Darryl Ronald Bock Petitioner v. British Columbia (Superintendent of Motor Vehicles) and, 2018 BCSC 997

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Bock v. British Columbia (Superintendent of Motor Vehicles), 2018 BCSC 997 Date: 20180618 Docket: S170416 Registry: Victoria Between: Darryl Ronald Bock Petitioner And British Columbia (Superintendent of Motor Vehicles) and the Attorney General of British Columbia Respondents Before: The Honourable Madam Justice Duncan Reasons for Judgment Counsel for the Petitioner: J. Teryn Counsel for the Respondents: K. Chewka Place and Date of Hearing: Victoria, B.C. May 22, 2018 Place and Date of Judgment: Victoria, B.C.

June 18, 2018 Table of Contents Introduction .. 3 Background facts .. 3 The Investigating Officer’s Version of Events . 3 Mr.

Bock’s Version of Events . 4 Decision of the Superintendent’s Delegate . 5 The Legislative Scheme .. 6 The Standard of Review ... 6 The Grounds of Review .. 8 Introduction [ 1 ] The petitioner, Darryl Ronald Bock, applies for judicial review of a 90-day Notice of Driving Prohibition (an Immediate Roadside Prohibition or “IRP”) pursuant to the Motor Vehicle Act , R.S.B.C. 1996, c. 318 (the MVA ) issued to him on January 6, 2017. [ 2 ] This petition was heard with three others in the context of a constitutional challenge to the IRP regime.

I issued reasons for judgment in the constitutional challenge, upholding the legislation: Lemieux v. The Superintendent of Motor Vehicles , 2018 BCSC 863 . These reasons deal with Mr. Bock’s application for judicial review of the adjudicator’s decision to uphold the driving prohibition issued to him. Background facts

The Investigating Officer’s Version of Events [ 3 ] On January 6, 2017, Constable Twardy was on duty in Victoria. At about 4:50 a.m., the police received a call from a Denny’s Restaurant employee that there was a silver truck parked in the restaurant parking lot. It was taking up three spaces and appeared to be unoccupied. The engine was running. Constable Twardy attended the scene and located the truck. There was a lone occupant in the back seat, sleeping. Constable Twardy woke the occupant and had him exit the vehicle. The man identified himself as Darryl Ronald Bock.

He admitted to Constable Twardy that he had driven to the restaurant one hour earlier and had something to eat. He further stated that he was too tired to drive home and decided to sleep with the engine of his truck running in order to stay warm. [ 4 ] Constable Twardy detected a strong odour of liquor from Mr. Bock’s breath. Mr. Bock said his last drink was at around 1:00 a.m. Based on this admission and physical evidence, Constable Twardy formed the suspicion that Mr.

Bock’s ability to drive a motor vehicle was affected by alcohol and that he had consumed alcohol within the preceding three hours. [ 5 ] Constable Twardy informed Mr. Bock that he would be requesting a breath sample. Constable Twardy read the standard breath demand from a card to Mr. Bock and obtained a breath sample from him. The sample registered as a FAIL on the approved screening device. [ 6 ] Constable Twardy reviewed police records and concluded Mr. Bock was a suitable candidate for a 90-day driving prohibition, rather than a Criminal Code charge. He read Mr. Bock the offer of a second sample. Mr.

Bock accepted and blew another FAIL. Constable Twardy seized Mr. Bock’s licence and prepared a 90-day IRP and a vehicle impoundment form. He explained to Mr. Bock what the prohibition meant and how to appeal it. Mr. Bock’s Version of Events [ 7 ] Mr. Bock retained counsel, who prepared written submissions on review. Counsel noted that s. 215.41(1) of the MVA defines driver as “a person having care or control of a motor vehicle on a highway” and s. 215.41(3.1) only allows service of an IRP if a police officer has observed a driver in care or control of a vehicle on a highway or industrial road.

Counsel noted that Constable Twardy did not observe Mr. Bock in care or control of his vehicle. Counsel further noted: Mr. Bock advises that he had absolutely no intention of driving. Even according to the officer’s own evidence Mr. Bock was found in the back seat of his vehicle sleeping. Mr. Bock advises that the vehicle was in park and the emergency brake was engaged and there was absolutely no way that the vehicle could inadvertently be put into motion. He was asleep in the back and had absolutely no intention of driving. He had the vehicle on as it was below freezing and he was cold. Therefore, Mr.

