Thank you, Mr. Chairman.
Ladies and gentlemen, I sent a letter to the chair of the committee, Mr. Hanger, on May 24. I hope it's been distributed in both French and English. It sets out our views and our concerns with respect to one particular aspect of Bill C-32, and that's the change of the interval between successive breath tests, reducing it from 15 minutes down to three minutes.
Just as a preliminary background, I should indicate that the alcohol test committee is a special committee of the Canadian Society of Forensic Science. This committee was established way back in 1967 at the time when the first legislation was being introduced, the “over 80” legislation. The committee deals specifically with issues related to alcohol testing.
The committee is responsible for creating protocols for breath-testing programs across Canada, developing performance standards, evaluating breath-testing equipment, and establishing training standards for police officers using this equipment. In addition, the committee is the principal scientific advisor to the Department of Justice on matters relating to breath alcohol testing. I would add that any new instrument or device that's meant for police use here in Canada under the Criminal Code must be approved by the Minister of Justice, who will do so only upon the recommendation of our committee.
The committee standards for evaluating instruments are found at the website for the society, www.csfs.ca. The committee has a very rigorous protocol for evaluating instruments and devices for accuracy, precision, reliability, and specificity.
In regard to the current Bill C-32, the committee has a concern about reducing the interval between successive breath tests from 15 down to three minutes. The alcohol test committee recommends retaining the 15-minute interval between successive breath alcohol tests. This procedure produces two readings that are independent of each other but close enough in time to achieve acceptable reproducibility. The courts can be assured that the subject's blood alcohol concentration is truly what it is when two independent tests reveal the same conclusion within the acceptable boundaries of variability.
An interval of only three minutes, as proposed by Bill C-32, produces two readings that are interrelated or, in scientific terms, are duplicates of each other. Thus an external factor, such as mouth alcohol, that may contaminate the first sample can also affect the second sample, since it is taken so soon after the first sample.
Although some approved instruments have a built-in mouth alcohol detection system, these systems are not foolproof. They may be able to detect high concentrations of mouth alcohol, but low residual amounts may go undetected. Thus a mandatory 15-minute pre-test waiting period is required before the first test. But Bill C-32 contains no such provision.
The current 15-minute interval is ample time for any potential mouth alcohol to dissipate. If the first sample is contaminated by residual alcohol, this residue will be gone completely 15 minutes later when the second sample is taken.
Some researchers have argued recently that better agreement can be achieved between successive tests if they are taken close together, such as three minutes apart. They argue that a longer time period, such as 15 minutes, can result in wider discrepancies between readings, because alcohol is being eliminated, thereby changing the blood alcohol concentration, leading to a discrepancy greater than normally permitted and necessitating a third sample from the subject.
However, the amount eliminated during the 15 minutes is forensically insignificant and is not likely to be a major factor when a third sample is required.
Indeed, this research has demonstrated that the larger variable by far in duplicate testing lies with the quality of the breath samples provided by the subject. Over 80% of the variability can be attributed to the quality of the breath sample, which is called the “biological” or “sampling” component.
On a practical level, very little will be gained by reducing the interval to three minutes.
For example, in my own personal experience, in the last five and a half years I have examined over 600 files—621 to be exact—for the City of Ottawa Crown Attorney's office. I found that only 10 of those cases, which is less than 2% of the total, involved three or more readings. A shorter time interval might have alleviated the need for a third reading. I stress that it might have, since it was not at all certain that the discrepancy could be attributed to the time interval and not to the major variable of biological or sampling problems with the subjects themselves.
Finally, touching on the other change proposed in Bill C-32, under the category of “evidence to the contrary”, as you know, Bill C-32 proposes to eliminate the so-called two-beer defence. An accused person will stand and testify that he or she only had three bottles or four bottles of beer over the course of a period of time. If by calculation the blood alcohol concentration is under 80, he or she is therefore not in violation of the Criminal Code. We suggest that the 15-minute interval offers a more rigorous determination of a person's blood alcohol concentration when confronted with questions under the “evidence to the contrary” provisions of section 258 of the code.
Two independent tests, both confirming that the blood alcohol concentration is over 80 milligrams per 100 millilitres, offer more reassurance to the courts than two closely linked duplicate or interrelated readings when the validity of the test procedure is being challenged and defence counsel allege that the blood alcohol concentration may be under 80 either at the time of the testing or even back at the time of the offence.
I want to add that I realize the two-beer defence causes a lot of consternation, because it's the opinion of an accused person versus what instruments say in terms of the blood alcohol concentration. The committee is supportive of the new changes to Bill C-32 in that regard because the recollection of a subject is completely unscientific. It's the subjective recall of a person as to what he or she may think he or she drank during the evening in question.
Things came to a head in the Supreme Court of Canada decision Regina v. Boucher in which the emphasis was apparently placed on what the evidence is from the accused person. In my viewpoint, the Supreme Court almost ignored the readings from the approved instrument. To my mind, it is an unscientific approach to matters and, from our viewpoint, it's untenable.
We welcome the changes in terms of the “evidence to the contrary” aspect. But it doesn't necessarily solve anything because the new creation of evidence to the contrary will now shift focus on to the instruments, the way they operate, and the way they are operated by personnel.
Mr. Chairman, I brought an approved screening device here today, called the Alcotest 7410 GLC, which is widely used here in Canada. I also brought one of the approved instruments used here in Canada, the Intoxilyzer 5000C, which is used here in Ontario and in some other parts of Canada. I also brought some brochures on that instrument, plus another instrument called the BAC DataMaster C, which is used here in Canada. I've also brought brochures on two new instruments that are currently before the minister awaiting approval. Those are the current generation instruments.
These instruments are all automated instruments. They require operator involvement. But when strict protocols are followed and the instrument is working properly as per the recommended procedures, then the tests obtained, especially when they're 15 minutes apart, provide conclusive proof of the person's blood alcohol concentration at the time of testing. Of course, it raises the question of what the blood alcohol concentration was at the time of the offence, but that becomes another issue.
Finally, in terms of the current situation in the courts with the two-beer defence, from our viewpoint that is a legal issue, it's not a scientific one, because the recollection of a person who obviously is going to have an interest in what he or she can remember is not scientific.
Thank you, Mr. Chairman.