Court File and Parties

Ontario Court of Justice

Date: 2016-06-17

Court File No.: Brampton 15-1875

Between:

Her Majesty the Queen

— and —

Taryn Tonkin

Before: Justice C. Ann Nelson

Heard on: April 20 and 21, 2016

Ruling on Voir Dire regarding admissibility of proposed expert evidence of Ben Joseph released on: June 17, 2016

Counsel:

• Ms. H. Gluzman, for the Crown
• Mr. R. Jourard, for Ms. Tonkin

NELSON J.:

Part 1: Overview

Introduction

1 Ms. Tonkin wishes to call an expert witness, Ben Joseph, a toxicologist, in an effort to raise a reasonable doubt about the proper maintenance and operation of the Intoxilyzer used in her over 80 operation case. She seeks to qualify Mr. Joseph as an expert to give scientific evidence about (amongst other things) the operation, maintenance and functioning of approved instruments, including the Intoxilyzer 8000C used in her case, and the evaluation of historical and maintenance records for these instruments, including the analysis of COBRA1 data.

2 This is my ruling on the voir dire held during Ms. Tonkin's trial to determine the threshold admissibility of Mr. Joseph's evidence.

3 There are issues on this voir dire regarding:

• Mr. Joseph's expertise to give the proffered opinion evidence;
• the reliability of the proposed evidence generally, having regard to the Crown's assertion that Mr. Joseph's evidence amounts to novel science; and
• the logical relevance of the proposed opinion evidence.

4 There is also an issue about the impact of a recent decision from the Ontario Court of Justice. In R. v. Singh, my sister Justice, Justice Ready, dealt with some of the same issues at play in this case. Mr. Joseph testified as an expert for the defence in that case. In Singh, Mr. Joseph was qualified as an expert on consent. No issue was taken with respect to the threshold admissibility of his evidence. Justice Ready accepted some of Mr. Joseph's opinions, holding that the defence had raised a reasonable doubt about the reliability of the Intoxilyzer results in that case.

5 For a number of reasons, I conclude that Mr. Joseph's evidence is not admissible at Ms. Tonkin's trial. In light of this conclusion, it is not necessary for me to address all of the bases upon which the Crown opposes the admission of Mr. Joseph's evidence.

6 I will first outline the factual context for this case and then provide an overview of the relevant law both as to the admissibility of expert evidence and as to the evidence needed to raise a reasonable doubt about the reliability of the Intoxilyzer results. Finally, I will refer to Mr. Joseph's proposed evidence and apply the law as I understand it to explain my decision that Mr. Joseph should not be permitted to provide opinion evidence at this trial.

Brief Overview of the Facts

7 On February 6, 2015, after she was seen exiting the parking lot of a bar, Ms. Tonkin was stopped by police for a sobriety check. She failed an ASD test and subsequently provided two suitable samples into an Intoxilyzer 8000C, registering blood alcohol content of 138 and 134 respectively. Constable Dan Scobie, an experienced breath technician, conducted the breath tests. The test record printout indicates that the Intoxilyzer passed all of the usual calibration and diagnostic tests. There is no issue regarding Constable Scobie's proper operation of the instrument on the evening in question. Constable Scobie also testified that the instrument was in good working order at the time of Ms. Tonkin's breath tests and that he believed her breath results were reliably analysed by the instrument.

8 In addition to disclosing the test printout records to the defence, the Crown disclosed the Intoxilyzer's maintenance log, annual inspection reports and historical records contained in the COBRA data back to 2010.2

Test for Admissibility of Expert Evidence

9 Expert opinion evidence is presumptively inadmissible.

[10] On this voir dire, the onus is on the defence to satisfy me that Mr. Joseph's evidence should be admitted. This requires a two-step determination.3

[11] First, I must be satisfied that the Mohan conditions are met; that is, I must be satisfied that the proposed evidence is:

• logically relevant;
• necessary;
• not contrary to an exclusionary rule; and
• proffered by a properly qualified expert.

[12] If the prospective evidence satisfies the above criteria, I must then move to the second step and weigh the probative value of the evidence against the cost of its admission. This involves an assessment of the reliability of the evidence.

[13] Insofar as the proposed evidence consists of novel science (or of a novel application of established science), I must carefully scrutinize the evidence to ensure that the opinion has a sufficiently reliable foundation to warrant admission in a legal forum.

Raising a Reasonable Doubt about the Intoxilyzer Operation and Maintenance

[14] Mr. Joseph's opinion evidence is being called to assist Ms. Tonkin to raise a reasonable doubt about the reliability of the Intoxilyzer results. By doing so, she seeks to rebut the presumption of accuracy contained in the Criminal Code. Thus, it is important to review the legal basis for raising such a doubt.

