A Brampton judge has acquitted a driver who failed a roadside breath test after accepting a former government scientist’s evidence that the device is faulty and the process used in Ontario flawed.
Defence lawyer Richard Posner, who represented the man, said the judge’s findings not only call into question the integrity of the breath testing system in Ontario, but also the reliability of guilty verdicts in many other drinking and driving cases throughout the province.
“This is, in my view, having done impaired and over-80 cases for the past two decades, obviously of great significance because of the systemic nature of it,” Posner said.
(In Ontario, the maximum legal blood-alcohol concentration for fully licensed drivers is 80 milligrams of alcohol in 100 millilitres of blood. Hence, the charge is known as over-80.)
Calling his witness Ben Joseph a “whistleblower,” Posner said the essence of his testimony was that convicting people for breath readings obtained by the Intoxilyzer 8000C is “flirting with disaster.”
The Crown has filed an appeal in the case, and the attorney general will make no further comment because the matter is before the courts, ministry spokesman Brendan Crawley wrote in an email.
Last month, Ontario Court Justice Elinore Ready said she believed much of what Joseph said in court. He left the Centre of Forensic Sciences in 2013 to enrol in medical school.
While on the stand over three days last year, Joseph cast doubt on the reliability of the Intoxilyzer 8000C, the device police officers across the province use to test the blood-alcohol level of drivers. The Centre of Forensic Sciences oversees the breath-test program in Ontario.
Prior to the trial, Joseph studied the historical data and maintenance and calibration records for the breath-testing equipment used by Peel Region police to obtain a breath sample from Gurdev Singh on March 4, 2014.
Joseph said he determined the instrument’s history was littered with inaccurate results and other failures. He noted that none of the device’s maintenance records explained the malfunctions or what, if anything, police had done to address them.
For that reason, no one could have confidence in the reliability of Singh’s breath-test results, Joseph testified. In addition, Joseph told court that since, to his knowledge, all the 8000Cs used in Ontario lack an “uncertainty of measurement” — an established error rate, used to ensure results account for uncertainty — there is no way to be “statistically confident” about a subject’s breath-test reading.
He suggested he and other toxicologists at the forensic centre discussed their shared concern about uncertainty of measurement with breath-testing instruments, but it appears nothing was done.
The judge agreed on both points. She said an instrument that is not properly maintained and operated could not provide “complete results,” and without an “uncertainty of measurement,” the instrument’s results are not reliable.
“Without such an uncertainty of measurement on Mr. Singh’s instrument and being included on his test record cards . . . his readings are not complete,” Ready said, reading from her ruling March 30.
She also rejected the assertion by a Crown expert, toxicologist Robert Langille, that historical records were not relevant in determining the reliability of the breath result.
Posner said across Ontario every day, the Crown presents printouts from the Intoxilyzer 8000C in court, and “there is no way to determine the accuracy or reliability unless you know the uncertainty of measurement for that instrument.
“The irony is the Centre of Forensic Science oversees this program, and they would lose their accreditation if they ran a test, and they run tests daily, that generates a numerical value if there was not an uncertainty of measurement for that instrument,” Posner said.
In an interview, Joseph said at the moment, the Intoxilyzer 8000C is the only breathalyzer instrument used by police officers in the province, and he estimates there are up to 350 in use.
He said his problem with the instrument began after he left the forensic centre’s northwestern Ontario office. He previously thought, and had testified on behalf of the Crown, that the device’s historical data — its “black box” of information — was irrelevant to the breath-test results.
But while at the centre, Joseph was aware that some police detachments were calling the 8000C’s manufacturer, Kentucky-based CMI, to complain that certain individuals were having a hard time providing a breath sample. The company did not respond to a request for comment.
The company explained the machine’s “flow sensor” can fatigue and need replacing. But Joseph said his analysis led him to conclude that some people may have been charged wrongly with refusing to supply a breath sample because they were blowing into machines later found to have faulty flow sensors.
“That’s the big elephant in the breath room that nobody wants to talk about,” Joseph said.
All police agencies in the province were instructed to change the flow sensor following a significant drift away from the manufacturer’s set-point, but “there was no investigation to look and see, as I did, if there were actual people charged with refused” to give a sample.
Police forces in Ontario began using the U.S.-manufactured Intoxilyzer 8000Cs about six or seven years ago.
Joseph compared the case to Motherisk, the Hospital for Sick Children’s now discredited hair-testing program.
“It’s no different. It’s just another judge saying things in another forensic setting. Because of the lack of quality standards that Sick Kids did not adhere to, same thing, no uncertainty of measurement here, no proper maintenance here, so (it) calls into question the reliability of breath testing in certain instruments.”
A judge in Sudbury is set to rule June 23 in an impaired driving case after Joseph testified about his concerns. The testimony lasted until 11:30 p.m.
“The judge found it controversial, but he wanted to hear it all.”
What, if any, impact will R v. Singh case have? Thousands of people are charged with impaired driving annually in the province, and unless other Ontario courts start releasing similar decisions, very little is likely to change.
What’s wrong with Ontario’s breath tests?
According to expert Ben Joseph:
- An examination of historical data in Peel Region found unexplained inaccurate results and other failures.
- A key problem is that the instruments used in Ontario lack an “uncertainty of measurement.” In other words, it’s impossible to know how precise any given reading is.
- The devices’ “flow sensors” wear out and if not replaced could lead to breath tests not registering.
THE ONTARIO GAZETTE
Vol. 148-07 – Published by the Ministry of Government Services- February 14, 2015
THE PENALTIES IN ONTARIO
Blood alcohol concentration of 0.05 to 0.08:
- First offence: Three-day roadside licence suspension (no appeal), $180 penalty.
- Second offence (within 5 years): Seven-day roadside suspension (no appeal), mandatory alcohol education program at a cost of $294, plus a $180 penalty.
Blood alcohol concentration of above 0.08 or breathalyzer refusal
- First offence: One-year licence suspension, $1,000 fine, mandatory alcohol education program at a cost of $634, one-year ignition interlock device.
- Second offence: Three-year licence suspension, 30-day jail sentence minimum, three-year ignition interlock device, mandatory alcohol education program. Judge sets fine.