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Attempt to Distinguish R. v. Jackson

Updated: Oct 10, 2022

Purpose of this Argument:

To distinguish R. v. Jackson on the basis of a differences in facts.

Distinguishing the Jackson[92] Decision

As noted in the Notice of Application Form 1[93], the Applicant takes the position that the R. v. Jackson decision can be distinguished because of major differences in facts. The Applicant also takes the position that the expert opinion and evidentiary record in this case is very different from that in Jackson.

At paragraph 35 Justice Watt wrote:

[35] Where the disclosure dispute concerns production of materials in the possession or control of a third party, O’Connor requires service of the application and supporting materials on the Crown, (where applicable) the person who is the subject of the records, the third party record-holder and anyone else statutorily entitled to notice. A subpoena duces tecum must be served on the record-holder: O’Connor, at paras. 135-36. The purpose of service on the record-holder is to provide the record-holder with notice and the opportunity to be heard.

It is respectfully submitted that the Applicant in this matter has properly served the O’Connor application Form 1 and supporting materials on the Crown and the third party record-holder. A subpoena duces tecum was properly served on the record-holder.

It is respectfully submitted that in Jackson there was confusion in the Application as to whether the relief sought was under Stinchcombe or O’Connor. In the matter before the Court there is a clear O’Connor Application:

[41] First, the original application was styled “O’Connor/Stinchcombe Application” revealing some uncertainty on the part of the respondent about whether the records sought were subject to the first party disclosure regime of Stinchcombe or the third party scheme of O’Connor.

It is respectfully submitted that the Disclosure Package in Jackson was quite different from the matter before the Court in that Ottawa Police Service maintained an Alcohol Standard Log[94] and disclosed that log as part of its standard Disclosure Package. The material before the Court in Jackson included an affidavit[95] by Sgt. Kiss. Paragraph 42 of that affidavit described the log:

42. Upon changing the Alcohol Standard Solution, the Qualified Technician performing the procedure is required to conduct a Calibration Check, independent of any subject breath test. The Qualified Technician must record the solution change and subsequent Calibration Check in a log. The resulting Alcohol Standard Solution change and calibration log is also part of the Qualified Technician's disclosure obligations when a prosecution is commenced against a test subject.

The evidence in the matter before this Court is that [the local] Police do not maintain such a log. That is particularly a concern in the matter before the Court because there is an issue related to alteration of the Intoxilyzer Test Record as to time of changing and officer who changed the alcohol standard.

It is respectfully submitted that in Jackson the standard disclosure package included a breath room video. Sgt. Kiss stated in his affidavit[96]:

46. In criminal proceedings arising from a subject breath test, a Qualified Technician is required to disclose the following documents…

f) A video of the subject breath test.

No such breath room video or audio is available in the matter before the Court. A breath room video is of assistance in sorting out issues related to the identities of and whether or not the solution change officer or the subject test qualified technician followed standard operating procedures.

In the Jackson decision itself, Justice Watt noted the disclosure included:

[133] Prior to trial, the respondent received the disclosure package typically provided to those charged in similar circumstances. A videotape of the respondent providing breath samples.

It is respectfully submitted that in Jackson, there was nothing unusual on the face of the disclosure. There was no indication of any error by the technician. There was no error on the printouts. The instrument was new. The instrument was not due for its next inspection. No annual inspection or maintenance records existed. Justice Watt stated:

[135] First, nothing on the face of the typical disclosure package provided to the respondent indicated any problem with the Intoxilyzer 8000C approved instrument or any error by the technician in its operation. No error in the test print outs. A new instrument, not due for its first annual inspection. No annual inspection or maintenance records. In short, nothing to imbue the claim of instrument malfunction or operator error with an air of reality. A fishing expedition. Season closed.

It is submitted that the Court of Appeal in Jackson had a record that included an affidavit of Sgt. Kiss of Ottawa Police Service. The affidavit[97]noted that the instrument was new in 2010 and “still under certification from the manufacturer at the time of the Applicant’s tests in 2011.

The Kiss affidavit also contained a paragraph stating:

50. Instrument inspections are conducted annually. The inspection report is approximately two pages in length, with approximately fifteen additional pages of associated printouts generated by the instrument during the inspection process.

In the matter before the Court, the additional pages of associated printouts are missing from the three periodic inspections of 2015.

It is respectfully submitted that in the matter before the Court the facts were quite different at the time of the subject tests:

  1. The Intoxilyzer Test Records for both the subject tests and the stand-alone calibration check received alterations

  2. The notes of the qualified technician[98] revealed a lack of clarity as to which technician(s) actually changed the solution and ran the Configuring the Alcohol Standard program

  3. The instrument was not a new instrument. The subject tests for my client were May 2015 and the factory calibration certificate is dated 2009.

  4. The instrument had undergone a number of periodic inspections, some of which revealed:

  5. Linearity checks outside of specs.

  6. Failure to take action to rectify such deficiency

  7. COBRA data revealed a history of anomalies

  8. The instrument was taken out of service:

  9. Several days after the subject tests

  10. With no intervening test subject

  11. For re-calibration by the manufacturer

  12. Because of consistently low cal. checks

  13. But no cal. checks immediately prior to taking the instrument out of service were any more unacceptable than those preceding the subject tests

  14. Paper test record printouts are missing from some of the periodic inspections

  15. COBRA data is non-existent for one of the alleged periodic inspections on April 14, 2015.

  16. The 50 cal. checks prior to and including the subject tests may indicate a significant drift in the accuracy and precision compared with a new or properly maintained instrument operating in accordance with manufacturer’s specifications. Whether or not some of those 50 cal. check results are “trivial” will affect a calculation of accuracy and precision and the significance thereof.