[15] In R. v. St-Onge Lamoureux, the Supreme Court held that it was sufficient for a defendant to rebut the presumption of accuracy of breath samples taken by an Intoxilyzer by eliciting evidence that the breath readings were unreliable because the instrument was not properly maintained or was operated improperly. However, the Court stressed that it is not sufficient for a defendant to raise a possibility that the instrument malfunctioned or was improperly operated, stating: "The mere possibility that the instrument had malfunctioned was not evidence to the contrary that could cast doubt on the reliability of the results."5 The Court referred to one of its earlier decisions, R. v. Crosthwait, to emphasize the type of evidence that is necessary to rebut the presumption. In that decision7, Justice Pigeon stated:

Mere possibility of some inaccuracy will not assist the accused. What is necessary to furnish evidence to the contrary is some evidence which would tend to show an inaccuracy in the breathalyzer or in the manner of its operation on the occasion in question of such a degree and nature that it could affect the result of the analysis to the extent that it would leave a doubt as to the blood alcohol content of the accused person…

[16] The case law makes it clear that it is not enough for the defendant to show that the Intoxilyzer may not have been properly maintained in the past; the defence must relate any deficiency to a doubt about the specific breath readings in issue. It is not enough to raise a doubt in a general sense. As stated by Justice Goldstein in R. v. Lam:

That is because St. Onge itself makes it clear that an accused person must link the improper operation or the failure to maintain the breath machine directly to an unreliable result. In other words, it is not enough to simply say: "the machine wasn't maintained properly". An accused person must be able to say: "the machine wasn't maintained properly, and it led to a problem with the machine."8

Part 2: Analysis of Mr. Joseph's Opinions

Overview of Mr. Joseph's Opinion

[17] Mr. Joseph worked as a toxicologist for the Centre for Forensic Sciences until 2013. Since leaving that organization, he has worked as a consultant for defence counsel. During this time, he taught himself to read and analyse COBRA data, the software underlying the operation of the Intoxilyzer. In this case, the Crown provided disclosure with respect to the Intoxilyzer 8000C used in Ms. Tonkin's tests, which included maintenance records and historical COBRA dating back to 2010, the date the instrument was delivered to Peel police. Based on this historical data, Mr. Joseph opined that the Intoxilyzer 8000C used in Ms. Tonkin's case was not properly maintained; therefore, Ms. Tonkin's breath readings were not a reliable indicator of her blood alcohol levels at the time of testing.

[18] If Mr. Joseph's opinion evidence is admitted at this trial, the parties estimate that four more days of trial time will be needed for both the defence and the Crown's experts to testify. This is in addition to the two days already expended on the qualification voir dire.

[19] The main reason that I determine that Mr. Joseph's opinions are inadmissible in this trial is because they are not logically relevant. More specifically, Mr. Joseph's opinions at their highest cannot raise a reasonable doubt about the reliability of Ms. Tonkin's Intoxilyzer results.

[20] In addition to not being logically relevant, there are serious issues regarding the reliability of aspects of Mr. Joseph's opinions which require the Court to exercise its gatekeeping function to refuse admission of this evidence on the basis of a cost benefit analysis given the amount of trial time that would be expended on it.

[21] Mr. Joseph's opinions as extracted from his written reports can be categorized into four main areas (albeit there is some overlap between the areas)9:

(1) Historical Maintenance Records: Historical Diagnostic and Calibration Failures Extracted from COBRA Data;

(2) Proper Basis for Verification of the Operating Temperature of Simulator;

(3) Quality Control Indicators; and

(4) Drift and Measurement Uncertainties Associated with the Instrument.

[22] I will summarize Mr. Joseph's intended evidence under each category and explain why his opinions are not logically relevant and, in some respects, so unreliable that they engage the Court's gatekeeping function and must not be admitted into evidence.

1. Historical Maintenance Records: Historical Diagnostic and Calibration Failures Extracted from COBRA Data

[23] Mr. Joseph noted that that over the period from August 2010 (when the instrument went into service) until February 2015 (when Ms. Tonkin provided her breath samples) his review of the instrument's COBRA historical data indicated that the instrument had displayed 84 calibration check errors, 14 temperature regulation test errors, and 11 analytical stability test errors[10]. He testified that he did not receive any information which explained these calibration and diagnostic failures or addressed any remedial actions. Thus, Mr. Joseph concluded that the Intoxilyzer was not properly maintained which "raises a real doubt about the reliability of the results of Ms. Tonkin's breath tests conducted on February 6, 2015." Indeed, in answer to a question asked by the Court, he was of the view that every breath test conducted by this Intoxilyzer since 2010 was unreliable.

[24] Mr. Joseph acknowledged that if he had received documentation explaining each and every one of the above mentioned error messages and the remedial action taken, his opinion could change and he might conclude that Ms. Tonkin's results were reliable. He also acknowledged that the error messages archived in the COBRA data may have related to inconsequential issues. For example, in his report he notes that the proper procedure when a diagnostic fail is registered on the instrument is to power off the instrument and turn it back on after 5 to 10 seconds. If that does not correct the problem, then the instrument may need to be serviced.

[25] By way of further example, Constable Scobie, the breath technician in this case, testified that low or zero calibration checks can be registered for a variety of reasons, namely:

• the headspace above the alcohol solution is too cold;
• there is chip in the jar;
• the lid to the jar is loose;
• the alcohol test solution may have to be changed;
• the tube that connects the simulator to the Intoxilyzer may not be connected properly; or
• there may be a high amount of alcohol in the breath room air.

