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.
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.
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.
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.
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.
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.]