Purpose:
To show that the ATC recommendations for operational procedures at time of use do not account for the need during inspections to regularly conduct control tests at target values other than 100 mg/100mls.
To demonstrate that we have no metrological supervision to ensure that linearity is checked, that manufacturer's specifications are honoured across the measuring interval.
To demonstrate that searches of breath using"approved instruments" are unreasonable in Canada if there is no system in place to supervise and audit police maintenance of their instruments.
Sample of Cross-examination of CFS expert on lack of metrological supervision of police and authorized service centres respecting inspection of approved instruments to ensure that they continue to conform to manufacturer's specifications
Q. Yes. All right. Now if one looks at – and I’m sorry, I don’t think this page is in Mr. Kupferschmidt’s exhibit – affidavit. That’s Exhibit 2, but you showed me earlier a copy of your operating procedures, and I’m just going to show you – the fast way to do this, I think, operating procedures, Alcohol Test Committee are contained in Exhibit Number 2, Tab 3 but as I recall, it’s just an excerpt. So, I’m going to have to rely upon what you have in your own bundle and rather than making anything an exhibit, what I might do is just compare it with 2013 and then – which I do have a copy of. So just looking at operational procedures, I’m going to help the Court with something to look at in just a moment. Under approved instruments item number 3, page 4 in the current version it indicates, “The system calibration check shall be conducted” and it says, “within the range of 50 to 150 within milligrams per 100 mils, and shall give a reading 10 percent of the target value.” Have I got that right? A. Correct.
Q. And my – my question for you, is it doesn’t specifically say at 100 milligrams per 100 mils. It says, ‘within the range of 50 to 150 milligrams per 100 mils.’
A. It does, yes. Q. And so, that the Court’s got something to
look at in that respect, I have the same – what I think is the same thing in 2013. Same thing in 2013. I’m sorry, I just have to find the page. Page 12 where it indicates at paragraph 3, “A system calibration check shall be conducted within the range of 50 to 150 milligrams per 100 mils and shall give a reading within 10 percent of the target value of the alcohol standard.” A. Correct. Q. So, that hasn’t changed. The only thing that’s different in paragraph 3 is now there’s an additional wording there that says, “The alcohol standard shall be certified by a designated analyst.”
A. Correct, yes.
Q. All right. So....
MR. BISS: Should we mark that as an exhibit Your Honour? THE COURT: Yes.
MR. BISS: So that you’ve got it. Thank you.
THE COURT: This is the 2013 version of the Alcohol Test Committee recommended standards and procedures. EXHIBIT NUMBER 35: 2013 version of the Alcohol Test Committee recommended standards and procedures – produced and marked.
MR. BISS: Q. So, in other words, sir, accuracy checks don’t have to be at just 100 milligrams per 100 mils. Accuracy checks can take place at 50, at 75, at 100, at 130, 140, 150. A. That's correct.
MR. BISS: So I’m sorry Your Honour, what was that exhibit number?
THE COURT: Number 35, I think is it?
MADAM CLERK: Yes, it is, number 35.
THE COURT: Now you can mark this one if you wish.
A. And a calibration check is performed with every breath test at 100.
MR. BISS: Q. Yes. That’s the practice in Ontario, is to use 100 solution.
A. That's correct. And across Canada, as far as I’m aware. Q. Now, in terms of the range of expectations, in Quebec the expectation is 95 to 105 as opposed to 90 to 110. A. I can’t speak to that. I don’t know the exact values for Quebec. Q. Okay. And within Alberta, my understanding, and I’m getting – and – and just to indicate, I asked the question in relationship to Quebec based on my understanding of the facts in a case called R. v. St‐Onge Lamoureux, [2012] 3 SCR 187, 2012 SCC 57 (CanLII), in the Supreme Court of Canada. But with respect to Alberta, my information comes from a case called R v. Vallentgoed, 2015 ABCA 202 (CanLII) in the Alberta Court of Appeal, the range for purposes of the weekly inspections, or the weekly changes of solution, weekly or bi-weekly changes of solution, the expectation is 95 to 105 milligrams per 100 mils, but on a test by test basis it’s 90 to 110, the same as Ontario. Is that consistent with your information or do you know? A. I don’t know the values for Alberta or Quebec. Here in Ontario it’s 100 plus or minus 10 milligrams of alcohol in 100 millilitres of blood. There is a different parameter for approved screening devices for accuracy checks for those devices.
