Kyla Lee

A few weeks ago, I wrote about how the Alco-Sensor FST manual was changed to support a certain unscientific and inaccurate belief about mouth temperature. My concern with any of this is, of course, the fairness of the Immediate Roadside Prohibition review process and whether drivers are given a reasonable opportunity to challenge the apparent results of their breath tests.

Sadly, today I learned of yet another change the Superintendent of Motor Vehicles has made to make the review process less effective and fair to drivers. I have to say, sometimes participating in this review process is like attempting to play a chess match with Death, except Death can change the rules of the game at any point.

A few weeks ago, I wrote a post about mouth temperature and how it can impact the reliability of a breath test. I wanted to show the impact that even a small change in mouth temperature, from a few seconds of swishing hot water to a few seconds of sucking an ice cube, could have on an blood alcohol reading.

You can see how the results of my blood alcohol test go up and down based on what I put in my mouth in this video. These factors would only have impacted the temperature of my mouth by a few degrees, and the effect was not prolonged. In real-world circumstances, a prolonged impact from increased or decreased mouth temperature may have a more significant impact on the results of the test.

In any event, the proof is in the science. And you can see it here.

Many of the Twitter trolls that harass me every time I succeed in anImmediate Roadside Prohibition or impaired driving case appear to believe that innocent people do not receive DUI charges. This could not be farther from the truth. I have personally seen how a person can provide a falsely elevated result just from a few drops of alcohol consumed in recent proximity to the test.

This phenomenon is known as residual mouth alcohol. And it can affect the reliability of an approved screening device (or, roadside breathalyser) test. But it can also affect the reliability of a breathalyser at the police station, even where the instrument has a mechanism designed to eliminate it.

The video above shows how mouth alcohol falsely skews the results. I do not want to spend much time on the process, but more on what I have seen and where mouth alcohol can come from in affecting a breath test.

There’s been a lot of perceived dismay ever since the Supreme Court of Canada released its Jordan decision last year. This case concerned whether the time it took between the charge laid against an alleged drug dealer and his trial was so lengthy that it was an unreasonable delay.

The Supreme Court ruled in favour of the accused. And from that decision, identified a new presumptive ceiling for what would constitute an unreasonable delay – 18 months for provincial cases, and 30 months for superior court cases. Since then, about 200 cases have been thrown out of court. The media are crying foul, pointing at the apparent injustice that alleged murderers, sexual deviants, drug dealers and child predators are being freed without being tried.

The Minister of Justice for Canada is currently conducting a survey about mandatory minimum sentences. On its face, this appears to be a small effort to obtain input about whether mandatory minimums are effective means of addressing criminal offences, and how to best allow judges to achieve the goals of sentencing.

However, the survey raises broader concerns about the efficacy of this proposed method. The options to choose from for appropriate sentences are limited, and the mechanisms proposed clearly show that Jody Wilson-Raybould has already made up her mind about how sentencing reform is to be achieved in this country.

The survey is, in my view, an effort to garner support for a process she has already decided to implement under the guise of engaging in public consultation.

I have concerns about what is apparent the Government wants to do. And I will outline them in this post.

A few months ago, I wrote about the awful amendment to the Motor Vehicle Act that allow the Superintendent to prepare their own material, under the guise of “technical materials” to determine cases. This material, pursuant to the legislation, is only to be used for the purpose of determining issues raised by the applicant.

The problem with the Superintendent being able to do this was that the Superintendent is then presumed to be an expert on issues which he is, frankly, not. At the time, I predicted that the Superintendent would simply rewrite science in order to advance the goal of upholding IRPs. And, unfortunately, I was right.

Today, I received word on an IRP hearing that the Superintendent would be relying on Technical Materials, including a new version of the ASD manual that was posted on their site today. I dropped everything to read this new version of the manual, and I saw something I expected to see.