Jo Ann Swick Petitioner v. The Superintendent of Motor Vehicles and, 2018 BCSC 1014

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Swick v. British Columbia (Superintendent of Motor Vehicles), 2018 BCSC 1014 Date: 20180620 Docket: S167402 Registry: Vancouver Between: Jo Ann Swick Petitioner And The Superintendent of Motor Vehicles and The Attorney General of British Columbia Respondents Before: The Honourable Madam Justice Duncan Corrected Judgment: Counsel’s name was corrected on title page on June 28, 2018 Reasons for Judgment Counsel for the Petitioner: K. Lee S. Leamon S. Roudette Counsel for the Respondents: A. Harlingten K. Chewka Place and Date of Hearing: Vancouver, B.C.

December 14, 2017 Place and Date of Judgment: Vancouver, B.C. June 20, 2018 Table of Contents Introduction .. 3 Background Facts .. 3 Alleged Events - Police . 3 Alleged Events – Ms. Swick . 5 Decision of the Superintendent’s Delegate .. 7 Adjudication of Supplementary Submissions . 7 Adjudication of Grounds for Review .. 9 Issues .. 10 The Legislative Scheme .. 11 Standard of Review ... 11 Analysis .. 12 Conclusion .. 16

Introduction [ 1 ] The petitioner, Jo Ann Swick, applies for judicial review of the decision of a delegate of the Superintendent of Motor Vehicles (“the adjudicator”) confirming the issuance 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 ). Ms.

Swick received an IRP for failing or refusing to provide a breath sample pursuant to a demand by a police officer. [ 2 ] This case was heard with three other petitions which involved drivers who received IRPs after registering a fail on the Approved Screening Device (ASD) at roadside. The four cases collectively raised a constitutional challenge to the IRP regime. The reasons for judgment on the constitutional challenge are reported as Lemieux v. British Columbia (Superintendent of Motor Vehicles) , 2018 BCSC 863 .

Background Facts Alleged Events - Police [ 3 ] On July 11, 2016 at approximately 11:30 p.m., R.C.M.P. Constables Rekers and Payne were on patrol on Highway 95A between Kimberley, B.C. and Cranbrook, B.C. Constable Rekers observed an oncoming vehicle failing to dim its headlights. Constable Rekers also observed that the tail lights of the car did not appear to be active. Constable Rekers initiated a traffic stop and asked the driver of the vehicle for her identification. The driver was Ms. Swick.

She informed the officer that she and her passenger had just come from a casino in Cranbrook. [ 4 ] Constable Rekers detected a hint of alcohol emanating from Ms. Swick as they spoke about her poor luck at the casino. Constable Rekers asked Ms. Swick if she had been drinking and she stated that she “had a couple” at the casino. Ms. Swick said she finished her last drink “45 minutes ago”. Constable Rekers asked Ms. Swick to step out of the vehicle. He detected an odour of liquor on her breath.

At 11:33 p.m. he formed the opinion that she had alcohol in her system while driving, detained her for an impaired driving investigation and read her the breath demand. [ 5 ] Constable Payne readied the ASD, ensuring it had a new mouthpiece and that its temperature was in the viable working range. Constable Rekers informed Ms. Swick on how to provide a proper sample into the ASD. Ms. Swick indicated that she understood. [ 6 ] On her first breath attempt, Constable Rekers noticed that Ms. Swick appeared to be intentionally sucking her breath in, rather than breathing out.

This registered a “Flow INS” notification on the ASD. “Flow INS” is one of four status messages that may appear on an unsuccessful attempt to give a breath sample; “INS” stands for inconsistent. [ 7 ] Constable Rekers again informed Ms. Swick how to provide a sample. On her second attempt, Ms. Swick appeared to be providing a proper airflow as per the indicator on the instrument. However, Constable Rekers noticed the movement on the instrument stopped and it again registered “Flow INS”. After again explaining how the ASD worked and receiving confirmation that Ms.

