Karen Denise Hathaway Petitioner And: The Superintendent of Motor Vehicles v. The Attorney General of British Columbia, 2013 BCSC 938

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Hathaway v. British Columbia (Superintendent of Motor Vehicles), 2013 BCSC 938 Date: 20130530 Docket: 11-3650 Registry: Victoria Re: In the Matter of the Motor Vehicle Act , R.S.B.C. 1996, c. 318, and the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241.

Between: Karen Denise Hathaway Petitioner And: The Superintendent of Motor Vehicles and The Attorney General of British Columbia Respondents On appeal of a review of a driving prohibition, pursuant to s. 215.41 of the Motor Vehicle Act , R.S.B.C. 1996, c. 318, heard on June 18, 2011, before an Adjudicator of the Office of the Superintendent of Motor Vehicles. Before: The Honourable Mr. Justice Johnston Reasons for Judgment Counsel for the Petitioner: J. Green Counsel for the Respondents: J. Walters Place and Date of Hearing: Victoria, B.C. March 7, 2013 Place and Date of Submissions: Victoria, B.C.

April 12 and 24, 2013 Place and Date of Judgment: Victoria, B.C. May 30, 2013 [ 1 ] This is a petition seeking to quash the decision of an adjudicator, authorized by the Superintendent of Motor Vehicles to decide the petitioner’s application to overturn a driving prohibition issued by a police officer on June 18, 2011. [ 2 ] On that day, the petitioner was driving her vehicle when she was stopped at around 9:20 p.m. by police near Sooke, B.C. [ 3 ] The officer who stopped her, Cst.

LeBlanc, had a brief conversation with the petitioner, during which, according to his Report to Superintendent , he formed a reasonable suspicion justifying a demand that the petitioner provide a sample into an Approved Screening Device. [ 4 ] The observations noted by the officer in part two of his Report to Superintendent (“RTS”) as the basis for the demand, were: Strong odour of liquor on breath, glassy eyes, very nervous with police presence, mildly confused. Empty six pack of beer located in rear of truck.

The officer noted that the petitioner did not admit to having consumed alcohol. [ 5 ] The officer then noted that the process relating to the demand was: [E]xplained 8 times by Cst. LeBlanc and A/Sgt. Twardy. Hathaway failed to provide sample each time by covering tube with lips, tongue, removing lips, sucking, not blowing. [ 6 ] In the note explaining failure or refusal to comply with the demand, the officer states that “from 2122 hrs to 2138 hrs” the petitioner exhibited failure or refusal to provide breath sample by:

Removing lips from tube, blocking tube with lips/and/or tongue, not providing sufficient air, sucking, removing lips from tube,pretending to be confused by this process. [7] Constable LeBlanc concluded that the petitioner was failing or refusing to comply with a demand to provide a breath sampleand issued her a 90 day driving prohibition. [8] The petitioner exercised her right to a review of the prohibition. On the review, the petitioner provided her own statutorydeclaration, in which she swore, inter alia: 14. Constable Leblanc produced the breath testing machine and told me to blow into it.

I complied with his request. 15. He told me there was not enough air entering the machine and I must be covering the tube with my lips. I told him I was not andtried to blow again. Again he was not happy with the blow. 16. He put the palm of his hand a few inches away from his face and blew into it. He said “Blow like that”. I tried again and he said“you are refusing”. I told him I was not. … 23. The second officer then asked me to blow again and I did so. He said you must be covering the tube with your tongue, somethingI denied and was not doing. I tried two more times, with the officer berating me throughout.

He accused me of refusing and I told him Iwas not refusing. [9] The contrast between the officer’s and petitioner’s versions of her attempts to provide a breath sample sets up a credibility issuethat is central to the petitioner’s argument on this judicial review. [10] The petitioner also tendered a letter from her father, who said he was speaking to her on the phone at approximately 9:22 p.m.when she was stopped by the police.

The father stated that he picked up the petitioner at 11:00 p.m., after she had finished dealing withthe police, and at that time the petitioner showed no signs of being intoxicated, and he could not smell alcohol on her breath. [11] The petitioner also provided emails from two friends who said they had been with her all of the day in question, operatingrecreational off road vehicles outside Sooke. Each said they had not seen the petitioner consume any alcohol and one stated that theopportunity to observe lasted up to 9:00 p.m.