[26] Constable Scobie testified that breath technicians are trained to troubleshoot error messages. He also testified that while some of the above problems could require that the instrument be serviced (the chipped jar scenario), most of the issues can be resolved through troubleshooting efforts of the technician - i.e. waiting for the headspace to heat up; tightening loose lids or connections; replacing the alcohol standard solution; or ventilating the room. Mr. Joseph acknowledged the accuracy of Officer Scobie's evidence on this issue.

[27] Constable Scobie also testified that if the Intoxilyzer displayed an error message, the technician would troubleshoot the problem in order to correct the problem. Breath testing would only take place if the problem was resolved. If the problem was not resolved, the instrument would be taken out of service. Further, the technician would keep a record of the troubleshooting actions which would be kept with the technician's notes regarding the subject's test.

[28] There was evidence that the instrument in question received annual maintenance as recommended by the Centre for Forensic Sciences (CFS)[11] and was sent for servicing to the manufacturer at various intervals in its 4 and ½ years of service for such reasons as "possible pump issue; breath tube repair; low calibration checks; chipped simulator jar; and 108 Flow sensor R valve" all of which could have caused some of the error messages in question. Mr. Joseph conceded that any of these service issues could have caused the calibration check errors.

[29] Notwithstanding the evidence regarding the many possible inconsequential causes for the error messages in question, the types of simple troubleshooting solutions available to the technicians, and the regular maintenance and repair that the instrument received, Mr. Joseph made the assumption that because he had no information as to what corrective action was taken, none was taken. In turn, Mr. Joseph concluded that the instrument was not properly maintained. Mr. Jourard, on behalf of Ms. Tonkin, submitted that the onus was on the Crown to disclose to the defence documentation to explain each and every error message documented by Mr. Joseph, and its failure to do so should be taken by the Court as corroboration of Mr. Joseph's opinion.

[30] At the time Ms. Tonkin provided her breath samples, the Intoxilyzer passed all of its calibration and diagnostic tests with flying colours.

[31] In my view, Mr. Joseph's conclusion is not based on an evidentiary foundation. His assumption that no remedial action was taken at the time of each error message is contrary to the evidence given by Constable Scobie and does not accord with common sense. To conclude that the Intoxilyzer in question was not properly maintained because Mr. Joseph is lacking information is pure speculation. Such speculation cannot logically support a conclusion that the instrument was not properly maintained, or in turn, raise a reasonable doubt about the reliability of Ms. Tonkin's breath results.

[32] Further, there is no link between Mr. Joseph's speculation and Ms. Tonkin's breath results. It must be recalled that maintenance deficiencies standing alone are not enough to raise a reasonable doubt. Those deficiencies must affect the breath samples in some way. This case has some similarities to that of Lam[12] mentioned earlier.

[33] Since Mr. Joseph's opinion, based on historical records of the Intoxilyzer, cannot raise a reasonable doubt, it is logically irrelevant. Irrelevant opinion evidence is not admissible based on the Mohan test.

[34] The above determination as to lack of relevance is based on the speculative basis for Mr. Joseph's opinion. There is another broader basis for determining that the analysis of historical Intoxilyzer records provides no basis for questioning a subject test's reading when the subject test records show no error. The Canadian Society of Forensic Science Alcohol Test Committee (ATC), the authoritative body in Canada regarding maintenance and operation of the Intoxilyzer 8000C, takes the position that historical data provides no information about the proper functioning of the instrument at the time of a subject test and that:

Records relating to periodic maintenance or inspections cannot address the working status of an Approved Instrument at the time of a breath test. The required quality control information which must be reviewed to assess the working order of an Approved Instrument is produced during the subject breath testing procedure.[13] [Emphasis added]

[35] The ATC published a Position Paper in 2012 providing its detailed rationale for the above position. CFS supports this position in its training programs.

[36] Justice Watt referred to the ATC's position in the recent Ontario Court of Appeal case of Jackson with approval. Jackson was a case primarily about disclosure. However, I disagree with defence counsel that Jackson has application to disclosure issues only and not to the issue of the relevance of historical Intoxilyzer records at trial. Justice Watt specifically held that in similar circumstances to the one at bar[14], a defendant was not entitled to disclosure of third party records consisting of historical records of Intoxilyzer service records, usage and calibration records and COBRA data for periods before and after a subject's breath tests. The reason these records were not disclosable was because these records were not likely relevant to the issue of the Intoxilyzer maintenance or operation. Likely relevant is the threshold test before third party records must be disclosed. There can be no question that the likely relevant standard is a much lower threshold than logical relevance which is the test for trial admissibility. If the records are not even sufficiently relevant to be disclosable to defence, how can information derived from them be relevant to a defendant's effort to rebut the presumption of accuracy? It is ironic, indeed, that the very records used by Mr. Joseph to formulate his opinions regarding Ms. Tonkin's breath tests would not have been disclosed to defence after the Jackson case.

