Updated: Oct 10, 2022
To ultimately suggest that searches of breath are unreasonable and violate section 8 of the Charter, if police are using, for forensic purposes, "approved instruments" that are not capable of rendering reliable "quantitative analyses".
To apply the findings and conclusions of the Motherisk inquiry Report in Ontario to evidentiary breath testing in Canada.
To establish why it is essential that approved instruments, in fact, be capable of conducting "quantitative analyses".
Sample Cross-examination of a Crown expert on Criminal Code sections that contemplate a "quantitative analysis":
Q. Do you do quantitative analysis on drugs? A. Yes. In bodily fluids and tissues. Q. You also do analysis of alcohol in blood, serum and urine? A. Yes. Q. That’s a quantitative analysis? A. Correct. MR. BISS: Before we go any further, I think we need a glossary. The Crown already has a copy of this document and [the local] Police already have a copy of this document. Q. I want to look at, sir, this is a document – the Report of the Motherisk Hair Analysis, independent review by Justice Lang. A. Yes.
Q. And specifically, I want to refer now, just refer to the glossary at page xvii. In her glossary at page xix, she defines qualitative result and quantitative result. If you just read those two definitions of those terms? A. Yes. Q. And do you agree with those two definitions?
MR. BISS: Qualitative result and quantitative result. A. Yes.
Q. You – we can all see what those definitions are. You agree with those definitions? A. Yes. Q. So, a quantitative result, an example would be a result that is reported containing the actual concentration of the drug in a sample, indicating a degree of precision and accuracy. You’re comfortable with that definition? A. Yes. Q. So let’s go back to the Criminal Code for a moment. A measurement of concentration, and again, I’m looking at section 253(1)(b), a measurement of concentration
of 80 milligrams of alcohol in 100 millilitres of blood is a quantitative analysis not a qualitative analysis. A. Correct. Q. In section 254 there are some definitions in the Criminal Code and one of the definitions is that for something called an approved instrument. And I’m just going to show you that definition. This is an instrument that is designed to make an analysis to measure the concentration of alcohol in the blood. Does that sound like a quantitative analysis to you or a qualitative analysis? A. That would be a quantitative result. Q. And I suppose the fact that it’s called an instrument... A. Approved instrument. Q. ...might – well, the – part of the wording... A. Yes. Q. ...is instrument, implies to you as a scientist, that we are dealing with a quantitative analysis or sometimes are instrument – is the word instrument used to describe a qualitative analysis? A. Instruments can do both. Depends on the method that’s set up and whether it’s validated for the purposes of either just determining the presence of or the concentration of, or both. Q. Now, let’s look at the definition in the Criminal Code of something called an "approved screening device". It means a device that ascertains the presence of alcohol in the blood. Now I know this question is a bit confusing, because we all know that what we use in Ontario as approved screening devices, they’re also used for Provincial Highway Traffic Act purposes. But that’s not what I’m asking
you. A. All right. Q. The wording here, to a scientist, from the perspective of a scientist, the ascertaining the presence of alcohol in the blood, presence of alcohol, as opposed to determining a quantity and a unit, detecting the presence, is that a qualitative analysis or a quantitative analysis? A. In - using that wording, it would be qualitative. Q. And another section in the Criminal Code, section 254(3)(a), that’s the demand section in the Criminal Code. And specifically, (3)(a)(i), it says, “Samples of breath that in a qualified technician’s opinion will enable a proper analysis to be made to determine the concentration, if any, of alcohol in a person’s blood. Does that sound like a quantitative analysis or a qualitative analysis? A. Quantitative. Q. And another section in the Criminal Code, section 255(1) of the Criminal Code that talks about evidence that the concentration of alcohol in the blood of the offender, the time when the offence was committed, exceeded 160 milligrams of alcohol in 100 millilitres of blood. Okay? That concept, does that contemplate, do you think, from a scientist’s perspective, a quantitative analysis or a qualitative analysis? A. Again, quantitative. Q. And lastly, section 258(1)(c) of the Criminal Code in the blocked paragraph following Roman numeral iv, “evidence of the results of the analysis so made,” I’m just going to skip ahead, “concentration of alcohol in the accused’s blood was...” skipping ahead, “...the concentration determined by the analyses, or if the results of the analyses
are different, the lowest of the concentration is determined.” To a scientist, is that quantitative analysis or qualitative analysis? A. That would be a quantitative analysis and by that description, that you would use the lower of the two results of the quantitative analysis.