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ONTARIO COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
ROSS ALEXANDER HARRISON
NOTICE OF APPLICATION FOR EXCLUSION OF EVIDENCE
PURSUANT TO s.7 AND s. 24(2) OF THE CHARTER
TAKE NOTICE that an Application will be made on behalf of the Applicant on May 8, 2012, at the Ontario Court of Justice, 60 Queen Street West, Toronto, Ontario at 10:00am in courtroom 124, or as soon thereafter as the application can be heard for an Order excluding evidence pursuant to sections 7 and 24(2) of the Charter.
THE GROUNDS FOR THIS APPLICATION ARE:
1. That the Applicant, Ross Alexander Harrison was operating a motor vehicle westbound on the Queens Quay in the City of Toronto on January 27, 2011 at approximately 12:38am;
2. That the Applicant was stopped by Cst. Paul Thompson (#99463) in the course of a routine R.I.D.E Spot Check, and made an admission that alcohol had been consumed. The officer formed a reasonable suspicion that the Applicant had alcohol in his body;
3. That at 12:47 a.m. a demand was made for the Applicants breath, and at 12:48 the Applicant provided a sample of his breath into the approved screening device resulting in a reading of “F”;
4. That the Applicant was placed under arrest for operating a motor vehicle with over 80 mgs of alcohol in 100ml of blood at 1:00am, and was given a demand for samples of his breath into an approved instrument at 1:10a.m.;
5. That the Applicant agreed to comply with the demand and was transported to Traffic Services and booked in at the police station at 1:21 a.m.;
6. That the Applicant was turned over to a qualified breath sample technician at 2:07 a.m. and provided two samples of his breath into the device resulting in readings of .108mgs/100ml at 2:16 a.m. and .111mgs/100ml at 2:38a.m.;
7. That the Applicant was informed of his readings and released from the station on a Form 10;
8. That the Applicant retained counsel to defend him on the above charges, and also retained an Expert Chartered Chemist, Gerald J. Kupferschmidt, previously the Section Head of Toxicology of the RCMP Forensic Laboratories, in order to make full answer and defense;
9. That Mr. Kupferschmidt is of the opinion that anomalies were detected in the process that was followed in collecting a sample of the Applicant ‘s breath when compared to the “Recommended Standards and Procedures” of the Alcohol Test Committee;
10. That Mr. Kupferschmidt, has been repeatedly denied access to the instrument (and other important related information) and/or the ability to purchase the 8000 C, in order to adequately test the procedure and provide an expert opinion in furtherance of the Applicant’s right to make full answer and defense;
11. That the breath testing program in Canada consists of an instrument, an operator, a standard alcohol solution used in conjunction with a simulator and a subject; and the instrument is subject to training considerations and quality assurances procedures established and maintained by the Alcohol Test Committee (ATC) of the Canadian Society for Forensic Science (CSFS);
12. That certain features during the breath testing sequence demand some form of quality control to be placed upon manufactures to ensure consistency in the product developed and distributed to users. For example, what occurs internally with respect to sample collection, analysis and reporting are computer controlled. The readings observed are the macroscopic result of many micro-operational processes, each with their own unique measurement uncertainties, which can be additive, subtractive or can cancel each other out;
13. That there is very little transparency to the process of breath testing, both on the part of the ATC and the manufactures of breath testing equipment;
14. That there are many aspects of operational performance which are only identified through the use of the instrument itself. A toxicologist is not qualified to address electronic, engineering and software considerations without access to the instrument and the assistance of specialists in those areas;
15. That access to the instrument itself and to specialists is necessary to pinpoint untoward operational parameters that may be relevant to the issue of instrumental manufacture, operational performance, quality control and quality assurances;
16. That attempts to seek such clarification, or answers, to technical questions from CMI Inc., the manufacturer of the Intoxilyzer, have been made on numerous occasions in the past with no response;
17. That it appears that responses from the Manufacturer with respect to such questions are only being given to questions directed from enforcement of state-driven forensic agencies;
18. That even those in private practices that do have possession of instruments have been unable to motivate the manufacturer to respond to questions regarding instrumental manufacture, operational performance, quality control, or to resolve technical issues.