  17. This instrument indicated a “General Diagnostic Fail”, one on February 14, 2015 and two on April 4, 2015, which may be any one of 9 different types of diagnostics fail including short term drift.[99]

It is respectfully submitted that in Jackson, the relevance of the items sought was not specified. The Court found that the expert evidence about potential relevance was speculative. Justice Watt also found that the unspecified relevance was contradicted by the report of the Alcohol Test Committee:

[136] Second, the expert evidence about potential relevance of the record sought failed to ascend above the speculative. In addition, the suggestion of unspecified relevance is contradicted by the report of the Alcohol Test Committee that belies the assistance of the records sought in determining whether the instrument functioned properly for a particular subject test.

In the matter before this Court we have evidence from Mr. P that the report of the Alcohol Test Committee is position[100] rather than scientific opinion. That position is not supported empirically or in the international literature. In the matter before the Court that position is contradicted by scientific opinion.[101]

In the matter before this Court we have the benefit of the Motherisk Inquiry Report on the relevance in forensic science of contemporaneous documents to assessment of the reliability of test results:

Both forensic and clinical laboratories routinely have standard operating procedures in place for each of the analytical tests they perform. In addition, forensic laboratories are required to maintain contemporaneous documents identifying what steps were taken in respect of a sample, who took them, when and why, as well as any decisions made that might be relevant to the result. This contemporaneous documentation is essential to permit meaningful review of the reliability of the test results.[102]

In the matter before this Court we have a great deal of evidence from Mr. Kupferschmidt of the importance of his review of the contemporaneous documentation that would have accompanied each of the anomalies that he has identified in order that he can provide a proper scientific opinion on whether a given anomaly is trivial or whether it connects with the real issue – scientific reliability of the measurement results on the day of the subject tests.

It is respectfully submitted that in the matter before the Court, it is the Crown expert that is speculating that each of the anomalies has a trivial explanation. There are many anomalies and many of them relate to calibration, including linearity. Many of the anomalies are consistent with each other.[103] The apparent error rate of the last 50 calibration checks, at 22%, is very high.

Justice Watt also stated that in Jackson the records sought had no relevance with the unfolding of the narrative:

[137] Third, the records sought have no relevance to the unfolding of the narrative of material events in this case. Historical data has nothing to say about what gave rise to this prosecution, nor about the credibility of any party involved in the making of demands or the operation of the instrument.

In the matter before the Court, the contemporaneous documentation sought respecting the low cal. checks relates directly to the Crown’s theory of “troubleshooting”. If the low cal. checks were not trivial then there is evidence that there has been a shift in the accuracy and precision of the instrument – reliability has been negatively affected – using the Hodgson definition.

In the matter before the Court, the documentation respecting the taking the instrument out of service, and the reasons therefor, as well as the notes of the factory that re-calibrated, are part of the narrative that will explain whether the reason for taking the instrument out of service was a problem, before and during the subject tests, or if the decision was the result of the periodic inspection of May 20, 2015.[104]

In the matter before the Court, the other documentation requested by Mr. Kupferschmidt in his affidavit relates specifically to anomalies in the narrative.

In Jackson the Crown and the police submitted (noted at paragraph 112 of Justice Watt’s decision) that: “… the Alcohol Test Committee of the Canadian Society for Forensic Science, which ensures that all breath-testing equipment in Canada meets rigid specifications”. The evidence however, in the matter before the Court, is, that although the Alcohol Test Committee evaluates new instruments leading to “type approval” by the Minister, the ATC and the CFS play no role whatsoever in ensuring that actual production instruments initially or periodically meet manufacturer’s or ATC specifications. Police instruments in Ontario are not subject to any metrological control, whatsoever, as they age, unless an individual police service decides to voluntarily comply with ATC “Best Practices”.

[92] 2015 ONCA 832 (CanLII), December 2, 2015

[93] Exhibit 5

[94] See Appendix “E” to the Intoxilyzer 8000C Training Aid 2013, Exhibit 20

[95] Exhibit 38 in this matter, Exhibit 31 in R. v. Ocampo

[96] Ibid.

[97] Exhibit 38

[98] Exhibit 3, Tab 2, page 7 of Alcohol Influence Report

[99] Evidence of Mr. Palmentier February 23, 2017

[100] Transcript January 27, 2017 page 132

[101] Please note the difference between scientific evidence and technical evidence at page 48 of “Science and the Scientific Method” by Scott Findlay and Nathalie Chalifour in Science Manual for Canadian Judges.

[102] Exhibit 22, Page 7

[103] Note for example that the “Out of Spec” Anomaly persisted through 2012 to 2014. Note that the instrument was taken out of service on May 20, 2015 for “consistently” low cal. checks.

[104] In the matter before the Court, there does not appear to be anything amiss in the periodic inspection of May 20, 2015, according to the Crown’s expert , during his cross-examination. According to the Crown’s expert, the COBRA data around that time also does not reveal anything unusual , and yet the instrument was taken out of service for consistently low cal. checks.

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