Updated: Aug 16
To obtain admissions as to the differences in inspections, in inspection standard operating procedures, and completeness of an independent inspection v. an in-house annual or in-house periodic inspection by the local police service.
To establish that these inspections are inadequate unless accompanied by complete documentation - that needs to be produced on the O'Connor application.
Note the differences between two provinces: Unlike Alberta, Ontario does not have metrological supervision of the individuals perfoming maintenance and many police services now perform their own maintence/repairs/calibration. The facts in Gubbins and Vallentgoed are very different from those in current Ontario cases.
R. v. Gubbins, 2014 ABPC 195
The evidence tendered by the Crown is as follows.
Cpl. Palfy is a member of the Grande Prairie RCMP detachment and is a qualified technician on the Intox EC/IR II, the type of instrument employed in testing the accused. ... He testified that all service, maintenance and modifications for the Intox EC/IR II are contracted to a third party (Davtech).
Blake testified that in her role as Program Director for the breath testing program in Alberta, she is responsible for monitoring persons in Alberta who conduct maintenance repairs on approved instruments.
R. v Vallentgoed, 2016 ABCA 358
The standard disclosure package in the Vallentgoed prosecution included:
(g) Certificate of Annual Maintenance. This is a certificate from the contractor who is retained to maintain the instruments, certifying that the instrument was tested on January 22, 2013 (4 months before the respondent Vallentgoed’s tests), and that it is “in proper working order and continues to meet the manufacturer’s specifications”.
(h) Certificate of Annual Maintenance for the standard alcohol solution breath simulator. This is a similar certificate for the instrument that tests the standard alcohol solution.
Sample cross-examination of Crown expert on independence of service centre conducting initial inspections, periodic maintenance/calibration/verification, and re-calibration after repair v. in-house periodic inspections by a local police employee:
Q. Help me with the practice – historically – my understanding is that with Intoxilyzer 5000Cs the practice in Ontario was when the inspections were being done annually or periodically, they were sent out to the manufacturer’s Canadian authorized service centre. A. Yes. Q. That would be.... A. I don’t remember the name of that organization. Q. One of them historically was Mega Tech in... A. Yes. Q. ...Alberta. And then subsequently it was DAV Tech near Ottawa. A. Yes. Or the police service who had somebody who was trained to do it, such as Toronto. Q. And Toronto... A. Toronto Police Service. Q. ...it was done differently. It was done by, perhaps Constable Jeff Patrick from Toronto Police Service. A. Yes. Q. But for the most part in Ontario, our instruments were going out to an independent inspector,
nothing done in-house within the police service. A. That would be my understanding, yes. Q. With the Intoxilyzer 8000C though, it seems, at least from the evidence that we’ve got in this case, from Exhibit Number – I think it’s 12 we’ve been looking at there? A. This one here? Yes. Q. Ah, yes. From Exhibit 12 it looks like the instrument starts out by being inspected by an entity called Thomas Electric. A. Yes.
Q. Which would appear to be something independent of the police. A. Some place in Quebec, yes. Q. But then after that, the inspections are being done in-house. A. Yes. Q. And when the inspections are being done in-house the values that are being used to check the tolerances for linearity go from 3 percent to 10 percent. A. That's correct.
Q. So, I suggest to you that – and I know this has nothing to do with the Centre of Forensic Sciences, it’s not the fault of the Centre of Forensic Sciences but it appears that we have a deterioration in the methodology of assessment of accuracy and precision of the instruments that are out in the field in Ontario. Maybe I’ll just ask a further question... A. Yeah, please. Q. ...to help you clarify it, to make it safer for you to answer, but the issue – big issue, is these inspections are not being done in laboratory conditions the
way that they used to be done when the – when the – when the inspections were being done by Mega Tech or DAV Tech. A. Yes. And when you said that the C-F-S is not necessarily to blame, I believe I said earlier, that this – I believe that this form was produced by a member of the Centre of Forensic Sciences along with the O.P.P. program coordinator, to develop this as a – sort of a guide for police services, for checking their instruments on an annual basis and they just add their own letterhead at the top and call it whatever they like. So, [the local] Police, Intoxilyzer 8000C, periodic inspection worksheet, and use this as a guide for their program, their quality assurance program. Again, we don’t tell them what to do, but this is a guideline just like I mentioned – I think – the alcohol standard log, where here’s an example of a log that you could use that had the C-F-S logo on it. Q. Yes. A. And police were given an electronic copy of the form and they could modify it and put their logo on it, and change or add columns, you know, delete columns. So, we are somewhat responsible, but again, this is – the plus or minus 10 percent is based on the performance characteristics for the alcohol standard solution during breath testing, and that’s why that’s plus or minus 10 percent. Q. Even though it’s being used at the inspection stage? A. Yes, that’s correct.
[Original local police inspection form and subsequent form:]
Q. Now, the other – the other strange thing, that I think we noted this morning, or perhaps it wasn’t obvious, was you seem to be surprised that when [the local] Police now is doing its accuracy and precision testing they’re not doing groups of 10 tests. They’re doing groups of two
tests. A. That's correct. Um, I – when we started going through this book with the data in it... Q. Yes. A. ...um, when we were looking through it, I noticed that there was only two calibration check results, or two I-T-P results, and I found that unusual. That’s why I asked the question about whether or not the data had been redacted, because I was expecting to see 10 values. Q. Yes. A. And I think – or I believe what we’ve realized here is that – or what I’ve just realized, actually, is that starting in June 2011 when [the local] Police took over the maintenance of their instruments they were doing the standard – yeah, conducting the breath tests and they were doing standards at 50, 100 and 300 as well as they were doing the wet bath simulator testing and I-T-P testing – this is page 11 of Exhibit 12. Q. Yes.
A. And they were doing 10 at that point of both of those. Q. Yes. A. Then in the next inspection, on June 20th, 2012 they were doing exactly the same thing. And it was 10 values. Yes, the form clearly says 10. And then in 2013 September 11th, they’re doing the same thing again, where it’s 2 – sorry – 1 – sorry, 10 I-T-Ps and 10 calibration checks. And then in 2014, sorry, again, 10 calibration checks and 10 internal test procedures. Q. Yes. A. And then in 2015 it starts to change to 2. The form has changed from 2 pages to 1 page, which is where we
saw that data that I was confused about. Q. Yes. A. So, it appears that what they were doing was an annual inspection on those ones that I just mentioned. Now it appears that they’ve changed to go to monthly inspections. Q. Yes. A. And changed the parameters, so therefore, I would assume that there might be another annual inspection after this one that would probably be more reflective of the ones that were done previously, such as the ones in 2011, ’12, ’13 and ’14, that these are just something that’s been instituted since March of 2015 as a – kind of like Toronto Police Service. Toronto Police Service does weekly inspections. Q. Yes. A. This is probably the same thing on a monthly basis. Q. Right, well.... A. So, this is a different kind of inspection than an annual inspection. It’s not as intense, if you will, not as vigorous as say, an annual inspection. Q. But of course we don’t know that for sure unless we see all the documentation. A. Which documentation... Q. Well not unless we.... A. ...are you referring to? Q. Unless we’ve got a complete set of documentation and the documentation that we’ve got, for example, for 2015 is missing the data printouts that go with that inspection. A. Well, I don’t determine what is provided by
[the local] Police with respect to disclosure. Q. Yes. A. So, this is all I was provided, which I think is exactly what you were given. Q. Yes. A. And if that was the policy of [the local] Police that this is what you get at that moment in time, I can’t speak to that.
Note: See ISO 172020 with respect to independence of maintenance/inspection/calibration.