Bock did not have use of the vehicle that would involve a realistic risk of putting the vehicle in motion so that it could become dangerous (R. v. Boudreault , 2012 SCC 56 ). Mr. Bock advises that several of the allegations in Cst. Twardy’s report are and [sic] incorrect recording of what was stated and occurred. Mr. Bock advises that the officer’s recording that Mr. Bock’s vehicle was parked taking up three [3] parking spots is incorrect. When he arrived at Denny’s at just after 0100 he parked next to another vehicle that was taking up just over one parking spot.

He parked next to that vehicle himself and was only taking up just over one spot (and was slightly over the line). He advises he was not taking up three parking spots. Further, the officer states that the truck was facing north. The parking spots in the Denny’s parking lot face north on a slight angle. He was parked on the north edge of the parking lot where there was only one row of parking. There is no was [sic] Mr. Bock’s vehicle could have been taking up three [3] parking spots unless he had been parked east or west, which he was not according to even the officers own evidence. Further Mr.

Bock advises that when he arrived over one hour prior and had something to eat in Denny’s, was tired and went to sleep in the back with the vehicle on to keep warm. Mr. Bock advises that he was woken up by the officer and questioned. He was groggy and disoriented and had no idea what time it was. He advises that he arrived at Denny’s at approximately 0100. He went in and ate some food. He was exhausted and did not feel safe to drive home. He exited Denny’s and returned to his vehicle to sleep until morning. This was just before 2:00 a.m. Mr.

Bock advised the officer he had arrived over one hour ago but did not provide an exact time. He realized when he was more coherent and awake that it was actually much later than he thought and he had been sleeping for longer than he thought. Further, even according to the officer’s own evidence Mr. Bock advised him that he had no intention of driving. Mr. Bock advises that he was cognizant of the risk his vehicle could pose if accidentally was put into motion. He took every precaution to prevent this from happening by engaging the emergency brake and getting in the back seat to sleep.

He did everything right and was being a responsible individual by doing what he did. He was trying to do the right thing. In the circumstances of this case there is no realistic risk of danger to persons or property. He had absolutely no intention of driving. [ 8 ] Later in the written submissions, counsel said: … Mr. Bock advises that earlier in the evening he had picked up a bottle of spiced rum for Friday night. He advises that when he made the decision to sleep in his truck instead of driving home as he was too tired he decided to have a night cap.

He opened the bottle and took a large drink of it, placed it on the floor and went to sleep. This was close to 2:00 a.m. as he had gotten to Denny’s and ate around 1:00. He did not consume any alcohol before he arrived at Denny’s. Further, he advises that he never stated to the officer his last drink was at 1:00. Decision of the Superintendent’s Delegate [ 9 ] Adjudicator Syrotuck reviewed the submissions of Mr. Bock’s counsel and the narrative from the police. In her decision, she stated the following: The sole issue before me is whether you were in care or control of a motor vehicle.

There are two sub issues: first whether you engaged

in acts that involved the use of the car and second, whether there was a realistic risk of putting the vehicle in motion. The common evidence before me is that you were in the back seat of the car with the keys in the ignition and the engine running fromthe time Cst. Twardy observed you. This demonstrates to me that you were using the car and its fittings or equipment. Next, I must determine if there was a realistic risk of putting the vehicle in motion.

As the court stated in Boudreault, “to determine thatthe risk be “realistic” is to establish a low threshold consistent with Parliament’s intention to prevent a danger to public safety.” [10] The adjudicator agreed there was no realistic risk that Mr. Bock would inadvertently put the car in motion, as he was in the backseat and had engaged the parking brake, but found there was a realistic risk he would intentionally choose to drive: … Your vehicle was parked in the parking lot at Denny’s. Ms.

Zanatta states that you advised that you did not feel safe to drive homeand returned to your vehicle to sleep until morning. These statements indicate that location of your vehicle was not at your finaldestination and that your plan to get to your final destination was to drive home in the morning after having slept in your vehicle. Whenyou deal with Cst. Twardy, it was on or about 5:00 am.

