Edward Wyborn Petitioner v. The Superintendent of Motor Vehicles and, 2018 BCSC 1012

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Wyborn v. British Columbia (Superintendent of Motor Vehicles), 2018 BCSC 1012 Date: 20180620 Docket: S165898 Registry: Vancouver Between: Edward Wyborn Petitioner And The Superintendent of Motor Vehicles and The Attorney General of British Columbia Respondents Before: The Honourable Madam Justice Duncan Corrected Judgment: The place of hearing on the title page was corrected on June 29, 2018 Reasons for Judgment Counsel for the Petitioner: K. Lee Counsel for the Respondents: A. Harlingten K. Chewka Place and Date of Hearing: Victoria, B.C.

December 15, 2017 Place and Date of Judgment: Vancouver, B.C. June 20, 2018 Table of Contents Introduction .. 3 Background Facts .. 3 The police officer’s version of events . 3 Mr. Wyborn’s version of events . 5 Decision of the Superintendent’s Delegate .. 7 The Legislative Scheme .. 7 The Standard of Review ... 7 Issues .. 9 Issue 1 – the assessment of Mr. Wyborn’s credibility in relation to his stated drinking pattern 9 Issue 2 – the adjudicator’s assessment of Mr.

Wyborn’s general credibility . 11 Issue 3 – the adjudicator’s refusal to consider the disclosure issue . 12 Issue 4 – the adjudicator’s refusal to consider good character evidence . 14 Conclusion .. 16

Introduction [ 1 ] The petitioner, Edward Wyborn, 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 May 25, 2016. [ 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. British Columbia (Superintendent of Motor Vehicles , 2018 BCSC 863 . These reasons deal with Mr.

Wyborn’s application for judicial review of the adjudicator’s decision to uphold the driving prohibition issued to him. Background Facts The police officer’s version of events [ 3 ] At 8:21 p.m. on May 25, 2016 Constable Schuhmacher of the Summerland RCMP received information from dispatch concerning a possible impaired driver. The information related to a yellow Penske truck bearing BC licence plates KB2029, southbound on Highway 97 near Peachland.

Additional updates described the same vehicle near Summerland. [ 4 ] Constable Schuhmacher noticed a five ton yellow Penske cube truck with a similar licence plate - KD2029 - parked at Bentley Road and Highway 97 in Summerland. He saw a male outside the vehicle. The male returned to the driver’s compartment of the truck and was in the process of leaving when the constable instructed him to remain where he was. [ 5 ] At 8:32 p.m. the constable approached the male driver, advised him he was stopped on suspicion of impaired driving and asked for his driver’s licence.

Constable Schuhmacher then asked the driver to get out of his vehicle. The man fumbled while trying to locate his driver’s licence and said his name was Ed Wyborn. The constable noted his speech was slurred. Constable Schuhmacher asked the man where he was coming from. Mr. Wyborn said he was coming from Kamloops and was in the process of moving to Penticton. He said he had come through Kelowna and Peachland. [ 6 ] Constable Schuhmacher detected a strong odour of liquor on Mr. Wyborn’s breath and noticed his speech was slurred, his eyes were glossy, he appeared nervous and he was unsteady on his feet.

At 8:35 p.m. the constable made a breath demand to Mr. Wyborn, who said he understood. The constable asked Mr. Wyborn when he finished his last alcoholic drink. Mr. Wyborn said “a month ago”. The constable could smell liquor on Mr. Wyborn’s breath and explained to him the potential of an artificially high reading due to mouth alcohol if he was not truthful about the time of his last drink. Mr. Wyborn repeated “it was a month ago.” [ 7 ] Mr. Wyborn made four attempts at providing a breath sample. The first three attempts resulted in a “Flow INS” message, indicating Mr. Wyborn’s breath flow was inconsistent.

After the third attempt Constable Schuhmacher replaced the mouth piece and Mr. Wyborn provided a sufficient sample of breath which resulted in a “FAIL” reading on the ASD. The constable showed Mr. Wyborn the results. Constable Schuhmacher believed Mr. Wyborn’s ability to drive a motor vehicle was impaired by alcohol and provided him with his s. 10(

a) and (

b) Charter rights. Mr. Wyborn stated he understood. [ 8 ] Constable Schuhmacher conducted queries of Mr. Wyborn’s background, presumably on the CPIC system, and determined that he would be a suitable candidate for an IRP. He advised Mr. Wyborn he would be discontinuing the impaired driving investigation and proceeding administratively under the MVA . Mr. Wyborn said he understood. [ 9 ] At 8:48, Constable Schuhmacher read Mr. Wyborn the Official Notice of Prohibition and the Right to Second Test.

The constable explained the right to a second test on a different device and that the lower of the two results would prevail. Mr. Wyborn said he understood and would like to provide a second sample. [ 10 ] Constable Schuhmacher used a different ASD. Mr. Wyborn made four unsuccessful attempts to provide a breath sample. The device reading was “Flow INS”. Constable Schuhmacher felt it was obvious Mr. Wyborn was refusing to provide an appropriate sample. For the fifth try, Constable Schuhmacher changed the mouthpiece. Mr. Wyborn provided a “VOID” sample. Constable Schuhmacher determined Mr.

