Cross-examination of solution change QT using COBRA

There are three conditions precedent to the Crown's use of the "conclusive proof" presumption in secton 320.31(1) of the Criminal Code of Canada, post Bill C-46. Defence lawyers need to learn how to cross-examine solution change qualified technicians so as to raise a reasonable doubt about whether or not the Crown has proven those three conditions precedent. The defence, through cross-examination and expert evidence, can raise Interpretaion Act "evidence to the contrary" that rebuts the Certificate prima facie proof by the Crown of the 3 conditions precedent.


(Interpretation Act section 25(1): “the fact is deemed to be established in the absence of any evidence to the contrary”.)


COBRA is an essential tool in such cross-examination as evidenced by this sample cross-examination. It is only rarely that a cross-examiner can nudge a Crown witness into admitting why disclosure of COBRA data is essential:


Q. And you agree with me on that because of the

COBRA data?

A. I have nothing — I have no evidence to say that

I did it, therefore I can only rely on the COBRA data.


Exhibit 5 COBRA data printout all 55 columns, printed on 5 paper pages

MR. BISS: Just to help everybody in understanding

how I’ve done this, I’ve set it up, Your Honour,

with — there are five pages because the COBRA data

goes about 55 fields across. So if we were to put

all of these side-by-side, so we start off with the

page that has the 80-00xxxx on the left and then

the page that has Bxxx — the next page which is the

one that says Bxxx DRxxxx, which would be the next

one, and that would be on the right-hand side of

the first page. And then there’s a page that the

top yellow line is blank. And then there’s a page

that has a zero up at the top right. So they would

have to be — if we were to put them up on the wall

to look at them, then the first page would be at

the far left, the second page would be next to it

on the right, third page next to it on the right,

and the — the next page would be further to the

right of that. And there are four pages. So to

look at a particular time on this document we could

start right off the bat with the very, very first

line which refers to 80-00xxxx is the serial

number. And then if we go to the very, very last

page, the very, very last column. Look at the very

top right you can see a long number that says

20130324, that’s the date. And then after that

there’s a time, 09:24:37. And then there’s a

number after that. But that helps us with the

date, just to acquaint ourselves with all of these

things.


COBRA data
Exhibit 5 COBRA data excerpt, top right corner


MR. BISS: Q. So if we look at this data, sir, and

we go down the page to find the point in time at which you

changed the alcohol standard, we think, sir, from — if we rely on

what Constable L had in her information, you supposedly

changed the alcohol standard at 00:16:24 and I'm just showing you

something from Tab 3 of the Bartels affidavit. You changed,

supposedly the alcohol standard at 00:16:24?

A. Correct.

Q. Right? That makes sense to you?

A. Yes.

Q. Then let’s look and see what was going on at

00:16:24. If we go down the far right-hand side, the far — last

page, the far right-hand side, and we look at 2013 and we look

for March the 28th. So that would be the first orangey colour,

pink colour box on the page, 20130328 at 00 — 00:37. So 37

minutes after midnight the first entry in the COBRA data is a

diagnostic check. Can you agree with me, sir, that the pink —

pinky-orange box is a diagnostic check because it starts with

voltage current test and ends with temperature regulation test?

A. It appears to be. I — I — I’ve never had to

read or decipher COBRA software but, yeah, it starts off with a

voltage current test. That’s a diagnostic test that we....

Q. Right. And there is another diagnostic test

similar to that one, that’s the greyish-brown that’s up above,

but the date on that is 2013 March the 24th. So that’s a

completely different day, right?

A. Correct.

Q. So the first event recorded in COBRA data for

that machine on March the 28th, 2013, is a diagnostic test that

took place at 37 minutes after midnight?

A. Yeah, that’s what it appears to be.

Q. And the first calibration check, if we just

stick with the last page, in order to get a reference point, to

the very, very last page, we go down it looks like in green

there’s an air blank, air blank end of test, there’s something

that was a data entry timed out, that was at 41 minutes after

midnight. And then there’s a calibration check, that’s the

yellow box, the second yellow box on the page, at — on March the

28th at 00:46 is a calibration check, a standalone calibration

check, right?

A. Correct.

Q. What were you doing at — on March the 28th at 46

minutes after midnight?

A. The only thing that I can think of, I can say,

is that I did a cal — or sorry, I did a solution change at 00:16

and — at 00:16 I did a calibration check and the solution has to

warm up to 34 degrees.

Q. Yeah.

A. I believe I would have changed the solution and

then before doing a diagnostic and calibration check, because it

would take about 15 minutes for the solution to warm up...

Q. Yeah.

A. ...especially in March, is that I stepped out

of the truck...

Q. All right.

A. ...and conducted RIDE spot checks.

Q. Right. And you were interacting — you stopped

Mr. W at 25 minutes after midnight?

A. Correct.

Q. Right. And then after that you administered a

screening device test to Mr. W at 30 minutes after

midnight?

A. Correct.

Q. Have I got that time right? Yes.

A. Yes.

Q. Right. And then after that you’re doing rights

to counsel. When — what times were you doing the rights to

counsel?

A. Thirty-four.

Q. At 34 minutes after midnight you were doing

rights to counsel right through to 36 minutes after midnight?

A. Correct.

Q. And what time did you turn Mr. — what time did

you advise Constable L that she would need to do a breath

test on Mr. W?

A. Thirty-three minutes after.

Q. At 33 minutes after. So it just seems awfully

strange that you would be running a diagnostic test, according to

the COBRA data, at 00:37 when you’d already asked Constable

L to be running — to be running a test — tests on Mr.

W?

