Criminal Lawyers Association: FOR THE DEFENCE • VOL. 43 • NO. 4 39 , August-September 2023, at p. 34.
WHAT DO YOU DO WITH THE DUI DISCLOSURE ONCE YOU’VE GOT IT? Stephen Biss and Adel Afzal
Members of the Criminal Lawyers Association can access the article online at:
The following are Updates to the Endnotes for the article with corrected numbering to match article numbering:
NOTES:
1 Criminal Code of Canada, s. 320.34(1)
2 "sufficient to determine" in s. 320.34(1)
3 An evidence-to-the contrary hearing under Bill C-46 has nothing to do with a R. v. Carter, 1985 CarswellOnt 2, 19 C.C.C. (3d) 174 (Ont. C.A.) defence, calling your client and a tox- icologist. An evidence-to-the-contrary hearing results from the Crown’s potential or actual use of the Intoxilyzer® Test Record2320.33, the Certificate of the Qualified Technician 320.32(1), or the Certificate of the Analyst3320.32(1). It should also result from the Crown’s use of hearsay by the qualified Technician. Your client has rights under Interpretation Act, section 25 to call evidence-to-the-contrary. Call expert evidence from a measurement science expert based on disclosed, produced, or FOIP facts. See Criminal Code of Canada, s. 320.31(1) and, Interpretation Act, s. 25(1): “Where an enactment provides that a document is evidence of a fact with- out anything in the context to indi- cate that the document is conclusive evidence, then in any judicial pro- ceedings the document is admissible in evidence and the fact is deemed to be established in the absence of any evidence-to-the-contrary.”
4 Criminal Code of Canada, s. 320.31(1).
5 Educate yourself through FOIP applications and CPD, as to police service protocols, CFS protocols, and the scientific differences among self- checks, control tests, and calibration on their ASDs.
6 “Q.: If you had observed her doing X [from the expected list], you would have noted that. Right?”
7 Maybe “impaired” in another sense, but not to effect on ability to operate a conveyance.
8 The material before (para. 47(e) of decision) Justice Watt in R. v. Jackson, 2015 CarswellOnt 18194, 2015 ONCA 832, leave to appeal refused 2016 CarswellOnt 10527, 2016 CarswellOnt 10528 (S.C.C.) [R. v. Jackson], included an affidavit by Sgt. Kiss of Ottawa Police. Para. 46(e) listed QT obligations to dis- close. Para. 42 of that affidavit stated: “Upon changing the Alcohol Standard Solution, the Qualified Technician performing the procedure is required to conduct a Calibration Check, independent of any subject breath test. The Quali?ed Technician must record the solution change and subsequent Calibration Check in a log. The resulting Alcohol Standard Solution change and calibration log is also part of the Quali?ed Technician’s disclosure obligations when a prose- cution is commenced against a test subject.”
9 In Ontario, the wet-bath Simulator is every bit as essential an instrument as the Intoxilyzer®. No wet-bath Simulator is an “approved instrument” in Canada. Simulators (or alternatively “dry gas” in Western Canada) are “accessory equipment” (see Canadian Society of Forensic Science CSFS Alcohol Test Committee ATC https://www.csfs.ca/wp-content/uploads/2020/07/2020-05-29-Best-Practices.pdf) necessary to Parliament’s section 320.31(1) scheme of conclusive proof.
Link has been updated to: 2020-05-29 Best Practices
10 Keep different editions from different years in your long-term trial brief.
11 R. v. Jackson, supra, footnote 8.
12 R. v. Gubbins, 2018 CarswellAlta 2404, 2018 CarswellAlta 2405, 2018 SCC 44, [2018] 3 S.C.R. 35, <https://canlii.ca/t/hvqb7>.
13 R. v. Stipo, 2019 CarswellOnt 13, 2019 ONCA 3.
14 Justice Watt in Stipo, ibid., at 109.
15 R. v. Stipo, supra, footnote 13, at 109 and 126.
16 Statement from CMI in light of COVID-19, Toby Hall, President, March 20, 2020.
18 “Recommended Quality Assurance Checks at Start of Shift” p. 80 of 240 in Intoxilyzer® 8000C® Training Aid, Centre of Forensic Sciences, November 2018.
19 Guth Industries manufactures most of the wet-bath Simulators used in Ontario. See Training Aid, p. 28 of 240. See slideshow on a “Brief History of Simulators” at Guth, Alcohol Breath Test Simulators page at https://guthlabs.com/simulators/.
20 Bell, C.M. et al., Diethyl Ether Interference with Infrared Breath Analysis, Journal of Analytical Toxicology, Vol. 16, May/June 1992.
21 To a measurement scientist (metrologist) you retain, there will be a big problem with considering “results” under 320.34(1) as being merely the “indication”, either read on the instrument display, or printed on a piece of paper. To a scientist, “results” means a whole lot more, if the person is doing an “analysis” using an “instrument”, especially for a forensic purpose. See http://viml.oiml.info/en/index.html.
22 CFS 8000C Training Aid, November 2018, at 145 of 240.
23 See standard disclosure package in R. v. Jackson, supra, footnote 8.
24 Note, with respect, the error in scientific evidence given by experts, and facts found in R. v. Fitts, 2015 CarswellOnt 6935, [2015] O.J. No. 2431 (Ont. C.J.). The Fitts expert evi- dence is easily disproven experimen- tally.
25 See for example <https:// vimeo.com/183566822/38d5078598>.
26 COBRA is software used to down- load internal data from an Intoxilyzer® 8000C. Measurement scientists (metrologists) call it an “audit trail”. See OIML D 31, General requirements for software controlled measuring instruments, <https:// www.oiml.org/en/files/pdf_d/d031- e19.pdf>.
27 R. v. Jackson, supra, footnote 8 herein.
28 Think about the connection between the Certificate of the Analyst (at the CFS) and the actual contents in the wet-bath simulator of an alleged bottle that is a subset of lot used, by a group of Qualified Technicians including the QT who is testing your client for each of the subject tests. The contents of the simulator are sometimes changed between subject tests. The contents of the simulator are sometimes changed at start of shift. The con- tents of the simulator are some- times changed by one qualified technician but used by many others including your QT, maybe on the same day, maybe at the same loca- tion, maybe 6 days later. Maybe other QTs used the same simula- tor/alcohol standard combination for calibrating/accuracy checking ASDs. Maybe the bottles froze on a loading dock on their way to the police station. How do you find these things out?
29 R. v. Jackson, supra, footnote 8.
30 CFS Intoxilyzer® 8000C Information, 2014-12-24, Amie Peaire, Section Head.
31 R. v. Ocampo, 2014 CarswellOnt 12241, 2014 ONCJ 440. Subsequent log entry disclosed in course of disclosure argument, exhibit 15.
32 R. v. Ocampo, ibid.
33 CFS 8000C Training Aid, November 2018, at 84 and 195 of 240.