ARCHIVED — Vol. 146, No. 24 — November 21, 2012

Registration

SOR/2012-237 November 9, 2012

CRIMINAL CODE

Order Amending the Approved Breath Analysis Instruments Order

The Attorney General of Canada, pursuant to the definition “approved instrument” (see footnote a) in subsection 254(1) (see footnote b) of the Criminal Code (see footnote c), makes the annexed Order Amending the Approved Breath Analysis Instruments Order.

Ottawa, November 6, 2012

ROBERT DOUGLAS NICHOLSON
Attorney General of Canada

ORDER AMENDING THE APPROVED BREATH ANALYSIS INSTRUMENTS ORDER

AMENDMENTS

1. (1) Paragraphs 2(a) to (c) of the Approved Breath Analysis Instruments Order (see footnote 1) are repealed.

(2) Paragraph 2(i) of the Order is repealed.

COMING INTO FORCE

2. This Order comes into force on the day on which it is registered.

REGULATORY IMPACT
ANALYSIS STATEMENT

(This statement is not part of the Order.)

1. Background

Breath analysis instruments enable qualified technicians to ascertain the concentration of alcohol in the blood (BAC) of suspected impaired drivers. To carry out this test, qualified technicians must use an instrument approved by the Attorney General of Canada (subsection 254(1) of the Criminal Code). Approved instruments are listed in the Approved Breath Analysis Instruments Order.

2. Issue

The Approved Breath Analysis Instruments Order currently lists some older instruments. Older equipment requires reading a needle gauge and recording the BAC by hand. The modern approved instruments provide digital readings, internal checks, and a print-out.

3. Objectives

This amendment ensures the use of modern instruments which provide more reliability and ensure against human error in reading and recording the BAC.

4. Description

This amendment removes from the Approved Breath Analysis Instruments Order the instruments known as the Breathalyzer®, Model 800; Breathalyzer®, Model 900; Breathalyzer®, Model 900A; and Breathalyzer®, Model 900B.

5. Consultation

Removing the Breathalyzer®, Model 800; Breathalyzer®, Model 900; Breathalyzer®, Model 900A; and Breathalyzer®, Model 900B, was recommended by the Alcohol Test Committee of the Canadian Society of Forensic Science. The Committee is composed of forensic scientists in the breath-testing field.

This amendment was published in the Canada Gazette, Part Ⅰ, on June 2, 2012, followed by a 30-day comment period. The Department of Justice Canada received one comment. The New Brunswick Association of Chiefs of Police asked that de-listing of the Breathalyzer®, Model 900A be delayed to allow for training on one of the modern approved instruments.

The Royal Canadian Mounted Police advised that only two small municipal forces in New Brunswick were still using, at the time of the prepublication, the Breathalyzer®, Model 900A, which requires needle-reading and hand-recording of the result. The Alcohol Test Committee was aware of this when it recommended de-listing the four Breathalyzer® instruments, including Model 900A. Since then, the two municipal forces have each purchased one modern approved instrument and have qualified technicians to operate it.

6. Rationale

Modern equipment is not susceptible to human error as it gives a digital reading of the concentration of alcohol in the blood rather than reading a needle gauge and gives a print-out of the results rather than hand-recording the results. Therefore, the four Breathalyzer® models needed to be removed from the approved instruments list.

7. Implementation, enforcement and service standards

As of the effective date of the Order, the Breathalyzer®, Model 800; Breathalyzer®, Model 900; Breathalyzer®, Model 900A; and Breathalyzer®, Model 900B, are not usable by the police for enforcement purposes under the Criminal Code.

The effective date of the ministerial Order is the date of registration at the Privy Council Office, i.e. November 9, 2012.

8. Contact

Monique Macaranas
Paralegal
Criminal Law Policy Section
Department of Justice
East Memorial Building
284 Wellington Street, Room 5012
Ottawa, Ontario
K1A 0H8
Telephone: 613-957-4752

Footnote a
R.S., c. 27 (1st Supp.), s. 36

Footnote b
S.C. 2008, c. 6, ss. 19(1) and (2)

Footnote c
R.S., c. C-46

Footnote 1
SI/85-201