Swick understood, Constable Rekers administered the test two additional times. The ASD indicated “Flow INS” both times. [ 8 ] Constable Rekers thereafter explained in simple terms what a “refusal” was and the penalties it carried. He indicated that she had nothing to lose as a “refusal” penalty carried the same penalty as if she failed the test. Ms. Swick stated that she understood but maintained that she was trying to provide a breath sample accurately. [ 9 ] Constable Rekers prepared a second ASD and again explained how to operate the device; Ms. Swick indicated she understood.

She made two more attempts to provide a breath sample. Both registered “Flow INS”. As Constable Rekers did not note any possible health conditions that may affect the test, he informed Ms. Swick that she was being charged with a refusal to provide a breath sample. [ 10 ] Constable Rekers placed Ms. Swick in his patrol car and began to process the paperwork. While in the vehicle, Ms. Swick indicated that she had a medical issue. Constable Rekers inquired as to what this may be, and Ms. Swick indicated it was a condition that restricted her breathing. When pressed for the name of the condition, Ms.

Swick simply reiterated that her breathing was restricted. [ 11 ] Ms. Swick was served with a Notice of Driving Prohibition pursuant to s. 215.41 of the MVA detailing that she had failed or refused, without reasonable excuse, to comply with a demand under the Criminal Code to provide a sample of breath for analysis by means of an approved screening device. After processing the paperwork, a cab was called to take Ms. Swick and her passenger home. A tow truck removed the vehicle Ms. Swick was driving. It was impounded for 30 days as a result of the IRP. Alleged Events – Ms. Swick [ 12 ] Ms.

Swick does not take issue with the beginning of the events leading up to blowing into the ASD. It is upon her attempting to blow into the ASD that the two versions of events diverge. [ 13 ] Ms. Swick maintains that, upon her first attempt, she genuinely attempted to blow into the ASD. She submits that she did not blow lightly, did not pretend to blow, and did not attempt to suck air back into the machine. After her first attempt, Ms. Swick says that Constable Rekers took the ASD away from her, informing her that she had blown improperly. [ 14 ] Ms.

Swick agreed that Constable Rekers warned her that the failure to blow was the same as “blowing over” (otherwise

registering a “Fail”). Ms. Swick says that she understood the consequences. [ 15 ] Upon her second attempt, Ms. Swick blew into the ASD as hard as she could and did not stop blowing until she was out of breath. The ASD again did not work; she informed Constable Rekers as such. Ms. Swick tried again for a third attempt, but again the ASD did not work. [ 16 ] Ms. Swick states that these three attempts were the only three attempts she was given. This contrasts the six attempts recorded by Constable Rekers. Ms.

Swick felt that Constable Rekers did not seem to care that she was trying her hardest and gave her an IRP without a warning that the third attempt would be her last. She felt that what Constable Rekers was doing was wrong and felt defeated by the process. She maintains that while Constable Rekers was doing the paperwork, she asked for another attempt on the ASD, which she did not receive. [ 17 ] While Ms.

Swick’s affidavit does not detail any conversation relating to possible medical conditions, she states unequivocally that her memory of the event in question was very clear and that she had nothing to hide and no reason not to follow the constable’s directions. [ 18 ] Counsel for Ms. Swick sent correspondence to RoadSafetyBC regarding the issuance of this IRP. There appeared to be some issues with the dates on the materials provided, with two letters apparently having been sent on July 23, 2016. Nothing turns on these dates. I recount the content of the letters below. [ 19 ] The first letter sent by Ms.

Swick’s counsel challenged the reliability of Constable Rekers’ version of events. Counsel also alleged that the Report to Superintendent was not properly sworn (thereby calling the report’s veracity into question) and included false or deliberately misleading information which had the effect of perjuring Constable Rekers. [ 20 ] The second letter accused RoadSafety BC of colluding with the police and the British Columbia Association of Chiefs of Police (“BCACP”) Impaired Driving Advisory Committee to produce evidence that had been used in the hearing.