[37] Nowhere in Mr. Joseph's written opinions does he disclose that the ATC's position is that historical Intoxilyzer records are irrelevant to the reliability of an individual's test results. He cites the ATC as authority for the requirement that the Intoxilyzer must be properly maintained, omitting reference to ATC's position. It did not become apparent until cross-examination that Mr. Joseph is of the view that the ATC is wrong about the utility of historical records to assess the reliability of test results. Although I need not address it here, Mr. Joseph's opinion about the value of historical Intoxilyzer records is at odds with both ATC and CFS recommendations and appears to be based on his own personal opinion. He has not published nor conducted empirical research in this area. In my view, his opinions need to be approached on the basis of novel science. I will have more to say about this aspect of Mr. Joseph's opinions later in this decision when I deal with his opinions on uncertainty of measurement and drift.

[38] Lastly, I turn to the decision of my sister Justice, Justice Ready in Singh. That case started before the Jackson decision was released. Historical Intoxilyzer records were disclosed. There was no issue about the admissibility of Mr. Joseph's expert opinion evidence. Thus, his evidence, along with the evidence of the Crown's expert, Dr. Langille, was admitted on the trial proper.

[39] As in Ms. Tonkin's case, Mr. Joseph noted error messages disclosed by review of the historical COBRA data for the entire period of the Intoxilyzer's service. He was not provided with documentation which would allow him to determine the reasons for the errors or what remedial actions, if any, were taken. Justice Ready was very critical of the method used by Peel police to record the reasons for the various error messages and the remedial actions taken. She noted that that information was not made available to Mr. Joseph. She indicated that the Crown's expert witness, Dr. Langille, agreed that the "stability" of the instrument was in question. However, she also noted that Dr. Langille testified that the only documentation needed to determine the proper operation of the Intoxilyzer during Mr. Singh's tests were the test records generated during his subject test. Ultimately on this issue she concluded at paragraph 136:

In conclusion, I find the evidence of Mr. Joseph as to the number of aberrations pre and post Singh's test without documentation as to what problems were, and how they were fixed, as required by training, demonstrate that Peel Regional Police Force overlooked serious problems of malfunction with this instrument that led to its imprecision and instability, and it would appear from the evidence continued to use this instrument in this state without rectifying these problems. There is no documentation attached that would indicate that anything was rectified.

[40] With great respect to Justice Ready, a very experienced and well-respected judge of this Court, I disagree that an absence of information as to the reasons for any error messages or as to any remedial action logically leads to a conclusion that an instrument was malfunctioning at the time of a subject's breath tests or raises a doubt about the proper functioning of the instrument. As previously explained, such a conclusion is nothing more than speculation and, in my view, is insufficient to raise a reasonable doubt based on the binding legal authorities.

2. Proper Basis for Verification of the Operating Temperature of Simulator[15]

[41] Mr. Joseph opined "that the apparent failure to verify the simulator temperature using a NIST traceable thermometer raises concerns about the traceability of Ms. Tonkin's breath test readings. This, in turn, calls into question the reliability of the readings."

[42] There are two reasons why the above opinion is inadmissible at Ms. Tonkin's trial. On its face, the opinion does not raise a reasonable doubt about the reliability of Ms. Tonkin's breath readings. Thus, it is logically irrelevant and does not pass the Mohan test. Second, the opinion is based on erroneous factual information and is thus completely unreliable. The Court, exercising its gatekeeping function, should not admit it into evidence.

Relevance

[43] The language used by Mr. Joseph with respect to this issue is telling - an apparent failure, raises concerns and calls into question the readings. The language itself is indicative of speculation and of mere possibility. He essentially says there may be a possible maintenance deficiency. The mere possibility of improper maintenance does not raise a reasonable doubt. As previously discussed, in any event, a maintenance deficiency on its own is not sufficient in law to rebut the presumption of accuracy. Any deficiency must relate directly to the subject's breath test. The facts are somewhat analogous to those in Lam. In that case, the evidence was that the Intoxilyzer had not had an annual inspection as recommended by the ATC. The Summary Conviction Appeal Court held that the trial judge fell into error when he held that the lack of inspection meant that the Intoxilyzer had not been properly maintained, and therefore, Mr. Lam's breath tests were not reliable. It is not sufficient for Ms. Tonkin to rebut the presumption by calling evidence which raises concerns about the proper maintenance of the Intoxilyzer or calls into question the reliability of the results. This language amounts to no more than speculation and is insufficient in law to raise a reasonable doubt about Ms. Tonkin's breath results. As such, it has no probative value. Thus, this opinion is not logically relevant and does not meet the Mohan test.

Unreliability of Opinion

[44] The second reason that I would not admit Mr. Joseph's opinion about the verification of the simulator temperature is because his opinion is based on admitted erroneous facts and, as such, is completely unreliable. Expert evidence which is completely unreliable should not be admitted into evidence based on the trial judge's gate keeping obligation. Receipt of such evidence would be a complete waste of the Court's resources and engages the cost/benefit analysis referred to earlier in this decision.

