Error in Facts - "Impaired Driving and Other Criminal Code Driving Offences", Jokinen and Keen

Does partial automation of error-checking in an approved instrument: specifically diagnostics tests, air blanks, cal. checks, and maximum input values, guarantee infallibility? Many people seem to think so. Let's watch a start up diagnostics test on an Intoxilyzer. Do you feel comfortable with infallibility of this automation? Keep watching, getting a "Diagnostic OK" result may take awhile.


(For each video, you may wish to visit Youtube and read the description.)

Of course a thorough QT in Ontario would at start-of-shift or prior to subject tests wish to print out an Intoxilyzer Test Record (done in Ontario using keyboard sequence Esc Esc D) to prove in Court that in advance of the subject tests, this instrument was in proper working order. The 2013 CFS 8000C Training Aid states at p. 80 of 238:


It is recommended that prior to performing subject breath testing during a shift, the breath technician perform three Quality Assurance (QA) checks which will demonstrate that

the instrument is properly calibrated


in proper working order

capable of receiving a breath sample


Watch this video of a stand-alone diagnostics test performed using the keyboard sequence Esc Esc D. Keep watching, getting proof that Diagnostics have "passed" may take awhile.

Do approved instruments automatically conduct one or more simulator temperature checks? Do Intoxilyzers automatically check to make sure that there is a wet-bath simulator with alcohol standard at the correct temperature attached? Keep watching, will this instrument generate an error or exception, if there is no simulator attached? Will it check the simulator temperature?


Despite what one learned Judge has found, no Intoxilyzer 5000C or 8000C has the hardware or firmware to perform the following:


"It then conducts ... simulator temperature check, which pass." (Jokinen and Keen page 289)


With the greatest of respect to the learned authors, Jokinen and Keen, there are factual and scientific errors on pages 288 and 289 of their book Impaired Driving and Other Criminal Code Offences: A Practitioner's Handbook.


Below the page 287 heading "Approved Instruments: Unlikelihood of an Undetectable False High" under the sub-heading "B. The Practical Argument", they "walk through the testing process ... and ... explain what would have to happen". Their stated purpose is:

"It may be useful for counsel to understand why an approved instrument could not

realistically produce an undetectable false high."


With respect, their statement of Intoxilyzer 8000C testing procedure on page 289 does not match the the firmware-driven testing sequence described in any of the versions of the Ontario CFS Intoxilyzer 8000C Training Aid or the various versions of 8000C firmware/software used in Ontario. With respect, their statement does not accurately describe any EscEscC sequence, any EscEscD sequence, any EscEscB sequence (the three start-of-shift or pre-subject tests Quality Assurance (QA) sequences used in Ontario). Their statement does not accurately describe the two (or more) subject test sequences used in Ontario. Their statement does not accurately describe the protocol laid out in the Training Aids for qualified technicians changing and configuring the alcohol standard, the protocol to be followed by the QT at start of shift or pre-subject tests, and during the subject tests.


Lawyers need to study correct Intoxilyzer sequences in preparation for cross-examination of a Crown expert. Start by looking at the Training Aid for ACABA subject test sequences. Get hands-on experience with an Intoxilyzer, if you can. Alternatively, defence lawyers can take a free course. Different versions of the Ontario 8000C Training Aid will display slightly different software version numbers and sequences. Here's firmware version 8167.12.00:



Excerpt from 2013 CFS 8000C Training Aid. Note the software version is 8167.12.00. The basic sequences for subject tests are (A)ir Blank, (C)alibration Check, (A)ir Blank, (B)reath Test, (A)ir Blank with Diagnostics mixed in depending on software version. In Ontario there is also a manual Simulator Temp input step. The firmware/software will not allow a manual input outside of 33.80 to 34.20 C. In Ontario, unfortunately, we do not record volume of air placed into the sample chamber.




It is respectfully submitted that Courts need to be cautious of the dangers to full answer and defence caused by mystique of science and perception of infallibilty. Jurors are not the only participants in the criminal justice system who may find it difficult dealing with scientific or technical language and treating police evidence as being "virtually infallible and as having more weight than it deserves".


There is a danger that expert evidence will be misused and will distort the fact-finding process. Dressed up in scientific language which the jury does not easily understand and submitted through a witness of impressive antecedents, this evidence is apt to be accepted by the jury as being virtually infallible and as having more weight than it deserves. As La Forest J. stated in R. v. Béland, 1987 CanLII 27 (SCC), [1987] 2 S.C.R. 398, at p. 434, with respect to the evidence of the results of a polygraph tendered by the accused, such evidence should not be admitted by reason of "human fallibility in assessing the proper weight to be given to evidence cloaked under the mystique of science". The application of this principle can be seen in cases such as R. v. Melaragni(1992), 1992 CanLII 12764 (ON SC), 73 C.C.C. (3d) 348, in which Moldaver J. applied a threshold test of reliability to what he described, at p. 353, as "a new scientific technique or body of scientific knowledge".