As I understand the submissions, counsel maintained that the information in the “Certificate of Qualified ASD Calibrator Technical Information on the Operation and Calibration of ASD’s” was not prepared by the officer in charge of the calibration, but rather was prepared by the BCACP. The result of this was that there should be no lawful jurisdiction to consider the document.

This also apparently served to make the tribunal a witness in its own proceeding, thereby leading to either bias, or the appearance of bias on behalf of the Superintendent and presumably his delegates. [ 21 ] As indicated by Adjudicator Morton in his decision below, counsel for Ms. Swick provided additional written submissions, all of which were received prior to the oral hearing which was conducted on July 25, 2016. Decision of the Superintendent’s Delegate [ 22 ] On August 2, 2016, Adjudicator Morton released the review decision of Ms. Swick’s IRP challenge.

Adjudicator Morton stated that the Application for Review of the IRP was based on the following grounds: • The result of the ASD is not reliable; • The ASD, which formed the basis for the prohibition, did not register a WARN reading; • The ASD, which formed the basis for the prohibition, did not register a FAIL reading; • I did not refuse or fail to comply with the officer’s demand to provide a breath sample; • My 7-day or 30-day prohibition should be reduced because I did not have the required number of previous IRP(s).

Adjudicator Morton thereafter indicated that it was the fourth point regarding the refusal or failure to comply that was the only ground that reflected the submissions and evidence tendered by counsel. [ 23 ] The analysis in the review decision is split into two notional sections. The first deals with the arguments Ms. Swick’s counsel put forward in the letters she sent to the adjudicator prior to the oral hearing, and the second deals with her oral arguments in relation to whether or not Ms. Swick failed or refused to provide a breath sample.

Adjudication of Supplementary Submissions [ 24 ] First, Adjudicator Morton addressed the issues relating to Constable Rekers not being present during the ASD calibration and the inferences to draw from this. The result of these considerations was the Certificates of a Qualified ALCO-Sensor FST Calibrator (the Certificates) were not considered to be part of the sworn Report to Superintendent. Adjudicator Morton cautioned however that:

Section 215.49(1)(

d) of the [ MVA ] states that I must consider “any other relevant documents and information forwarded to the superintendent by the peace officer who served the notice of driving prohibition or any other peace officer, including peace officers’ reports that have not been sworn or solemnly affirmed.” [ 25 ] After evaluating the case law presented on this issue by counsel for Ms. Swick, Adjudicator Morton noted that “the rules of evidence in administrative reviews are less demanding than those in a criminal proceeding”. The Certificates were considered to be unsworn evidence and were to be weighed accordingly.

Notwithstanding this, Adjudicator Morton noted that there was no compelling evidence before the tribunal that would cause it to render the Report unsworn. [ 26 ] Turning to counsel’s accusations of collusion through the creation of the technical information before the tribunal, Adjudicator

Morton harkened back to the previous comment, indicating that all information that falls into the statutory language must be evaluated. [ 27 ] As it related to allegations of bias, Adjudicator Morton went into detail about RoadSafetyBC’s involvement in the proceedings. At first instance, it was clear that no evidence was put forward that showed any RoadSafetyBC representatives within the BCACP or the Impaired Driving Advisory Committee, or what any potential responsibilities they may have in those organizations.

Additionally, the adjudicator highlighted the open and public relationships RoadSafetyBC has with various stakeholders, including the BCACP. Any suggestion that RoadSafetyBC was working in secret with any party was unfounded on the evidence. [ 28 ] Adjudicator Morton considered the jurisprudence on the existence of institutional biases.

Not only was no legal or statutory authority put forth to suggest that an adjudicator could revoke a prohibition where there is a finding of bias or institutional bias, but the adjudicator flatly rejected the suggestion that institutional bias or a reasonable apprehension of bias was present based on the evidence, or lack thereof, provided. [ 29 ] I observe that the Court of Appeal recently dismissed an appeal involving the same allegation of bias: Sutherland v. British Columbia (Superintendent of Motor Vehicles) , 2018 BCCA 65 .