[45] I reach the conclusion that Ms. Joseph's evidence is unreliable for two reasons. First of all, he failed to disclose that he did receive records indicating that the simulator had been tested with a NIST thermometer[16]; and secondly, and most importantly, he either deliberately or mistakenly misrepresented the ATC recommended guidelines for the frequency of testing the simulator.

[46] Dealing with the first issue: Mr. Joseph states in his report:

In this case no documentation was provided for the biweekly verification of the temperature via a NIST traceable thermometer for the simulator coupled with the Intoxilyzer 8000C.

[47] What Mr. Joseph does not mention is that he did receive a series of annual Intoxilyzer 8000C Periodic Inspection Worksheets for the instrument in question going back to 2012 indicating that the simulator temperature had been verified using a NIST thermometer.

[48] The second issue is much more concerning. As noted above, Mr. Joseph referred to bi-weekly testing of the simulator temperature by use of a NIST thermometer. To support this frequency, he specifically referred to recommendations made by the ATC and then stated:

Training at breath courses conducted by the Centre of Forensic Sciences included the recommendation that breath technicians confirm the accuracy of the simulator every 2 weeks using a NIST thermometer. [Emphasis in Mr. Joseph's written opinion.]

[49] The clear inference from Mr. Joseph's explanation is that ATC and CFS recommend that the simulator temperature be tested every 2 weeks. In fact, this is not correct. Since at least 2009, the ATC has recommended that the simulator temperature be tested annually. CFS changed their training methods accordingly.

[50] The instrument in this case was tested annually. In other words, Peel police followed ATC and CFS recommendations regarding testing of the simulator.

[51] When confronted with ATC and CFS recommendations on cross-examination, Mr. Joseph testified that until about two years ago CFS trained breath technicians to check the temperature with a NIST thermometer every two weeks, but that has since changed so that CFS now trains technicians to check the temperature annually. When asked why he did not state that in his report, Mr. Joseph replied:

I mentioned the, the same words. So I started training at breath courses conducted by the Centre of Forensic Sciences includes [sic] a recommendation that breath technician's confirm the accuracy of the simulator every two weeks using a NIST thermometer … so that has now changed by the Centre of Forensic Sciences.

[52] When the Crown pointed out that he did not note that change in his report, Mr. Joseph stated:

Yes, because I do not agree with that ... that change.

[53] On further cross-examination, Mr. Joseph acknowledged that his report was written in such a way that it appeared that ATC and CFS currently recommended testing every two weeks, even though that was not the case.

[54] Mr. Joseph's answers on cross-examination suggest a deliberate effort to mislead.

[55] This issue was revisited in re-examination. He was asked why he did not state in his report that CFS used to train technicians to test the temperature every two weeks but that was no longer the case. Mr. Joseph answered: "It was an error."

[56] I note nowhere in his report does Mr. Joseph clarify this issue nor does he ever indicate that he disagrees with the ATC recommendations.

[57] Whether Mr. Joseph was deliberately trying to mislead the Court or whether he made a mistake, the bottom line is that his report contains a significant error. His opinion is NOT based on the ATC recommendations as he implicitly represented, it is based on his own personal point of view. That personal view or the basis for it was not referred to in his report. In my view, his opinion is therefore unreliable.

[58] As previously mentioned, the Court has a gatekeeping role which requires an assessment of the cost of admitting expert evidence against its benefit. There is little (or no) benefit to admitting unreliable evidence. There is an obvious cost. In this case, four additional days of trial time have been reserved to deal with the expert evidence portion of this trial if I admit Mr. Joseph's opinion. This is in addition to the 4 days already expended (2 of which were devoted to the expert evidence issue).

[59] Thus, even if I had held that Mr. Joseph's opinion on the simulator temperature test issue was logically relevant, I would not admit this portion of his opinion based on my gatekeeping role.

3. Quality Control Indicators

[60] In his report, Mr. Joseph complains about the quality of record keeping by Peel police with respect to the Intoxilyzer and expresses his view that their record keeping methods do not comply with ATC guidelines.[17] Dr. Langille disagreed testifying that the ATC does not mandate specific record keeping practices. In addition, Constable Scobie testified that although Peel police do not keep a central registry as to individual error messages and remedial action taken in response, those records are kept and filed by individual subject test. Mr. Joseph likened the record keeping practices to improper maintenance concluding:

... one cannot determine with reasonable certainty whether the approved instrument and the accessory equipment functioned properly on February 6, 2015 (date of Ms. Tonkin's breath tests).

[61] Again, Mr. Joseph reasons that the Intoxilyzer was not properly maintained and therefore the reliability of Ms. Tonkin's breath results are suspect. This is precisely the sort of reasoning that Justice Goldstein held was erroneous in Lam. It cannot raise a reasonable doubt about the proper maintenance or operation of the Intoxilyzer. Therefore it is logically irrelevant, does not meet the Mohan test and is not admissible at Ms. Tonkin's trial.

