Updated: Sep 27, 2022
Warning: This blog entry was written prior to Bill C-46 during an era when forensic science in Ontario was more transparent. Prior to R. v. Jackson and prior to Bill C-46, many police services, Crowns and defence counsel were working co-operatively to make sure evidentiary breath testing in Ontario was transparent and reliable. Unfortunately this co-operation came to an end. Defence counsel will need to bring applications under section 320.34(2) to " apply to the court for a hearing to determine whether further information should be disclosed." It is essential for defence counsel to understand why such disclosure of COBRA data is likely produce probative and relevant information, directly related to "determining whether the approved instrument was in proper working order."
Tip 33: In late 2013 and early 2014, some Ontario Police Services, starting with the OPP, began using COBRA V software, instead of COBRA IV software, to extract COBRA data from their Intoxilyzer 8000Cs. COBRA V runs on Windows 8 notebook computers, whereas COBRA IV was used with Windows XP machines. The COBRA data generated by the 8000C itself, remains the same. COBRA IV and COBRA V refer to the software used by the police to copy the data and output the data , not storage of the original data by the Intoxilyzer 8000C within the Intoxilyzer 8000C.
A good explanation of the process for 8000C short term memory, 8000C saving to file, police copying to their notebook computer in raw text form, and then output using templates is provided by Justice Tuck-Jackson in R v O, 2014 ONCJ 440 (CanLII), at paragraphs 76 to 95. Please review that decision to learn more about COBRA.
Instrument firmware (source code) v. COBRA Software that connects a computer to an Intoxilyzer and then accesses the Internal stored data (Crown calls it historical data, defence calls it "audit trail")
It is important that Judges and lawyers separate the concepts: Version 8, 12, or 13 software in the Intoxilyzer that analyzes, saves in machine data, records, and prints the results v. COBRA IV or COBRA V software that downloads the .dbf raw data (what Justice Tuck-Jackson ordered as first-party) to a local or network computer v. COBRA IV or COBRA V software that generates paper printouts (Toronto Police), pdf, or Excel spreadsheets (Peel or OPP) of a complete version (what Justice Tuck-Jackson ordered, as first-party, for the period associated with the subject tests) or subset of that data (what Toronto Police Service originally disclosed) .
At present, Ontario police services are using COBRA V data in an inconsistent manner. The 8000C COBRA data remains uniform across Ontario depending to a minor extent on 8000C software versions 8, 12, or 13. The COBRA V software supplied by the manufacturer to the police services seems to be uniform across the province. Difficulties arise, however, from jurisdiction-to-jurisdiction in how the police supervisor uses the COBRA V software templates and the extent to which they are co-operating with the local Crowns and defence bar. Co-operative efforts need to be undertaken by Crowns, defence, and police in making this data available and transparent.
The OPP have developed a good system for data storage and disclosure to Crowns, on request, with a server in Orillia that retains all COBRA V .dbf or .xls data for the province. A supervisor can output data for any period (after mid-2013) for any particular OPP instrument, in one Excel spreadsheet, that is sorted chronologically. Sometimes, however, it can be challenging to "Unmerge" this data to sort and filter it for particular kinds of searches.
South Simcoe Police Service is an example of a small police service that has worked diligently to improve quality assurance and quality control. They implemented COBRA V in September 2013 and are to be commended for their transparency. Their data is comprehensive and can be sorted chronologically for easy use in Court.
Peel Regional Police have been using COBRA V since early 2014. They disclose to the Crown disks, updated every few months, that contain 3 files for each month: CONT.XLS, DIAG.XLS, and SUB.XLS. Two of these files, each month, are chronological, one is not. To get the whole picture, a defence lawyer needs to work very hard to Unmerge, consolidate, and sort the data using Excel.
Toronto Police Service is now using COBRA V but recently seems to be having difficulty complying with requests from the Crown and defence for native raw text data similar to that ordered in the decision in R. v. O. referred to above. Additional litigation similar to R. v. O. is probably necessary.
The effort required in extracting data concerning the chronology of location changes is very worthwhile for the client. It is also useful "best evidence" for the Court.
Jurisdictions where native raw text or Excel COBRA IV and COBRA V disclosure are available on simple requests have less lengthy Stinchcombe/O'Connor litigation. One such jurisdiction is Peel.
The COBRA V example below is from Peel in 2014 and illustrates the usefulness of the data close in time to the subject tests in ascertaining location changes of the simulator :
The above COBRA V data is an excerpt from Exhibit 7 in R v AD at Brampton. The yellow line indicates the last EscEsc C stand-alone cal check before the client's subject tests. Notice that the INS LOCATE "location" field indicates "MGH", Mississauga General Hospital. The two green/gray lines reflect the client's subject tests at "12 DIVISION" on January 22, 2014. The Intoxilyzer Test Record for the subject tests on January 22, 2014 indicated a last solution change date of January 19, 2014. With the assistance of an expert, an inference can be drawn that the QT was responsible for operator error. An Esc Esc C should accompany every solution change. As with COBRA IV, details of the identity of the solution during each time stamp event can be determined by a review of adjacent fields.