R. v. Cesar Ruiz Ocampo

Court Information

Court File No.: Toronto Region

Date: August 12, 2014

Court: Ontario Court of Justice

Before: Justice Andrea E.E. Tuck-Jackson

Heard: 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: August 12, 2014

Parties

Crown: Her Majesty the Queen

Counsel for Crown: Mr. S. Doyle; Mr. C. Igwe

Accused: Cesar Ruiz Ocampo

Counsel for Accused: Mr. S. Biss

TUCK-JACKSON J.:

I. Overview

[1] Cesar Ruiz Ocampo stands charged that he, on or about the 8th 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 the defence.

[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 this case. 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, as guaranteed by § 7 of the Canadian Charter of Rights and Freedoms (herein, "Charter"). In its pursuit of the aforementioned orders, the defence seeks access to information that it argues meets a degree of relevance vis à vis the material issues of whether the instrument was malfunctioning 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 written reasons, as set out herein, to follow. For ease of reference, this aspect of the application will be referred to herein as the "view application".

[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

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

[11] To understand the potential relevance of the information to which the defence seeks access in both applications, it is necessary to understand the legal and evidentiary contexts in which a charge of driving over 80 is prosecuted and defended. It is also important to understand the concepts of materiality and relevance and their relationship to the legal and evidentiary backdrop presented by ¶ 258(1)(c) of the Criminal Code.

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

[13] The import of the presumption of accuracy essentially speaks for itself. As noted in the Supreme Court of Canada's decision in R. v. St.-Onge Lamoureux, 2012 SCC 57, at ¶ 23, this statutory presumption permits the Crown to rely on the A.I. test results without having to prove that they are valid. The presumption of accuracy focuses on the reliability of the test result.

[14] According to the first presumption of identity, the analytical results of a person's blood-alcohol concentration as shown by 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.-Onge Lamoureux, 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, namely that 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 the same 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 are rebuttable on the strength of "evidence tending to show" that the A.I. was malfunctioning or was operated improperly at the time of testing. For greater clarification, such evidence does not include evidence of the amount of alcohol that the accused consumed, the rate at which the alcohol that the accused consumed would have been absorbed and eliminated by the accused's body, or a calculation based on that evidence of what the concentration of alcohol in the accused's blood would have been at the time when the offence was alleged to have been committed. See: ¶ 248(1)(d.01) of the Code. Thus, the results can be challenged "…only by raising problems that can be objectively 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 the instrument 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 of Canada in R. v. St.-Onge Lamoureux, supra, concluded that the defence need not also proffer evidence tending to show that the malfunction or improper operation of the instrument resulted in the determination that the accused's blood-alcohol concentration exceeded the legal limit and that the accused's blood-alcohol concentration would not in fact have exceeded that limit at the time when the offence was alleged to have been committed. The Court concluded that to otherwise require that this evidentiary burden be met amounted to a violation of the presumption of innocence, as guaranteed by ¶ 11(d) of the Charter, which could not be saved by § 1 of the Charter.

[18] The combined effect of the provisions within ¶ 258(1)(c) of the Code was aptly summarized by Deschamps J., who wrote the 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 in evidence by the prosecution are, as indicated in that same provision, conclusive proof, for the purposes of the charge, of the blood alcohol level of the accused both at the time when the analyses were made and at the time when the offence was alleged to have been committed 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 proffering evidence tending to show that his or her consumption of alcohol was consistent both with a blood-alcohol concentration not exceeding 80 mg 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 is advancing the position that the "results were distorted by the fact that he or she had consumed alcohol shortly before or after the alleged offence". 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 and R. v. Gibson, 2008 SCC 16. Where, for example, the accused raises a reasonable doubt that the instrument functioned or was operated properly, this simply means that the prosecution loses the benefit of the presumptions under ¶ 258(1)(c). The prosecution can still tender additional evidence to prove that, despite the apparent deficiency, the blood-alcohol concentration of the accused at the times of testing exceeded 80 mg of alcohol in 100 mL of blood as shown 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 be operated improperly at ¶ 25:

…The expert evidence filed in the instant case reveals that the possibility of an instrument malfunctioning or being used improperly when breath samples are taken is not merely speculative, but is very real. The Alcohol Test Committee ("Committee") of the Canadian Society of Forensic Science ("CSFS") has made a series of recommendations concerning the procedures to be followed by the professionals who operate the instruments and verify that they are properly maintained: "Recommended Standards and Procedures of the Canadian Society of Forensic Science Alcohol Test Committee" (2009), 42 Can. Soc. Forensic Sci. J. 1. The Committee states that before collecting a breath sample, the qualified technician must, among other things, observe the test subject for 15 minutes, conduct a system blank test and a system calibration check, and verify the temperature of the alcohol standard, and that the alcohol standard must be changed after a certain number of calibration checks. The Committee also recommends that approved instruments be inspected on an annual basis to ensure that they continue to meet the manufacturer's technical specifications. According to the Committee, the calibration 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 used improperly. Thus, human error can occur when samples are taken and at various steps in the maintenance of the instruments, which, it should be mentioned, are used Canada-wide. Hodgson's report, which the prosecution itself relied on as a source of the statutory amendments, 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 by qualified 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 the accused 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 aptly summarised 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 at the time it received and analysed Mr. Ruiz Ocampo's breath samples; and (2) the qualified breath technician operated the A.I. properly at the time it received and analysed the said samples. This articulation represents the statutory characterization of these issues. With the benefit 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, with respect to the instrument's (1) functioning or as to its (2) proper operation in the instant case. The credibility and reliability of a witness who 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 by its 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 its introduction by reason of its natural, common sense connection with that fact. An item of evidence is relevant where it is probative of the fact 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 or non-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 a determination whether, as a matter of human experience and logic, the existence of a particular fact, directly or indirectly, makes the existence or non-existence of a material fact more probable than it would be otherwise. See: R. v. Cloutier.