19. That those in private practice have not been allowed to engage in training or acquire updated materials after repeated efforts to retrieve manuals and documents from the manufacturer (CMI);
20. That the information and support being requested by those in private practice is not in violation of any patents, or of a nature different than that which might be requested by any enforcement or government forensic agency;
21. That the prosecution, and all its supporting agencies, have exclusive access to the manufactures of breath testing equipment and the technical information associated with their products;
22. That defense counsel as well as defense experts have no such advantage as the prosecution does, and as such accused persons are unfairly disadvantaged from making full answer and defense;
23. That defense experts are not allowed to purchase equipment, receive training, or acquire operational training or service manuals to verify the opinions of those who manage direct and implement breath testing, in order to make full answer and defense;
24. That given this restricted access to important information, the defense is unable to verify the opinions of the ATC or the Forensic Laboratory regarding issues of accuracy, precision, specificity and reliability in order to make full answer and defense;
25. That given this restricted access to important information, the defense is unable to assess issues of operational integrity in order to make full answer and defense;
26. That given this restricted access to important information, the defense is unable to replicate the evaluation process of the ATC, or assess any published studies reported by the staff of a forensic laboratory that are based on the equipment in question and the breath testing process established by the ATC (and managed by the local forensic laboratory). This compromises the Applicants’ ability to make full answer and defense, and provides an unfair advantage to government agencies;
27. That the failure of the manufacturer to provide details regarding operations and other legitimate scientific issues creates a vacuum within the assessment process, risking misstatement or overstatement and potential for improper application of science to the law; and undermines the scientific validity of the instrument when such a device is not available to the general scientific community;
28. That misstatement, overstatement and improper application of science to the law could lead to a deprivation of the Applicant’s liberty in contravention with Principals of fundamental Justice as required by s.7 of the Canadian Charter of Rights and Freedoms;
29. That although some limited assessment by defense experts has been conducted with Intoxilyzer 5000C; this is not the case for the newer version, the 8000C, as defense experts cannot acquire the equipment;
30. That in order for the Applicant to make full answer and defense, fully objective comparisons of the operating features for the equipment should be available to the defense; and hence the general scientific community, in order to promote transparency and reliability of breath testing, ought to be permitted to access and purchase the 8000 C;
31. That in order for the Applicant to make full answer and defense, training and any other resources provided by the manufacturer, should be equally available to all experts, whether they are engaged in assisting the prosecution or the defense;
32. That there is no valid scientific reason why manufacturers should be allowed to withhold resources and information from experts who are expected to practice within the judicial system;
33. That reliable science, used to prosecute and convict accused persons including the Applicant must be transparent, tested and traceable in order to comply with the Applicant’s rights under s.7 of the Canadian Charter of Rights and Freedoms, and ensure a fair trial.
IN SUPPORT OF THIS APPLICATION, THE APPLICANT RELIES UPON THE FOLLOWING:
1. The Affidavit of Gerald J. Kupferschmidt
3. Such further and other material as counsel may tender and this Court may receive.
1. An Order excluding evidence obtained subsequent to the Charter breach, including but not limited to evidence of the breath readings;
2. Such further and other relief as counsel may advise and this Honourable Court may permit.
THE APPLICANT MAY BE SERVED WITH DOCUMENTS PERTINENT TO THIS APPLICATION THROUGH HIS SOLICITOR: Joseph Neuberger, Neuberger Rose LLP, 1392 Eglinton Avenue West, Toronto, Ontario M6C 2E4; Tel: (416) 364-3111; Fax: (416) 364-3271.
DATED AT TORONTO THIS 19th DAY OF APRIL, 2012.
Joseph A. Neuberger LL.B., LL.M. Neuberger Rose LLP
1392 Eglinton Avenue West
Tel.: (416) 364-3111
Fax: (416) 364-3271
Counsel for the Applicant/Accused
TO: Marnie Goldenberg
Assistant Crown Attorney
Office of the Crown Attorney- Toronto Region
60 Queen Street West
Toronto, Ontario M5H 2M4
AND TO: The Clerk of the Honourable Court
60 Queen Street West
Toronto, Ontario M5H 2M4
AND TO: The Trial Coordinator
60 Queen Street West
Toronto, Ontario M5H 2M4