She also provided one further email from a friend who attested to the petitioner’s advocacyagainst drinking and driving, which corroborated the petitioner’s sworn evidence that two of her cousins had been seriously injured inmotor vehicle accidents involving impaired drivers, she never drives when there is any chance she might be impaired, and she frequentlyacts as a designated driver for her friends. [12] The adjudicator, delegated by the Superintendent of Motor Vehicles to hear and decide the review, confirmed the prohibitionand this petition was launched seeking an order overturning the decision of the adjudicator. [13] Fisher J. has provided a useful

summary of the principles to be applied on an application such as this in Pan v. British Columbia(Superintendent of Motor Vehicles), 2012 BCSC 1766, where, at para. 6 she says: Cross-examination is not permitted in oral hearings. The civil standard of proof applies, the onus being on the officer to justify theprohibition on a balance of probabilities, and the Superintendent (or his delegate) is not bound by the normal rules of evidence: Nagra v.British Columbia (Superintendent of Motor Vehicles), 2010 BCCA 154; Taylor v. British Columbia (Superintendent of Motor Vehicles),2004 BCCA 641; Spencer v.

British Columbia (Superintendent of Motor Vehicles), 2011 BCSC 1311 at para. 31.

The Superintendentmay determine the weight to be given to any document or other information referred to above, whether or not the information is sworn oraffirmed. [14] The information referred to is that listed under s. 215.49 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318, as information theSuperintendent or his delegate must consider, including, in s. 215.49(a), “any relevant written statements or evidence submitted by theapplicant.” [15] In her statutory declaration the petitioner swore that she had no alcohol in her system when the police stopped her, and that shecomplied with the officer’s “request” for a breath sample by trying several times to provide a breath sample into the machine put beforeher by the officers. [16] The adjudicator’s decision was delivered in writing July 7, 2011, after an oral hearing at which the petitioner was represented bycounsel. [17] On the first page of the decision, the adjudicator says: Mr.

Green drew my attention to your evidence of good character and your driving record in your affidavit and in the statements providedon your behalf by Dave Evans, July Branch, Tony Hunter and Sean Staub. I acknowledge and appreciate your situation, however, underthe Act I am not authorized to consider your personal circumstances or your driving history in this review.

I am authorized to consideronly those grounds that are directly related to the issues outlined below. [18] The petitioner argues, and I agree, that the adjudicator is simply wrong in stating that she is not authorized to consider theevidence of good character set out in her statutory declaration and the email from her friend confirming the petitioner’s advocacy againstdrinking and driving. By leading this evidence, the petitioner put her character in issue, which she had the right to do: see, Plester v. Wawanesa Mutual insurance Company, (ON CA), 269 D.L.R. (4th) 624, [2006] O.J.

No. 2139, at paras. 41-44 (Ont.C.A.). On the reasoning in Plester, if one can put character in issue in civil proceedings in order to defend against an allegation thatwould amount to a crime if made in criminal proceedings, I can see no good reason to prevent the petitioner here from putting her

character in issue on her application for a review under s. 215.48 of the Act. [ 19 ] The evidence that the adjudicator felt she was “not authorized to consider” was evidence that could and should have been considered, not as evidence that the petitioner did or did not drive with impermissible quantities of alcohol in her system, or that she failed or refused to provide a breath sample, but as evidence bearing on the likelihood of either. While it was open to the adjudicator to reject that evidence, it was not open to her to refuse to consider it. [ 20 ] The adjudicator continued: There are three issues in this review: 1. Were you a driver within the meaning of

section 215.41(1) of the Act? 2. If so, did you fail or refuse to comply with a demand? 3.

If so, did you have a reasonable excuse? [ 21 ] Of these, the only one at issue on this petition is the reasonableness of the adjudicator’s finding on the second issue, that is, whether the petitioner had failed or refused to comply with a demand. [ 22 ] On that issue, the adjudicator dealt with two questions: first, whether there had been a demand; second, whether the petitioner had failed or refused to comply. [ 23 ] The adjudicator’s decision on the first question is not attacked here: the petitioner concedes that there was some evidence before the adjudicator capable of supporting the reasonableness of her decision that there had been a demand. [ 24 ] That concession does not make everything related to the decision on the first question irrelevant to the outcome of this petition and whether the petitioner had failed or refused to comply, in my view. [ 25 ] In considering whether there had been a valid demand, the adjudicator said: There is significant disparity between your version and the officer’s version of the ASD demand.

You say that the officer never told you why he believed you had been drinking. The officer is not required by the Act to give you the reason for his suspicion, but you could have asked him if you were surprised by the demand. Further, given your statement in this regard, I find it odd that you did not comment on the officer’s observations in part two of the RTS, other than by explaining why you had empty liquor containers in the back of the vehicle .

I find that your version of the ASD demand lacks credibility, while the officer’s evidence is detailed and cohesive (as detailed as space on the RTS permits). [Emphasis added.] [ 26 ] The observations in part two referred to are those set out earlier in these reasons, beginning with “strong odour of liquor on breath …” [ 27 ] The adjudicator’s statement that the petitioner did not comment on these observations overlooks the petitioner’s sworn evidence that she had no alcohol in her body at the time, and that her breath could not have smelled of alcoholic beverage because she had not been drinking.

It overlooks the letter from the petitioner’s father stating that he did not smell alcohol on the petitioner’s breath and she showed no signs of intoxication at 11:00 p.m.

