Updated: Sep 14, 2022
Tip 34: The use of an alcohol standard during evidentiary breath testing in Canada was not mentioned in the Criminal Code as a condition precedent to former section 258(1)(c), but it seems that everyone in the judicial system and the scientific community in Canada assumed it was a condition precedent. In the Bill C-2 258(1)(c) era, we could rebut the presumptions of accuracy/identity/reliability with evidence tending to show. In the Bill C-46 section 320.31(1)(a) era, we need to keep reminding Judges that Parliament has explicitly made Crown proof beyond a reasonable of compliance with the cal. check a condition precedent to irrebuttable conclusive proof. The Crown should therefore be held to strict proof of that condition precedent, if the Crown is to have the benefit of section 1 saving of an otherwise unconstitutional presumption. See R. v. Phillips in the ONCA and St. Onge-Lamoureux in the SCC.
In Ontario we use wet-bath simulators to contain liquid alcohol standard that comes from a 500 ml bottle supplied by a lab. The lab is not the CFS or the ATC. A private lab supplies bottles to each police service separately, in whatever target value they wish.
Police in Ontario use wet-bath alcohol standard with every evidentiary breath test. The alcohol standard is allegedly known to be a specific target value (usually 100 mg/100mls but it could be another target value such as 80), because it came from a bottle that is traceable to a lab and the lab has stated a particular target value on the label. The manufacturer (the lab) has probably submitted (ten or twenty) 500 ml bottles from the lot of alcohol standard (a lot containing hundreds of 500 mls bottles) to the CFS for analysis, and probably there exists a Certificate of an Anlyst with respect to that lot. The lot has a number or other code to identify all bottles of the lot. Each of the bottles in the lot display a manufacture date and an expiry date. Each of the bottles displays a notice that the alcohol standard must be used at 34.0 ±.2° C. The bottles are sold to police in boxes of six. The box often contains a copy of the CFS Certificate of an Analyst, even though the box comes from the manufacturer.
The first question is: How does the qualified technician, who performed the subject tests on your client, know what's in the #duisimulator? It could be water, it could be Vodka, and it could be reliable and traceable alcohol standard. Hopefully it is all of, and only the contents of, a 500 ml bottle of known, traceable, reliable, alcohol standard of a known lot number.
Excerpt from a Crown re-examination of their CFS expert:
Q. I just have I think two questions. Dr.
L, I – my friend asked you some questions about the
simulator and the fact that the alcohol standard solution is a
Q. And that the simulator is itself clear?
Q. And that when you pour the alcohol standard
solution into it or when a qualified breath technician would come
to operate the approved instrument, there is a clear liquid and a
clear container. There is no other way to determine what the
liquid is in that container, per say? Just by looking – let me
Q. Just by looking at the simulator we’re not able
to identify what liquid is inside the simulator?
Q. And my question to you, if there was a
different clear liquid, for example it was just water or
distilled water, how would that affect the operation of the
A. With distilled water the calibration checks
would be zero.
[if the approved instrument is properly calibrated]
Q. So they wouldn’t be within the appropriate
range that you’ve described - I believe as between 90 and 110?
A. That’s correct.
Q. So the fact the calibration itself confirms
that the alcohol standard solution is an appropriate alcohol
standard solution, is that something that’s fair to say?
Q. Okay. Can you explain that if I’m not using
the right terminology? I just want to make sure that I
understand how this calibration check works.
A. The calibration check is checking the
calibration of the instrument, so the – there has to be some
evidence of the standard that is in the simulator. ...
Additional questions include: What was in the simulator previously? Who put the current contents in the simulator? Did they do it properly? Who used the simulator subsequently? Did they contaminate the contents? How many times did they use it in between? Where have the simulator and contents been in the interim between solution change date and subject test date?
These are all questions related to continuity of evidence. A diligent defence lawyer should search for gaps in that continuity. Too often we assume that just because the subject test qualified technician says that the alcohol standard lot , number, date of solution change, date of expiry, and suitability are such and such then it must be true. Ultimately the huge question is: How does your subject test qualified technician know what was done by other police officers during the period, maybe as much as two weeks, preceding the subject tests?