[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, 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. Evidence that is probative of the credibility and reliability (or the lack thereof) of a witness who claims that the A.I. was functioning 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 that would be considered relevant to the issue of whether the A.I. was malfunctioning or operated improperly at the time of the analyses. By extension, the Court also declined to discuss in any detail what information the Crown ought to provide the to the defence on these twin issues. 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 be appropriate 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 the breathalyzer 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 for assuring the quality of breath alcohol analyses. It can be inferred from these recommendations that the instruments may not function optimally 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 instrument malfunctioned 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 course disclose certain information concerning the maintenance and operation of the instrument, but it is free to establish procedures for tracking how such instruments are maintained and operated. Moreover, the prosecution has control over the people who maintain and operate the instruments. [emphasis added]

…It is conceivable that evidence that an instrument has produced erratic results could raise a doubt that the results concerning an accused are reliable…

…In [R. v. Crosthwait, supra], the accused had tried to raise a doubt that the instrument had functioned properly by arguing that the technician had not compared the air temperature of the solution before making the analyses. The mere possibility that the instrument had malfunctioned 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 doubt that 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 does not 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 can request the disclosure of any relevant evidence that is reasonably available in order to be able to present a real defence. If the prosecution denies such a request, the accused can invoke the rules of non-disclosure and the available remedies for non-disclosure (see R. v. O'Connor). In short, the accused might rely, for example, on a maintenance log that shows that the instrument was not maintained properly or on admissions by the technician that there had been erratic results, or he or she might argue that health problems had affected the functioning of the instrument (see R. v. Kasim, 2011 ABCA 336). [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." 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. 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.

[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.

[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. [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.

[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.

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. [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 testing.

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. [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.

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.

(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 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.

[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 testing sequence that includes a subject test, the test results of each of the eight component parts is not reproduced. Finally, it also fails to identify the officer involved in running a standalone diagnostics test, a standalone calibration check, or a testing sequence that includes a subject test.

[88] Some police services, including Peel Regional Police Service and some detachments within the O.P.P., move all of the downloaded COBRA data into a spreadsheet file created within the Excel computer program. It is Mr. Palmentier's understanding that CMI advertises that COBRA version 4 software can output into Excel.

[89] The advantages of having the COBRA data presented within a spreadsheet file generated by Excel are threefold and, essentially, self-evident. Firstly, in this format, all of the fields of information or data can be presented. Secondly, in this format, all of the data generated by the A.I. is organized in chronological order. This permits the reviewer to see how the data interrelates and correlates with one another. Thirdly, the content of an Excel spreadsheet can be manipulated. The content can be sorted and filtered. This assists in narrowing down the data of interest to the reviewer. Numerous examples of this form of presentation appear in Ex. 2.

[90] The Toronto Police Service does not export COBRA data, downloaded using COBRA version 4 software, into Excel because, as noted in the letter of Sharon Wilmot, counsel with Legal Services, Toronto Police Service, dated October 30, 2013 and marked as Ex. 4, "Early attempts to put the downloaded [information] into different programs such as Excel resulted in loss of information." I heard considerable testimony as to why this is the case.

[91] By way of a chronological backdrop, in July 2011, Intoxilyzer 8000C version 12 software became available. Version 12 captures approximately six more columns of raw data as compared to its version 8 counterpart. As of September 2013, the Toronto Police Service has utilized COBRA version 5 to download data from the Intoxilyzer 8000C. On the strength of this newer version of software, the Toronto Police Service generates the same categories of information, and in the same file format as it did with COBRA version 4 software.

[92] According to Mr. Palmentier and Det. Cst. Savoia, Version 5 COBRA software cannot manipulate data that had previously been downloaded utilizing COBRA version 4 software. Det. Cst. Savoia elaborated on this point as follows:

Q. How do you use Cobra 5 software, or the program, to manipulate the data that has been downloaded onto the police computer that had been downloaded using Cobra 4?

A. I don't think I would even try. And – and the reason I say that is the Cobra 4 data that we have, it's meant to come out of the program the way it's been set up in Cobra 4, templates and all. In order to shift it around and move it we experience data loss, and to us it's an unreliable way of doing it, going back. I can't –

Q. Tell us about data loss?

A. In order to – I've been asked to – to move this to an Excel spreadsheet. This isn't the first time. We've – we've tried to do that years [sic] once we first got the Cobra. We experienced data loss at that time. Now, data loss only from the transfer from the Cobra folder to the Excel spreadsheet and then trying to print it out and move it to a different computer. So to us it was un – a totally unreliable way of doing it. I can't supply information to the courts in an unreliable manner. I know that the Cobra 4, the way it's meant to be done on its templates, and the version that it's done it's – it's a little known program called Fox Pro. I had never heard of it before.

Q. Fox Program?

A. Fox Pro.

Q. Fox Pro?

A. Right.

Q. F-O-X P-R-O?

A. Right. It's not – it's not really that compatible with Windows. So there was – again, there was loss of information once the transfer happened, and this was on a minute scale. So, in order to transfer absolutely everything it would be a greater loss. The second compounding problem with that is with Cobra – with with the Version 8 on the Intoxilyzer and the new Cobra software – we went from Version 8 to Version 12 in Jan – in July.

Q. Of what year?

A. Of that year, of '11. So we – we were starting to experience, again, a slight loss of information only when we tried to move things over. So what – the new version of Cobra didn't help whatsoever trying to go back.

Q. Okay. Can I just – I'm just going to clarify something. When you say try to move over do you mean try to move it from the Intoxilyzer to the computer, or once it's already on the computer moving it to a different format on the computer?

A. Yes.

Q. The second?

A. From moving – once it's on the computer we thought maybe the ver – the new version of Cobra would be able to assist us in moving it over to an Excel spreadsheet. That didn't happen either.

Q. What kind of things or what type of data loss resulted when you attempted to transfer Cobra 4 data onto an Excel spreadsheet?

A. it would lose – it would lose the information at – at different points. Again, there was – there was no rhyme or reason to it. Sometimes you would lose everything after the first air blank of the first subject test, meaning you would have no second subject test, no tombstone information, nothing. So there was not – not even the first test was – was transferred over. So –

Q. And I'll stop you there. If you're downloading this every week on a Monday are you – presumably there's going to be more than one subject test on the Intoxilyzer 8000C,…

A. Correct.

Q. …right? So when you're saying you would lose everything after the first air blank test do you mean for subject number one and following right through let's say to subject number 50, hypothetically, or we would lose the data individually for each subject after their first air blank test?