In my view, the fact that you were not parked at your final destination, did nothave a reliable plan to get home, and that it was close to or at “morning” increased the likelihood that you would choose to drive home.For these reasons, I find that there was a realistic risk that you would put the vehicle in motion. [11] Based on her findings, adjudicator Syrotuck did not overturn the IRP and upheld the original suspension and its penalties. The Legislative Scheme [12] In the accompanying constitutional challenge decision, I dealt extensively with the IRP regime under the MVA.

I reiterate forconvenience that ss. 215.41 to 215.51 of the MVA contain the provisions relating to the IRP regime, while Wilson v. British Columbia(Superintendent of Motor Vehicles), 2015 SCC 47 contains a helpful summation of the contextual and legislative policies underpinningthe IRP regime: at paras. 32-40.

The Standard of Review [13] The parties agree that the standard of review is reasonableness, as explained by the Supreme Court of Canada in Dunsmuir v.New Brunswick, 2008 SCC 9: [47] Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standardsof reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result.Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range ofacceptable and rational solutions.

A court conducting a review for reasonableness inquires into the qualities that make a decisionreasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concernedmostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concernedwith whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [14] Subsequently, in Newfoundland and Labrador Nurses’ Union v.

Newfoundland and Labrador (Treasury Board), 2011 SCC 62,Abella J., for the Court, said: [15] In assessing whether the decision is reasonable in light of the outcome and the reasons, courts must show “respect for thedecision-making process of adjudicative bodies with regard to both the facts and the law” (Dunsmuir, at para. 48).

This means that courtsshould not substitute their own reasons, but they may, if they find it necessary, look to the record for the purpose of assessing thereasonableness of the outcome. [16] Reasons may not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would havepreferred, but that does not impugn the validity of either the reasons or the result under a reasonableness analysis.

A decision-maker isnot required to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion (ServiceEmployees’ International Union, Local No. 333 v. Nipawin District Staff Nurses Assn., (SCC), [1975] 1 S.C.R. 382, atp. 391). In other words, if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it todetermine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met. [15] In Kenyon v.

British Columbia (Superintendent of Motor Vehicles), 2015 BCCA 485, the Court of Appeal cautioned againstparsing or dissecting the reasoning of adjudicators: [55] … In order to set aside the decision, any flaw in reasoning should be obvious and should be fundamental to the conclusionreached by the adjudicator. In reviews of roadside driving prohibitions, where credibility is frequently the central issue, judges shouldnot substitute their own credibility findings in place of those of the adjudicator.

The fact that the adjudicator’s reasoning is flawed in onerespect does not necessarily lead to the conclusion that the reasoning as a whole is unreasonable. It is necessary to consider the reasons asa whole and determine whether the flaw is central to the conclusion. The Grounds of Review [16] Ms. Teryn, counsel for Mr. Bock, submits that: (

a) the adjudicator’s decision that Mr. Bock was a driver, or had care or control of a motor vehicle within the meaning of s. 215.41(1)of the MVA is unreasonable, as it was based on speculation and unsupported by the evidentiary record;

(

b) the decision of the adjudicator was unreasonable and the errors in her reasoning are obvious and fundamental to the decision underreview; and (

c) it is appropriate for the court to intervene in this case. [17] The adjudicator was referred by counsel on the review to R. v. Boudreault, 2012 SCC 56, the seminal case on the issue of careand control. It is helpful to review that decision before examining the grounds raised by counsel on review. [18] After a night of drinking, Mr. Boudreault had a friend call a taxi to take him home. He waited in his truck, rather than outside inthe unhospitable weather. He was undeniably intoxicated and fell asleep behind the wheel of his truck with the engine on. When the taxidriver located Mr.

Boudreault, he called the police. The police arrested Mr. Boudreault and charged him for having care or control of hisvehicle while (1) being impaired by alcohol and (2) having more than 80 mg of alcohol in 100 mL of his blood. [19] The trial judge acquitted Mr. Boudreault on both counts as he found there was no risk Mr. Boudreault would put the vehicle inmotion. The accused was intoxicated but he had a reliable and concrete plan to get home in a taxi. The Quebec Court of Appeal allowedthe Crown appeal and set aside both acquittals, entering convictions instead.

