R. v. Ocampo, 2014 ONCJ 440

COURT FILE No.: Toronto Region DATE: 2014 ·08·12 Citation: R. v. Ocampo , 2014 ONCJ 440 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — CESAR RUIZ OCAMPO Before Justice Andrea E.E. Tuck-Jackson Heard on May 2, 6, November 5, December 10, 2013; January 2, 3, February 10, March 3, May 15, June 18, July 30, 2014 Reasons for Judgment released on August 12, 2014 Mr. S. Doyle; Mr. C. Igwe .......................................................................................... for the Crown Mr. S.

Biss ................................................................................. for the accused Cesar Ruiz Ocampo TUCK-JACKSON J.: I. Overview [ 1 ] Cesar Ruiz Ocampo stands charged that he, on or about the 8 th day of June, 2011, did operate a motor vehicle with a blood-alcohol concentration in excess of the legal limit (herein, “driving over 80”) and while his ability to do so was impaired by alcohol. [ 2 ] The investigating/arresting officer in this matter brought Mr.

Ruiz Ocampo before a qualified breath technician for the purposes of having him provide two samples of his breath into an approved instrument (herein, “A.I.”) for analysis. The A.I. in question was an Intoxilyzer 8000C. The A.I.’s analyses indicated that, at the time of testing, Mr. Ruiz Ocampo had a blood-alcohol concentration of 187 and 175 mg of alcohol in 100 mL of blood, respectively. [ 3 ] To date, at the trial proper, I have heard the complete testimony of P.C. William Niziol, the investigating/arresting officer. I have viewed Ex. 1, a DVD of the audio/video recording of the interaction between P.C.

Niziol and Mr. Ruiz Ocampo at the roadside. I have also heard the examination-in-chief of Sgt. Celeste Butt, the qualified breath technician who operated the A.I. that analysed Mr. Ruiz Ocampo’s breath samples. I have viewed Ex. 2, a DVD of the audio/video recording of each interaction amongst P.C. Niziol, Sgt. Butt and Mr. Ruiz Ocampo during the seizure and analyses of the aforementioned breath samples at Traffic Services, Toronto Police Service. The defence has yet to commence Sgt.

Butt’s cross-examination. [ 4 ] It is apparent, as the case has, thus far, unfolded before me, that the Crown intends to rely upon the presumption of accuracy, as conferred by ¶ 258(1)(

c) of the Criminal Code (herein, “ Code ”), and that the defence hopes to rebut this statutory presumption. The presumption of accuracy is rebutted where the defence proffers evidence tending to show that the A.I. was (1) malfunctioning or was (2) operated improperly. [ 5 ] By way of applications that were framed and filed pre-trial, but were argued mid-trial, the defence seeks the following: (1) an order that the Crown provide to the defence all available “COBRA data”, in electronic form, generated by the Intoxilyzer 8000C which analysed Mr.

Ruiz Ocampo’s two breath samples on June 8, 2011, spanning the period commencing six months before, and concluding six months after, Mr. Ruiz Ocampo’s breath tests; (2) an order, pursuant to § 652 of the Criminal Code , directing that a view be taken of the Intoxilyzer 8000C, that analysed Mr. Ruiz Ocampo’s breath samples, within the setting of the breath room at Traffic Services where the qualified breath technician in the instant case had Mr.

Ruiz Ocampo provide two breath samples into the A.I.; or, in the alternative, (3) an order directing that photographs of the subject matter of the aforementioned view be taken by a photographer chosen by the defence; or, in the alternative,

(4) an order directing that the police take specified photographs of the subject matter of the aforementioned view, as directed by thedefence. [6] The Crown opposed all orders sought by the defence. [7] The defence served the Toronto Police Service with the relevant Notices of Application and supporting materials in thiscase. It also opposed the orders sought by the defence. [8] The defence applications are brought in furtherance of Mr. Ruiz Ocampo’s right to make full answer and defence, asguaranteed by § 7 of the Canadian Charter of Rights and Freedoms (herein, “Charter”).

In its pursuit of the aforementioned orders, thedefence seeks access to information that it argues meets a degree of relevance vis à vis the material issues of whether the instrument wasmalfunctioning or was operated improperly at the time the A.I. analyzed Mr. Ruiz Ocampo’s breath samples. [9] On May 15, 2014, I dismissed the application for the orders identified in (2), (3), and (4) in ¶ 5, supra, with writtenreasons, as set out herein, to follow.

For ease of reference, this aspect of the application will be referred to herein as the “viewapplication”. [10] For reasons that I will develop herein, I am allowing, in part, the application for an order identified in (1) in ¶ 5, supra.For ease of reference, this aspect of the application will be referred to herein as the “COBRA data application”. II.

The Legal and Evidentiary Backdrop to which the Information Sought Relates [11] To understand the potential relevance of the information to which the defence seeks access in both applications, it isnecessary to understand the legal and evidentiary contexts in which a charge of driving over 80 is prosecuted and defended. It is alsoimportant to understand the concepts of materiality and relevance and their relationship to the legal and evidentiary backdrop presentedby ¶ 258(1)(

c) of the Criminal Code. A. The Legal & Evidentiary Context that ¶ 258(1)(

c) of the Criminal Code Presents [12] The Crown has tendered evidence of Mr. Ruiz Ocampo’s blood-alcohol concentration at the points in time the A.I., asoperated by the qualified breath technician, analysed his breath samples. To prove its case against Mr. Ruiz Ocampo, the Crown intendsto rely upon the aforementioned presumption of accuracy and the first presumption of identity, both conferred by ¶ 258(1)(

c) of theCode. [13] The import of the presumption of accuracy essentially speaks for itself. As noted in the Supreme Court of Canada’sdecision in R. v. St.-Onge Lamoureux, 2012 SCC 57 , [2012] S.C.J. No. 57 at ¶ 23, this statutory presumption permits theCrown to rely on the A.I. test results without having to prove that they are valid.

The presumption of accuracy focuses on the reliabilityof the test result. [14] According to the first presumption of identity, the analytical results of a person’s blood-alcohol concentration as shownby the test is presumed to be the same as his or her blood-alcohol concentration at the time of the alleged offence. See: R. v.

St.-OngeLamoureux, supra, at ¶ 6. [15] The Crown also intends to rely upon the second presumption of identity, conferred by ¶ 258(1)(d.1) of the Code, namelythat a blood- alcohol concentration that exceeds 80 mg of alcohol in 100 mL of blood at the time of the analyses is presumed to be thesame as the blood-alcohol concentration of the accused at the time of the alleged offence. See: R. v. St.-Onge Lamoureux, supra, at ¶ 15. [16] In accordance with ¶ 258(1)(

c) of the Code, the presumption of accuracy and the first presumption of identity arerebuttable on the strength of “evidence tending to show” that the A.I. was malfunctioning or was operated improperly at the time oftesting.

For greater clarification, such evidence does not include evidence of the amount of alcohol that the accused consumed, the rate atwhich the alcohol that the accused consumed would have been absorbed and eliminated by the accused’s body, or a calculation based onthat evidence of what the concentration of alcohol in the accused’s blood would have been at the time when the offence was alleged tohave been committed. See: ¶ 248(1)(d.01) of the Code.

Thus, the results can be challenged “…only by raising problems that can beobjectively identified and that relate to possible deficiencies in the instrument itself or in the procedure followed in operating it”. See: R.v. St.-Onge Lamoureux, supra, at ¶ 38. The accused must not simply show that a deficiency is possible; but raise a real doubt that theinstrument was functioning or operated properly. See: R. v. St.-Onge Lamoureux, supra, at ¶ 53. [17] To rebut these presumptions, the defence need not tender any additional evidence. For example, the Supreme Court ofCanada in R. v.