A. Well, once everything is downloaded and it goes into that folder we would then try and export it from that folder. So we're not try – we're not permanently losing any of the information. The transfer is what lost the information. So, I was forced to either stick with the way we were doing things until a different version of Cobra came along and I can do it on – you know, if – if necessity proved that way that we would need to do that. But everything as – as it is in that – that computer stays as is. We can't move it – we can't manipulate it anywhere.

Q. I guess the question though – I'm asking, though, is – is going back to the – the data loss. You said that you could lose all the data after the first air blank?

A. Right.

Q. But is that – so let's say –

A. No, it's for just one test. You could lose the second portion of a second test, or subject four, or – you don't know.

Q. Okay. So it would change – the data loss would – could change by subject test?

A. Correct.

[93] Det. Cst. Savoia addressed the matter head on as follows when asked by Mr. Doyle on behalf of the Crown why the Toronto Police Service does not provide the data in an electronic format as do other police services. In essence, the officer identified two concerns: (1) the risk of providing incomplete data; and (2) the risk that the format in which the data is provided could allow for the alteration of the substance of the data:

Q. Why don't you provide dis – Cobra disclosure in electronic form? You know other police services do, right?

A. I – I understand they do.

Q. Why don't – why doesn't Toronto Police just do it that way?

A. Well, it – it's for the things I said before. One, it's totally unreliable. I can't supply to the Court information stating that this is the information when I don't know it is if it isn't. I - I don't know if all of those are all of the lines of information. I don't know if anything's missing.

Q. Why? Why don't you know those things?

A. I wouldn't be able to see it. You would be able to print off what – what you can, but you would have to go through line by line of every information and then you'd have to have something that is proper and start going through all of that, and say, "Okay, all those lines are there, that can go." But it may be missing. I – I don't know.

Q. What about manipulative – manipulative. Is it –

A. Prior – prior to sending off the information and – and putting it in an Excel spreadsheet – an Excel spreadsheet can be manipulated. I'm not going to send something that can be changed, can be altered by anybody, by the police, by the Crown, by the – anybody along the way of disclosure. I have to give it raw and – and the way that it comes out of the instrument. That way I know it's valid. I know it can't be altered, and I know it's what eth courts have – have had disclosure in the past. That way I can satisfy myself and the Toronto Police Service that this is the proper information.

[94] According to Det. Cst. Savoia, he has never tried to extract the data, namely in its raw form, such that it could be provided to the defence in this form. It would appear that it he does not know how to do this. Indeed, he did not know in what format, e.g., a .txt file, the raw data exists. Further, at no time has the Toronto Police ever sent all that it has downloaded using Version 4 COBRA software, namely 290,000 lines of data, to CMI for manipulation using Version 5 COBRA software. According to Mr. Palmentier, this is possible:

A. However, it can – that the data could be sent to – the raw data could be sent to CMI, the manufacturer of the Intoxilyzer 8000C, and it's possible that for a sum of money that they could possibly put all the data into a readable format. So we're talking about the raw electronic data being sorted by an individual taking the time to do that, and putting it into columns that make sense, coherent sense.

[95] Finally, Det. Cst. Savoia also had not attempted to export the data in a format other than a PDF file. He does not see the need to consider other options:

A. There's no obligation for me to do that at the time. It was simply set up through the manufacturer's Cobra 4 to give the information to the Courts. There was no need to experiment, other than trying to get it to an Excel to see if we could look at the data better. After we saw the loss of information we didn't do it anymore. We tried it with the new one, a different version of Cobra, it didn't work either. No need to experiment.

(f) Training Directed at the Proper Operation of the Intoxilyzer 8000C

[96] During the course of his examination of Mr. Palmentier, Mr. Biss referred the witness to the C.F.S.'s Intoxilyzer 8000C Training Aid, a copy of which appears in Ex. 9 at Tab 2, and the "Recommended Standards and Procedures of the Canadian Society of Forensic Science Alcohol Test Committee", published in Can. Soc. Forensic Sci. J. 46, No. 1 (2013) pp. 1-23, a copy of which was marked as Ex. 23. According to Mr. Palmentier, the content of these documents contains "recommendations", as distinguished from "protocols" or "policy" to be followed in relation to the maintenance and operation of, inter alia, the Intoxilyzer 8000C. Mr. Palmentier explained that such recommendations, together with those established by a given police service, serve as the standard against which a trier of fact should consider the procedures followed by a qualified technician in an evidentiary breath test:

Q. Are you suggesting that in Ontario there is no standard against which we should consider the procedures followed by a qualified technician in an evidentiary breath test?

A. There are the recommendations of the procedures by the Alcohol Test Committee. And those of the Ontario Center Forensic Sciences and the CFS training aid.

Q. So there are no other standards or protocols in Ontario's breath system?

A. There may be ones that individual police services come up with. Again, we oversee the breath testing in Ontario and make recommendations about how breath testing should be carried out by police services. But it's up to the individual police service how they choose to conduct the actual breath testing.

Q. So although it may be entitled as being recommended, it's the standard that would be expected of the qualified technician in the field?

A. Yes. [emphasis added]

[97] In addition to the process of preparing the A.I. for analysis, namely conducting the standalone diagnostics test, the standalone calibration check and the self-test, and the execution of the testing sequence that includes the subject tests, the Intoxilyzer 8000C Training Aid also makes recommendations in relation to the retention of documents generated during the preparation stage and the testing sequence:

Q. In the Intoxilyzer training aid both 2009 and 2011, there are a number of documents that are referred to as having to be kept for their evidential value. Would those be items that are necessary for careful and adequate documentation of evidentiary breath testing in Ontario?

A. Yes, that would include the Intoxilyzer 8000C test records. So all the test records associated with this particular test. That would include the stand-alone tests that are done as well as all the records associated with this individual. And any other documentation associated with this case.

Q. And if we in Court were to be looking for sources or resources of what the careful and adequate documentation should be in order to exhibit the same hallmarks of basic science, we should be looking to the training aids and to the recommended standards of the Alcohol Test Committee?

A. Yes. [emphasis added]

[98] Focusing, for the moment, on the standalone diagnostics tests and the retention of documents generated at the conclusion of their execution, at p. 7.4 of the Training Aid, it is, for example, recommended that:

prior to conducting any subject breath testing during a shift, the breath technician perform three Quality Assurance "QA" checks which will demonstrate that

• the instrument is properly calibrated

• in proper working order

• capable of receiving a breath sample

The Training Aid further recommends that the checks may be performed at the start of the shift or at any time prior to receiving the first subject for breath testing. The diagnostics test is included amongst those quality assurance checks.

