In his decision May 13, 2015, Justice Paciocco stated:
95 I will begin with the simulator evidence, for if the simulator was not working, then the machine was not properly calibrated before Mr. Fitts' test. As explained, the critical function of the simulator is to heat the standard solution to the proper temperature. The evidence before me is that if an attempt was made to introduce into the Intoxilyzer 8000C air that did not fall into the appropriate temperature range, the machine itself would generate an error code and cease operating. Dr. Michael Ward, for the defence, and Dr. Darryl Mayers for the Crown, agreed on this. In effect, the machine itself measures the temperature of the vapour emanating from the standard solution, providing a redundant safeguard against a malfunctioning simulator.
96 Moreover, the evidence before me is that the calibration test was in fact successful. Not only did the Approved Instrument receive the calibration sample and analyse it, it recorded an appropriate temperature and produced the expected result. I am persuaded that the conduct of the test on Mr. Fitts itself is therefore powerful circumstantial evidence that, whether the simulator was certified at the time it was put in service, or inspected as required, it was operating properly on the day in question. That being so, what Mr. Fitts lost through non-disclosure of the simulator certification was the opportunity to secure direct evidence about the condition of the simulator at some point in the past, either when it was initially certified or inspected, as opposed to the day in question. Whatever that evidence may have showed, it could not reasonably stack up against the indicia of reliability relating to the functioning of the simulator at the relevant time that was generated through the successful completion of the subject test.
I respectfully suggest that the following fact found by Justice Paciocco is correct:
"if the simulator was not working, then the machine was not properly calibrated before Mr. Fitts' test."
I suggest that a finding by the Court that the simulator was not working would destroy the Crown's use of presumptions under both C-2 and C-46.
I respectfully suggest that the following facts found by Justice Paciocco are not correct:
"if an attempt was made to introduce into the Intoxilyzer 8000C air that did not fall into the appropriate temperature range, the machine itself would generate an error code and cease operating."
"In effect, the machine itself measures the temperature of the vapour emanating from the standard solution, providing a redundant safeguard against a malfunctioning simulator."
Justice Paciocco indicated that he made these findings because "The evidence before me is..." Justice Parciocco stated in his reasons that: "Dr. Michael Ward, for the defence, and Dr. Darryl Mayers for the Crown, agreed on this."
With respect, it should be very easy for the defence to call evidence from their own expert or for the defence to cross-examine a Crown expert to seek admissions that these factual findings are in error.
This blog article explains the error.
An Intoxilyzer 8000C and a wet-bath simulator (probably manufactured by Guth) are two separate scientific instruments.
The Intoxilyzer 8000C is designed to conduct a quantitative analysis of a breath sample to indicate a blood alcohol concentration. Although the particular 8000C has been calibrated at the factory, across its measuring interval, our practice in Ontario is to conduct one or more control tests on the 8000C at 100 mg/100mls at time of use. This practice is mandated by Criminal Code section 320.31(1)(a). During this control test, the "unknown" is the calibration of the 8000C. During this control test, the "known" is the target value of the alcohol standard at 34.00C in a properly functioning wet-bath simulator. As Justice Paciocco found "if the simulator was not working, then the machine was not properly calibrated."
The unknown Intoxilyzer 8000C cannot be used to test the reliability of the known, even if it had the hardware and software capability, to "generate an error code and cease operating" if the air coming from the wet-bath simulator was the wrong temperature. The alcohol standard / wet-bath simulator isthe system that tests the Intoxilyzer, not the other way around.
However, with the greates of respect to the experts who testified in Fitts, Intoxilyzer 8000Cs do not have the hardware and/or software to test the temperature of the air coming from the simulator. Such a capability is not:
in the hardware - I suggest there is no such temperature sensor in the 8000C
in the software - I suggest it is not part of the instrument's firmware or software
described in the manufacturer's Calibration Manual for the 8000
described in either of the evaluations prepared for the Alcohol Test Committee prior to Ministerial approval
described in the CFS Intoxilyzer 8000C Training Aid under "Status Messages" or "Exception Messages"
described in any US state's Intoxilyzer 8000 manual.
It is a simple matter to empirically test the hypothesis that such a system exists:
Attach a wet-bath simulator containing 100 mg/100mls alcohol standard to the Intoxilyzer 8000C
Leave the wet-bath simulator turned off
Leave the system at room temprature
Change the settings for the expected alcohol standard to about 50 mg/100 mls
Run a control test
The instrument will perform a control test normally without a "Status message" or an "Exception message"
However, the control test will result in about 50, because the alcohol standard is at room temperature and because of Henry's Law.
Intoxilyzer 8000C hardware and firmware/software rely upon the operator to MANUALLY observe the wet-bath simulator temperature and MANUALLY input that observed temperature into the Intoxilyzer 8000C keyboard, OR if there is a wired RS232 interface between the 8000C and the simulator, to observe the pre-populated temperature and accept it or over-write it. See the CFS 8000C Training Aid:
As noted in the Training Aid, the firmware/software only permits entries by the operator between 33.8 to 34.2C AFTER THE OPERATOR MANUALLY READS THE TEMPERATURE and MANUALLY INPUTS THE DATA OR ACCEPTS/OVER-WRITES.
With the greatest of respect to the experts who gave evidence in Fitts, the 8000C does not have the capabilities:
"if an attempt was made to introduce into the Intoxilyzer 8000C air that did not fall into the appropriate temperature range, the machine itself would generate an error code and cease operating."
"In effect, the machine itself measures the temperature of the vapour emanating from the standard solution, providing a redundant safeguard against a malfunctioning simulator."
It should be noted that the information as to simulator temperature that, in the RS232 scenario, pre-populates on the 8000C, comes from the simulator, through the RS232 interface, not from the 8000C. Below is an image of the probes on the Guth 2100 simulator.
It is respectfully submitted that disclosure of the COBRA data audit trail (the COBRA field res_value), if ordered in Fitts, would have been relevant to establish what the operator OBSERVED and MANUALLY RECORDED, based on the information they observed (or didn't observe) on the simulator thermometer. Such a record would have been useful to both the Crown and defence in examining and cross-examining the QT on what they observed and recorded.
The 8000C audit trail does not directly record the temperature of the air coming from the simulator, in part because the 8000C machine does not have that capability.
Please read the Guth 2100 simulator manual to review its error checking capabilities. Guth 2100 simulators have error tones. No wet-bath simulator is an "approved instrument" in Canada. Without disclosure of maintenance and calibration records on the simulator, we have no way of knowing whether or not the simulator is scientifically reliable.