St.-Onge Lamoureux, supra, concluded that the defence need not also proffer evidence tending to show that themalfunction or improper operation of the instrument resulted in the determination that the accused’s blood-alcohol concentrationexceeded the legal limit and that the accused’s blood-alcohol concentration would not in fact have exceeded that limit at the time whenthe offence was alleged to have been committed. The Court concluded that to otherwise require that this evidentiary burden be metamounted to a violation of the presumption of innocence, as guaranteed by ¶ 11(

d) of the Charter, which could not be saved by § 1 of theCharter. [18] The combined effect of the provisions within ¶ 258(1)(

c) of the Code was aptly summarized by Deschamps J., who wrotethe majority decision in R. v. St.-Onge Lamoureux, supra, at ¶ 21 as follows: If the conditions for the taking of breath samples set out in s. 258(1)(

c) are met, the trial judge must find that the test results adduced inevidence by the prosecution are, as indicated in that same provision, conclusive proof, for the purposes of the charge, of the bloodalcohol level of the accused both at the time when the analyses were made and at the time when the offence was alleged to have beencommitted unless the accused succeeds in rebutting the presumptions of accuracy and identity. [emphasis in the original]

[19] In accordance with ¶ 258(1)(d.1) of the Code, an accused can rebut the second presumption of identity by profferingevidence tending to show that his or her consumption of alcohol was consistent both with a blood-alcohol concentration not exceeding 80mg of alcohol in 100 mL of blood at the time of the offence and with the results of the A.I. test. See: R. v. St.-Onge Lamoureux, supra, at¶ 19. In meeting this evidentiary burden, the accused is not challenging the reliability of the test results.

Instead, the accused isadvancing the position that the “results were distorted by the fact that he or she had consumed alcohol shortly before or after the allegedoffence”. See: R. v. St.-Onge Lamoureux, supra, at ¶ 83. [20] The burden (or standard of proof) that must be met to rebut the aforementioned presumptions is an evidentiary burden,placed upon the accused, requiring him or her to raise a reasonable doubt on the issue. See: R. v. St.-Onge Lamoureux, supra, at ¶ 16,citing R. v. Crosthwait, (SCC), [1980] 1 S.C.R. 1089 and R. v. Gibson, 2008 SCC 16.

Where, for example, the accusedraises a reasonable doubt that the instrument functioned or was operated properly, this simply means that the prosecution loses thebenefit of the presumptions under ¶ 258(1)(c). The prosecution can still tender additional evidence to prove that, despite the apparentdeficiency, the blood-alcohol concentration of the accused at the times of testing exceeded 80 mg of alcohol in 100 mL of blood asshown by the test results. [21] In R. v.

St.-Onge Lamoureux, supra, Deschamps J. elaborated upon the real potential for the A.I. to malfunction or beoperated improperly at ¶ 25: …The expert evidence filed in the instant case reveals that the possibility of an instrument malfunctioning or being used improperlywhen breath samples are taken is not merely speculative, but is very real.

The Alcohol Test Committee (“Committee”) of the CanadianSociety of Forensic Science (“CSFS”) has made a series of recommendations concerning the procedures to be followed by theprofessionals who operate the instruments and verify that they are properly maintained: “Recommended Standards and Procedures of theCanadian Society of Forensic Science Alcohol Test Committee” (2009), 42 Can. Soc. Forensic Sci. J. 1.

The Committee states thatbefore collecting a breath sample, the qualified technician must, among other things, observe the test subject for 15 minutes, conduct asystem blank test and a system calibration check, and verify the temperature of the alcohol standard, and that the alcohol standard mustbe changed after a certain number of calibration checks. The Committee also recommends that approved instruments be inspected on anannual basis to ensure that they continue to meet the manufacturer’s technical specifications.

According to the Committee, thecalibration and maintenance of instruments are essential “to the integrity of the breath test program” (p. 14). The Committee’s recommendations shed light on the circumstances that might explain how an instrument malfunctioned or was usedimproperly. Thus, human error can occur when samples are taken and at various steps in the maintenance of the instruments, which, itshould be mentioned, are used Canada-wide.

Hodgson’s report, which the prosecution itself relied on as a source of the statutoryamendments, refers to the importance of proper operation and maintenance: [T]o achieve scientifically sound results in operational use, user agencies must ensure that approved instruments are operated byqualified personnel using procedures based on good laboratory practice. [p. 83] Moreover, Parliament recognized the importance of following such practices and procedures in s. 258(1)(

c) and s. 258(1)(d.01), since theaccused can rebut the presumptions by showing that the instrument was not properly maintained or operated. [emphasis added] [22] It is on this legal and evidentiary foundation that the defence applications develop. B. Materiality & Relevance [23] The rulings on both applications rely upon a proper understanding of materiality and relevance.

These concepts are aptlysummarised in Watt’s Manual of Criminal Evidence – 2013. [24] Materiality is defined at p. 30 in § 4.0 as follows: Materiality is a legal concept that defines the status of the propositions that a party seeks to establish by evidence to the case at large.What matters is whether the fact the party seeks to prove bears any relation to the issues in the case. What is in issue in a case, thus what is material, is determined by the applicable substantive law, the issues raised by the allegation(s)contained in the indictment, and the applicable procedural law.

Evidence is immaterial if the proposition of fact in that it is offered to prove is not, under the governing substantive and procedural law,an issue before the court. Evidence is material if it is offered to prove or disprove a fact in issue. [emphasis in the original] [25] In essence, materiality speaks to the factual and legal issues that must be resolved by the trier of fact within a given case.In the instant case, for example, it is a live issue (or it is material to the resolution of the case) whether (1) the A.I. was malfunctioning atthe time it received and analysed Mr.

Ruiz Ocampo’s breath samples; and (2) the qualified breath technician operated the A.I. properlyat the time it received and analysed the said samples. This articulation represents the statutory characterization of these issues. With thebenefit of the refinement provided by the dicta contained in R. v. St.- Onge Lamoureux, supra, these issues may be reframed as follows:is there an objectively identifiable problem, relating to a deficiency, that goes beyond a mere possibility and amounts to a real doubt, withrespect to the instrument’s (1) functioning or as to its (2) proper operation in the instant case.

The credibility and reliability of a witnesswho claims that the A.I. was functioning or operated properly is a material sub-issue. [26] Relevance is defined at p. 28 in § 3.0 of Watt’s Manual of Criminal Evidence – 2013 as follows: Relevance is not a legal concept, rather, a matter of everyday experience and common sense. It is not an inherent characteristic of any

item of evidence, rather, exists as a relation between an item of evidence and a proposition of fact that its proponent seeks to establish byits introduction. An item of evidence is properly characterized and rejected as irrelevant if it is not probative of the fact that it is sought to establish by itsintroduction by reason of its natural, common sense connection with that fact. An item of evidence is relevant where it is probative of thefact it is sought to establish by its introduction through the same process of reasoning.

Any two facts to which the term “relevant” is applied, are so related to each other that, according to the common course of events, one,either taken by itself or together with or in the context of other facts, proves or renders probable the past, present, or future existence ornon-existence of the other. [emphasis in the original] [27] Relevance is assessed in the context of the entire case and having regard to the positions of the parties.

It requires adetermination whether, as a matter of human experience and logic, the existence of a particular fact, directly or indirectly, makes theexistence or non-existence of a material fact more probable than it would be otherwise. See: R. v.

Cloutier (1979), (SCC), 48 C.C.C. (2d) 1 (S.C.C.). [28] In the instant case, evidence will be relevant to the issues identified above if, as a matter of human experience and logic,directly or indirectly, it tends to show that there exists (or does not exist) an objectively identifiable problem, relating to a deficiency, thatgoes beyond a mere possibility and amounts to a real doubt, with respect to (1) the instrument’s functioning or as to its (2) properoperation.

Evidence that is probative of the credibility and reliability (or the lack thereof) of a witness who claims that the A.I. wasfunctioning or operated properly is also relevant. [29] In R. v. St.-Onge Lamoureux, supra, the Court declined to discuss in any detail the nature and scope of evidence thatwould be considered relevant to the issue of whether the A.I. was malfunctioning or operated improperly at the time of the analyses. Byextension, the Court also declined to discuss in any detail what information the Crown ought to provide the to the defence on these twinissues.

However, to the extent that the majority decision did touch on these questions, Deschamps J. wrote the following at ¶ 42, 43, 47,48, 51, 52, 53, and 78, respectively: Since the nature and scope of the evidence that might be considered relevant has not been argued on this appeal, it would not beappropriate to rule on the specific limits of that evidence. I will merely note that, in light of the evidence accepted by the trial judge,there are several pieces of evidence that can be provided to a person who is charged under s. 253(1)(

b) Cr. C., including thebreathalyzer readings, the qualified technician’s certificate and the analyst’s certificate concerning the sample of the alcohol standard. It its recommendations, the CSFS Committee also suggested mechanisms for ensuring that the instruments function properly and forassuring the quality of breath alcohol analyses. It can be inferred from these recommendations that the instruments may not functionoptimally if the suggested procedures are not followed. [emphasis added] . . . …The evidence to be adduced is more complex.