[99] When a qualified breach technician initiates a diagnostics check, as distinguished from a diagnostics check that occurs automatically when the instrument is powered on, comes out of standby mode, or as part of the testing sequence, the A.I. produces a printout record showing the results of the diagnostics check. At p. 7-5 of the Training Aid, there appears an image which in form is identical to the test record printout for the standalone diagnostics test in the instant case, a copy of which appears in Ex. 3, Tab 3, first page in. The Training Aid did not suggest that a similar test record printout is also generated when a standalone diagnostics test occurs automatically.

[100] On the strength of information contained in Ex. 3, Tab 10, namely the printout of the PDF file containing COBRA data generated during standalone diagnostics tests on various dates, and, in particular, that which appears at p. 7 of that document, the parties learned that at 01:51:10 on June 8, 2011, the A.I. performed a standalone diagnostics test. During the analytical stability test phase of that diagnostics test, a "fail" result was generated. This standalone diagnostics test preceded, by a little more than four minutes, the only standalone diagnostics test to which Sgt. Butt referred in her testimony. The same collection of data supports the inference that the standalone diagnostics test that occurred at 01:51:10 on June 8, 2011 was the first one that the A.I. in question performed during Sgt. Butt's shift.

[101] The Training Aid makes a recommendation as to how the breath tech should respond if faced with a diagnostics test that generates a "fail" result. The following appears at p. 8-6 of the Training Aid:

Diagnostics fail When: During the Diagnostics test.

Why: This exception message will occur if any one of the Diagnostics tests fail to meet the programmed standards of the instrument. The message can also be triggerd if a test subject blows into the instrument during the Diagnostics check.

Action: The severity of this exception message will depend on the cause of the diagnostic fail. Perform a hard re-set of the instrument by powering off, waiting 5-10 seconds and powering the instrument back on. If the Diagnostics fail message recurs, the instrument will require servicing. If the exception message resolves, you may proceed with breath testing.

[102] Mr. Biss, on behalf of the defence, has requested a copy of the test record printout record associated with the 01:51:10 standalone diagnostics test. See: Letter of Mr. Biss, dated November 7, 2013, a copy of which was marked as Ex. 11. The Crown has not provided a copy of same. It is unclear on the evidence before me as to whether or not this document ever did exist.

[103] The Intoxilyzer 8000C Training Aid further notes at p. 7-4 with respect to a breath technician's responsibility towards maintaining documentation associated with evidentiary breath testing:

You must retain the test records for each of the QA checks

• Retain the test records corresponding to each of the above QA checks for their evidential value.

• Photocopies of the test records should be included in the file for each accused person tested during that shift. [emphasis in the original]

[104] The relationship amongst a standalone diagnostics fail, the absence of documentation referencing evidentiary breath testing, and the basis for cross-examining Sgt. Butt as to whether she properly operated the A.I. in question is illustrated in the following exchange between Mr. Biss and Mr. Palmentier:

Q. If there is evidence in a particular case and as we have here of an analytical stability test fail a few minutes before the other three quality assurance checks, are cobra events – and do you know what I mean by an event? Cobra. About a particular line in cobra. Whether it's an air blank, whether it's a cal check, whether it's a subject test whether it's a simulator temperature. Each of the lines each of the records not columns but each of the records going down from the top in the cobra data. Any particular record that occurs between the analytical stability test fail and the analytical stability test pass would they be of use if there were any such events in interpretation of the evidentiary breath test results and the identification of possible sources of error?

A. Okay. So in this case there was an analytical stability test that failed.

Q. Yes.

A. Approximately three, four minutes prior to the one that was conducted?

Q. Yes.

A. At 1:55 a.m. So I think it was 1:50 a.m. that there was an analytical stability test fail? I don't have that data in front of me.

Q. That is in Exhibit 3 on the application in Tab –

A. Sorry, I have it here.

Q. You have it?

A. So there was an analytical stability test fail at 1:51 –

Q. 1:51.

A. Ten.

Q. Ten.

A. Yes.

Q. And an analytical stability test pass at 1:55:44.

A. Correct.

Q. Right.

A. And then during the actual subject test there was an analytical stability test that was conducted at 4:05 a.m. and at 4:08 a.m. Again, just prior to the subject test, the first subject test. And then again at 4:28 a.m. and 4:31 a.m. Again, just prior to the subject – prior to the subject test.

Q. What is the protocol for –

A. Sorry, which passed.

Q. Yes.

A. So while there may have been an issue with the analytical stability test at approximately three hours, two and a half hours previously.

Q. Yes.

A. That was at that moment in time and we don't know what happened between the first test and the second test where it did pass.

Q. Yes.

A. Or what action may have been taken.

Q. Yes.

A. Right. But at the time of testing that it was stable. Because we didn't get that message which would have halted testing had it happened during the actual breath test sequence. Any of those – any of those four points.

Q. I want to suggest to you sir, that if you wanted to know whether the qualified technician followed the appropriate protocol following a failed analytical stability test and prior to a further analytical stability test fail, that the cobra data –

THE COURT: Pass. Prior to the pass.

MR. BISS: Pass. Prior to the pass. Cobra data intervening between those two events would be of assistance to us in making a determination of whether or not the qualified technician followed the particular protocol or committed error.

A. It wouldn't be of assistance to me. Again, that was something that the person who conducted the test would have to speak to and what action they may have taken to rectify the problem, if any. Again, qualified breath technicians are trained, they're given limited information in training with respect to trouble-shooting problems on instruments that consist of switching the instrument on or off, disconnecting the power, resetting the instrument. And if they can't get rid of the problem to find another instrument in order to conduct the test. So they're not required to do extensive opening up of the instrument which they have no training for, and trying to trouble-shoot the instrument to that extent. And after they got another case where they have two analytical stability tests or three, then they should [sic] somebody know within their program that there's a problem with this instrument and probably requires more extensive service and to find another instrument to conduct testing.

Q. Now so just going back to the whole question of my suggestion to you is that if there were any events that occurred on the Intoxilyzer 8000C between the 1:51 analytical stability test fail and the 1:55 analytical stability test pass that those events as reported in cobra would be useful to us in examining the question of whether or not the qualified technician followed the recommendation at page 8-6 of the Intoxilyzer training aid.

