Many years ago I asked for timely disclosure/production of a representative bottle of the alcohol standard lot used during the breath tests for my client pursuant to R. v. Bourget, 1987 CanLII 208 (SK CA), <https://canlii.ca/t/1pfnx> to permit independent testing by an expert retained by the defence. The police and Crown agreed to the request. I attended the police detachment and picked up the bottle. I accidentally left it in my car overnight during Winter. It was frozen the next morning. Please consider that 100 mg/100mls alcohol standard is a weak solution of ethyl alcohol in distilled water. It freezes. I learned to never repeat that mistake.
Years later, I discovered that leaving a full plastic alcohol standard bottle on a shelf in the sun can cause the plastic in the bottle to become extremely brittle. The plastic changes. The bottle easily shatters.
In R. v. Cutone, 2011 ONCJ 295 (CanLII), <https://canlii.ca/t/flt0g> the Court held:
Thus I have arrived at the conclusion that it is an appropriate request by defence counsel to be provided with a sample of the solution for their independent analysis. That being said, a number of logistical problems immediately come to mind. Like my colleague, D. A. Harris J in R. v. Moravac, 2010 OJ 5718, one has to be concerned about continuity and validity:
[18] …the dispute was over how it should be provided. The police offered to provide a sample into a container provided by the expert chosen by defence counsel. Defence counsel took the position that he wanted a full sealed container of the solution or alternatively, a sample contained in a container provided by the police. This dispute carried on so long that by the time the application came before me, the expiry date for the alcohol standard solution has come and gone. The solution may still be good but the situation now is that any test results would no longer be valid. Anyone could contest those results on the basis that the sample was too old to be seen as representative of the whole batch.
[19]I am satisfied that a sample of the alcohol standard solution would now be clearly irrelevant and I dismiss the application for production of it.
The issue of continuity and validity of the the alcohol standard doesn't just apply to relevance of disclosure/production to the defence. Since Parliament has determined that the Crown's primary method of establishing reliability of an approved instrument breath test is proof beyond a reasonable doubt, inter alia, of "a system calibration check the result of which is within 10% of the target value of an alcohol standard that is certified by an analyst", continuity and validity/identity of that alcohol standard needs to be proven by the Crown beyond a reasonable doubt. Perhaps, prima facie, that proof may come through a Certificate of QT, Intoxilyzer Test Record, or hearsay, however the Crown must still establish that proof beyond a reasonable doubt. Pursuant to the Interpretation Act the defence is entitled to lead evidence to the contrary to raise a reasonable doubt contradicting that prima facie proof. Full answer and defence on the issue will require good disclosure/production of continuity evidence respecting the alcohol standard. That continuity evidence is directly revant to Parliament's methodology for determining the "working order" of the instrument, including "a system calibration check the result of which is within 10% of the target value of an alcohol standard that is certified by an analyst".
Defence lawyers need to ask:
What steps were taken by the alcohol standard manufacturer or distributor to deliver a box or boxes of alcohol standard to the local police detachment?
Was a box of alcohol standard containing the relevant bottle left on a loading dock at the detachment on a cold winter's night?
Were boxes of alcohol standard stored in a cold breath truck for several days?
Can we learn from the RCMP? How does the manufacturer of the ADSE Drager Drugtest 5000, used for roadside drug screenings in Canada, maintain temperature contol over the shipping and pre-delivery stages of test cartridges sale to the RCMP?
How does the RCMP maintain storage temperature control over the consumable cartridges used for roadside drug screenings in Canada?
Many years ago, a colleague met me in the parking lot of a GTA courthouse and handed me what was obviously a bottle in a bag. I don't remember if it was to wish me "Happy Day of Significance" or to thank me for help with a trial they were doing. I said "Thank You" and put it in the trunk of my car and forgot about it on the way to another courthouse. A number of days later, I remembered it and had a look. It has sat in my basement ever since.
The CBC reported this week that there is litigation pending in British Columbia respecting frozen wine and liquor. The CBC report states:
The agencies responsible for distributing liquor in B.C. and Alberta are suing a trucking company after hundreds of bottles of wine and spirits froze on their way from the east coast last year.
The B.C. Liquor Distribution Branch (LDB) and Alberta Gaming, Liquor & Cannabis (AGLC) together claim they were supposed to receive 1,459 "cartons" of alcoholic beverages from Montreal last December.
But instead of using proper heated trucks to make the journey, Simard Transport used "standard, unheated dry trailers," exposing the alcohol to Canadian winter temperatures, the lawsuit claims.
"The cargoes experienced [subzero] temperatures resulting in freezing of the wine and liquor in their bottles, causing freezing expansion of the wine and liquor and damage to the bottles and exposure of the contents to the atmosphere," read the notice of claim filed in B.C. Supreme Court on Dec. 13.
"The freezing of the wine and liquor caused damage to the bottles and carrying boxes," meaning the products could not be sold.
So what's more important in Canada: safeguarding good wine and booze or protecting the innocence of individuals charged with driving and drinking wine and booze? If a manufacturer of wine, liquor, or alcohol standard specifies that the specific product is to be stored within a particular range or expiry date, should we pay any attention?
Quaere: Maybe the alcohol concentration of the product, (wine booze or alcohol standard), won't change after freezing if the bottle is not broken and the seal is intact, but does the "working order", the essence/purpose of the water/alcohol solution change, such that we should dump it out? What is the essence of good wine? What is the essence of an alcohol standard? How do we assess/evaluate that essence?
When Alcohol Countermeasures Systems produces a lot of alcohol standard, they prepare a document called a "Reference Material Certificate of Analysis". This manufacturer's Certificate of Analysis is much more detailed the the Certificate of Analysis (s. 320.32(1)) prepared by a provincial lab "Analyst" (s. 320.4 (c)) who analyzes pursuant to the Criminal Code of Canada. Note that 320.32(1) prima facie proof is subject to Interpretation Act "evidence to the conrary".
It is wonderful to see that this manufacturer takes a careful approach to good metrology. Their "Reference Material Certificate of Analysis" relates to alcohol standard prepared in an accredited lab with an independent chemist preparing the analysis for certification:
The "Reference Material Cerificate of Analysis" contains a statement of measurement uncertainty and traceability. That's good metrology:
The "Reference Material Certificate of Analysis" contains a statement of Certified Value:
Please note the following in the above excerpt:
The Certified Value, according to the manufacturer's specifications, is conditional upon a number of factors. Those factors include temperature range of storage AND shelf life. Shelf life/expiry date is CONDITIONAL upon the alcohol standard being "handled and stored according to the instructions in this certificate".
So what what happens if a bottle of this lot of alcohol standard freezes? Should police use it? And what happens if the bottle of fine wine that my colleague gives me freezes in my car over the holidays? Should I still drink it?
A government scientist may say that alcohol concentration MAY not change after freezing if the container is not damaged and the seal is not broken (both are real possibilities) but is the system calibration check/alcohol standard still reliable under section 320.31(1)(a) if the police are not controlling for delivery, transportation, storage temperatures? Shouldn't Courts expect careful storage and handling of alcohol standards by police to maintain continuity and integrity? Perhaps the litigants in the BC case will get a Court ruling that wine and liquor should be carefully stored and handled to maintain continuity and integrity?
I welcome comments, corrections to my chemistry thoughts, and suggestions particularly respecting transportation and storage of wine and alcohol standard.