The accused must retain a technician or an expert to determine whether the instrumentmalfunctioned or was operated improperly. It is impossible for a layperson to do this. …The evidence to be tendered relates directly to an instrument that is under the prosecution’s control. The prosecution must of coursedisclose certain information concerning the maintenance and operation of the instrument, but it is free to establish procedures fortracking how such instruments are maintained and operated.

Moreover, the prosecution has control over the people who maintain andoperate the instruments. [emphasis added] . . . …It is conceivable that evidence that an instrument has produced erratic results could raise a doubt that the results concerning anaccused are reliable… …In [R. v. Crosthwait, supra], the accused had tried to raise a doubt that the instrument had functioned properly by arguing that thetechnician had not compared the air temperature of the solution before making the analyses.

The mere possibility that the instrument hadmalfunctioned was not evidence to the contrary that could cast doubt on the reliability of the results. Thus, it is necessary to proceed on the basis that the accused must not simply show that a deficiency is possible, but raise a real doubtthat the instrument was functioning or operated properly. [emphasis added] . . .

Although Parliament now requires evidence tending to establish a deficiency in the functioning or operation of the instrument, this doesnot mean that there are limits on the evidence that can reasonably be used by the accused to raise a doubt in this regard. The accused canrequest the disclosure of any relevant evidence that is reasonably available in order to be able to present a real defence. If theprosecution denies such a request, the accused can invoke the rules of non-disclosure and the available remedies for non-disclosure (seeR. v. O’Connor, (SCC), [1995] 4 S.C.R. 411).

In short, the accused might rely, for example, on a maintenance log thatshows that the instrument was not maintained properly or on admissions by the technician that there had been erratic results, or he orshe might argue that health problems had affected the functioning of the instrument (see R. v. Kasim, 2011 ABCA 336, 515 A.R. 254).[emphasis added]

[ 30 ] In

summary, in my consideration of the applications herein, I must be mindful that the information to which the defence seeks access must bear some degree of relevance to the material issues identified above, and that I must allow for access to such information provided it holds the appropriate degree of relevance and is reasonably available. III.

Summary of the Evidence A. The Investigation [ 31 ] Mr. Ruiz Ocampo’s charges arise following a police investigation that commenced in the early morning hours of June 8, 2011, when Cesar Ruiz Ocampo allegedly attempted to avoid a R.I.D.E. program that members of the Toronto Police Service had set up near International Boulevard and Renforth Drive in Toronto. P.C. William Niziol, who had been assigned to watch for “turnoffs”, spotted Mr. Ruiz Ocampo’s vehicle and pulled him over on Carlingview Drive shortly after 2:30 a.m. As a result of a brief investigation at the roadside, P.C.

Niziol formed the suspicion that Mr. Ruiz Ocampo had alcohol in his system. On the strength of an approved screening device demand (herein, “A.S.D.”), pursuant to ¶ 254(2)(

b) of the Code , Mr. Ruiz Ocampo provided a sample of his breath into an A.S.D., and following the analysis of that breath sample, the device registered a “fail”. On the strength of this result, P.C. Niziol arrested Mr. Ruiz Ocampo for the offence of driving over 80. The officer advised Mr. Ruiz Ocampo of his rights to counsel and he made an A.I. demand, pursuant to § 254(3) of the Code . The officer then transported Mr. Ruiz Ocampo to Traffic Services for breath testing. [ 32 ] It was shortly after 4:00 a.m. when P.C. Niziol brought Mr.

Ruiz Ocampo into a private room, just off the booking hall at Traffic Services, to meet with Sgt. Celeste Butt. Their interaction in the breath room was audio/video recorded. [ 33 ] Sgt. Butt is a qualified breath technician for the Intoxilyzer 8000C, an A.I.. The officer had been so designated as of February 24, 2010. Sgt. Butt indicated that she had been assigned to Traffic Services as the breath tech “that night”. During the course of her investigation of Mr. Ruiz Ocampo, Sgt. Butt recorded her observations in a document entitled, Breath Interview . A copy of that document appears in Ex. 3 at Tab 2.

Page 2 of that document contains information that indicates that she was working “Nights”, running between 22:00 and 06:00 hours. I inferred from this combined evidence that she was the only qualified breath technician operating out of Traffic Services between 10:00 p.m. on June 7, 2011 and 6:00 a.m. on June 8, 2011. [ 34 ] The A.I., as operated by Sgt. Butt, received the first breath sample from Mr. Ruiz Ocampo at 4:08 a.m. The breath sample was suitable for analysis and was received directly into the A.I. Subsequent analysis of that breath sample indicated that, at the time of testing, Mr.

Ruiz Ocampo had a blood-alcohol concentration of 187 mg of alcohol in 100 mL of blood. Mr. Ruiz Ocampo provided a second breath sample at 4:31 a.m. That breath sample was suitable for analysis and was received directly into the A.I.. Subsequent analysis of that breath sample indicated that, at the time of testing, Mr. Ruiz Ocampo had a blood-alcohol concentration of 175 mg of alcohol in 100 mL of blood. [ 35 ] Towards the bottom of p. 2 of the Breath Interview , there is an entry indicating that Sgt. Butt had found the instrument to be in “proper working order” and that she was ready to receive the subject (Mr.

Ruiz Ocampo) for testing on June 8, 2011 at 02:01 hours. Sgt. Butt outlined the steps she took to ascertain that the A.I. was in “proper working order”. I will provide a detailed

summary of her evidence in this regard given the Crown’s apparent contention that she operated the A.I. properly and the intent of the defence to challenge this aspect of Sgt. Butt’s evidence. Some of these steps were executed well before Mr. Ruiz Ocampo’s arrival in the breath room. Indeed, these steps were taken before Sgt. Butt received samples from her first subject that night. (Mr. Ruiz Ocampo represented the third test subject with whom she dealt during her shift.) Sgt. Butt indicated that she executed a diagnostics check of the instrument.

She found the result to be within proper parameters, indicating that the A.I. was in proper working order. A copy of the test record printout generated by the A.I. following this test appears in Ex. 3, at Tab 3, first page in. On the face of the record, the time of the test is indicated as 01:55:44. Sgt. Butt did not suggest that she had performed any other diagnostics tests of this nature, or that she was aware that the A.I. had automatically performed one, around this timeframe. Sgt.

Butt indicated that she also performed a calibration check and that she found the result to be within proper parameters, indicating that the A.I. was in proper working order. A copy of the test record printout generated by the A.I. following this test appears in Ex. 3, at Tab 3, second page in. On the face of the record, the time of the test is indicated as 01:56:59, a little more than a minute following the aforementioned diagnostics test. Sgt. Butt also indicated that she performed a self-test. That is to say, she submitted a sample of her breath into the A.I. for analysis.

The result registered was 0 mg of alcohol in 100 mL of blood. A copy of the test record print out generated by the A.I. following this test appears as Ex. 30. On the face of the record, the time of the test is indicated as 01:59:46, a little less than three minutes following the aforementioned calibration check. Sgt. Butt specified that on the strength of these three checks, she found the instrument to be working properly. As noted above, Sgt. Butt made a note in her Breath Interview that the A.I. was ready to receive the subject (Mr. Ruiz Ocampo) for testing as of 02:01 hours on June 8, 2011. Sgt.

Butt’s execution of these tests was not captured on audio/video recording. [ 36 ] Some of the steps that Sgt. Butt took to ascertain that the A.I. was in “proper working order” occurred after Mr. Ruiz Ocampo entered the breath room. Referencing the Intoxilyzer 8000C test record printout generated following the testing sequence which contained Mr. Ruiz Ocampo’s two subject tests, a copy of which appears in Ex. 3, Tab 3, third page in, Sgt. Butt outlined these steps. The face of the record indicates that, following the input of details about Mr.

Ruiz Ocampo and the occurrence which brought him to Traffic Services, the first step of the testing sequence commenced at 04:05:24 and the last step began at 04:32:22. [ 37 ] Sgt. Butt explained that the testing sequence begins with an air blank test. This step is aimed at purging the instrument with a view to ensuring that there is no alcohol in the ambient air or any residual alcohol in the instrument. In this case, the first air blank test registered a result of “000”. When asked what that result told her, she stated that “it” was “0”. Sgt.