A. I'm not sure you can determine that from the downloaded data. You would have to ask the qualified breath technician what they did.

Q. But if for example there was another calibration check that was run during that intervening period of 1:51 to 1:55, that would show up –

A. That's correct. But when I look through the data that was printed off there was no calibration check done between those two moments in time.

Q. None that's been disclosed. But if we had access to the electronic version of the cobra data then we would know whether there was an intervening event, would we not?

A. That's correct but I didn't see one in the downloaded information that you were provided.

[105] According to Mr. Palmentier, the most complete source of information, in chronological order, as to the functions executed by the A.I., would be the COBRA data in electronic format:

Q. …Wouldn't a method of making sure that one had the complete cobra data for the period of time spanned by the PDF version of data that's already been given to us, a way of making sure that we had complete data for that period of time and in chronological order would be to look at the electronic data version of the cobra data?

A. If you were interested in it, yes.

(g) Opinion as to Whether the A.I. in the Instant Case was in Proper Working Order and was Properly Operated

[106] On the strength of the content of the Intoxilyzer 8000C test record printout for the testing sequences that include the two subject tests, Mr. Palmentier was prepared to opine that it appears that the A.I. in the instant case was in proper working order and was properly used by the qualified breath technician during the two testing sequences. In the result, the readings generated from the analyses of Mr. Ruiz Ocampo's two breath samples are a reliable and, hence, an accurate reflection of his blood-alcohol concentration at the time of testing.

C. The View Application

[107] The defence argued the view application largely on the strength of Ex. 1, a compendium of photographs that depicted various A.I.s and external simulators in breath rooms located in a number of O.P.P. detachments, in the breath room located in Halton Regional Police Service's 3 District, and in the breath room located in South Simcoe Police North.

[108] The photographs were intended to show these apparatuses in situ such that you could see their relative positions to, for example, electrical outlets in the wall or their proximity to potential chemical interferents present in the breath room. Some images revealed whether or not the A.I. had the benefit of a surge protector. They were also intended to identify some of the equipment details (including cables and connectors) of the aforementioned apparatuses. Finally, they were intended to show signage on the walls that suggested the local practices and protocols followed by officers working with these apparatuses.

[109] The application did not, however, proceed with the benefit of any expert opinion evidence by a forensic toxicologist to assist me as to how evidence of such visual information bears upon the material issues before me for consideration in this case identified in ¶ 25, supra. Such testimony would also have assisted in my evaluation as to whether or not the audio/video recording, which comprises Ex. 2 at the trial proper, would serve as a sufficient visual history of the layout of the breath room, its contents, and the constituent parts of the apparatuses as of June 8, 2011 at Traffic Services for the purposes of advancing the position of the defence.

[110] It must also be noted that Mr. Biss did not tender evidence that the Intoxilyzer 8000C bearing serial number 80-005153 and the simulator that was affixed to it on the night in question (or identical apparatuses) are still located at Traffic Services, or that the breath room at that location has retained the set-up that was in place on June 8, 2011, more than two years prior to the date the application was heard. I have no evidence, for example, that the layout and contents of the room are the same, or that the position of the A.I. within that layout, and relative to other room contents, remains the same.

IV. Legal Issues

A. COBRA Data Application

(a) Is the COBRA Data Application a Disclosure or Third Party Record Application?

[111] As noted in R. v. St.-Onge Lamoureux, supra, at ¶ 78, in furtherance of its efforts towards rebutting the presumption of accuracy, the defence can request the disclosure of any "relevant evidence" that is "reasonably available" from the Crown. Implicit in this articulation of the law is an acknowledgement of the concomitant duty upon the Crown to provide evidence that is "relevant" and "reasonably available".

[112] It is common ground between the parties that the data sought by the defence is not contained in Mr. Ruiz Ocampo's investigatory file, save and except for that described in ¶ 44, supra. Put another way, the Crown Attorney's Office assigned to the prosecution of Mr. Ruiz Ocampo's charges does not possess all of the data sought by the defence. However, a branch of the Crown, namely the Toronto Police Service, does possess all of the data to which the defence seeks access.

[113] Before determining whether I should direct the Crown to provide some, none, or all of the data sought, wholly apart from whether I further direct that it be provided in the format that the defence requests, I must decide if the defence request ought to be disposed of by way of a "first party"/ Stinchcombe or "third party"/ O'Connor application. If it is the former, then the Crown must persuade me that the impugned data is clearly irrelevant to the material issues of (1) whether the A.I. was malfunctioning or operated improperly or (2) the credibility of a witness who offers probative testimony in relation to these issues. If it is the latter, then the defence must persuade me that the impugned data is likely relevant to the same issues.

[114] I have reviewed the guiding appellate authorities on this point of law, namely the Supreme Court of Canada's decisions in R. v. Stinchcombe, R. v. McNeil, 2009 SCC 3, and R. v. Quesnelle, 2014 SCC 46. They stand for the following propositions and/or make the following points:

(1) The Crown must disclose to the defence all information that is in the actual possession of the prosecuting Crown entity, provided that it is not, in the estimation of the prosecuting Crown, clearly irrelevant to a material fact in the case (including the credibility of a witness) or, put another way, provided that there does not exist a reasonable possibility that it may assist the accused in the exercise of the right to make full answer and defence. This information is often referred to as the "fruits of the investigation" or the contents of the investigative file;

(2) With the exception of the police duty to supply the Crown with the fruits of the investigation or the contents of the investigative file, records in the hands of third parties, including other Crown entities, are generally not subject to the Stinchcombe disclosure rules;

(3) The Crown cannot merely be a passive recipient of disclosure material. Instead, the Crown has a duty to make reasonable inquiries when put on notice of material in the hands of police or other Crown entities that is potentially relevant to the prosecution or the defence;

(4) Where there is a live issue as to whether or not information that forms part of the investigative file is clearly irrelevant, the Crown must justify its refusal. The trial judge on a review of the Crown's exercise of discretion in this regard should be guided by the general principle that information ought not to be withheld if there is a reasonable possibility that the withholding of information will impair the right of the accused to make full answer and defence, unless the non-disclosure is justified by the law of privilege;

(5) Where the defence seeks production of information in the possession of a Crown entity other than the prosecuting Crown that falls beyond the fruits of the investigation, it must first demonstrate to the trial judge that the information sought is "likely relevant" to a material fact in the case; and

(6) The standard of "likely relevance" within a third party record application is a "significant burden" but "should not be interpreted as an onerous burden upon the accused". "Likely relevance" means that there is "a reasonable possibility that the information is logically probative to an issue at trial or the competence of a witness to testify". An "issue at trial" here includes not only material issues concerning the unfolding of the events which form the subject matter of the proceedings, but also evidence relating to the credibility of witnesses and to the reliability of other evidence in the case". See: R. v. McNeil, supra, at ¶ 33, citing R. v. O'Connor, supra, at ¶ 22.

