VANCOUVER—A team of Vancouver lawyers has imported the entire surplus stock of police breathalyzers from the state of Illinois to skirt a policy barring defence lawyers from obtaining the instruments from the manufacturer for examination.

The lawyers intend to conduct experiments on the instruments to determine whether they are as reliable as police and lawmakers claim, said Kyla Lee, a Vancouver criminal lawyer with Acumen Law Corporation.

“Our goal is just to ensure that we have a breath-testing program in this country that is proper (and) that the scientific procedures that are being followed to capture people's breath samples — when they're used as evidence in a criminal prosecution with stakes of a mandatory criminal record and in some cases jail — that that evidence is good evidence that we can trust,” she said in an interview.

Lee and her colleague Paul Doroshenko drove cross-border Saturday to Sumas, Wash. — where the shipment had been sent from Illinois — to load the roughly 150 instruments onto a truck to drive back into Canada. The gear was sold through a third-party supplier, she said, which is the only reason she and Doroshenko were able to obtain the instruments despite being disallowed to do so direct-from-manufacturer by both the RCMP and the manufacturer itself.

“The manufacturer and the RCMP will not let defence lawyers get a hold of them, will not let defence lawyers use them or touch them or take them apart or do anything with them, because they want to protect the instruments from the scrutiny of defence which, obviously, we have very significant concerns about,” she said.

“We should have the same access to information about breath-testing equipment as the police do and as the Crown does in order to allow our clients to make full answer in defence.”

Lee pointed to a December 2018, amendment to the Criminal Code of Canada which states that “the analysis of a sample of a person’s breath by means of an approved instrument produces reliable and accurate readings of blood alcohol concentration.” This provision, she said, allows lawmakers and police the leeway to prevent defence lawyers from examining the breath-testing equipment for themselves — a situation she suggested constitutes a blanket statement being made about the reliability of evidence before that evidence ever makes it to court.

But armed with 150 Intox EC/IR 1 and 2 breathalyzer devices, Lee said she and her colleague intend to find out whether the equipment provides results that are as infallible as law enforcement and the manufacturer claim. The Intox EC/IR 2 is the model used in British Columbia by police.

The instrument is designed to detect ethanol in a breath sample and convert that reading — via an internal, electrochemical reaction — into a close approximation of blood alcohol content. But one of Lee’s concerns centres around whether interference from other chemicals might cause a false positive leading to a criminal conviction.

People who work in places such as hair salons or in print stations with photocopiers — or people who work around chemicals such as painters, floor installers and asphalt layers — all inhale various chemicals throughout their workdays. Those chemicals — known in terms of their effect on a breath-testing instrument as “interferents” — wind up in a worker’s bloodstream.

The instrument is supposed to be designed to detect those interferents and rule them out as intoxicants.

“But we're going to actually experiment with (the instruments) using a simulator, and blowing those interferents through them,” Lee said.

The instruments also contain an infrared chamber which is responsible for detecting whether the source of ethanol in a breath sample is indicative of blood alcohol content, or is instead from “residual mouth alcohol,” which can be present in a person’s mouth after a recent sip of an alcoholic beverage, or following a belch or regurgitation.

“We've seen in disclosure we've gotten in criminal cases — as well as through discussion with our colleagues in the U.S. — that these instruments in particular have a lot of problems when it comes to mouth alcohol detection,” she said. In particular, Lee said there is evidence which suggests the EC/IR 2 may falsely detect mouth alcohol that's not there, or miss detecting mouth alcohol when it is actually present.

And while Lee and Doroshenko are still awaiting a shipment of computer chips necessary to operate the equipment, Lee said a preliminary inspection in the past 24 hours has led her and Doroshenko to suspect there may be flaws in the reliability of the evidence generated by the machine.

The lack of scrutiny around how reliably these instruments actually function is already impacting Canadians, Lee said. A pair of appellants lost cases before the Supreme Court of Canada last year because of they failed to demonstrate why information about the functioning, operation and maintenance of the breath-testing equipment (which provided the results leading to their initial convictions) was necessary to their cases and should be supplied to the defence, Lee said.

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Since people are being convicted on the basis of evidence produced by breath-testing devices, she added, it’s critical that an understanding of their potential flaws or failures be a part of any criminal trial which includes such evidence.

“Because if we can say, finally, from having our hands on the devices and taking them apart and testing them, ‘These are the things that can go wrong, we've seen it and we can demonstrate it and we can get evidence from scientists or engineers to support that in court,’ ... we may be able to finally level the playing field for people who are charged with impaired driving offences in this country,” she said.

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