Butt further explained that the A.I. then performed a diagnostics test, elaborating that every time a subject is tested, in addition to the “pre-testing” she did earlier, a diagnostics test runs. In this case, “it” generated a reading of “passed”. This result told her that the instrument was in proper working order. She explained that the A.I. then performed another air blank test, what she referred to this time as an internal self-check. It generated a result of “000”, indicating that there was no interference from ethyl alcohol inside or near the instrument.

She noted during her testimony that the simulator temperature indication of 34.00 degrees Celsius fell within normal parameters, indicating to her that the simulator was in proper working order. She had read that temperature from a digital display that forms part of the simulator and then entered the temperature into the A.I. when it prompted her to do so. She further explained that the A.I. then performed a calibration check. On the strength of a known concentration value, the instrument calibrates itself. In this case, the test generated a reading of 96.

This result fell within the acceptable parameters, namely a reading somewhere between 96 and 100. On the strength of that reading, she found the A.I. to be in proper working order. Sgt. Butt then pointed out that the A.I. performed another air blank, a form of self-check for the presence of any ethyl alcohol vapour inside or around the instrument. Again, it generated a reading of “0”. She found “that” to be proper. She further explained that the A.I. conduced another diagnostics test that the A.I. passed. It was at this juncture that Mr.

Ruiz Ocampo blew into the A.I. and the instrument analysed his breath sample. At the conclusion of this subject test, the A.I. performed another air blank, purging all of the alcohol vapour from within the instrument. Sgt. Butt explained that the sequence is identical leading up to, including, and following the second subject test. [ 38 ] When asked for her view of the subject test results, Sgt. Butt indicated that she was satisfied that “they were in good agreement” and that Mr. Ruiz Ocampo should be charged with driving over 80.

At this juncture of her testimony, Crown counsel specifically asked her, “Did you perceive any difficulty with any of the air blanks or calibration tests?” The officer replied, “I found the instrument to be in proper working order.” [1] At no time did Sgt. Butt express any concern about perceived difficulties with any diagnostics tests performed in conjunction with the investigation of Mr. Ruiz Ocampo. [ 39 ] With respect to the alcohol standard solution utilized during the calibration tests, Sgt. Butt indicated that she checked the seal affixed to the bottle that contained the solution.

That seal had not been tampered with and was in “good order”. It bore the identifier 2N46743 and indicated that P.C. Hughson, badge #1011, was the last officer who had changed the solution and that he had done so at 6:52 a.m. on June 7, 2011. She knows P.C. Hughson to be the Service’s breath test co-ordinator. The ethyl alcohol standard solution in question was lot 22BH, manufactured by Laboratoire Atlas Inc. in August 2009 with an expiry date of August 2012.

A copy of the Certificate of an Analyst referencing the particulars of this ethyl alcohol standard solution was posted on the wall near the Intoxilyzer 8000C that Sgt. Butt was operating on the night in question. B. The COBRA Data Application [ 40 ] At issue in the COBRA data application is (1) the scope of information that comprises downloadable COBRA data necessary to complete a meaningful assessment of whether the A.I. was malfunctioning or operated improperly at the time of testing and (2) the format in which the Crown ought to provide the requisite data to the defence.

Put another way, what portion of downloadable COBRA data is probative of the issue framed in ¶ 25, supra , namely, whether there exists an objectively identifiable problem, relating to a deficiency, that goes beyond a mere possibility and amounts to a real doubt, with respect to (1) the instrument’s functioning or as to its (2) proper operation and in what format should the Crown provide it to the defence. [ 41 ] The COBRA data application stands or falls, in large part, on the testimony of Mr. Jean-Paul Palmentier, a Forensic Toxicologist with the Centre of Forensic Sciences (herein, “C.F.S.”), Toronto.

He testified in the capacity of what Crown counsel characterized as a “joint expert”, though it was the defence who called Mr. Palmentier as a witness. With the consent of both parties, the court qualified him to give expert testimony in relation to the absorption, distribution, and elimination of alcohol in the human body, the effects of alcohol, and the operation of evidentiary breath test equipment and screening devices, including the Intoxilyzer 5000C, the Intoxilyzer 8000C, the Alcotest, and accessory equipment and materials, including simulators and standard alcohol solutions. Mr.

Palmentier’s curriculum vitae was marked as Ex. 21. [ 42 ] The Crown called Det. Cst. Giovanni Savoia who has spent 20 years of his policing career in Traffic Services with the Toronto Police Service. Det. Cst. Savoia is the Breath and Alcohol Co-Ordinator for this Service. As part of his duties in that capacity, Det. Cst. Savoia prepares disclosure related to A.I.s, including the Intoxilyzer 8000C. (

a) What the Crown Has Disclosed [ 43 ] The parties have worked diligently towards narrowing the issues for litigation on these applications. To that end, the Crown has provided the defence with items which fall within its disclosure responsibility and , on a without prejudice basis, it has provided additional items in relation to which it takes the position that they are clearly irrelevant to the issues material to my resolution of the instant case. [ 44 ] In

summary, the Crown has disclosed the following items in furtherance of its disclosure obligations:

(1) The relevant memo book entries of the investigating/arresting officer, P.C. William Niziol. See: Ex. 3, at Tab 1;

(2) The anticipated evidence of, and Breath Interview prepared by, the qualified breath technician, Sgt. Celeste Butt. See: Ex. 3, at Tab 2;

(3) The A.I. test record printout for the standalone diagnostics test conducted at 01:55:44 on June 8, 2011 by the Intoxilyzer 8000C bearing serial number 80-005053. See: Ex. 3, Tab 3, first page in;

(4) The A.I. test record printout for the standalone calibration check conducted at 01:56:59 on June 8, 2011 by the Intoxilyzer 8000C bearing serial number 80-005053. See: Ex. 3, Tab 3, second page in;

(5) The A.I. test record printout for Sgt. Butt’s self-test testing sequence conducted at 01:59:46 on June 8, 2011 by the Intoxilyzer 8000C bearing serial number 80-005053. See: Ex. 30;

(6) The A.I. test record printout for each of the testing sequences that include each of the two subject tests conducted commencing at 04:03:35 on June 8, 2011 by the Intoxilyzer 8000C bearing serial number 80-005053. See: Ex. 3, Tab 3, third page in;

(7) The Certificate of a Qualified Technician , prepared by Sgt. Butt and dated June 8, 2011in relation to Mr. Ruiz Ocampo’s breath tests. See: Ex. 3, at Tab 5;

(8) The Certificate of an Analyst , prepared by Inger Bugyra and dated September 17, 2009. See: Ex. 3 at Tab 6;

(9) A copy of the breath room video capturing the interaction amongst Mr. Ruiz Ocampo, Sgt. Butt and P.C. Niziol during breath testing. See: Ex. 3, at Tab 4; and

(10) A copy of the in-car video capturing the interaction between Mr. Ruiz Ocampo and P.C. Niziol. See: Ex. 3 at Tab 7. It is the position of the Crown that the ten items identified above form part of the investigatory file into Mr. Ruiz Ocampo’s alleged offence or, put another way, they represent the fruits of the investigation into his conduct. [ 45 ] The Crown has provided the following additional items, on a without prejudice basis, i.e. , without conceding that such items fall within its disclosure obligations, for the sake of trial expediency:

(1) The Certificate of Calibration for the Intoxilyzer 8000C bearing serial number 80-005153, prepared by a technician with the manufacturer, CMI Inc., and dated July 14, 2010. See: Ex. 3, Tab 10, first page in;

(2) An excerpt from the Toronto Police Intoxilyzer 8000C Weekly Inspection log for Intoxilyzer 8000C bearing serial number 80-005153 referencing details of inspections conducted between May 17 and June 7, 2011, inclusive. See: Ex. 3, Tab 10, second page in;

(3) A printout of a PDF file containing the following COBRA data generated by the Intoxilyzer 8000C bearing serial number 80- 005153, in the nature of: a. The time and results of standalone calibration checks conducted on June 7 and 8, 2011; b. The time and results of standalone diagnostics tests conducted on May 8, 9, 11, 12, 13, 16, 19, 20, 21, 22, 23, 24, 26, 27, 28, 29, 30; June 3, 5, 6, 7 and 8, 2011; c.