4. Drift and Measurement Uncertainties Associated with the Instrument

[61] Mr. Joseph's complaints about the failure of the police to document the uncertainty of measurement with respect to the Intoxilyzer and its accessory equipment and the potential for drift are themes that run through his opinion. He expands on these themes in an April 17, 2016 addendum to his October report. In that addendum, Mr. Joseph notes that he was not provided with any measurement uncertainties surrounding Ms. Tonkin's breath samples. In the result, he opines: "It is my opinion that the breath test results cannot be meaningfully evaluated."

[62] There are two reasons why I determine that Mr. Joseph's opinions about uncertainty of measurement and drift and its impact on the reliability of the Intoxilyzer should not be admitted into evidence. The first is that his opinion is not logically relevant, as on its face it cannot raise a reasonable doubt. Secondly, his theories amount to novel science which do not meet the heightened scrutiny required for this type of evidence so as to warrant its admission into evidence.

[63] I start with an effort to summarize my understanding of Mr. Joseph's evidence on these issues.

Uncertainty of Measurement

[64] Quite frankly, I found both Mr. Joseph's evidence on the issue of uncertainty of measurement and the discussion of same in his written reports to be very confusing.

[65] In the Addendum to his report, Mr. Joseph provided an explanation of uncertainty of measurement. What I extract from that explanation is that all scientific instruments have some margin of doubt or uncertainty and that uncertainty can be measured and quantified. In his evidence, Mr. Joseph gave what he termed was a layman's explanation of uncertainty of measurement:

… in layman's terms [uncertainty of measurement] is variability plus confidence intervals. To determine that variability, you have to go [sic] more than just determine what an average concentration of a few readings are. What you have to do is first find out the sources of uncertainty, quantify them and finally generate that value. So there are - there's a myriad of factors that go into uncertainty of measurement. …I think it's clearly explained … on page 2 in my report about uncertainty being the interval, the confidence interval and the variability or the variation.

[66] It may well be that some lay people would find the above explanation helpful in understanding precisely what uncertainty of measurement is. I did not find it so.

[67] As mentioned, Mr. Joseph reported that he did not receive any documentation to suggest that any measurement uncertainties were calculated for the 8000C at the time that Ms. Tonkin provided her samples. He acknowledged in his evidence that it did not surprise him that he did not receive this documentation. Without measurement uncertainties, Mr. Joseph's opinion was that Ms. Tonkin's breath tests could not be meaningfully evaluated.

[68] I was unable to determine from Mr. Joseph's evidence precisely what it was that the breath technician must do to calculate the uncertainty of measurement for the instrument.

[69] Mr. Joseph's opinion that uncertainty of measurement calculations need to be performed in order to determine the reliability of breath tests taken by the 8000C is not shared by the ATC or by CFS. Indeed, ATC makes it clear that reliability is established by the test records produced at the time that Ms. Tonkin's samples were taken. ATC does not recommend that uncertainty of measurement calculations be performed as part of routine maintenance for the Intoxilyzer or at the time a subject's breath samples are taken. Indeed, as observed by the Court in Singh, no measurement uncertainties are calculated by police in the Province of Ontario. Thus, if Mr. Joseph is correct with respect to his position that such calculations must be done in order to ensure reliability of test results, all breath tests taken in Ontario by an Intoxilzer 8000C are unreliable. Indeed, in Singh, the Court accepted Mr. Joseph's evidence on this point.

[70] As noted, Mr. Joseph's views are not shared by the authoritative bodies, the ATC and CFS. He has not conducted empirical research into this area nor has he written any research papers. In my view, his opinions fall under the category of novel science and must be approached with great caution.

Drift

[71] Mr. Joseph also referred to his theory about drift and its impact on the reliability of the Intoxilyzer. As I understand his evidence, all scientific instruments, over time, drift from the manufacturer's set point. Since the 8000C is a scientific instrument, it, too, is subject to drift. Mr. Joseph is of the opinion that a review of error messages contained in historical COBRA data provide evidence that drift has occurred. He indicated that even though significant drift has occurred, the instrument may still pass calibration and diagnostic tests for a subject test. He gave only one example of how this could occur. In his example, he explained that in one case he reviewed the COBRA data and noted that there had been a series of specific error messages for a particular Intoxilyzer: refuse to blow - which then resulted in criminal charges of refuse to provide a breath sample. (Presumably this error message was input by the breath technician.) It turned out that a defective flow sensor on the breath tube made it difficult for a subject to blow into the instrument. In this example (which Mr. Joseph repeated several times in his evidence and which is mentioned in his report) this difficulty resulted in the subject being charged with refusal. However, Mr. Joseph pointed out that the 8000C passed all of its preliminary calibration and diagnostic tests.

[72] I do not find Mr. Joseph's example comparable to a situation where the subject actually provides a sample and the question is the reliability of that sample. Mr. Joseph did not provide any examples of situations where a subject provided a sample, all the diagnostic and calibration tests were passed, yet the breath readings were, in fact, incorrect either because of drift or some other reason.

[73] Mr. Joseph's opinions about drift are not accepted by the ATC or the CFS. Mr. Joseph has not conducted empirical research into this area nor has he written any research papers. In my view, his opinion falls under the category of novel science and must be approached with great caution.