Adjudication of Grounds for Review [ 30 ] Adjudicator Morton recounts counsel’s submissions indicating that Constable Rekers’ report is inconsistent with how the technical information suggests an ASD should work. Specifically, counsel submitted that a third attempt in the fashion Constable Rekers’ evidence suggests should register as “BLOW VOID”, not as “Flow INS”. Furthermore, there was no evidence suggesting the ASD was ever turned off and on again to start a new test sequence. The result of this would be to place an impossible burden on Ms.

Swick to prove the test sequence came to an end or to prove the ASD did not register “BLOW VOID”. [ 31 ] Counsel further submitted that if Ms. Swick were sucking in rather than blowing out her breath, the indicator would not read “Flow INS” but would instead read “Flow CUT”, indicating the breath had stopped too abruptly. Constable Rekers also noted in his report that he believed Ms. Swick may have been placing her tongue on the mouthpiece. This would be more consistent with a reading of “Flow CUT”, rather than “Flow INS”.

Argument was also made that Constable Rekers referring to the ASD as an “instrument” and not a “device” should weigh on the reliability and credibility of his evidence as there is a distinction between the two terms. [ 32 ] Finally, the adjudicator noted counsel’s concerns regarding the reliability of the ASD and the instructions Constable Rekers gave on the scene. From this however, Adjudicator Morton preferred the evidence of Constable Rekers with regard to the reliability of the ASD as well as the number of breath sample attempts that were given to Ms. Swick. [ 33 ] In

summary, it was determined that not only were the consistent “Flow INS” readings not indicative of a malfunctioning device, but the messages were also consistent with someone sucking in their breath or blocking airflow to the device with their tongue. There was no conclusive evidence to impugn or otherwise challenge Constable Rekers’ reliability, and notwithstanding that there was no evidence as to the temperature calibration of the second ASD, this did not preclude it from being reliable.

While Adjudicator Morton acknowledged counsel’s opinion as to how the ASDs should function in such circumstances, it was noted that they were simply opinions and were contradicted by the evidence indicating a failure or refusal to blow. [ 34 ] Adjudicator Morton concluded the analysis by recounting Ms. Swick’s explanation of events, even though her counsel in oral argument did not focus on her actions but rather on the purported unreliability of the ASDs. The adjudicator also pointed out the seeming contradiction between Ms.

Swick’s lack of detail about the presence of possible medical conditions in her affidavit and counsel’s submissions that she, in essence, agreed that Ms. Swick and Constable Rekers spoke about a possible medical condition, even though this conversation was not acknowledged by Ms. Swick. [ 35 ] On the whole, the adjudicator afforded little weight to Ms. Swick’s claims that she was genuine in her attempts to blow into the ASD, instead finding that her behaviour was inconsistent with acquiescing to a proper breath demand. The adjudicator upheld the driving prohibition, vehicle impoundment penalty and fine.

Issues [ 36 ] The petitioner advanced three grounds in oral and written submissions on judicial review: 1. The adjudicator violated the duty of fairness by not fully considering the petitioner’s affidavit evidence regarding her genuine intention to submit a sample. 2. The adjudicator unfairly applied the reverse onus provision to hold that the petitioner’s affidavit evidence was insufficient and that she was required to establish that the improper operation or functionality of the ASDs was causative of the refusal. 3.

The petitioner’s affidavit evidence was unfairly allotted less weight than the officer’s evidence, despite the power imbalance in knowledge and expertise regarding the proper operation and functionality of the ASDs and the defectiveness of the officer’s evidence in that regard. The Legislative Scheme [ 37 ] In the accompanying constitutional challenge decision, I dealt extensively with the IRP regime under the MVA . I reiterate for convenience 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 underpinning

the IRP regime: at paras. 32-40. [38] The significant difference between the current IRP regime and its predecessors is that the applicant on a review bears theburden of proof.

Standard of Review [39] 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 standards ofreasonableness: 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. [40] 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 the decision-making process of adjudicative bodies with regard to both the facts and the law” (Dunsmuir, at para. 48).