The time and type of error messages generated on January 9, 10, 11, 15, 16, 17, 19, 24, 28; February 1, 3, 5, 6, 7, 8, 18, 20, 27; March 3, 5, 6, 7, 12, 15, 22, 24, 27, 28, 29, 31; April 1, 3, 5, 10, 11, 14, 18, 19, 22, 25, 30; May 4, 5, 11, 12, 22, 29; June 4, 6, 7 and 8, 2011; and d. The time and results of subject tests generated on May 8, 9, 10, 11, 12, 13, 16, 17, 19, 20, 21, 22, 23, 24, 26, 27, 28, 29, 30, 31; June 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 15, 18, 19, 20, 21, 22, 24, 25, 26, 27, 28; July 1, 2, 3, 5, 7, and 8, 2011. See: Ex. 3, Tab 10, fourth page in, ff ;

(4) A print out of a PDF file containing COBRA data generated by the Intoxilyzer 8000C bearing serial number 80-005153 at 01:51:10 on June 8, 2011 in the nature of a standalone diagnostics test. See: Ex. 16; and

(5) An excerpt from the Toronto Police Intoxilyzer 8000C Weekly Inspection log for Intoxilyzer 8000C bearing serial number 80-005153 referencing details of inspections conducted between June 28 and July 19, 2011, inclusive. See: Ex. 15. [ 46 ] To be clear, the Crown has not disclosed all available COBRA data generated by the Intoxilyzer 8000C bearing serial number 80-005153 for any time frame. (

b) The Basics of How the Intoxilyzer 8000C Executes a Subject Test [ 47 ] When a test subject provides a breath sample directly into an Intoxilyzer 8000C, the A.I. measures the alcohol concentration within that sample. It then correlates that result with the test subject’s blood-alcohol concentration. [ 48 ] Referencing the test record printout generated in this case by the A.I., a copy of which appears in Ex. 3, Tab 3, third page in, Mr. Palmentier described the sequence through which the Intoxilyzer 8000C runs when it prepares for the receipt of, and analyses, a test subject’s breath sample.

For ease of reference, I will refer to this as the testing sequence. A given testing sequence is comprised of nine steps. The testing sequence runs its course twice – one sequence per breath test. In the instant case, the test record printout indicates that two complete testing sequences commenced and concluded. Mr.

Palmentier outlined the purpose of each phase of the testing sequence. [ 49 ] Once the qualified breath technician inputs particulars that identify the accused, the arresting officer, the time of the underlying occurrence, and the qualified breath technician, information commonly referred to as tombstone data, the testing sequence commences. [ 50 ] The first stage is an air blank test. In this phase, the A.I., with the use of a pump, draws in room or ambient air through the heated breath tube.

In so doing, the A.I. is checking to see whether there is any alcohol or other interfering substances present in the room air that could contaminate the testing process. As long as the tube is not blocked in any way, the instrument will take an accurate reading of the room air at the time of testing. The positioning of the air tube at the time of the air blank test does not impact the reliability of the air blank test result. The optimal and typical result obtained registers as “000”.

In the instant case, the A.I. conducted an air blank test at 04:05:24 on June 8, 2011 at the conclusion of which a result of “000” mg% was generated. In Mr. Palmentier’s expert opinion, that result indicated that the level of alcohol or any interferent that might be present in the surrounding air was 0 to some amount less than or equal to the equivalent of 7 mg of alcohol in 100 mL of blood. If the level of alcohol or any interferent that might be present equals or exceeds the threshold value of the equivalent of 10 mg of alcohol in 100 mL of blood, then an ambient fail message registers.

The instrument immediately initiates a second air blank test, following which the testing sequence is interrupted and cancels itself. This represents an example of how the Intoxilyzer 8000C self-regulates. [ 51 ] Assuming that the air blank test result does not exceed the 10 mg per 100 mL threshold value, the A.I. proceeds to the second stage, namely a diagnostics test. The diagnostics test focuses on various components within the Intoxilyzer 8000C.

Each diagnostics test normally comprises nine parts, however in this case, it was comprised of only eight constituent parts. [2] The first test focuses on whether the instrument has enough voltage and current to operate the various circuit boards and heaters in the instrument. The

second test focuses on the machine’s RAM (random access memory, referring to the temporary data storage in a computer) to ensure that it is not corrupted. The third test focuses on ensuring that the software that runs the instrument is not corrupted. The fourth test verifies the accuracy of the instrument’s internal date and time recorder. The fifth test focuses on the instrument’s digital signal processing capacity. The sixth test focuses on the instrument’s analytical stability. At this time, the instrument runs its internal test procedure (ITP), a test sequence similar to a calibration check. Mr.

Palmentier explained it as follows: It’s kind of an internal calibration check of the instrument done electronically. So what the instrument does is it reduces the intensity of the light source such that it decreases to the point where it mimics 100 milligrams of alcohol in 100 milliliters of blood as if a person had provided a sample. [3] [ 52 ] The seventh test focuses on the instrument’s modem to ensure that the instrument can download its data onto a computer. Finally, the eighth test verifies that the temperature of the heated breath tube and the sample chamber are within the acceptable range.

The instrument’s manufacturer has designated the diagnostics test as important to determining whether the instrument’s components are working properly at the time that a particular diagnostics test is undertaken. If, during the course of any particular diagnostics test a fail result is obtained, the overall testing sequence is interrupted and terminated. A testing sequence cannot be resumed; instead, it must be recommenced. [ 53 ] The diagnostics test at the second stage of the testing sequence occurred at 04:05:59.

It generated a result of “passed”. [ 54 ] At the third stage of the testing sequence, the A.I. conducts its second air blank test. This occurred at 04:06:26. Once again, it generated a result of “000”. In Mr. Palmentier’s expert opinion, that result was acceptable. [ 55 ] At the fourth stage of the testing sequence, the A.I. prompts the breath tech to confirm the “simulator temperature”, the particulars and significance of which are connected to the fifth stage of the testing sequence. The breath tech must ascertain that the temperature is within the acceptable range.

In the instant case, the breath tech had to manually enter the temperature. The recorded temperature was 34.00 degrees Celsius. After entering this figure, the breath tech hits the “enter” button and the testing sequence continues. [ 56 ] At the fifth stage of the testing sequence, the A.I. performs a “calibration check”. The purpose of the calibration check is to ensure that the instrument is in proper working order and maintaining its calibration as established at the point of manufacturing or its last service.

Using an external simulator attached to the A.I., the instrument performs a “dummie test” with “a known quantity to see if it gets it within a certain range”. To be more precise, the external simulator contains an alcohol standard solution certified as suitable for use during the calibration test by a designated analyst with the Centre of Forensic Sciences. As is confirmed by the Certificate of an Analyst , a copy of which appears in Ex. 3 at Tab 6, the alcohol standard solution used in this case was LABORATOIRE ATLAS INC.

Ethyl Alcohol Standard Lot Number 22BH having dates manufacture and expiry of 2009-08 and 2012-08, respectively. Inger Bugyra, a designated analyst with the Centre of Forensic Sciences, certified this alcohol standard as suitable for use with an Intoxilyzer 8000C on September 17, 2009. An alcohol standard solution is certified as suitable for use with the A.I. if its concentration falls within an acceptable range, namely, within a concentration of 1.21 mg of alcohol per mL of solution, plus/minus 0.03 mg per mL.

The simulator, which is a piece of auxiliary equipment attached to the Intoxilyzer 8000C, contains the alcohol standard solution. A simulator heats it up to 34.0 degrees Celsius. (The temperature must fall within the acceptable range of somewhere between 33.8 and 34.2 degrees Celsius.) The test is designed to simulate a breath sample from a test subject who has a blood-alcohol concentration of 100 mg of alcohol in 100 mL of blood.

The acceptable range for a test result, accounting for factors such as the solution’s temperature and concentration (anywhere between 1.18 and 1.24 mg of alcohol in each mL of solution), is the equivalent of 90 to 100 mg of alcohol in 100 mL of blood. In the instant case, the calibration check was conducted at 04:07:17 and the result was the equivalent of 96 mg of alcohol in 100 mL of blood. In Mr. Palmentier’s expert opinion, this result fell within the acceptable range. [ 57 ] At the sixth stage of the testing sequence, the A.I. conducts another air blank test.

