R. v. Cutone, 2011 ONCJ 295

Citation: R. v. Cutone , 2011 ONCJ 295 Regina v. Fred Cutone Bhavna Bhangu for the Crown Ron Jourard for the accused This is a ruling on a motion for disclosure. The accused is charged with impaired care and control and “over 80”. The issue pertains to a number of records involving the use of the Intoxilyzer 5000C, and any relevant video tapes. A. Historical Data for the Intoxilyzer and the simulator: The disclosure request involving the Intoxilyzer is particularized in a report by the defence toxicologist, Gerald Kupferschmidt (exhibit 2): 4.

A sample of Calwave Standard Alcohol Solution, Lot Number 20669, for independent analysis. 5. Simulator servicing and certification records. This should include: Make, model and serial number of the simulator used; serial number of NIST certified thermometer in simulator, Simulator Certificates of Compliance; Records pertaining to thermometer certification dates; Servicing records. 6. All Intoxilyzer® 5000C, serial number 64-003707, test records pertaining to this investigation, including the tests conducted during setup, as well as any other subject tests conducted between the breath tests at issue.

The simulator used for each subject calibration test should also be identified. 7. Intoxilyzer ® 5000C, serial number 64-003707, Service records. This should include any records pertaining to service and preventative maintenance. At least two servicings should be available. These records should include in-house servicing by police agencies, as well as those created by external service providers. 8. Intoxilyzer ® 5000C, serial number 64-003707, Usage and Calibration records.

This log should include : Make, model and serial number of the simulator used; Brand and lot number of SAS; Simulator Temperatures; Records regarding each stand alone calibration check; Records regarding each Diagnostic Test; A record of operational errors produced by the instrument; Redacted data regarding each and every subject test (50 tests preceding the accused’s breath tests). 9. Downloaded data to a central computer, bracketing you client’s set of breath tests.

This should include: Records regarding each stand alone calibration check; Records regarding each diagnostic test; Records regarding each operational error produced by the instrument; Redacted data regarding each and every subject test. Note 1: If the downloaded data is not available, photocopies of each and every test record card printed by the instrument in question should be included in the materials provided. The test records should span the period of time associated with the 50 subjects tested immediately before this investigation.

Note 2: Ideally, items 8 and 9 would be the same; however, item 8 would capture essential information regarding the standard alcohol solution that would not be collected or captured by the on-board computer. As a result, it would not be downloaded to a central

computer. Mr. Kupferschmidt also testified on the application. In response, the Crown called Jean-Paul Palmentier, a forensic toxicologist who has worked for ten years at the Centre of Forensic Sciences. His report was in the form of an 8-paged document that he co-authored, entitled “CFS Intoxilyzer® 5000C Information”. Their evidence is diametrically opposed. From Mr. Kupferschmidt’s perspective, “the material is absolutely essential to be able to determine if there were some recognizable difficulties in the operation of the instrument”. On the other hand, Mr.

Palmentier asserts that this material is effectively irrelevant to the determination of the critical question, namely whether it represents “…evidence tending to show all of the following three things — that the approved instrument was malfunctioning or was operated improperly, that the malfunction or improper operation resulted in the determination that the concentration of alcohol in the accused’s blood exceeded 80 mg of alcohol in 100 mL of blood, and that the concentration of alcohol in the accused’s blood would not in fact have exceeded 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed” ( subsection 258 (1) (c).) Both counsel have provided case books of decisions from trial courts across the province.

They all agree with the test for disclosure: As we have seen, likely relevance for disclosure purposes has a wide and generous connotation and includes information in respect of which there is a reasonable possibility that it may assist the accused in the exercise of the right to make full answer and defence. In considering the ambit of the information that can assist in the trial, regard must be given to the particular issues in the case and to the governing rules of evidence and procedure. This does not mean that only material that would be admissible at trial should be produced.

Material that would not, on its own, be admissible may nonetheless be of use to the defence, for example, in cross-examining a witness on matters of credibility or in pursuing other avenues of investigation. Charron J, R. v. McNeil , 2009 SCC 3 , para 44 As well, it seems settled law that the onus is on the Crown to demonstrate that the material sought is not clearly irrelevant. The application of those principles to the issue at hand has been very contentious, and the jurisprudence is illustrative of the different – indeed irreconcilable – approaches taken by my colleagues.

If time permitted I would try to synthesize the ratios of those cases, but I know that both counsel are hoping to receive these reasons well before the continuation date of this trial in a few weeks. In his very able submissions, defence counsel argued that the testimony of the two experts neutralize one another, and thus the Crown has failed to displace the onus of proof. I am not persuaded by that argument. Indeed I am far more impressed with Palmentier as a witness, and where their evidence diverges or conflicts I prefer his over that of Kupferschmidt. I have a number of reasons for coming to that conclusion.