[115] In summary, the Crown fails to meet its disclosure obligations where (1) the police have failed to provide the defence (via the prosecuting Crown) with the fruits of the investigation or the contents of the investigatory file that are not clearly irrelevant to a material fact in the case (including the credibility of a witness) which are in its possession; (2) the prosecuting Crown has failed to provide the defence with the fruits of the investigation or the contents of the investigatory file that are not clearly irrelevant to a material fact in the case (including the credibility of a witness) which are in its possession; or (3) the prosecuting Crown has failed to make reasonable inquiries when put on notice of material in the hands of the police or other Crown entities that is potentially relevant to the prosecution or the defence. Where these obligations have been met, an attempt by the defence to gain access to information in the hands of the police ought to be framed and analyzed as a third party record application.

[116] In my respectful view, the Crown must disclose COBRA data, regardless of the form in which it is presented, that forms part of the investigation into Mr. Ruiz Ocampo. Accordingly, where the Crown has failed to meet this obligation in the instant case, it must justify its failure to do so on the grounds that the data sought is "clearly irrelevant".

[117] I will now turn to the COBRA data that does not form part of the investigation into Mr. Ruiz Ocampo but is, nonetheless, in the possession of the police. Mr. Biss's first request for all of the COBRA data appeared in his letter to the prosecuting Crown, dated January 11, 2012. A copy of it appears in Ex. 3, at Tab 8. In item "9." of the letter, he requests:

COBRA data for the Intoxilyzer in electronic excel spreadsheet format with TST_ID numbers including subject tests, calibration checks, diagnostics checks, operational errors, and exceptions for the period 6 months prior and 6 months following the subject tests.

[118] By way of reply, dated February 1, 2012, Mr. Igwe, on behalf of the prosecuting Crown, indicated that his office was resisting Mr. Biss's request for this data (in addition to a number of other items). A copy of that letter appears in Ex. 10 at Tab 9. Mr. Igwe wrote:

…These items are irrelevant, as they provide nothing touching on the accuracy of the instrument regarding the subject tests taken in this case. We would reconsider our position if you could provide an arguable basis of potential relevance and at least a summary of the evidence you intend to call on the issue.

[119] I have no evidence before me, by way of this or subsequent correspondence between the Crown and the defence, to support the inference that the Crown has acted unreasonably or without good faith, particularly in light of the state of flux in which the law finds itself on this point, in its assessment of the potential relevance of such information.

[120] Accordingly, in respect of the COBRA data in the possession of the police that does not form part of the fruits of the investigation into Mr. Ruiz Ocampo's conduct, the defence must meet the initial threshold of "likely relevance" of the information sought to a material issue in this case.

B. The View Application

(a) The Law of Taking a View

[121] Sub-section 652(1) of the Code provides as follows:

652. (1) The judge may, where it appears to be in the interests of justice, at any time after the jury has been sworn and before it gives it verdict, direct the jury to have a view of any place, thing or person, and shall give directions respecting the manner in which, and the persons by whom, the place, thing or person shall be shown to the jury, and may for that purpose adjourn the trial.

[122] A party customarily seeks an order under this provision when it wishes to take the trier of fact to the scene of the crime, as distinguished from the scene of an investigation that is not, itself, the crime scene. These orders are now less frequently sought given that video recordings of crime scenes are ubiquitous. Given the potential intrusiveness and inconvenience of such orders for all concerned, they should not be sought as a mechanism of discovery or, put another way, as a veiled request for Crown disclosure or information under the control of a third party. Instead, they should be sought when the material issues of a case have crystalized and it is clear that the visual (or audio) information necessarily available during the view is probative of a material fact in issue.

[123] There is little case law that has interpreted § 652 of the Code. Mr. Doyle, on behalf of the Crown, has directed me to R. v. Johnson, [2010] O.J. No. 3971 (Sup. Ct.) wherein the prosecution applied for an order directing that the judge and jury in that case take a view of the crime scene in a murder prosecution. In that case, Justice Nordheimer held at ¶ 5 that the applicant must "establish that there is some very real and demonstrable advantage that the taking of a view will bring to the proceeding in terms of [the trier of fact's understanding] of the evidence they will hear" [emphasis added]. At ¶ 6 of His Honour's decision, Justice Nordheimer identified a number of factors that the court should consider during an application brought pursuant to § 652 of the Code. I have also reviewed Watt's Manual of Criminal Evidence – 2013 at p. 97, § 10.07 wherein Justice Watt also identifies a number of factors to be considered. Taken together, these factors may be summarized follows:

(1) the importance to an issue to be decided of the information that may be gained by a view;

(2) the extent to which the information has been or could be obtained from other sources, including maps, diagrams, models, photographs, or videotapes;

(3) the extent to which the place, person, or thing to be viewed has changed in appearance since the material time, and the consequent danger that the view may mislead;

(4) logistical problems associated with the scene itself, including accessibility, distance, safety concerns for those attending the view, the likelihood of public attention to the process and the disruption to normal day-to-day activities in the area where the view is to take place; and

(5) security concerns at the scene.

(b) Directing the Police to Permit an Investigator on Behalf of the Defence to Photograph a Subject Area that falls within the Exclusive Jurisdiction of the Police

[124] The defence has provided me with no statutory or common law authority that supports the proposition that a court has the jurisdiction to direct the police to permit an investigator acting on behalf of the defence to photograph a physical location that falls within the exclusive control of the police.