In the instant case, this occurred at 04:07:52 and generated a reading of “000”. [ 58 ] At the seventh stage of the testing sequence, the A.I. performs a second eight-part diagnostics test. In this case, it occurred at 04:08:27. It generated a reading of “passed”. [ 59 ] At the eighth stage of the testing sequence, the A.I. receives the test subject’s breath sample and analyses it. In the instant case, at 04:08:59, Mr. Ruiz Ocampo’s breath sample generated a reading of 187 mg of alcohol in 100 mL of blood. [ 60 ] At the ninth and final stage, the A.I. conducted a final air blank test.

The purpose of this test is to remove from the system any residual alcohol remaining from the test subject’s breath sample. In this case, the final air blank test was conducted at 04:09:40 and generated a reading of “000”. [ 61 ] A qualified breath technician is required to wait 17 minutes before commencing the second testing sequence. The breath tech observed the requisite waiting time in this case. [ 62 ] The test record printout confirms that the second testing sequence mimicked that which preceded it. The sequence began with an air blank test at 04:27:47. It generated a result of “000”.

At 04:28:22, the first eight-part diagnostics test occurred and generated a reading of “passed”. A second air blank test occurred at 04:28:50, generating a result of “000”. The simulator temperature was then confirmed to be 34.00 degrees Celsius. At 04:29:49, the calibration check occurred, producing a result equivalent to 96 mg of alcohol in 100 mL of blood. This was followed by a third air blank test at 04:30:25 that produced a reading of “000”. At 04:31:00, the A.I. performed a second eight-part diagnostics test that generated a reading of “passed”. At 04:31:41, the A.I. received and analysed Mr.

Ruiz Ocampo’s second breath sample. The instrument generated a reading of 175 mg of alcohol in 100 mL of blood. Finally, the A.I. performed its last air blank test, generating a “000” reading. [ 63 ] The truncated readings in this case are 180 mg of alcohol in 100 mL of blood and 170 mg of alcohol in 100 mL of blood,

respectively. The two truncated subject test results must be “in good agreement with one another”. In essence this means that the two truncated readings must be within 20 mg of alcohol in 100 mL of blood of one another. Based on this criterion, the two truncated subject test readings are in good agreement with one another. [ 64 ] The test record printout for the testing sequences that include the two sequence tests contains additional information. For example, it reveals the outcome of the internal testing procedure (ITP) detailed above in ¶ 51, supra . In this case, the outcome is noted as “pass”.

The test record also identifies the manufacturer and lot number of the alcohol standard solution used in the A.I.’s external simulator. It further identifies who last changed the alcohol standard solution, together with the date and time when that change occurred. According to the test record printout, P.C. Hughson (badge 1011) last changed the alcohol standard solution on June 7, 2011 at 06:52:19. Information regarding who changed that solution, and when, can be cross-checked through reference to the relevant entry of the Toronto Police Intoxilyzer 8000C Weekly Inspection .

A copy of the relevant log entry appears in Ex. 3, Tab 10, second page in. The log entry also provides information regarding the chain of continuity of seals affixed to the simulator, which contains the alcohol standard solution, before and after the technician changes the solution. The Crown has apparently provided all relevant log entries that it claims bracket Mr. Ruiz Ocampo’s tests. It is noteworthy that the log entry that follows that of June 7, 2011 falls on June 28, 2011.

The notation as to the “old seal”, namely that which the new seal replaces, does not, as one might reasonably expect, refer to seal number 2N4873. [ 65 ] A test record can also specify an error or exception message. A “fail” during a diagnostics test is an example of an error message. Other examples of error or exception messages include, but are not limited to, “ambient fail” or “invalid sample”, the latter of which indicates the presence of mouth alcohol.

The test record printout generated at the conclusion of the testing sequences that included the two subject tests did not reveal any error or exception messages. (

c) The Data or Information Necessary to Properly Evaluate the Reliability of a Given Subject Test Result [ 66 ] In Mr. Palmentier’s opinion, the only information he requires to evaluate whether an A.I. was in proper working order and was operated properly by a qualified breath technician during a given testing sequence is “the information associated with this breath test. All the test records associated with that”. He defined the “information” and “test records” “associated with” a given subject breath test to include:

(1) The A.I. test record printout for what is referred to as the “standalone diagnostics test” associated with a given subject test . A copy of this test record printout in the instant case appears in Ex. 3, Tab 3, first page in. During this test, the A.I. normally conducts the same eight-part diagnostics tests identified in ¶ 51 ff , supra . In the instant case, the qualified breath technician executed a standalone diagnostics test at 01:55:44 on June 8, 2011, a little more than two hours prior to the testing sequence which included Mr. Ruiz Ocampo’s first subject test.

Each of the eight-part sequence generated a reading of “pass”, causing Mr. Palmentier to opine that the A.I. appears to have been working properly at that time.

(2) The A.I. test record printout for what is known as the “standalone calibration check” associated with a given subject test. A copy of this test record printout in the instant case appears in Ex. 3, Tab 3, second page in. In the instant case, the qualified breath technician executed the standalone calibration check at 01:56:59. According to Mr. Palmentier, this test is normally run at the beginning of the qualified breath technician’s shift or prior to conducting the first subject test during that officer’s shift.

The test record printout indicates that the simulator temperature reached 34 degrees Celsius following which the calibration check generated a reading equivalent to 99 mg of alcohol in 100 mL of blood.

(3) The A.I. test record printout for the qualified breath technician’s “stand alone self-test” associated with a given subject test . Typically following the standalone diagnostics test and the standalone calibration check, the qualified breath technician performs a self-test; that is to say, the breath tech submits a sample of his/her breath into the A.I.. A copy of this test record printout in the instant case was marked as Ex. 30. In the instant case, the qualified breath technician performed the standalone self-test commencing at 01:59:46.

It generated a reading of “000”, a reading equivalent to a blood-alcohol concentration of 0 mg of alcohol in 100 mL of blood. In Mr. Palmentier’s opinion, this test result confirmed that the A.I. was capable of accepting a sample. It also happened to confirm the reasonable assumption that the qualified breath technician had no alcohol in her system at the time of testing. It should be noted, however, that an external calibration test does not form part of this test. See: Intoxilyzer 8000C Training Aid , in Ex. 9, Tab 2 at p. 8-14. Given the significance that Mr.

Palmentier placed on the purpose of the calibration check, either as a standalone test or as part of the testing sequence, I have not taken him to have concluded that a seemingly reliable breath test result for the officer is, per se , an indication that the A.I. is functioning.

(4) The A.I. test record printout for the two testing sequences that include the two subject tests . As noted above, a copy of this test record printout for the two testing sequences undertaken in the instant case appears in Ex. 3, Tab 3, third page in; and

(5) The Certificate of an Analyst relating to the alcohol standard solution utilized during the calibration checks undertaken during the two testing sequences that include the two subject tests . As noted above, a copy of the relevant Certificate of an Analyst appears in Ex. 3 at Tab 6. This certificate represents the means by which one can confirm that the alcohol standard solution utilized at the time the A.I. analysed the breath samples was certified as having an appropriate concentration and had not expired at the time of use in the field.

The solution’s manufacturer guarantees the alcohol standard solution’s stability until its expiry date and the analyst assumes that its concentration is intact up until that point. [ 67 ] Typically, nothing more than these five items need be reviewed. However, as conceded by Mr. Palmentier: A. Again, it’s based on a case by case basis. Typically no other information is required.

However, again when there are issues raised about something with respect to the alcohol standard that may have been used, when it was changed, then there may be a requirement for additional clerical information with regard to that. [4] [ 68 ] Mr. Palmentier also confirmed that the Canadian Society of Forensic Science’s Alcohol Test Committee Position Paper entitled, “Documentation Required for Assessing the Accuracy and Reliability of Approved Instrument Breath Alcohol Test Results”, a

copy of which forms part of Ex. 10, indicates that the “required quality control information which must be reviewed to assess the working order of an AI is typically produced during the subject breath testing procedure.” According to Mr. Palmentier, “quality control” refers to the steps undertaken “at the bench” to ensure the reliability of a subject test result. It is distinguished from the concept of “quality assurance”, which refers to requirements that are observed, apart from those associated with a testing sequence, designed to enhance the reliability of a subject test result.

Record keeping in relation to A.I. maintenance or the testing of alcohol standard solution are examples of quality assurance. [ 69 ] In its paper, the Committee identifies four categories of quality control information, namely, air blank test results, calibration check results, instrument messages and subject breath test results that are in good agreement, in relation to which it holds at p. 102: In most cases the AI will automatically produce a printed record that supplies much of the information enumerated above. In some instances the required information may reside in other documents or records.