Q. Yes. A. Which has a tighter range of 95 to 105. Q. Yes. A. But given that this is an approved instrument that was used in this case, the range – acceptable range is 90 to 110 milligrams of alcohol in 100 millilitres of blood.
Q. So, that’s at time of testing, the practice in Ontario. A. Yes. Q. But with respect to inspections, periodic inspections, does the Centre of Forensic Sciences give any – give any guidance to the police whatsoever, as to what the expectation is during a periodic inspection or an annual inspection as to what that – that plus or minus value should be on an inspection? A. I’m not aware of any formal or written document that says that, but I do have an understanding that the inspection sheets that police services in Ontario they use is based on a document that was drafted by a of the Centre of Forensic Sciences and the O.P.P. for generating – for use in – by the services for annual inspections. And they could take it and modify it as wish. It’s kind of like the – the alcohol standard log. The Centre of Forensic Sciences produced an example in our training aid that police services could use for their purpose in their program if they chose to or not, or they could modify it. And I believe a similar document was done for the purposes of doing annual or monthly inspections. Q. Now there is no – you said that the Centre of Forensic Sciences does not audit the practices of individual police services. That’s not your role.
A. That's correct. Q. I want to suggest to you that there is no entity that audits the activities of police services in relationship to evidentiary breath testing.
A. That's correct. There are recommendations, but there’s no enforcement, sort of, body that looks at the police service to see whether or not they’re following the recommendations. Q. So, if there’s a recommendation in the best practices of the Alcohol Test Committee and now it’s a separate document as of, I think 2014.
A. Correct, sir. Q. If I understand correctly.
A. Could be less confusion.
Q. In best practices, if there’s a recommendation of the Alcohol Test Committee, a national standard if I can put it that way, of annual inspection or periodic inspection that – in relationship to manufacturer’s specifications, as a recommendation, there is no entity in Ontario to audit police practices in that respect. A. Correct. That’s my understanding. Q. It’s left to police services to just – on an honour system, to maintain their own standards? A. That is correct. We provide guidelines and it’s up to them to follow those guidelines. If there’s any deviations from those recommended guidelines, then of course, that would have to be assessed on a case by case basis, as to what that might – impact might have on the actual – or what that deviation might have on the impact on the test in question. Q. I see. But we have no formal process in
Ontario to audit what takes place at inspections or to – then there are no specific documents that require that certain things take place during inspections.
Commentary:
The international metrology literature speaks of the importance of "metrological supervision". See in particular OIML D1 2012. See in particular the following paragraphs:
2.5 What is legal metrology? Legal metrology is the practice and the process of applying regulatory structure and enforcement to metrology. It comprises all activities for which legal requirements are prescribed on measurement, units of measurement, measuring instruments or systems and methods of measurement, these activities being performed by or on behalf of governmental authorities, in order to ensure an appropriate level of confidence in measurement results in the national regulatory environment. Legal metrology makes use of all developments in metrology to obtain appropriate references and traceability, and may apply to any quantity addressed by metrology. Legal metrology applies not only to trading parties, but also to the protection of individuals and society as a whole (e.g. law enforcement, health and safety measurements). Public authorities must pay special attention to measurement results and will need to rely on these results, especially when there are conflicting interests in measurement results, thus necessitating the intervention of an impartial referee. Legal metrology is in particular necessary when forces on the market are not organized and/or competent enough or are unbalanced. Legal metrology generally includes provisions related to units of measurement, to measurement results (e.g. prepackages) and to measuring instruments and systems. These provisions cover the legal obligations related to the measurement results and the measuring instruments, as well as the legal control which is performed by or on behalf of the government.