Good afternoon, everyone.
The alcohol test committee of the Canadian Society of Forensic Science has provided independent scientific advice to the Minister of Justice on the detection and quantification of blood alcohol concentrations for the past 50 years. We are a group of dedicated volunteer scientists with expertise in breath and blood alcohol testing who are committed to maintaining the consistently high standard in alcohol testing that has become the accepted norm in Canada. The ATC has created standards for, and evaluates, all equipment proposed for alcohol testing in Canada. It recommends best practices in breath alcohol testing programs and recommends the operational procedures to be followed in the use of the equipment to ensure that the results are both accurate and reliable.
My remarks say there's an appendix, and there is. I supplied it to the clerk, and I'm sure everyone will get it at some point.
My opening remarks are going to touch both on some investigative and evidentiary matters that we feel would benefit from some further scientific context.
The first thing I turn to is the investigative matters and the mandatory alcohol screening. The alcohol test committee has been on record supporting this activity in both 2008 and most recently last year when I spoke to a standing committee. What is important to realize is that impairment of an individual's driving ability can often exist when the visible symptoms that may draw the attention of a police officer are absent. Approved screening devices can detect these individuals and, moreover, these ASDs are scientifically reliable, widely deployed, and well accepted in the courts for the purposes of detecting alcohol in the human body. No alcohol testing issue exists with regard to the implementation of this initiative.
I'll turn my attention—and I've tried to do this in order—to proposed section 320.28, “Samples of breath or blood — alcohol”. I understand it's been opined that the proposed section 320.28, coupled with the proposed paragraph 320.14(1)(b), the over 80 milligram bit, would lead to officers doing tests hours or perhaps even days after the incident. This hypothetical scenario seems of little concern when I read in proposed subparagraph 320.28(1)(a)(i) that the qualified technician must take samples of breath that, in their opinion, would allow a proper analysis of the breath. In my experience, any qualified technician asked to do a test on a subject a day after the alleged incident would decline because of the training they have received to become a qualified technician.
There are some evidentiary matters that we'd like to comment on. The first thing I want to make clear for this committee is that the alcohol test committee thinks that any Canadian approved instrument is, by our very definition, accurate and reliable when operated properly according to our guidelines, and will provide accurate and reliable blood alcohol results at the time of testing. I've provided all our standards to this committee.
Proposed subsection 320.31(2) specifically deals with analysts, such as myself, and we are somewhat concerned that this section appears to open the door for the type of disclosure motions that became prevalent in breath alcohol testing in the wake of 2008 amendments. The ATC responded then with our position paper, which indicated the required data and information necessary to determine that the approved instrument was in proper working order and was, therefore, reliable and accurate. This section appears to leave accredited Canadian forensic laboratories open to what was characterized by one of my members as a full-out attack on the analytical process.
Many of us have had our files subject to full disclosure, but our fear is that the scope of the request is likely to include materials that are not relevant to the analysis. The subsequent litigation to clarify the situation will be extremely costly. All analyses done in an accredited laboratory are subject to rigorous quality assurance and are accompanied by appropriate quality control measures. The alcohol test committee feels that this should be reflected in some manner in the legislation as a mechanism to limit disclosure motions that are resource intensive and, ultimately, have no benefit to the trier of the fact.
Moving quickly, as I am, to the presumption of blood alcohol concentrations, this is certainly going to require some adjustment. Our courts may require a judicial calculator allowance. However, the main message the ATC wants to convey is that, given the new wording of the law, there's no real possibility with this approach—i.e. the approach where the court can then do some calculations—that a court would come to a conclusion about the blood alcohol concentration that would be prejudicial to the accused person.
The suggestion that somehow a court would be presented with a zero result and, following the formula, extrapolate it to 120 milligrams of alcohol in 100 millilitres of blood when the incident happened—and that should be 12 hours prior—seems rather extraordinary. If such a thing were to happen, I am confident that competent scientific evidence from a qualified toxicologist would be adduced to assist the court in understanding why that should not be done.
It seems clear to us that the intent of this provision is to remove the burden of requiring a toxicologist in trials every time the lowest breath alcohol is at or above the per se limit and where the statutory presumption has been lost due to the passage of time. We are somewhat interested in how the courts will grapple with the times that don't fall in perfect half-hour intervals, and that will remain to be seen, but I'm sure it won't offer too much of a problem.
I want to briefly comment on the concept that toxicology adds virtually no time to a trial for the evidence to be entered. I actually take no issue with that assertion in uncomplicated cases, but you as the committee should be aware that my quick analysis of the typical Ottawa, Ontario Court of Justice case shows that it usually takes approximately eight to 12 different steps, involving six or seven different individuals, in three different organizations, before that brief appearance happens.
Moving to the disclosure of information, the listed items in proposed subsection 320.34(1) are traceable to the ATC position paper, in which we said, “Any messages produced by the instrument during the subject breath testing procedure that indicate”—emphasis added here—“an exception or error has occurred should be provided and assessed to determine their impact, if any, on the breath test results. Messages produced at other times are not scientifically relevant and need not be reviewed.”
Our concern is that proposed paragraph 320.34(1)(c) says, “any messages produced by the approved instrument at the time the samples were taken” must be disclosed. Not all messages produced are actually written down on the test record card. For example, in one of our approved instruments, “Please Blow/R” scrolls across the screen prior to the person giving the sample. That is captured nowhere, but it is a message associated with that breath testing. It appears to be suggested that this should be disclosed and it's really not necessary for that to be done.
Moving forward to the later sections, proposed subsections (3), (4), and (5) of 320.34—and we approach this with full disclosure, as it were, from a non-legal sense as scientists reading these sections—it appears to undermine the previous proposed subsection, 320.34(1). Other information is not relevant, but those sections seem to give credence to the possibility that there may be something else that is relevant, and it sets up the mechanisms for counsel to get at it. That seems to us to be capable of reigniting what I sometimes call the “disclosure wars” that arose shortly after the 2008 amendments to the Criminal Code. In part due to our position paper, disclosure has become settled law in some provinces. However, as I said, these sections seem to us to invite a reopening of that debate.
I'll be meeting with my alcohol test committee members for the remainder of the week. Bill C-46 is the first substantial agenda item I propose to talk to them about, and if, following discussion about today's proceedings, they feel further items need enhancement or clarification better than I have done, which is clearly possible, we will submit any comments we have. We would undertake to do that before the end of our meeting, which ends Thursday of this week. We'll try to do that rapidly, if necessary.
I would like to thank the committee for the opportunity to address you.