Wyborn was trying not to provide an appropriate sample and discontinued further attempts. [ 11 ] At 9:30 p.m. Constable Schuhmacher served Mr. Wyborn with a 90-day IRP and Vehicle Impoundment form and seized his licence. Mr. Wyborn then told the constable that he had lied: he was not moving but was at work transporting liquor for his employer. [ 12 ] Constable Schuhmacher later contacted two witnesses who had called West Kelowna RCMP about the yellow truck. One witness reported the vehicle weaving in its own lane and at one point nearly running another vehicle off the road.

The witness also saw the truck stop twice. Each time the driver got out of the vehicle and walked around, then got back in. A second witness reported erratic driving as well. Mr. Wyborn’s version of events [ 13 ] Mr. Wyborn based his review submissions solely on the contention that he did not have a blood alcohol concentration (“BAC”) greater than 0.08 within three hours of driving or while having care and control of a motor vehicle. [ 14 ] Mr. Wyborn started work at 7:30 a.m. on the day he was stopped. He made deliveries to Revelstoke and then drove back to Summerland.

He bought a six pack of beer, “for simple reasons of job boredom”. He consumed one beer at 1:00 p.m., one beer at 2:00 p.m., a third beer at 7:00 p.m. and a fourth at 8:00 p.m. on an empty stomach. When he was pulled over he was very tired from his long day, then became nervous. He was also tired because he had a two-month old baby.

[ 15 ] Mr. Wyborn acknowledged that he denied having any alcohol to drink when asked by the officer. He said the truck he was driving was used to deliver wine and beer and it constantly smells of liquor. Mr. Wyborn said the officer did not lean in to smell his breath and did not report smelling alcohol on his breath. Mr. Wyborn provided his height and weight and said based on his drinking pattern he would have at most .01-.02 milligrams of alcohol/100 milligrams of blood. [ 16 ] Mr.

Wyborn stated he was confused by the constable administering the fourth sample, because some of the samples were taken inside the police car and some outside. He was nervous about losing his licence. His nervousness combined with missing his supper caused him to “verp”, or half vomit and half burp, moments before the fourth sample that resulted in a fail reading. He said the officer was busy purging the ASD and it was possible he did not notice Mr. Wyborn “verp”. Mr. Wyborn did not disclose it due to embarrassment and was not aware it would have a negative result. [ 17 ] Mr.

Wyborn also noted that his employer uses several Penske Rental trucks which likely all had similar licence plates. This appears to have been an attempt to suggest he might not have been the driver complained of, yet Mr. Wyborn did not dispute that he might have been a traffic hazard due to his exhaustion. [ 18 ] Mr. Wyborn stated in his submissions that he attended the Summerland RCMP detachment on May 31, 2016 and tried to obtain more information from Constable Schuhmacher, who refused to provide disclosure beyond what had been forwarded to the Superintendent of Motor Vehicles. Mr.

Wyborn observed that Constable Schuhmacher appeared to have minimal experience as a peace officer and queried whether the officer’s observations were just as consistent with Mr. Wyborn’s exhaustion as with alcohol consumption. Mr. Wyborn also pointed out there were no times documented for some of the breath samples and that the officer should have waited 15 minutes to take a sample from him, given that he might have recently consumed alcohol. Decision of the Superintendent’s Delegate [ 19 ] The adjudicator, C. Arnsdorf, reviewed the evidence provided by the officer as well as Mr. Wyborn’s written statement.

She stated the issue on review as: “Did the ASD register a “FAIL” but your BAC was less than 80 mg%?” [ 20 ] Adjudicator Arnsdorf acknowledged Mr. Wyborn’s estimate of his BAC at the time he was stopped but noted he had not provided details about the formula used. She did not find the evidence he provided sufficiently demonstrated that his BAC was less than 80 mg% even though the ASD registered a fail. [ 21 ] The adjudicator found that Mr. Wyborn’s untruthfulness about what he was doing with the truck and when he had his last drink led to questions about the reliability of his evidence on the whole.

She found it unlikely that the officer would not have noticed Mr. Wyborn’s regurgitation issue just before the FAIL result, given that he was holding the device and interacting with Mr. Wyborn at close proximity. There was no other evidence to show that the FAIL result was obtained by anything other than alcohol in the body and Mr. Wyborn had not satisfied the adjudicator that his BAC was less than 80 mg% even though the ASD registered a FAIL. The Legislative Scheme [ 22 ] 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. [ 23 ] The significant difference between the current IRP regime and its predecessors is that the applicant on a review bears the burden of proof. The Standard of Review [ 24 ] 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 of 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 of acceptable and rational solutions.

A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [ 25 ] 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 should not substitute their own reasons, but they may, if they find it necessary, look to the record for the purpose of assessing the reasonableness of the outcome. [16] Reasons may not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have

preferred, 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. [26] 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.