The ATC does not provide specific guidance as to how these supplementary documents be retained, only that the data are available to allow for the formation of a considered scientific opinion about the performance of the AI at the time of analysis of a subject’s breath tests. Review of these specific requirements is sufficient to assess the accuracy and reliability of a subject’s breath test results.

Deviations from the Operational Procedures recommended by the ATC would be recognizable by reviewing the materials outlined above; in such cases, further information may be required. . . . …[D]ata collected both prior to and after the subject test, or an examination of the approved instrument subsequent to the subject test, do not further assist in determining the reliability and accuracy of an AI during a specific breath testing procedure. (

d) The Irrelevance of Historical Data [ 70 ] For the purposes of the COBRA data application, “historical data” refers to any data or information beyond that which Mr. Palmentier has identified as being “associated with” a given subject test or, put another way, what I have termed as the testing sequence. Both counsel questioned Mr. Palmentier about the usefulness of historical data to the assessment of whether the A.I. was malfunctioning or operated improperly at the time of testing. [ 71 ] In particular, Mr. Doyle, on behalf of the Crown, asked Mr.

Palmentier if it would be of assistance in his assessment of whether the A.I. was in proper working order and was operated properly by the qualified breath technician to have the benefit of data as to how the A.I. in question performed, for example, 90 days prior to the impugned subject tests. Mr. Palmentier’s responses to this line of questioning bear reproduction in their entirety: A. Well, information from a test 90 days before tells you what was happening on that day. These tests that were done on this day, on 2011/06/08, that this is what was happening at the instrument at this time.

The 90 days previously tells you what was happening then. The two tests that were done here are separate and independent from each other. And they’re separate and independent from what happened either before or after it. Or what came after it. And what happened on a particular day in the future or in the past has no effect on these tests here because there’s no scientific method or mathematical formula that you can use to assess something that happened either in the future or in the past that had an impact on this test, if at all, and/or what the magnitude of that impact was . Q.

You say, no scientific or mathematical formula. Is that another way of saying that the prior performance data can’t give any, can’t speak to post performance with any degree of confidence or statistical reliability or probability? A. Correct. The same way past performance of a mutual fund doesn’t dictate what’s going to happen in the future. [5] [emphasis added] [ 72 ] When asked by Crown counsel if, in the circumstances of this case, documentation or data in addition to that contained in the five items specified in ¶ 66, supra , was required to assess the reliability of the subject test results in this case, Mr.

Palmentier replied in the negative. He elaborated as follows: A. Again, what I’m interested in is what happened at the time of this test and the information associated with that. Information that was acquired either previously to this or after this is not relevant because again it speaks to times other than when this test was conducted. And this shows at this time that this is what happened with this instrument. [6] [ 73 ] Mr. Biss, on behalf of the defence, suggested to Mr.

Palmentier that reference to “large amounts” of “past calibration checks around the time of the subject test” would assist in the assessment of whether the instrument was properly calibrated at the time the subject tests were conducted. Mr. Palmentier rejected this suggestion: … Q. And so, if you have a large number of past calibration checks around the time of the subject test then you’ve got some indication of proper calibration of the instrument? A. The calibration checks done at the time of testing lets you know whether the instrument is properly still calibrated. Q. I want to –

A. It hasn’t been varied since it was actually last calibrated. Q. But if – surely if you see a large number of calibration checks that are within the appropriate range, close in time to the subject tests, then that’s an indication for you that the instrument is properly calibrated? A. Correct. But I wouldn’t look at anything that [ sic ] those associated with this test, which would be the standalone calibration check that the officer performs to determine whether the instrument’s in proper working order in their mind, and also the calibration checks with respect to before or after that time. Q.

But you did say that for purposes of forming your opinion that you would want to look at the three quality assurance checks [standalone diagnostics test, stand alone calibration check and the officer’s self-test] that were conducted by the officer prior to the subject tests? A. Correct. Q. You wouldn’t want to look at any quality assurance checks in between those three quality assurance checks and the subject tests? A. If there were any that were performed, yes. Q. So they’re important? A. If they were performed, yes. [7] … Mr.

Palmentier took a similar view in relation to calibration check information in merely the days immediately before and after a subject test: … Q. But if a scientific investigator had access for example to calibration check information in the days immediately before or the days immediately after a subject test, that information depending on what the results were, could be of use to that scientific investigator in conducting an audit as to possible sources of error for the subject test. A. That’s possible.

I can’t speak to what another individual might require in order to determine the instrument is working properly. However, the proper working order of the instrument is determined at the time of testing and the tests that are done at the time. What happens before that test or after that test, so one week before or one week after has no impact on these tests because each test is separate and independent from each other. And so what happens on this particular day at this particular time, what happened before or after has no impact on that . [8] [emphasis added] [ 74 ] In Mr.

Palmentier’s view, information relating to a given A.I.’s annual maintenance history is also of no assistance in determining whether or not it was malfunctioning at the time it analyzed a breath sample: … Q. …With respect to inspections does the Centre of Forensic Sciences in its training aids state anything in the training aids about inspections of Intoxilyzer 8000C’s or GUTH 2100 simulators? A. Yes. Q. And inspections when? A.

Well with respect to that the instrument be – undergo maintenance at least annually and that the qualified breath technicians when they’re using the instrument check it as well as whatever procedures are in place at a particular police service with regard to checking the proper operation of the simulator in addition to that, that’s already taught at the Centre of Forensic Sciences. Q. Are those inspections recommended by the Alcohol Test Committee useful in the determination of whether or not that particular instrument is operating in a scientifically reliable fashion? A. I’m sorry, you lost me there. Q.

Well would a review of those inspections be useful, the inspections you just mentioned, in a review of whether or not particular instrument was scientifically reliable on a particular day? A. In my opinion, no. They speak to times other than when the tests were conducted. So they may speak to issues associated with an instrument days or weeks before. But again, the proper working order of the instrument is determined at the time of testing. And you can’t use information from other times to determine that the instrument was in proper working order at the time of testin g. Q.

How is that determination made at the time of testing? A. That’s done by reviewing the test record card, looking at the air blanks, the calibration checks. Looking for any exception messages. And again, looking at two tests within good agreement. [9] [emphasis added]

… [ 75 ] Along a similar vein, Mr. Palmentier opined that inspection records relating to the ITP system would be of no assistance in assessing an A.I.’s reliability at the time of subject testing: … Q. Well I want to suggest to you that if there was an inspection of the ITP system, say in the four months prior or the five months prior to the subject tests in this case that information would be useful to a scientist like you or to Mr. Kupferschmidt in giving an opinion as to the scientific reliability of the tests. A. No, I wouldn’t use that information.

Again, relying on the ITP passed message that’s printed there, understanding the basis for that, but also looking at the external calibration check that was performed. And in this case at 4:07:17. Indicates that the calibration of the instrument is in the acceptable range. It hasn’t shifted from the time of manufacture or from when it was fixed. Q. But you’re saying that the ITP passed is important, it’s useful information to you as a scientist. A. Yes. Q. But it’s not important to you as to whether or not that ITP system and it’s calibration has any external validity. A.

With respect to breath testing, it appears that it was working properly at the time of testing. Q. Well it appears that it passed but how do you know whether it was calibrated at that point in time too high or too low or right on? A. It was within the acceptable parameters as designed by the manufacturer. Q. But doesn’t it require and this goes back to I was asking you in relationship to the Dubowski article, doesn’t it require that there be documentation of inspections of instruments in order to make a determination of whether a system like the ITP passed system has been inspected a recent time before.

Recent as in the last six months or in the last year. A. Yes, that maintenance is performed, yes. As necessary and whatever needs to be changed or adjusted has to be done at that time. Q. So if a scientist is doing a full audit of possible sources of error in the information that’s coming before the Court, then shouldn’t it be useful information to that scientist to know whether or not the ITP system was calibration checked during the annual inspection that went before the subject tests? A.

Again, I think it speaks to the fact that at the time of the inspection, the ITP was checked and at the time of testing the ITP was checked not once but twice during each of the breath tests. And was within the acceptable parameters as set out by the manufacturer. So again, you can only say with respect to breath testing and a reading of the test record card the instrument appears to be in proper working order. Q.