Logical Relevance of Uncertainty of Measurement Opinion

[74] Essentially Mr. Joseph's opinion is that because he was not given any documentation about measurement uncertainties associated with Ms. Tonkin's breath samples, he is unable to meaningfully evaluate them. This opinion cannot logically raise a reasonable doubt about the reliability of Ms. Tonkin's breath samples. Mr. Joseph is in effect stating: I lack information; therefore, I cannot give an opinion. While the inference is that without measuring the uncertainty of the instrument, its results cannot be reliable, Mr. Joseph does not actually state this. In my view, the opinion that Mr. Joseph does provide is not probative of any issue at this trial; if it is not probative, it is not logically relevant. Irrelevant evidence is inadmissible under the Mohan test.

[75] I turn to Justice Ready's decision in Singh. Earlier in this decision, when dealing with the issue of historical error messages, I indicated why I disagreed with Justice Ready with respect to the relevance of these records. Justice Ready also held in Singh that because there was no evidence of the uncertainty of measurement associated with the subject Intoxilyzer or its simulator, that lack of evidence satisfied her that the instrument had not been properly maintained and this "made the accused Singh's results incomplete." Ultimately, the failure of the Crown to provide uncertainty of measurement calculations, together with the historical error messages disclosed by the COBRA data and poor record keeping by Peel police all left her with a reasonable doubt that Mr. Singh's readings were accurate and reliable. Obviously, Justice Ready was of the view that Mr. Joseph's opinion about the impact of uncertainty of measurement on the breath readings was relevant given that it was one of the reasons upon which she had a reasonable doubt about the reliability of Mr. Singh's breath results.

[76] In several instances, Justice Ready stated in her decision that uncertainty of measurement is required by law. She attributed this assertion to Mr. Joseph. I must admit that I do not understand what Justice Ready meant by this statement. I am unaware of any legal (statutory or otherwise) requirement that addresses the issue of uncertainty of measurement calculations with regards to an Intoxilyzer.

[77] Justice Ready noted at para. 90 of Singh:

…the CFS who oversees the breath testing program in Ontario has virtually ignored the lack of uncertainty of measurement associated with each machine…

[78] Justice Ready continued at para. 93:

…I have no uncertainty of measurement associated with Mr. Singh's instrument and can conclude that without such an uncertainty of measurement on Mr. Singh's instrument and being included on his test record cards, that his readings are not complete.

[79] She went on to conclude that the fact that no uncertainty of measurement was reported for Mr. Singh's breath tests amounted to improper maintenance and operation.

[80] Based on Justice Ready's conclusion, I can only presume that Mr. Joseph gave a different opinion in that case than he did in Ms. Tonkin's case. In Ms. Tonkin's case, his opinion was that he could not give an opinion. Perhaps, he was able to give one in Mr. Singh's case. It must be recalled that even assuming that there was some evidence that proper maintenance included calculating measurement uncertainties at the time of breath testing, there would also have to be some evidence that failure to do so had some impact on the reliability of the subject breath tests. In Ms. Tonkin's case, Mr. Joseph did not give that opinion either. Thus, Justice Ready's decision in Singh does not assist with the issue of logical relevance in Ms. Tonkin's case.

Logical Relevance of Drift Opinion

[81] Mr. Joseph's opinion about drift is wrapped up with his opinion dealing with the impact of historical maintenance records. I have already previously explained why that evidence is not logically relevant and thus, is inadmissible under the Mohan test.

Novel Science[18]

[82] Even had I inferred that Mr. Joseph's opinion was that absent a determination by the breath technician of the uncertainty of measurement of the instrument and its ancillary equipment at the time of testing, the results of any breath test performed by the Intoxilyzer was unreliable and I inferred a similar opinion with respect to drift, I would not admit this evidence. In my view, it amounts to novel science. Further, the evidence does not pass the enhanced scrutiny necessary to justify admission of such evidence.

[83] The starting point is that Mr. Joseph's opinions are at odds with the authoritative bodies in Ontario, the ATC and the CFS. His opinions are at odds with the voluminous appellate case law holding that the Intoxilyzer is a reliable instrument. Mr. Joseph has not published in this area nor has he conducted empirical research. Indeed, based on his own evidence, his theories arise from several years of self-study while working as a consultant for the defence bar. Mr. Joseph points out that he would like to publish but he has not been permitted access by police to the data he needs in order to do so. That may be so; it does not change the fact that he has not published. There is no independent testing of his theories. His theories have not been peer reviewed. Mr. Joseph does not point to any authoritative journal or scientific research to support his opinions.

[84] In contrast to the prevailing view that the breath testing regime in Ontario is scientifically reliable, Mr. Joseph is essentially saying that this is not the case - the entire program as it operates in Ontario is unreliable.