The further appeal to the Supreme Court of Canada wasallowed and the acquittals restored. [20] Justice Fish, for the majority, held, at para. 33., that “care or control” within the meaning of s. 253(1) of the Criminal Code,RSC 1985, c C-46 signifies: (1) an intentional course of conduct associated with a motor vehicle; (2) by a person whose ability to drive is impaired, or whose blood alcohol level exceeds the legal limit; (3) in circumstances that create a realistic risk of danger to persons or property.

Fish J. continued: [34] The risk of danger must be realistic and not just theoretically possible: Smits, at para. 60. But nor need the risk be probable, oreven serious or substantial. [35] To require that the risk be “realistic” is to establish a low threshold consistent with Parliament’s intention to prevent a danger topublic safety.

To require only that the risk be “theoretically possible” is to adopt too low a threshold since it would criminalizeunnecessarily a broad range of benign and inconsequential conduct. [36] It is settled law that an intention to set the vehicle in motion is not an essential element of the offence: Ford v. The Queen, (SCC), [1982] 1 S.C.R. 231. This may appear anomalous in view of the presumption set out at s. 258(1)(

a) of the CriminalCode, which provides that an accused who was found in the driver’s seat of a motor vehicle shall be deemed to have had the care or control of the vehicle . . . unless the accused establishes that the accused did not occupy that seator position for the purpose of setting the vehicle ... in motion .... [37] Accordingly, an accused found in the driver’s seat will be presumed, as a matter of law, to have care or control of the vehicle,unless the accused satisfies the court that he or she had no intention to drive — an intention that, pursuant to Ford, is not an essentialelement of the offence! [38] At a minimum, the wording of the presumption signifies that a person who was found drunk and behind the wheel cannot, forthat reason alone, be convicted of care or control if that person satisfies the court that he or she had no intention to set the vehicle inmotion.

Dickson C.J. made this plain in R. v. Whyte, (SCC), [1988] 2 S.C.R. 3, at p. 19: “It cannot be said that proof ofoccupancy of the driver’s seat leads inexorably to the conclusion that the essential element of care or control exists . . . .” [39] Put differently, s. 258(1) (

a) indicates that proof of voluntary inebriation and voluntary occupancy of the driver’s seat do not bytheir coexistence alone conclusively establish “care or control” under s. 253(1) of the Criminal Code. Something more is required and, inmy view, the “something more” is a realistic risk of danger to persons or property. [21] While this analysis is of assistance, it is important to note that the IRP regime does not incorporate the presumption in s. 258(1)of the Criminal Code, nor do I find that the adjudicator in this case relied on the presumption.

Rather, the adjudicator considered variouscontextual factors discussed in Boudreault to arrive at her conclusion. That Mr. Bock was not parked at his final destination, that he didnot have a reliable plan to get home and that it was close to “morning”, all of which increased the likelihood that he would choose todrive home despite having a BAC in excess of the legal limit, were clearly influential in her decision. [22] Ms. Teryn maintains that the adjudicator should have considered a broader range of factors in her reasons, such as thosesummarized by Mr. Justice Durno in R. v.

Szymanski, (2009) (ON SC), 88 M.V.R. (5th) 182 (O.N. S.C.) at para. 93,a decision referred to with approval by the majority in Boudreault. I have paraphrased the factors as follows: (

a) the level of impairment, which is relevant to the likelihood of exercising bad judgment and the time it would take for the accusedto become fit to drive; (

b) whether the keys were in the ignition or readily available to be placed in the ignition; (

c) whether the vehicle was running; (

d) the location of the vehicle;