This means that courts shouldnot 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. [41] 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 conclusion reachedby the adjudicator. In reviews of roadside driving prohibitions, where credibility is frequently the central issue, judges should notsubstitute 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. Analysis [42] The three grounds of review focus on different aspects of the adjudicator’s treatment of the petitioner’s evidence, much ofwhich invariably touched on Ms. Swick’s credibility.

It is useful to anchor these issues in the statutory regime which governs theadjudicator’s decision by referencing the burden of proof on an application to set aside an IRP in addition to the judge’s role uponjudicial review. [43] As noted in the passage from Kenyon, cited earlier in these reasons, it is not the role of the reviewing judge to substitute his orher own view of credibility. The assessment is whether the adjudicator’s finding of credibility, or lack thereof, is reasonable.

Thepetitioner’s submissions that the adjudicator violated the duty of fairness by not fully considering the petitioner’s affidavit evidence is, inessence, an argument suggesting the adjudicator was incorrect to find Ms. Swick was not a credible witness. I will review this evidencebelow. [44] As I observed in my reasons in Lemieux, the current version of the IRP scheme in the MVA places the burden of proof on theperson applying to set aside the IRP.

Section 215.5(1) states: The burden of proof in a review of a driving prohibition under

section 215.48 is on the person on whom the notice of driving prohibitionwas served. The burden of proof is on the civil standard, or a balance of probabilities. The petitioner’s submissions that the burden of proof wasunfairly applied such that Ms. Swick was required to establish that the ASD was functioning improperly once again engages Ms.

Swick’saffidavit evidence, which largely centres on her credibility. [45] Finally, as was the case with previous versions of the IRP scheme, the evidence tendered by the police is not to be treated ashaving a credibility advantage over the evidence or submissions tendered by the person applying to set aside the IRP: Spencer v. BritishColumbia (Superintendent of Motor Vehicles), 2011 BCSC 1311 at para. 63; Gregory v. British Columbia (Superintendent of MotorVehicles), 2016 BCSC 1192 at para. 60. [46] Since all three grounds advanced by the petitioner involve Ms.

Swick’s credibility, as examination of the constable’s evidence

and Ms. Swick’s evidence and the adjudicator’s decision on credibility is necessary. [ 47 ] The constable’s evidence consisted of the messages from both of the ASDs he used and his own observations of Ms. Swick as she blew into the device. The ASD messages indicated an insufficient flow of air into the ASD. The constable maintained that Ms. Swick may have intentionally sucked her breath in during the attempt on the first ASD. He gave her further instructions and opportunities to provide a sample on that device.

One began with what the constable described as a “good flow” but ended up with the insufficient flow reading. Two further attempts rendered similar results. The constable prepared a second ASD to ensure there was no problem with the first one. He said Ms. Swick provided two more samples, both of which ended up with the insufficient flow reading. [ 48 ] The constable did not observe Ms. Swick to have difficulty breathing or talking. She did not sound winded or out of breath or state that she had any medical conditions that would preclude her providing a sample.

After he told her she would be charged with refusing to provide a sample, however, she said she had a medical issue and her breathing was restricted. [ 49 ] For her part, Ms. Swick maintained that she was doing her best to provide samples. She made no reference to a medical condition in her affidavit. Her counsel in submissions did not appear to dispute the officer’s evidence that Ms. Swick made such a comment. Ms.

Swick in her affidavit stated that the officer told her that her breath into the ASD was “not hard enough”, which the adjudicator took as an indication that she was aware the manner in which she was providing a sample was not sufficient. [ 50 ] As a result of the discrepancy between what Ms. Swick said at roadside and her affidavit that she was doing her best to provide samples, the adjudicator stated: In para 21 of your affidavit, you state that you had “no reason to fail to follow his instructions”, referring to the Officer.