I listened carefully as Kupferschmidt described “problems” and “deficiencies” in the test proceedings, or how he characterized different aspects as “improper” or “erroneous”. However, it became apparent that in most instances, he was referring to things that affected only the precision of the instrument. He was quite properly concerned with the “integrity of the process”, but ultimately when asked directly how to quantify the impact of any or all of these so-called errors, he could not or chose not to. There is a critical distinction to be made here. Where science aspires to precision, law aspires to truth.

These concepts are not necessarily congruent. Though it is superficially attractive to associate accuracy with truth, the better proposition is that imprecision is not equivalent to error. In the area of blood-alcohol related driving offences, Parliament has approved for use a scientific instrument, the Intoxilyzer 5000C. It is generally accepted as a reliable and accurate device. It has its own set of internal diagnostic checks; it is tested and calibrated against a certified standard solution.

Where scientific measuring devices are designed to be precise, it is understood that the process of measurement will result is a measurable unit within a tolerance, namely an acceptable deviation from a nominal dimension. Even within the protocols of testing for blood alcohol concentration, we see, for example, the temperature of the alcohol standard solution in the simulator to be 34°C “plus or minus” 0.2°C, or that the calibration check will produce a result of 100 mg of alcohol in 100 mL of blood “plus or minus” 10 mg/100 mL. As well, I do accept Mr.

Palmentier’s explanation that the scientifically recognized factor of analytical and physiological/biological variability of ±10% is built into the process, even though that amount of variation may occur in only 1% of cases.

I also had a concern with Mr. Kupferschmidt’s report. Although it purported to represent his expert opinion as a scientist, it came across as a strident polemic. I have a hard time giving much credence to a report that doth protest too much, that uses bold font, italics, underlining and exclamation marks to get its point across. I would imagine that his emotive rhetoric and straw-man arguments would be better used in the realm of advocacy or advertising. I would have expected to see something more objective and balanced. The “CFS Intoxilyzer® 5000C Information” sheet, contained as part of Mr.

Palmentier’s affidavit, is a compelling document. It is a thorough and thoughtful report on the operation of the approved instrument, and of the protocols involved in analyzing breath samples to determine someone’s blood alcohol concentration. Palmentier was also called as a witness to help explain and demystify some of the finer points. The crux of his testimony can be summarized as follows: from a scientific point of view, the hallmarks of reliability in these tests are proper calibration and significant agreement in the results of the analysis of two breath samples from the subject.

Anything involving the prior use or maintenance of the simulator or the instrument itself is irrelevant. Looking specifically at the testing of this particular accused, he was of the opinion that there is no imaginable error that could result in an overestimation of his blood alcohol concentration that would bring it so far above the legal limit. Thus, for the above reasons, that part of the application as it pertains to historical records involving the Intoxilyzer and the simulator is dismissed. B.

The Standard Solution: A different analysis is required for the issue of the production and disclosure of the alcohol standard solution, even though in this case the issue may be moot. That chemical is integral to the protocols of blood-alcohol testing. It is not enough to rely on the quality of the design of the Intoxilyzer itself, even though it is engineered to be accurate and reliable. The instrument also needs to be regularly calibrated against an independent and exterior standard.

Here is an excerpt from Jean-Paul Palmentier’s affidavit: Alcohol standard testing prior to the evidentiary testing of a subject is an external quality control test and is integral for determining whether the instrument was in proper working order at the time of the subject’s breath tests. The alcohol standard solution is contained in an appropriate simulator and is heated to a temperature of 34.0° C ± 0.2° C.

The simulator produces alcohol laden vapour that when pumped into the Intoxilyzer® 5000C during the calibration check will produce a result equivalent to a BAC of 100 milligrams of alcohol in 100 millilitres of blood (mg/100mL) ±10 mg/100 mL. This procedure mimics the subject breath test. (p. 2, para #3) Here the solution that was used was manufactured by Calwave in March 2009, and identified as Lot # 20669. A random sample was sent to the Centre of Forensic Sciences, analyzed and certified to be “suitable for use” (exhibit 4).

When the subject is presented to the qualified breath technician, a series of 5 tests are done in the space of a few minutes. Another calibration test with the alcohol standard is done as part of that sequence, to ensure the validity of the analysis of the breath sample provided by the subject. The order of the testing, then, is

i) air blank, ii) calibration check, iii) air blank, iv) subject test, and

v) air blank. The “air blank” represents the instrument pumping some room air into the chamber to ensure that there is no alcohol vapour or other contaminant chemical in the ambient area that might affect the testing. Mr. Kupferschmidt is of the view that the solution can degrade . For example, it could have been exposed to extremes of hot or cold, or there could be a leak in the seal. He claims that improper handling of the solution could result in alcohol loss or alcohol production (sic). Mr.