(

e) whether the accused had reached his or her destinations or if the accused was still required to travel to his or her destination; (

f) the accused’s disposition and attitude; (

g) whether the accused drove the vehicle to the location where it was found; (

h) whether the accused started driving after drinking and pulled over to “sleep it off” or started using the vehicle for purposes other than driving; (

i) whether the accused had a plan to get home that did not involve driving while he or she was impaired or not over the legal limit; (

j) whether the accused had a stated intention to resume driving; (

k) whether the accused was seated in the driver’s seat regardless of the applicability of the presumption; (

l) whether the accused was wearing his or her seatbelt; (

m) whether the accused failed to take advantage of alternate means of leaving the scene; and (

n) whether the accused had a cell phone with which to make other arrangements and failed to do so. [ 23 ] The adjudicator expressly considered factors (

e) and (i). Ms. Teryn submits there were other factors which weighed in Mr. Bock’s favour, such as the fact that he was in a parking lot and not by the side of the road, the fact that he decided to sleep in his vehicle because he was tired rather than intoxicated and the fact that he was not in the driver’s seat. I agree that these and other factors could have been considered. However, the question is not whether the adjudicator need consider all factors from Syzmanski or Boudreault, but whether the adjudicator’s decision was a reasonable one. [ 24 ] Ms.

Teryn relies on several cases with somewhat similar circumstances, although not all of the cases resulted in an adjudicator being overturned: Aitken v. British Columbia (Superintendent of Motor Vehicles) , 2013 BCSC 363 ; Linares v. British Columbia (Superintendent of Motor Vehicles), 2014 BCSC 1014 ; and Houston v. British Columbia (Superintendent of Motor Vehicles), 2017 BCSC 1859 .

While care and control is a finding of fact in each case, and each case is different, I have considered these decisions and others in order to inform my analysis. [ 25 ] First, in Aitken , the petitioner was stopped by the police after an officer witnessed the petitioner getting into his truck after leaving a pub, starting the vehicle, and attempting to buckle his seatbelt. The petitioner denied he had any intention of putting his truck into motion because he intended to walk home.

The petitioner refused to provide a breath sample and the issue on review before the adjudicator was whether he had care or control of his truck. The adjudicator confirmed the prohibition on the basis of a “substantial risk” that the petitioner might change his mind and later form the intention to drive his truck. [ 26 ] The decision of the delegate was issued two months prior to Boudreault. As such, the adjudicator did not have the benefit of the decision in their analysis. Mr. Justice Johnston noted that the adjudicator assumed a higher standard than prescribed in Boudreault .

Notwithstanding the higher standard used by the adjudicator, Johnston J. stated: [19] The delegate's finding that a serious risk existed is a finding of fact: see, Boudreault at para. 50 . The finding that Mr. Aitken was in care or control at the material time is a finding of fact, or perhaps mixed law and fact; in either case it is reviewable on a reasonableness standard. The decision clearly falls within the "range of possible, acceptable outcomes which are defensible in respect of the facts and law," as set out in Dunsmuir v.

New Brunswick , 2008 SCC 9 at para. 47 . [ 27 ] The petition was dismissed. [ 28 ] In Linares , the petitioner was seated in the driver’s seat of a parked vehicle. The engine was running. The driver was sound asleep. The police woke him up, detected an odour of liquor, and made a breath demand. The sample provided into an ASD registered a fail, as did a second test. The petitioner was issued an IRP.

He applied for a review based on insufficient evidence for the adjudicator to reasonably conclude he had care or control of the vehicle at the material time, or that he was properly considered a driver within the meaning of the statute. The IRP was upheld. [ 29 ] On judicial review, Mr. Justice Verhoeven evaluated the four grounds the adjudicator put forth for her conclusion that Mr. Linares was in care or control of the vehicle.

While Verhoeven J. found the adjudicator’s reasons insufficient in some respects, he upheld the IRP because the evidence before the adjudicator was sufficient to find that there was a “realistic danger to persons or property in the circumstances”: at para 30. Verhoeven J., in highlighting Mr. Linares heavy intoxication, further stated: [44] … It is reasonable to conclude that at some point Mr. Linares would awaken, and that he would still be unfit to drive the vehicle. As he had no practical alternative, it is logical to conclude that he could easily have decided to drive the vehicle.

Thus in my view the adjudicator could reasonably conclude that the facts fall squarely within the first scenario referred to in paragraph 41 of Boudreault ; that is, even assuming a lack of present intention to drive, an inebriated person who initially does not intend to drive may later, while still impaired, change his or her mind and proceed to do so, thus presenting a realistic risk of danger to persons or property. [ 30 ] Despite the inadequacy of the reasons, Verhoeven J. found the decision to not be unreasonable. The petition was therefore dismissed. [ 31 ] In Houston , Mr. Justice G.C.

