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Stephen R. Biss

Barrister & Solicitor

303-470 Hensall Circle

Mississauga, ON

L5A 3V4


Youth Courts We Cover

We represent young persons at all GTA Youth Court Courthouses including Brampton, Milton, Orangeville, Guelph, and Toronto.

​© Copyright 2018 Stephen R. Biss, Barrister & Solicitor

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#Positivepolitics & Poison Ivy

The forests of Canada are wonderful places to breathe fresh air, relax, meet wildlife, and interact with other campers. There are some hazards on the forest floor but we can still engage in environmentally #positivepolitics. Poison ivy is a plant that we and our children must quickly identify, avoid, and sometimes remove. We don't have to abandon #positivepolitics to control poison ivy.

Methodology in dealing with crime is a lot like identifying, avoiding, and trying to control poison ivy. The Charter of Rights and science-based forensic methodology protect each of us as individuals. Charter compliance and science-based forensic methodology makes it more likely that innocent persons are found not guilty AND guilty persons are convicted. We don't have to abandon #positivepolitics to control crime.

Canada is a member of many important international scientific bodies. Our weights and measures are connected to the General Conference on Weights and Measures (see and the International Organization of Legal Metrology (see A long time ago we became a member-state of the Metre Convention. We are a country whose industries and laboratories comply with ISO standards (see, for example, ISO 17025). We Canadians generally practise good metrology - measurement science. If someone tells us that the earth is flat, that climate change is not real, or that the sun orbits the earth, we say: "Show us your empirical proof!" In #positivepolitics we go one step further and gently show them our empirical proof or disproof. We act on empirical evidence. Measurement is at the centre of science. We measure in comparison to international reference standards.

Are all or some of the plants in the image above poison ivy? We teach our children "leaves of three - let it be" or "1-2-3 - don't touch me". We teach children to have a "reasonable suspicion" of plants with three leaves. That way they can take precautions when they see 3 leaves. They can avoid rushing into the bush to retrieve a ball or chase a pet. By avoiding the "leaves of three" they can stop and ask us for guidance.

In the same way, when police have a "reasonable suspicion" of criminal activity, Parliament gives them the power to briefly detain a motorist and perform some kind of formal screening test or physical tests. The Parliamentary authority and the very brief detention are justified and Charter-friendly. This sort of legislation is also #positivepolitics friendly. We make sure police follow the rules - we make sure they don't go too far in stopping cars or pedestrians for the wrong reasons. Parliament controls their discretion. The exercise of discretion can't be arbitrary or racist. Brief and lawful searches without right to counsel comply with the reasonable limit prescribed by law provision of Charter section 1.

We need to be careful in identifying a plant as poison ivy because there are a lot of other plants on the forest floor that have 3 leaves. Similar plants include clematis, hog peanut, raspberry, blackberry, dewberry, and Virginia creeper. We shouldn't eradicate those plants because we fear they might be poison ivy. When controlling poison ivy, National Parks and Provincial Parks staff need to use environmentally friendly methodology. Spraying with concentrated vinegar may be acceptable, but other plants will be affected, and not all the poison ivy will be eliminated. Park employees need to first IDENTIFY and then remove troublesome plants from the forest population.

In Canada's #positivepolitics criminal justice system, including our Youth Courts, we treat persons as individuals. Each individual has rights under the Charter of Rights. Each individual is entitled to full answer and defence. Maybe the individual is not really poison ivy. Maybe police have arrested too wide a net among the "usual suspects". The Charter of Rights and Freedoms provides the Courts with methods to stay proceedings or exclude evidence where important rights have been violated by police.

Parents and grandparents, like me, get upset when they see a whole lot of poison ivy around the campsite where our child or grandchild is playing. Maybe there needs to be an association called Grandparents Against Poison Ivy, to alert park staff and politicians, that poison ivy needs to be better-controlled in our Canadian forests. #Positivepoliticians will pay close attention to the advocacy of such a group, but that DOESN'T MEAN that Parliament and the Legislatures should pass legislation that encourages park staff to act in an environmentally unfriendly way.

Politicians hear a lot from victims' groups. Police associations are a strong lobby. The Department of Justice includes advocates of "tougher laws". In a system of #positivepolitics, our Members of Parliament need to give the police the tools they need to deal effectively with crime, including youth crime, and they need to give the Courts the resources they need to act efficiently and try cases within a reasonable time. However, listening to victims' groups, giving the proper tools to police, and making the Courts more efficient, DOES NOT IMPLY that we ignore the Charter rights of individuals and that we ignore science-based forensic methodology.

Simply put, our #positivepolitics politicians shouldn't spray everything that looks like poison ivy or crime with the same vinegar or with the same punishment. Controlling poison ivy and crime, in a country that appreciates #positivepolitics, requires careful identification of individuals, careful and transparent application of rules, and especially transparent science-based methodology.

Ultimately, parks staff may need to hire scientists, not just wardens, to identify poison ivy individuals and concentrations. Wardens apply technical rules to form an opinion. A scientist looks at a "sample" and does analytical chemistry.