It also overlooks the email statements of two of the petitioner’s companions that day to the effect that they did not see the petitioner consume any alcohol, up to 9:00 p.m., and this might be because the adjudicator dismissed this evidence as “personal circumstances” she was “not authorized” to consider. [ 28 ] The adjudicator then goes on to find that the petitioner’s version lacks credibility, and while this is on an issue on which it is conceded that the reasonableness standard of review has been met, it nevertheless lends colour to the analysis of the reasonableness of the decision whether the petitioner failed or refused to comply with the demand, an issue on which the petitioner’s credibility was critical. [ 29 ] There are some things on which the parties agree: 1.

The investigating officer had the burden of proving failure or refusal on the balance of probabilities; 2. The adjudicator was not constrained by the rules of evidence as they would apply to a criminal trial; and 3. This court should show deference to the decision of the adjudicator, and refuse to interfere if that decision falls within the “range of possible, acceptable outcomes which are defensible in respect of the facts and the law”, in the language of Dunsmuir v.

New Brunswick, 2008 SCC 9 , at para. 47 . [ 30 ] In that same paragraph in Dunsmuir , the Court notes: In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. [ 31 ] In the portion of the decision dealing with the second question, the failure or refusal to provide a sample, the only reference to the petitioner’s evidence comes in the following portion of the decision: I find that the following is evidence of your willful non-compliance with the demand to provide a breath sample: i. the extensive instructions of Constables LeBlanc and Twardy on how to provide a sample;

ii. the number of attempts to provide a sample; iii. the officer’s belief that you were “pretending to be confused by the process”; iv. the officer having observed you “removing lips from tube, blocking tube with lips/and/or tongue, not providing sufficient air, sucking, removing lips from the tube”; v. the absence of your explanation for the failure to provide a sample, other than the speculation that your MS or swallowing difficulties may be responsible ; and vi. no evidence that the ASD was not in proper working order. [Emphasis added.] [ 32 ] In addition to the evidence and information provided by the petitioner that is summarized above, the petitioner had sworn: • That she complied with Cst.

LeBlanc’s request to blow into the breath testing machine. • That when told she had not provided a sufficient sample she “tried to blow again”, and then a third, fourth or fifth time. • That she tried again at the request of a second officer, as many as 3 times. • That she explained to one of the officers that she had multiple sclerosis and that might affect her ability to blow. • That she did not deliberately refuse or fail to comply with the demand (she calls it a request) for a breath sample. • That she attempted at all times to provide a sample. [ 33 ] In the face of this evidence, it cannot be said that there was an absence of an explanation from the petitioner on the question of failure or refusal to provide a sample.

This raises a very real question whether the adjudicator considered the petitioner’s evidence at all on this issue, particularly in light of the potentially devastating finding on her credibility with respect to the question of a valid demand that may have been reached without considering crucial evidence put forward by the petitioner. [ 34 ] Counsel for the Superintendent argues that the adjudicator’s reference to speculation that the petitioner’s multiple sclerosis or swallowing difficulties might explain her failure to provide a sample shows that the adjudicator considered the petitioner’s evidence. [ 35 ] That may be so.

However, if the adjudicator fairly considered the petitioner’s evidence, as she indicates with the phrase “Based on the evidence before me” that appears more than once in the decision, the reasons do not show it. Nor do the reasons show how or if the adjudicator resolved the critical credibility question central to the failure or refusal issue.

Indeed, the reasons, read as a whole, demonstrate that the credibility issue was resolved against the petitioner on another point on the basis of a misapprehension of the evidence, or of what evidence the adjudicator was “authorized” to consider, and the reasons do little to assuage the concern that this credibility finding, based as it was on a very shaky foundation, was not fatal to the petitioner’s credibility on the failure or refusal issue. [ 36 ] In a decision cited by the Superintendent , Costain v.

British Columbia (Superintendent of Motor Vehicles) , 2012 BCSC 1426 , MacKenzie J. says, at paras. 29-30: 29. There is no question that an adjudicator can face difficulty when deciding between conflicting written evidence. However, the authorities make it clear that an adjudicator is nevertheless able and entitled to reach a decision to which the Court must defer, providing there is some evidence to reasonably support the decision. 30.

That said, it should be remembered that in spite of the high degree of deference implied in the reasonableness standard, the delegate’s findings of fact are not wholly immune from judicial scrutiny. A decision-maker is required to carefully and conscientiously weigh the evidence, and to provide a reasonable justification for his or her choice. [ 37 ] For the reasons I have discussed, I am not satisfied that the adjudicator considered and weighed all the appropriate evidence.

I conclude that the decision of the Superintendent ’s delegate was not reasonable and it is quashed. [ 38 ] The matter is remitted to the Superintendent for a new hearing. [ 39 ] Costs of this petition may be spoken to. “R. T. Johnston J.” The Honourable Mr. Justice Johnston