (pattern) evaluation
conformity assessment procedure on one or more specimens of an identified type (pattern) of measuring instruments which results in an evaluation report and / or an evaluation certificate
Note “Pattern” is used in legal metrology with the same meaning as “type”; in the entries below, only “type” is used.

2.05
type approval
decision of legal relevance, based on the review of the type evaluation report, that the type of a measuring instrument complies with the relevant statutory requirements and results in the issuance of the type approval certificate
Note See also A.25

2.06
type approval with limited effect
approval of a type of measuring instrument that is linked with one or more specific restrictions
Note Restrictions may pertain to, for instance
• the period of validity,
• the number of instruments covered by the
approval,
• the obligation to notify the competent
authorities of the place of installation of each
instrument,
• the use of the instrument.

Earlier Criminal Code:

R. v. Bebbington (Ont. C.A.), [1988] O.J. No. 1085:

"Section 238(1) defines "approved instrument" as "an instrument of of a kind that is designed to receive and make an analysis of a sample of the breath of a person in order to measure the concentration of alcohol in the blood of that person and is approved as suitable for the purposes of section 241 by order of the Attorney General of Canada" [emphasis added]."

(of a kind is underlined in the judgment)
...

"It is critical that the wording of s. 238(1) of the Code "that ... is approved as suitable" refers not to the word "instruments but, in accord with grammatical context, to the word "kind". In Reference Re Sections 222, 224 and 224A of the Criminal Code (1971), 3 C.C.C. (2d) 243 (N.B.C.A.) Limerick J.A., delivering the judgment of the court, said at pp. 257-58:
The wording "that is approved as suitable" refers not to the word "instrument" but in accord with grammatical context refers to the word "kind". It is the kind or general type of instrument not the individual instrument which the Attorney-General of Canada approves. Minor alterations in structure, made to improve efficiency or to correct faults, do not alter the kind or nature of the instrument as approved and do not change the character so as to remove it from the class of approved instruments.

I agree with the above"

End of quote


Section 320.11 of the Criminal Code defines "approved instrument":

"approved instrument means an instrument that is designed to receive and make an analysis of a sample of a person’s breath to determine their blood alcohol concentration and that is approved by the Attorney General of Canada under paragraph 320.39(c). (éthylomètre approuvé)"

Problematic language in Bill C-46:
"means an instrument" (is it really an instrument? what is an insrtrument? does "instrument" imply that it is capable of "measurement"? what is the scientific definition of "measurement"?)
"that is designed to receive and make" (wider than kind or general type?)
"an analysis of a sample of a person’s breath to determine their blood alcohol concentration" implies capable of a "quantitative analysis" (see Motherisk Inquiry Report definition)

The international literature, including VIML and OIML R 126, uses clear language that defines the instrumental steps necessary to good legal metrology including:

metrological authority
type (pattern) evaluation
evaluation certificate
type approval
approved type
type approval certificate
specific software designation in the aproval
verification of an individual measuring instrument
including initial verification
including verification after repair
including mandatory periodic verification
including verification certificate

Defence lawyers should be aware of each of the above terms, have their meanings and references at their fingertips, and use this terminology in cross-examinations of scientists called by the Crown.

Canada's Criminal Code legislation and the common law have left huge gaps in Canadian evidentiary breath testing law as it relates to approved "type", "kind", and "designed". Instruments in-the-field don't necessarily match the hardware, software, calibration, and manufacturer's specifications of the prototype instruments originally submitted for evaluation. No Canadian metrological authority (e.g. Measurement Canada) conducts "verification" of an individual evidentiary breath testing measuring instrument. The result is a lack of clarity and fairness for the pesons to whom approved instrument demands are made. This unfairness may result in Charter litigation. Canada's Parliament should enact legislation that is consistent with the intenational literature and its own Weights and Measures Act.