[85] In Singh, the Court admitted Mr. Joseph's opinions about drift and uncertainty of measurement into evidence. Justice Ready relied on his opinion regarding uncertainty of measurement to determine that Mr. Singh had raised a reasonable doubt about the reliability of his breath readings. As previously, mentioned no issue was raised about the admissibility of Mr. Joseph's opinions at Mr. Singh's trial. However, the Crown in that case did ask Justice Ready to disregard his opinion on the basis that it was novel science. Justice Ready refused to entertain that submission holding that whether or not it was novel science should have been raised at the admissibility stage and not on the trial proper. Of course, in Ms. Tonkin's case, the issue was raised and argued at the admissibility stage, so that distinguishes the two cases.[19] In any event, it is clear that Justice Ready did not subject Mr. Joseph's evidence to the scrutiny mandated by binding case law such as Trochym.

[86] I conclude that there are no safeguards in place that would permit the Court to rely on Mr. Joseph's opinions regarding uncertainty of measurement or drift. As such, even if I had determined that Mr. Joseph's opinions about uncertainty of measurement and drift were logically relevant and admissible under the Mohan test, I would not have admitted them into evidence based on my gatekeeping role to protect against unreliable evidence. The prospect that four additional days of trial time would be devoted to the evidence of dueling experts on these issues underscores the very real costs associated with such evidence in return for virtually no benefit.

Part 3: Conclusion

[87] Before bringing my reasons to a close, I make one further comment about my methodology. Although Mr. Joseph gave a series of overlapping opinions, I dealt with each one separately. While doing so, I explained why each aspect of his opinion was not properly admissible at this trial. I have also considered whether a holistic look at the entirety of his opinion changes my decision. It does not. Whether considered separately, or in their totality, Mr. Joseph's opinions do not pass the logically relevant admissibility test mandated by Mohan. They also engage the Court's gate keeping function to guard against unreliable evidence.

[88] Mr. Joseph will not be permitted to offer expert opinion evidence at Ms. Tonkin's trial.

Released: June 17, 2016

Justice C. Ann Nelson

Footnotes

1 COBRA refers to the Computer On-Line Breath Records Archive maintained by each Intoxilyzer 8000C. The COBRA data contains historical records regarding the instrument, including information about error messages and information relating to each subject test performed by the instrument.

2 [2016] O.J. No. 2288 (Ont. C.J.)

3 This disclosure was provided prior to the release of the Court of Appeal's decision in R. v. Jackson, 2015 ONCA 832, [2015] O.J. NO. 6274 (Ont. C.A.)

4 White Burgess Langille Inman v. Abbott and Haliburton, 2015 SCC 23, [2015] 2 S.C.R. 182

5 R. v. Mohan, [1994] 2 S.C.R. 9

6 R. v. St-Onge Lamoureux, 2012 SCC 57, 2012 S.C.C. 57

7 Ibid, para. 52

8 R. v. Crosthwait, [1980] S.C.J. No. 30 (S.C.C.)

9 Ibid, seventh last paragraph.

[10] R. v. Lam, [2015] O.J. No. 1697 Ont. S.C.J. [para. 31]. I note that defence counsel, Mr. Jourard, pointed out that the Lam case is under appeal to the Court of Appeal suggesting that it might be overturned. Unless it is, it is binding on this court given that it was a Summary Conviction Appeal decision.

[11] In his report of October 12, 2015, Mr. Joseph referred to a fifth area which he posited impacted the reliability of Ms. Tonkin's results – Proficiency testing of Qualified Technician – however, counsel advised that Ms. Tonkin was not pursuing this aspect of his opinion.

[12] I note that Mr. Joseph gave no evidence as to how many times the instrument passed calibration, temperature regulation and analytical stability tests during this almost 4 ½ year period. I also note that of the error messages noted by Mr. Joseph, 19 occurred while the instrument was out of service and out for repair.

[13] Indeed, it was subject to a periodic inspection one month before Ms. Tonkin's tests.

[14] Supra.

[15] Canadian Society of Forensic Science Alcohol Test Committee Recommended Best Practices for a Breath Alcohol Testing Program May 4, 2014, p. 11

[16] Supra.

[17] The only distinction between the cases is that the Intoxilyzer in issue in Jackson had only been in use for less than a year. In Ms. Tonkin's case, the Intoxilyzer had been in use for some 4 ½ years. However, in Ms. Tonkin's case the instrument had been subjected to its annual inspection just a month prior to its use for her tests. In any event, para. 139 of Jackson makes it clear that the age of the instrument has nothing to do with the likely relevant threshold.

[18] Supra.

[19] It was not clear to me from the concluding sentence in Mr. Jourard's Written Reply Submissions whether Ms. Tonkin intends to rely on Mr. Joseph's opinion on this issue if his evidence is admitted at the trial.

[20] Supra.

[21] Based on Constable Scobie's evidence and that of Dr. Langille on the voir dire, there is an issue as to whether this is correct.

[22] Supra.

[23] Supra.

[24] For a good overview regarding the admissibility criteria for novel science, see: R. v. Trochym, 2007 SCC 6, [2007] 1 S.C.R. 239 (S.C.C.)

[25] I respectfully disagree with Justice Ready's holding that the issue as to whether an opinion amounts to novel science is purely a threshold issue. Instead, I am of the view that the trial judge must be vigilant in exercising her gatekeeping role throughout the trial.

[26] Supra, see footnote 25