A. Correct.


COBRA data
Exhibit 5 COBRA data excerpt middle of right side

Q. And it awfully — seems awfully strange that you

would be running a standalone calibration check on the

Intoxilyzer 8000C, according to the COBRA data, at 46 minutes

after midnight, long after you told Constable L that you

would be handing her — handing him over to her?

A. Yes, but nothing says here that that — I

actually did these diagnostic and calibration checks.

Q. Oh. So these are calibration and diagnostic

checks done by Constable L, not by you?


[the witness appears to be reconstructing his memory]


A. Yeah, if I were to go back to this day and

think logically about what would have happened is at 1:16 — or

sorry, 12:16 I changed the solution. And to not be standing in

the truck doing nothing for the next 20 minutes waiting for the

solution to change, I believe I stepped out to do some sobriety

checks and in the midst of it, shortly thereafter of changing the

solution, one of the first people coming through my line was Mr.

W. At that point I got involved in an arrest. I believe

it may have slipped my mind to have gone back and do the

diagnostic and calibration check for the instrument after I

initially set it up, and it appears that Constable L did it

as part of her checks to make sure that the instruments in proper

working order prior to taking samples of Mr. W’s breath.

Q. So the point is when you changed the solution

you did not follow the steps in the training manual and you did

not follow the steps of what you expect to do normally every time

you change a solution?

A. Can we bring back the manual for a minute?

Okay, so it says, “When to conduct a calibration check.”

Q. So you’re looking at page 7-15...

A. Correct.



2009 8000C Training aid page 7-15
Except from page 7-15 of CFS 8000C Training Aid

Q. ...of the 2009 training aid?

A. “An external check of the calibration check is

part of the normal breath test sequence. There may also be

circumstances where a standalone check of the calibration using

the keyboard function menu is desirable.”

Q. Yes.

A. I believe the word there is “desirable”.

Q. Yes.

A. “Subsequent to changing the alcohol standard

solution in the simulator.”

Q. Yes.

A. “As a quality assurance measure prior to

conducting a full breath test sequence during your shift.”

Q. Yes.

A. I believe the key word there is “desirable.”

Q. Yeah. There’s no word “or” between number one

and number two?

A. No, but the key word in both those scenarios is

desirable.


Q. And it doesn’t say you’ve got a choice?

A. It doesn’t say mandatory.

Q. All right. But your training in 2009 said that

when you change the solution you are supposed to run a standalone

calibration check and document it in certain ways, right?

A. Correct. As I said I believe I must have

missed it. As I said I stepped out of the truck to do some

sobriety checks on people and it apparently must have slipped my

mind as — you can see the time I changed the solution of 16 to

the time he enters my spot check is 7 — not — sorry, is 9

minutes, at the most, and I got caught up with an arrest of

someone who had consumed more alcohol than they should have that

night and it passed my mind to do a diagnostic and calibration

check. It does not exclude that a diagnostic and calibration

check was still performed by Constable L prior to doing the

test and it was performed again prior to the taking of each

breath sample. It does not neglect[sic] that the instrument was

not in proper working order.

Q. So you didn’t videotape the changing of the

alcohol standard?

A. No.

Q. You didn't....

MR. H: Well, just in terms of that, that’s

kind of unfair. The evidence is they attempted to

videotape it and it’s not...

THE COURT: No, no...

MR. H: ...it’s not an intention on the

police’s part to...

THE COURT: Sorry, but...

MR. H: ...not videotape.

THE COURT: ...I don’t know that they attempted to

videotape the changing of the solution which

occurred sometime earlier.

MR. H: Oh, I apologize. I....

THE COURT: Isn’t that what your question was?

MR. BISS: Yes.

THE COURT: Yeah.

MR. H: I apologize. I thought the question

was...

THE COURT: No.

MR. H: ...the procedure. I apologize.

THE COURT: Right.

MR. BISS: Q. You didn’t change — you didn’t

videotape the changing of the alcohol standard at around 16

minutes after midnight?

A. Correct.

Q. You didn't complete a hard copy, Appendix E

style alcohol standard log as per...

A. No, that’s correct.

Q. ...the example?

A. As per the example, no.


Appendix E excerpt
Appendix E to CFS 8000C Training Aid

Q. You didn't keep any notes of the change of the

alcohol standard log?

A. The notes are kept inside the instrument.


[i.e. the internal memory of the instrument, the COBRA data]


Q. But you didn't keep any — any handwritten notes

yourself?

A. Correct.

Q. And in addition to that, the procedures that

you normally follow of a standalone calibration check and a

standalone diagnostic check that accompany the changing of a

solution, you didn't do?

A. I did not do a diagnostic and calibration

check.


Q. And you agree with me on that because of the

COBRA data?

A. I have nothing — I have no evidence to say that

I did it, therefore I can only rely on the COBRA data.

MR. BISS: All right. Your Honour, could the COBRA

data be marked as an exhibit then, please?

THE COURT: Yes, it’ll be Exhibit 6, I think.


THE COURT: Yeah, it should be five. This was

supposed to be three, this should be four, and this

is five. All right.

EXHIBIT NUMBER 5: COBRA data - produced and

marked.


[the prequel to this part of the cross-eamination can be found at "Cross-examination of Solution Change QT on Standard Operating Procedures (SOPs)"]


[Note: Please don't assume that a cross-examination, revealing that the local police do not follow their own SOPs or their CFS training, will result in an acquittal. You will probably need to call an expert to testify as to the importance of following SOPs to the reliability of the air blanks/cal. checks. Parliament has said in the preamble to C-2, that approved instrument results are reliable, without any stated condition precedent. The Court may find that the Certificate of the Qualified Technician is enough to establish compliance with 320.31(1) without the Crown having to prove that the officer(s) complied with their training or with SOPs. That's why an expert is probably necessary.]

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