R. v. Mohan, [1994] 2 S.C.R. 9


Evidence of Intoxilyzer sequences, presented before a Court, needs to come from properly-qualified expert scientific AND technical witnesses, not from lawyers. Errors by learned authors and past judicial findings of fact need to be corrected through properly-qualified expert scientific AND technical witnesses. Errors of fact by appellate Courts in prior cases need to be corrected through properly-qualified expert scientific AND technical witnesses giving evidence; building a complete good record in new cases.


20.Since litigation replaced trial by combat, the determination of fact, including the veracity of parties and their witnesses, has been the duty of judges or juries upon an evaluation of the statements of witnesses. This approach has led to the development of a body of rules relating to the giving and reception of evidence and we have developed methods which have served well and have gained a wide measure of approval. They have facilitated the orderly conduct of judicial proceedings and are designed to keep the focus of the proceedings on the principal issue, in a criminal case, the guilt or innocence of the accused. What would be served by the introduction of evidence of polygraph readings into the judicial process? To begin with, it must be remembered that however scientific it may be, its use in court depends on the human intervention of the operator. Whatever results are recorded by the polygraph instrument, their nature and significance reach the trier of fact through the mouth of the operator. Human fallibility is therefore present as before, but now it may be said to be fortified with the mystique of science.


R. v. Beland, [1987] 2 SCR. 398


It is respectfully submitted that Courts need to be cautious of the dangers to full answer and defence caused by mystique of science AND technology, and perception of infallibilty. There is a difference between scientific expertise and technical expertise. Courts need to remind themselves of that difference. Law students and students of forensic science need to learn that difference.


With the greatest of respect to the learned authors, Jokinen and Keen, there is an empirical science error on pages 288 and 289 of their book Impaired Driving and Other Criminal Code Offences. They state: "It may be useful for counsel to understand why an approved instrument could not realistically produce in undetectable false high." The statement "An approved instrument could not realistically produce in undetectable false high", is a hypothesis without empirical proof. No footnote is provided to a scientific study. No footnote is provided other than to "Ministry of Community Safety and Correctional Services, Center of Forensic Sciences, Intoxilyzer 8000C Training Aid, Toronto: CFS, 2009." No scientific study has ever established that hypothesis to be true empirically.


If any reader is aware of such a study please let me know.


With the greatest of respect to the learned authors, Jokinen and Keen, earlier in the Chapter they footnote to:


Alcohol Test Committee, "Alcohol Test Committee Position Paper: Documentation Required for Assessing the Accuracy and Reliability of Approved Instrument Breath Alcohol Test Results" (2012) 45:2 Can Society of Forensic Science J 101.


That "Position Paper", referred to in the footnote, is a position paper. It is not a scientific opinion. It is not a consensus document. It lacks external footnotes and references. Some hypotheses raised by the Position Paper do not have a foundation in empirical study.


Please note the dissent by Justice Côté in R. v. Gubbins, 2018 SCC 44:


[75]Just as the courts subject experts to special scrutiny before allowing them to opine on the “ultimate issue” in a dispute (R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, at p. 25), so should this Court exercise caution, in this case, when considering the extent to which the ATC’s updated recommendations are determinative of the relevance of maintenance records, a question of law that is to be decided by the courts. Such caution is particularly warranted in light of the ATC’s composition, as explained by Judge Henderson in R. v. Sutton, 2013 ABPC 308, 59 M.V.R. (6th) 89:


I caution myself that the Alcohol Test Committee is not a truly independent body of scientific experts who offer purely objective opinions on topics relating to breath testing instruments. The Alcohol Test Committee is comprised of scientists who have direct connections with, and are employed by, policing services and Government Agencies. Five of the ten members of the Committee are employed by R.C.M.P. labs across the country. Four of the remaining five members are employed by Government agencies. [Emphasis added; para. 137.]


The fact that the expert opinion of a member of the ATC, Ms. Blake, is the only one before this Court in the present appeal, while the position of experts that may disagree with her on the relevance of maintenance records is notably absent from the record, is further cause for caution. I note that Ms. Blake and another witness tendered by the Crown have, in the past, admitted that “not all experts agree with them on this issue” (Sutton, at para. 152).


[76]In my respectful view, such caution is not reflected in an approach that relies on the ATC’s updated recommendations to conclude that maintenance records are not relevant. In St-Onge Lamoureux, it wasassumed on the basis of a fulsome evidentiary record that maintenance records were relevant to rebutting the presumptions at issue, and the impugned scheme’s constitutionality was confirmed on this basis. Aside from the updated statement from the ATC, which has not been shown to be the product of new scientific evidence of any kind, there is no new evidentiary basis in the present case for calling the Court’s assumptions in St-Onge Lamoureux into question. In light of this context, I remain unconvinced that the wisdom of our recent jurisprudence should be so easily swept

away.


Defence lawyers need to be vigilant in challenging scientific and technical mystique. The best way to do that is by calling expert techical and scientific evidence to create a good balanced record of evidence. Contrast the record before the SCC in Gubbins v. the much more complete record in St-Onge Lamoureux.


Some of my colleagues have found the book by Jokinen and Keen Impaired Driving and Other Criminal Code Offences: A Practitioner's Handbook to be very helpful in their daily trial preparation. Please see the review by Kyla Lee in Vancouver.




19 views0 comments