Wardens, may be able to form technical opinions as to whether plants are poison ivy or not based on specific rules such as those posted near my campground comfort station:

1. Three leaflets

2. Droopy look

3. May be individual plants or a bush

4. 2 of the leaflets opposite each other with the third centre leaflet further away

5. Woody stem

6. White berries in late summer

7. Moist soil

Scientists provide scientific opinions. Scientific opinions:

1. can be stated as a hypothesis

2. require empirical research

3. require testing of samples

4. require good laboratory practice

5. require transparency in methodology, documentation, and equipment

6. are stated as probabilities, not certainties

7. a measurement result is generally expressed as a single measured quantity value and a measurement uncertainty.

You can read a lot about the differences between technical opinions and scientific opinions at page 48 of the NJI - Science Manual For Canadian Judges.

Technical opinions may be acceptable opinion evidence in Court. Parliament may authorize them as a method of proof (e.g. Drug Recognition Evaluation procedures or the opinion of a Qualified Technician using an Approved Instrument). However, in a criminal case where the Charter of Rights applies, (unlike a decision whether or not to spray poison ivy), where the testing is being done for a forensic purpose, the technical opinion STILL NEEDS TO BE CAPABLE OF BEING SUBJECT TO A REASONABLE DOUBT ABOUT SCIENTIFIC RELIABILITY. Legislation that violates that rule will be unconstitutional.

Technical tools such as an "approved instrument" may be very useful in establishing a prima facie case - satisfactory Crown proof - for an analysis, but the nature of the forensic purpose of an analysis requires science-based forensic methodology. That's an important lesson that we learned from the Motherisk Inquiry Report. The Motherisk Report states that Quantitative Analysis for a forensic purpose requires additional safeguards (e.g. multiple calibrators, good laboratory practice, and contemporaneous documentation) beyond that required for a Qualitative Analysis (e.g. a screening test). Screening tests may be useful to a hospital, a warden, or a police officer, but they are not the same as an evidentiary test by an Approved Instrument which provides a quantitative result. If a Quantitative Analysis instrument is going to be used for a forensic purpose, especially in a criminal or Youth Court where the Charter applies, then the technical analysis that it provides needs to be subject to a real reasonable doubt about scientific reliability.

Technical tools need to be kept up-to-date. If a device or instrument existed for identifying poison ivy (a "PoisonIvyAlyzer") then it would need to be properly maintained and properly operated to provide a good technical opinion. No "alyzer" is infallible. Whether there has been "type approval" (see OIML VIML) by the Minister or not, the individual instrument may have malfunctioned or been operated improperly. There may have been a physiological presentation or environmental presentation not contemplated by its design. That's where we need the transparent forensic science methodology. That means good laboratory practice with transparent records. The "alyzer" and its Canadian software version need to be available for purchase by independent scientists so that they can attempt to replicate government studies on error rates and linearity.

Canada already has good measurement science legislation for gas pumps and grocery market scales in the Weights and Measures Act. The amending Fairness at the Pumps Act was passed by the previous Conservative Parliament. Why wouldn't a #positivepolitics government want to do the same thing for all important measurements, especially quantitative analysis in criminal law? Why shouldn't police be subject to the same METROLOGICAL SUPERVISION as the petroleum industry and Canada's grocery chains?

The technical tools that police are using, and hope to use in the future, may be very good tools, but they will never be infallible. Reliability does not equal infallibility. Error rates can be large.

STRICT PROTOCOLS must be followed according to the evidence heard by the Commons Justice Committee from Brian Hodgson of the Alcohol Test Committee, Tuesday, June 12, 2007 :

"These instruments are all automated instruments. They require operator involvement. But when strict protocols are followed and the instrument is working properly as per the recommended procedures, then the tests obtained, especially when they're 15 minutes apart, provide conclusive proof ..." (at 0905)

"The technology that exists, has existed, and will exist is well tuned and adapted to measuring alcohol either at the roadside for screening purposes by use of a screening device or to confirm the blood alcohol concentration by means of an approved instrument. It's a very straightforward process. It's one that has to have strict protocols." (at 1005)

Members of the Justice Committee, in the future, should ask government scientists if the new criminal law methodologies and amendments they propose are infallible. Provincial government-employed scientists should be asked if they have "sampled" aging instruments out in the field to determine if they have maintained their "linearity" (calibration at all points in the measuring interval). Committee witnesses should be asked if there is any entity in Canada that currently supervises "independent" maintenance of instruments at regular "calibration intervals". NASA and Canada's National Research Council have a lot to say about "calibration intervals" and "reliability".

#Positivepolitics politicians need to do background research on these very difficult issues. They need to connect justice with science. Our MP's need input from Measurement Canada, professional metrologists, and scientists that are independent of police. Judges need to understand the lessons of Motherisk, the Science Manual, Strengthening Forensic Science in the United States (elsewhere in my blog), and the Report to President Obama on Feature Comparison (elsewhere in my blog). Police need good tools and Courts need to be efficient, but defences based on scientific reliability should not be eliminated, in a Canada that has a Charter of Rights and science-based forensic methodology.

Canada needs to continue to be a place where we have diverse and beautiful forests of plants and trees frequented by visitors.

#positivepolitics #forensicmetrology #weightsandmeasures