(c) Directing the Crown to Investigate on Behalf of the Defence

[125] The law is clear that the Crown has no duty, constitutional or otherwise, to conduct an investigation on behalf of the defence. As noted in R. v. Darwish, 2010 ONCA 124, at ¶ 30:

…the defence cannot, through a disguised-disclosure demand, "conscript the police to undertake investigatory work for the accused". See also: R. v. Schmidt, 2001 BCCA 3, at para. 19. That is not to say that the police and the Crown should not give serious consideration to investigate requests made on behalf of an accused. Clearly, they must. However, it is the prosecutorial authorities that carry the ultimate responsibility for determining the course of the investigation. Criminal investigations involve the use of public resources and the exercise of intrusive powers in the public interest. Responsibility for the proper use of those resources and powers rests with those in the service of the prosecution, and not with the defence.

[126] In my respectful view, it follows from this principle of law that the court has no jurisdiction to compel the Crown (or the police) to investigate the layout and contents of a breath room on behalf of the defence.

V. Application of the Law to the Evidence

A. The COBRA Data Application

(a) COBRA Data that Amounts to the Fruits of the Investigation

[127] The Crown has conceded that the COBRA data that constitutes the fruits of the investigation is not clearly irrelevant. It is for this reason that it has disclosed the documents, as outlined in ¶ 44, supra, to the defence. Those documents present COBRA data, plain and simple. Those documents coincide with the five items that Mr. Palmentier readily agreed were necessary to an assessment of whether the A.I. in question was malfunctioning or operated improperly by the qualified breath technician. Those documents capture data that relate to the three quality assurance tests that are performed apart from the testing sequences that contain the subject tests, the testing sequences themselves, and information about the alcohol standard solution utilized during the calibration checks, including information as to when it was last changed. However, as outlined above, these test record printouts do not capture all of the data that constitute the fruits of the investigation. They only capture some of it. For example, the test record printouts disclosed to the defence did not reveal that at 01:51:10, the analytical stability portion of a standalone diagnostics test, that may very well have formed part of the quality assurance checks upon which Sgt. Butt intended to rely on the night in question, registered a "fail". No test record printouts indicate how she responded to this result. Also, there is no audio/video recording of how Sgt. Butt responded to this result. In her testimony to date, she has made no mention of that diagnostics test result. She does not appear to have retained a test record printout of this diagnostics test, assuming, of course, that it was generated. All of this may, indeed, run contrary to the recommendations of the C.F.S.'s Intoxilyzer 8000C Training Aid and, thus, may bear upon my assessment of whether Sgt. Butt operated the A.I. properly. Had the defence been provided with all of the COBRA data generated from the point that Sgt. Butt began to review the standalone quality assurance tests upon which she intended, at least at the outset of the test, to rely, right up to the conclusion of Mr. Ruiz Ocampo's testing sequence, it would now have a complete picture of how she operated the A.I. during her investigation of Mr. Ruiz Ocampo. Just as it is not for the Crown to withhold a witness statement that contains potentially relevant evidence because, in its assessment, the witness is incredible or unreliable, it is not for the Crown to decide which quality assurance test results that are associated with an accused's breath tests are worthy of disclosure.

[128] The proper identification of the alcohol standard solution used by the simulator in the A.I. on the night in question forms part of the investigatory file. The defence has raised an issue as to the identity of the standard alcohol solution that was contained in that simulator. Though Sgt. Butt claims to have seen a particular seal identifier affixed to the simulator on the night in question, that seal does not, according to the alcohol standard logs, correspond with the seal identifier that was replaced when the alcohol standard solution was next changed. There are a variety of possible explanations for this discrepancy: Sgt. Butt may have made a recording error or the alcohol standard logs are missing one or more intervening entries. The COBRA data, however, holds the answer as it records when and by whom the alcohol standard solution is changed.

[128] Simply put, and to echo the comments of Mr. Palmentier, the defence would have all "the information associated with this breath test" if it had (1) all of the COBRA data that was generated by the Intoxilyzer 8000C bearing serial number 80-005153, commencing with every standalone diagnostics test, standalone calibration test, and self-test, right up until the end of the testing sequence that includes the suspect's subject tests, less intervening testing sequences involving other test subjects; and (2) all of the COBRA data associated with the changing of the alcohol standard solution that brackets the impugned testing sequence. In my respectful view, this data, represents the "best evidence" in the nature of a recording of sorts of what the qualified breath technician did in an effort to ensure that she was investigating Mr. Ruiz Ocampo in a way that generated reliable investigatory results. If an audio/video recording exists of an interaction between an officer and a detainee during the investigation of an alleged crime, it would have to be disclosed as part of the fruits of an investigation. Notes summarizing that interaction, regardless of its source, would be deemed an insufficient substitute. If this were not the case, then why, as a matter of routine, does the Crown disclose breath room videos?

[130] In my respectful view, the Crown has not demonstrated that all of the COBRA data that was generated by the Intoxilyzer 8000C bearing serial number 80-005153, commencing with every standalone diagnostics test, standalone calibration test, and self-test, right up until the end of the testing sequence that includes Mr. Ruiz Ocampo's subject tests, less intervening testing sequences involving other test subjects, and all of the COBRA data associated with the changing of the alcohol standard solution that brackets the impugned testing sequence is clearly irrelevant. It is potentially probative of 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 A.I.'s functioning or as to its (2) proper operation. It is also potentially probative of the credibility and reliability (or lack thereof) of a witness who claims that the A.I. was functioning or operated properly.

[131] The COBRA data I have identified above is in the possession of the police. As I have held that it forms part of the fruits of the investigation, it must be provided to the prosecuting Crown for disclosure to the defence.

(b) COBRA Data Beyond the Fruits of the Investigation

[132] I have heard extensive evidence from Mr. Palmentier regarding the nature of historical data, namely data that falls beyond what I have termed above as the fruits of the investigation. Mr. Palmentier's unwavering opinion is that historical data is irrelevant to the material issues before me for consideration. Simply put, as a matter of science and mathematics, there is no predictive relationship between historical data and whether an A.I. is malfunctioning or being operated improperly at a given time.