Now – A. – information from downloaded data will not help with respect to being able to determine beyond that whether the instrument was working properly. [10] … In relation to this particular example, Mr. Palmentier harkened back to his reference to an absence of a predictive mathematical formula: …But again, this refers to a time other than when the tests were conducted and you can’t say or there’s no scientific method or mathematical formula that you can use to say that the ITP at this time was the same as the ITP at this time. [11] (

e) Understanding COBRA Data and the Formats in Which the Crown Provides it to the Defence [ 76 ] “Data” refers to “facts and statistics collected together for reference or analysis”. See: Oxford Dictionary of English. The Intoxilyzer 8000C, as it executes a function, generates data. The data is stored within the instrument that generates it. The body of data includes information generated by standalone diagnostics tests, standalone calibration checks, and testing sequences that include the subject test.

It includes tracking information relating to when the alcohol standard solution was changed within the A.I.’s external simulator and relating to the inspection of the ITP system during annual maintenance. The data also reflects when the aforementioned events occurred and identify who ( i.e. , which officer) is involved in, or is associated with, them. [ 77 ] The data may be sorted, filtered and presented for review. One way this occurs is via test record printouts produced by the instrument’s internal or external printer. Examples of this type of presentation appear in Ex. 3 at Tab 3 and in Ex. 30.

However, the picture that such printouts presents may be incomplete in so far as there may have been events that arose in or around the three quality assurance tests and/or the testing sequence containing the subject tests that would remain unknown to the reviewer in the absence of the retention and provision of a test record printout by the qualified breath technician assuming, of course, that it is even possible to capture such an event with a test record printout. [ 78 ] At this stage the data has not been downloaded from the instrument. [ 79 ] The data can also be organized and presented after it has been moved out of the instrument.

The data is downloadable

from the Intoxilyzer 8000C with the aid of computer software named COBRA which is provided by CMI, the A.I.’s manufacturer. For ease of reference, this downloaded data will be referred to as “COBRA data”. In total, COBRA data, in its raw form, comprises somewhere between 50 and 55 columns or fields of information. [ 80 ] In June 2011, the Intoxilyzer 8000C, including the particular instrument that analysed Mr. Ruiz Ocampo’s breath samples, utilized version 8 [12] software. That software operated, in part, to capture a certain number of columns of raw data generated by the instrument.

To download that captured data, the Toronto Police Service, in June 2011, utilized COBRA version 4 software. Det. Cst. Savoia explained the process of how he downloaded COBRA data back in June 2011, using COBRA version 4 software. The data was downloaded from the Intoxilyzer 8000C each Monday. In the instant case, June 8, 2011 fell on a Wednesday. Accordingly, the data generated on that day would have been downloaded on Monday, June 13, 2011. In relation to Mr. Ruiz Ocampo’s matter, the software downloaded 23 lines of data. Once downloaded, the data is no longer available on the instrument.

It sits in hundreds of subfolders in Det. Cst. Savoia’s laptop computer. Det. Cst. Savoia has assumed that each subfolder represents a particular field of data (or piece of information) generated by the A.I. [ 81 ] Once downloaded, the data can be organized and prepared for presentation. The amount of data available for review, together with its potential for manipulation, sorting and filtering by a reviewer, depends on the computer program or file format into which the data is moved once it has been downloaded from the instrument onto a standalone computer.

Different police services across the province move the data into different computer programs or file formats. [ 82 ] I will begin with an overview of the practice of the Toronto Police Service that was in place in June 2011. [ 83 ] Back in 2010, under the guidance of CMI, and utilizing the same COBRA version 4 software, Det. Cst. Savoia set up four templates, each relating to a category of information. One template is dedicated to certain data generated during standalone diagnostics tests. The second template is dedicated to certain data generated during standalone calibration checks.

The third template is dedicated to certain data related to error messages. The fourth template is dedicated to certain data generated during subject tests. Each template allows for the exporting of certain columns or fields of raw data relating to each of the four aforementioned categories. Det. Cst. Savoia determined the parameters of the templates, and the columns or fields of information available in each, in consultation with several Crown counsel and on the strength of an earlier template prepared by now-retired Cst.

Jeff Patrick of the Toronto Police Service when he oversaw the downloading of data from the Intoxilyzer 5000C. [ 84 ] An example of the product of this file format appears in Ex. 3 at Tab 10 as a 27-page document. The first page is a 4- column template in relation to the category of standalone calibration checks. From left to right, the first column identifies the serial number of the relevant Intoxilyzer 8000C, the second column identifies the time, the third column identifies the date and the fourth column identifies the test result.

The next six pages comprise a five-column template in relation to the category of standalone diagnostics tests. From left to right, the first column identifies the serial number of the Intoxilyzer 8000C, the second column identifies the time, the third column identifies the date, the fourth column identifies the particulars of eight diagnostics tests that the instrument performed each time, and the fifth column identifies each test result. The next five pages comprise a four-column template in relation to the category of error messages.

From left to right, the first column identifies the serial number of the relevant Intoxilyzer 8000C, the second column identifies the time, the third column identifies the date, and the fourth column identifies the particulars of the error message. The final 13 pages comprise a five-column template in relation to the category of subject tests. From left to right, the first column identifies the serial number of the relevant Intoxilyzer 8000C. The second column identifies the time. The third column identifies the date.

The fourth column identifies the calibration check associated with the subject test, or the subject test itself. The fifth column identifies the test result of the given calibration check associated with the subject, or the given subject test. When asked by Mr.

Biss, on behalf of the defence, as to whether he could include additional columns or fields of information, such as those referencing the name of the investigating officer, the investigating officer’s badge number, the name of the qualified breath technician, the qualified breach technician’s badge number, the manufacturer of the alcohol standard solution, its lot number, or its expiry date, Det. Cst. Savoia replied that he could, but, as this information is available on other documents already provided to the defence, it would be “extremely redundant” to do so. Det. Cst.

Savoia’s reluctance to generate a template that would include all available fields of information became apparent in the following exchange with Mr. Biss: … Q. But right now you don’t have a template that you’ve built yet that produces all of the data in chronological order for a given period of time? A. I’m not – Q. Well, here - here is my question. Let me put it another way. Right now the data that you are producing for disclosure purposes is limited to just calibration checks, … A. Correct. Q. …standalone calibration… A. Yes. Q. …checks or just … A.

I – Q. …standalone diagnostic checks, or just error messages, or just subject tests, right? A. For gleaning the information for court purposes, yes, that’s it.

Q. But you haven’t yet produced any template that produces all of the data in the instrument for a given period of time, is that right? You don’t have any template built yet that – that produces data in that kind of – of subset? A. There’s no requirement for me to do that. There’s – it would be no benefit to me as far as maintaining the instruments or disclosing it for court purposes. Again, I didn’t come up with this – these templates as just picking them out of thin air saying this is what the Court’s going to want. This is through consultation and through historical disclosure.

So I follow the guidelines in that. To go outside of the those parameters are for no value. … Q. Okay. And I want to suggest to you that the reason why you did what you did in building your templates, because you were just following suit with exactly what had been done and the work that had been done with Jeff Patrick with respect to the Intoxilyzer 5000C? A. Not alone, no. No. I – again, I didn’t just pick this out of – just because Jeff Patrick had done. I didn’t just set them up for that reason. This was through consultation with the Courts. Q.

And the original data that came out of the Intoxilyzer 5000C – THE COURT: Sorry, with the Courts or with the Crowns did you refer? A. The courts. I – I think there was a bit of jostling around with the Crowns and the Courts on what was to be disclosed, and I think it was agreed upon that this was acceptable. Q. Okay. Do you recall if there was any input from the Defence bar at that time? A.

I – I wouldn’t have – no, I wouldn’t have had any contact with the Defence bar for that. [13] … [ 85 ] Within each category, the information is organized in chronological order. [ 86 ] The templates are saved as a PDF (Portable Document Format) file. In this file format, the data cannot be manipulated or reorganized. It cannot be sorted or filtered.

The implication of the layout of the information, as described above, combined with the file format limitation, is that the reviewer cannot easily see how the data, across different categories of information, correlate and interrelate with one another. [ 87 ] A second potential disadvantage presented by this template, depending, of course, on the needs of the reviewer, is that the volume (that is to say, the number of fields) of COBRA data presented falls far short of the total amount that exists.

For example, these templates contain no data regarding the results of air blank tests that necessarily would be run during standalone calibration checks and calibration checks that occur during the testing sequence that includes a subject test. Also, with respect to the eight-part diagnostics test that occurs during the

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