Weatherill set aside an adjudicator’s decision that the petitioner was in care or control of a motor vehicle. The petitioner said she had decided to sleep in her vehicle rather than spend money on a hotel room. She was seated in the driver’s seat and the ignition was on to power the heat and radio, but she and her friend had brushed their teeth and changed into pyjamas in preparation for the night. The police officer said the petitioner had told him she was waiting for a friend. Weatherill J. held:

[23] In the case at bar, the adjudicator made no attempt to resolve the conflicts in the evidence. Rather, her analysis of the reliability of the petitioner’s evidence and hence her conclusion that the petitioner’s evidence regarding her plan to sleep in the vehicle was not credible, hinged entirely upon the officer’s evidence that the petitioner had said to him that she was “waiting for a friend”.

On that basis alone the adjudicator rejected the petitioner’s evidence that she and her friend had determined well in advance that they did not wish to incur the expense of a hotel room and were going to sleep in the vehicle, that they had brushed their teeth and had changed into their pajamas, and that she was “waiting”. [24] The petitioner may have been waiting for the effects of the alcohol to wear off, or she may have been waiting for the morning. The petitioner’s failure to address what she was waiting for does not, in my view, make her evidence prima facie less credible: Scott v.

British Columbia (Superintendent of Motor Vehicles ), 2013 BCCA 554 at para. 34 . [25] Here the adjudicator determined that the plaintiff’s plan to sleep in her vehicle was not credible because: I infer that there was a third person you were waiting for. I find it odd that you would be waiting for a friend if you and the friend … had in fact brushed your teeth, gotten into your pajamas, and were ready to sleep in your vehicle, as you stated. [26] The petitioner’s evidence that she and her friend had changed into their pajamas is a detail that seems unlikely to have been invented.

It is not controverted in any way by the officer. Moreover, the onus is not on the petitioner to disprove that assertion, namely, that she met the test of being in care and control of the vehicle. Rather, it is on the officer who issued the prohibition: Naughton v. British Columbia (Superintendent of Motor Vehicles), 2014 BCSC 1250 at para. 21 . [ 32 ] As to the latter point concerning the onus, I note that Houston was decided under an older version of the MVA . The current version of the legislation places the onus on the driver on the application to set aside the IRP. [ 33 ] In Mr.

Bock’s case, there were no conflicts in the evidence on the issue of his intention to drive. While Mr. Bock disputed the officer’s assertion that he was parked across three spaces and that he did not say his last drink was at 1 a.m., the decision stood or fell on whether the adjudicator accepted Mr.

Bock’s submission that he had absolutely no intention of driving, or that there was no realistic risk of him driving, such that he would not be in care or control of the vehicle. [ 34 ] In Boudreault , Fish J. observed: [51] One of the factors of particular relevance in this case is that the accused took care to arrange what some courts have called an “alternate plan” to ensure his safe transportation home. [52] The impact of an “alternate plan” of this sort on the court’s assessment of the risk of danger depends on two considerations: first, whether the plan itself was objectively concrete and reliable; second, whether it was in fact implemented by the accused.

A plan may seem watertight, but the accused’s level of impairment, demeanour or actions may demonstrate that there was nevertheless a realistic risk that the plan would be abandoned before its implementation. Where judgment is impaired by alcohol, it cannot be lightly assumed that the actions of the accused when behind the wheel will accord with his or her intentions either then or afterward. [emphasis added] [ 35 ] The adjudicator found that Mr. Bock did not have an alternate plan to ensure his safe transportation home.

While he denied he was under the influence of alcohol when he arrived at Denny’s, he took a large drink of alcohol before he went to sleep. His plan was to get some sleep before driving home. When the officer woke him up, approximately three hours after he finished in the restaurant, Mr. Bock failed two ASD tests. He had alcohol in his system.

The adjudicator’s conclusion that there was a realistic risk that he would have awakened, absent police intervention, and driven home while under the influence of alcohol was within a range of reasonable outcomes. [ 36 ] The petition is dismissed. “Duncan J.” _______________________________ The Honourable Madam Justice Duncan