Palmentier is unaware of any situation that would result in the degradation of the solution, but he does concede that the solution can deplete , because every calibration check results in a minuscule puff of alcohol-laden vapour that is exhausted from the chamber of the Intoxilyzer. Both experts do agree that the standard is a critical part of the testing procedure. From my years of experience on the bench, I am firmly of the view that a Crown attorney would not present a case if it were known that the alcohol standard solution were defective, or that the calibration check were outside the acceptable parameters.

Thus I have arrived at the conclusion that it is an appropriate request by defence counsel to be provided with a sample of the solution for their independent analysis. That being said, a number of logistical problems immediately come to mind. Like my colleague, D. A. Harris J in R. v. Moravac , 2010 OJ 5718 , one has to be concerned about continuity and validity:

[18] …the dispute was over how it should be provided. The police offered to provide a sample into a container provided by the expertchosen by defence counsel. Defence counsel took the position that he wanted a full sealed container of the solution or alternatively, asample contained in a container provided by the police. This dispute carried on so long that by the time the application came before me,the expiry date for the alcohol standard solution has come and gone. The solution may still be good but the situation now is that any testresults would no longer be valid.

Anyone could contest those results on the basis that the sample was too old to be seen as representativeof the whole batch. [19] I am satisfied that a sample of the alcohol standard solution would now be clearly irrelevant and I dismiss the applicationfor production of it. In our case, the sample expires next month. Further, it would be remarkable that the police detachment would still have any of thatparticular lot. Palmentier described how an entire 500 mL bottle of solution is opened and poured into the simulator, then used anddiscarded after a few weeks.

At Tab 6 of the Record, we see that nine bottles of this batch of fluid were used between 12 September2009 and 25 November 2009, roughly one bottle every 8 or 9 days. Next, once the particular batch of solution is used up at the local police station, a request for production would then become anO’Connor-type application involving a third party, namely the manufacturer. It may be informative to know, on the return of this trial, if the South Georgian Bay OPP still have any of that lot of the solution. But otherwise, this part of the application is dismissed without prejudice. C.

The Horton exhibits: Both experts were called on to discuss the evidence in the case of Raymond Horton, where a problem arose with the calibrationchecks conducted an hour or so before the accused’s breath tests (exhibit 1). This evidence was also referred to in the case of R. v.Murray, [2010] OJ 1752, before Devlin J, at para. 11 – 12. This instance is an indication that things can go wrong, either by amalfunction or the improper operation of the simulator by the breath technician. Mr. Kupferschmidt concedes that a likely explanationinvolves the temperature of the solution. In any event, I accept Mr.

Palmentier’s opinion that the problems in that case can have noimpact whatsoever on the tests in this case. That kind of aberrant calibration result would call on the breath technician to identify andtroubleshoot the problem, and to fix it before proceeding with the tests of that subject. However, Palmentier said that that there was noscientific method available to relate Murray’s evidence to Mr. Cutone’s case. d. Video: The final issue pertains to whether video technology was used while the accused was in police detention.

Defence counselphrases his disclosure request as follows: 1. whether the South Georgian Bay detachment of the OPP is equipped with security cameras and if so, where they are situated andwhat becomes of the tapes that are made. If there are cameras and recording equipment, please advise whether they were in operation onOctober 10, 2009; 2. if there was video equipment in the breath room or elsewhere in the detachment and available for use in the breath room, but wasnot used to videotape the breath tests of the accused, please explain why; 3. the details of the South Georgian Bay OPP videotaping policy.

If videotaping is not conducted in the breath room, why not? If itused to be conducted, but stopped, why did it stop? Does the South Georgian Bay OPP videotape witness statements? (Letter dated June25, 2010, exhibit L at Tab 3 in Record) The Crown has already responded to advise that there is no video recording of the accused. Yet, I sense that the accused may want toexplore whether there may be an issue involving the loss of evidence, either through negligence or malfeasance, such as in Carosella, (SCC), [1997] 1 SCR 80. I have already ruled on this very issue, R. v. Moss, [2004] OJ 3631.

I have had anopportunity to reread those reasons in the last few days, and I am persuaded that my analysis was fair and sound. So, I do order theCrown to provide the answers to the questions raised in the defence counsel’s letter.

Delivered at Midland this 14 th day of February, 2011. Robert Main, J