[133] I have heard no contradictory expert opinion evidence on this point. It is in this regard that this case is factually distinguishable from the decision in R. v. Jackson, [2013] O.J. No. 3793 (Ct. Just.), upheld on a certiorari application and reported at [2013] O.J. No. 1685 (Sup. Ct.), wherein Nadelle J. ordered that, inter alia, certain historical COBRA data be provided to the defence in electronic form. Justice Nadelle heard from conflicting forensic toxicologists, one who gave evidence on behalf of the Crown and one who testified on behalf of the defence. Justice Nadelle clearly preferred the evidence of Mr. Kupferschmidt, the defence expert. Mr. Justice Johnston, the reviewing judge, also preferred Mr. Kupferschmidt's testimony. At ¶ 19 ff of Justice Johnston's reasons, His Honour summarized some of the testimony given by Mr. Kupferschmidt which he found persuasive:

The Crown in cross-examination of Mr. Kupferschmidt suggested that the mere fact the Intoxilyzer 8000C malfunctioned, or was improperly operating on a test preceding the accused's test, has no bearing on whether the machine was working properly at the time that the accused provided breath samples. The Crown asked the question given what is known about how the 8000C operates: specifically the quality control test that it runs through as a pretest. Mr. Kupferschtnidt [sic] disagreed. He provided an example of a case were four diagnostic tests were taken consecutively, all were diagnostic fails. On the next attempt, the technician received a pass and proceeded with the breath test of the individual. Mr. Kupfersehmidt [sic] testified that, according to procedures set out by the Centre of Forensic Science [sic], the instrument should have been removed from service after the second failed test. It was only after review of records that it was determined that four prior fails were registered. Mr. Kupferschmidt stated, "if there is four diagnostic fails and all of a sudden there is a pass, one has to have some doubt about that pass." Mr. Kupferschmidt stated that the diagnostic failure in that example occurred three days previous. The fails were only discovered after viewing the downloaded data. (Transcript page 76) The point of the example is that proper testing procedure was not followed; the machine ought to have been removed from service. The error in that case was only detected by review of the COBRA data, similar to the disclosure sought in the case at bar.

The Crown asked Mr. Kupferschmidt if he had a [sic] opinion on how that could potentially impact the reliability of any one set of tests. He replied: "It's not simply a – an error that one can overlook; it's a violation of protocol and it's established by the very entity that controls the process in the Province of Ontario, so it's not something I'm making up. It's – it's protocol system that's in place by the scientific authority in quotes – responsible for that." (Transcript page 76 lines 12 to 19).

In circumstances as that described by Mr. Kupferschmidt, I find that the police records involving the testing of other individuals "could reasonably impact on the case against the accused." In my view, the results of such similar failures of the Intoxilyzer 8000C in other testing procedures contemporaneous with the accused's test are likely relevant. In McNeil, the Court found the disclosure was relevant to the credibility of the officer, in circumstances where the officer's involvement was crucial to the outcome of the case against the accused. Similarly, where an accused fails an Intoxilyzer 8000C test, it is relevant to know whether the very machine used to gather evidence against the accused malfunctioned. The argument advanced by the two Applicants is essentially that such malfunctions, once or multiple times is irrelevant. If the machine was able to produce a result it must have operated properly. If this premise is accepted, how would an accused ever challenge a 'fail' reading?

[134] I have not heard any such expert opinion evidence on this application. As noted above, the only expert opinion evidence I have heard contradicts the view held by Mr. Kupferschmidt.

[135] In the result, the defence has not demonstrated the "likely relevance" of the historical data that it seeks.

(c) In What Format Should the Data be Disclosed?

[136] Once a trial judge has determined that the Crown must, on the strength of a successful disclosure or third party record application, and as a matter of materiality and relevance, provide evidence to the defence, there must be a further consideration of whether the evidence sought, or, more accurately, the format in which it is sought, is "reasonably available" for disclosure or production, as contemplated by R. v. St.-Onge Lamoureux at ¶ 78.

[137] In the instant case, the Crown possesses the COBRA data in its raw form, i.e., that which is initially downloaded from the A.I. onto Det. Cst. Savoia's computer. I have heard extensive evidence as to how Det. Cst. Savoia has exported it into templates that are saved into PDF files and then printed out in hard copy. I have also heard that he is unable and, to a degree, unwilling, to export that downloaded data into an Excel file format. The reason he offers in support of that position is not unreasonable: in the process of exporting the data, some of it, in his experience, goes amiss. I have not heard evidence as to how it is that some other police services are able to successfully export the same data into an Excel file. In light of this evidentiary gap, I am unprepared to compel the Toronto Police Service to provide the COBRA data in the format of an Excel file.

[138] While Mr. Biss's preference is to have the COBRA data provided to him in the format of an Excel file, he as argued, by way of an alternative position, that the Crown simply provide "the requested data in its native raw text file extension form". In my respectful view, the impugned evidence is, in this form, "reasonably available", as contemplated by the Supreme Court of Canada in R. v. St.-Onge Lamoureux, supra.

B. The View Application

[139] In my respectful view, the defence has laid an insufficient evidentiary foundation to support an order that a view of the breath room at Traffic Services be taken. The defence has not bridged the evidentiary gap between the visual information that would be available on the strength of such an order, well over two years after the fact, with the material facts for my consideration in this case. I also have no expert opinion evidence before me to suggest that the audio/video recording of the interaction amongst Sgt. Butt, P.C. Niziol and Mr. Ruiz Ocampo is an insufficient record of that visual information. On the totality of the record before me on the view application, the defence has not established that there is some very real and demonstrable advantage that the taking of a view will bring to this trial in terms of my understanding of the evidence I will hear.

[140] As noted above, I have no authority to grant the alternative orders sought by the defence in this regard.

VI. Conclusion

[141] The application for the order sought, as articulated in item "(1)" in ¶ 5, supra, is allowed in part. The Crown must disclose all of the COBRA data that was generated by the Intoxilyzer 8000C bearing serial number 80-005153, commencing with every standalone diagnostics test, standalone calibration test, and self-test, right up until the end of the testing sequence that includes Mr. Ruiz Ocampo's subject tests, less intervening testing sequences involving other test subjects, and all of the COBRA data associated with the changing of the alcohol standard solution that bracket the impugned testing sequence and it must do so in its native raw text file extension form. The application for the orders sought as articulated in items "(2) to (4)" in ¶ 5, supra, is dismissed.

Released: August 12, 2014

Signed: "Justice A. Tuck-Jackson"