I find this statement is in direct contradiction with the undisputed evidence in the Narrative, that you claimed you had a medical issue resulting in restricted breathing. On one hand, you state that you had no reason to fail to comply with the ASD demand. On the other hand, the undisputed evidence is that you informed the Officer that your breathing was restricted, providing reasoning as to why you failed to comply with the ASD demand. Consequently, I afford your evidence less weight with respect to your stated intention with the ASDs and prefer the Officer’s evidence with respect to your blow behavior.

Ultimately, I also do not accept that your interaction with the ASDs were a genuine reflection of what the Officer had explained to you. Based on my knowledge, training and experience in this position, I understand that a suitable sample of breath for analysis is obtained when a person provides a consistent, steady flow of breath into an ASD until the device registers a result.

As a result, I do not accept that you complied with the Officer’s demand to provide a suitable sample of breath for analysis in a manner that was explained by the Officer, as the totality of evidence before me does not support such a conclusion. Moreover, the evidence before me is that you attempted to place responsibility for your actions at roadside on a medical issue, which, upon review, you have not spoken to. Collectively, the evidence before me on your behalf does not lead me to reasonably conclude that you had the genuine intention at roadside to comply with the ASD demand.

On a balance of probabilities, I accept the Officer’s evidence over yours, and find that by your improper interaction with the ASDs and the inconsistency of your explanations, you failed to comply with the ASD demand, and intended to produce that result. You have not satisfied me of the contrary. [ 51 ] As to the first ground of review advanced by the petitioner, I find no indication that the adjudicator did not fully consider the petitioner’s affidavit evidence. The adjudicator decided, however, based on the evidence before him, that Ms. Swick did not have a genuine intention to submit a sample.

That conclusion was clearly rooted in the noted inconsistency between her stated intent and her actions at roadside. [ 52 ] Finding that Ms. Swick did not have a genuine intent to blow is a decision that falls within a reasonable range of acceptable outcomes. Furthermore, even if the adjudicator did not fully consider Ms. Swick’s affidavit evidence, the decision, based as it is on the inconsistency between Ms. Swick’s actions and her affidavit, would still fall within the same reasonable range of acceptable solutions.

I cannot accede to the petitioner’s arguments on this ground. [ 53 ] The second ground of review follows a similar pattern. It was up to the adjudicator to decide the extent to which the inconsistencies in Ms. Swick’s statements undermined her credibility and how that may affect whether or not she met the burden of proof on review. This was not a case where the inconsistency was a minor one or related to a tangential issue. The conflicting statements were squarely concerned with whether or not Ms.

Swick was truly attempting to provide a breath sample, or whether some medical condition might have precluded her from doing so. The adjudicator’s finding that there was no way to rationalize the two statements with a bona fide attempt to provide a sample at roadside does not establish an unfair application of the burden of proof. More accurately, it shows that Ms. Swick was unable to convince the adjudicator on a balance of probabilities that her evidence should be preferred over that of Constable Rekers.

The adjudicator’s decision in this regard was justifiable, transparent and intelligible and clearly falls within a range of reasonable acceptable outcomes. [ 54 ] Finally, there is nothing in the decision to demonstrate that the adjudicator started from the proposition that the officer’s account of his dealings with Ms. Swick carried enhanced credibility. Rather, he examined the evidence of the investigating officer, the evidence of Ms. Swick and Ms. Swick’s counsel’s submissions and identified a contradiction between Ms.

Swick’s affidavit, wherein she stated that she intended to provide a sample at roadside, and her assertion of a breathing difficulty after her efforts to provide a breath sample were unsuccessful. That assertion was not further substantiated on the review, nor was it explained or otherwise resolved by counsel’s submissions. The adjudicator’s finding of a contradiction does not show an unfair allotment of less weight to Ms. Swick or an unfair allotment of more weight to Constable Rekers. It simply shows a balancing of evidence which ultimately did not favour Ms. Swick.

Conclusion [ 55 ] I cannot find from a review of the adjudicator’s reasons that he erred in any of the three ways advanced by counsel or that his

findings concerning credibility or the weight to be given to the evidence of the parties was unreasonable. The petition is dismissed. “Duncan J.” ________________________________ The Honourable Madam Justice Duncan