Issues [27] Counsel for the petitioner stated four issues in her written submissions: 1. the adjudicator made an unreasonable and manifestly flawed decision in her assessment of credibility at the roadside pertaining tothe petitioner’s stated drinking pattern; 2. the adjudicator made an unreasonable and manifestly flawed decision in her assessment of credibility pertaining to thepetitioner’s mouth alcohol contamination; 3. the adjudicator made an unreasonable decision in refusing to consider evidence of the petitioner’s request for disclosure of thepolice evidence and the officer’s refusal to disclose the evidence; and 4. the adjudicator made an unreasonable decision in refusing to consider evidence of the petitioner’s good character and need todrive.

Issue 1 – the assessment of Mr. Wyborn’s credibility in relation to his stated drinkingpattern [28] Mr. Wyborn provided his drinking pattern to the adjudicator along with his calculation of what his BAC would have been,based on that pattern. Mr. Wyborn’s calculation of his BAC was significantly below 80 mg%. The adjudicator said in her reasons thatMr.

Wyborn had not provided the formula he used to arrive at his estimated BAC and she found he had not sufficiently demonstrated hisBAC would have been below 80 mg%. [29] On November 2, 2015, the MVA was amended to permit the Superintendent or his delegates, on their own initiative, to considervarious technical materials. Sections 215.49(5) and (6) read as follows:

(5) In a review of a driving prohibition under

section 215.48, the superintendent may, on the superintendent’s own initiative,consider technical materials that, in the opinion of the superintendent, might assist the superintendent to determine issues raised by theapplicant.

(6) In subsection (5) “technical materials” means technical, medical or scientific evidence or information and includes (

a) manuals and training materials relating to, and documents provided by the manufacturer of, an approved screening device, (

b) summaries of technical, medical or scientific evidence or information that are prepared by the superintendent, and (

c) documents that are prescribed or in a prescribed class of documents. [emphasis added] [30] Ms. Lee maintains that this was a case in which the adjudicator should have used the technical materials provision in the MVAto decide Mr. Wyborn’s case. [31] The technical materials

section is drafted in permissive rather than mandatory language. It is not drafted to operate as a “fail-safe” BAC calculator to be consulted by an adjudicator in every case; rather, it is in the discretion of the adjudicator whether or not toconsider technical materials. This is to be contrasted with what an adjudicator is statutorily required to consider on a review: 215.49(1) In a review of a driving prohibition under

section 215.48, the superintendent must consider (

a) any relevant written statements or evidence submitted by the applicant, (

b) the report of the peace officer forwarded under

section 215.47 (d), (

c) a copy of the notice of driving prohibition, (

d) 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, (

e) in the case of an oral hearing, any relevant evidence given or representations made at the hearing, and (

f) in the case of a second or subsequent prohibition, as described in

section 215.43 (4) and (5), the person's driving record. [emphasis added] [32] Given the permissive language in the legislation concerning the use of technical materials by an adjudicator, it would beexceedingly rare for a judge on judicial review to quash a decision based on a finding that an adjudicator’s failure or refusal to consultthe technical materials was unreasonable.

I was not directed to any authority for the proposition that a judge on judicial review, under thereasonableness standard, has the jurisdiction to order a new hearing, or a re-hearing, with a condition that the adjudicator considertechnical materials. [33] Based on the record before me, neither the adjudicator’s decision to give little weight to Mr. Wyborn’s BAC calculations, northe fact that the adjudicator did not exercise her discretion to consult the technical materials provided for in her home statute, could beconsidered unreasonable. Issue 2 – the adjudicator’s assessment of Mr.

Wyborn’s general credibility [34] Mr. Wyborn admitted in his submissions to the adjudicator that he lied to Constable Schuhmacher about the time of his lastdrink. The credibility of Mr. Wyborn’s submission that he “verped” and was too embarrassed to admit it and the officer might not havenoticed it had to be weighed against the officer’s emphasis on the importance of being truthful about the time of his last drink.Mr. Wyborn also initially lied to Constable Schuhmacher about what he had been doing that day, but later admitted he had been working,rather than moving. [35] Ms.

Lee submits that the adjudicator erred in her treatment of Mr. Wyborn’s credibility concerning his submission that he had“verped” but did not tell the police officer. Counsel maintains that Mr. Wyborn’s admitted lies were simply not relevant to his credibilitygenerally, or to his assertion that he had “verped”. [36] A prior inconsistent statement may be useful in determining the credibility of a witness’s assertion. Whether inconsistencieshave any impact on credibility is up to the judge or adjudicator to consider. [37] Mr.

Wyborn’s prior inconsistent statements provided the adjudicator with an entirely proper basis for weighing his credibility.To suggest that Mr. Wyborn’s lies were not relevant to his credibility generally is a remarkable proposition. [38] There is nothing unreasonable about the adjudicator’s decision to give little weight to Mr. Wyborn’s submissions regarding thepresence of mouth alcohol in the circumstances before her. Issue 3 – the adjudicator’s refusal to consider the disclosure issue [39] Mr. Wyborn attempted to obtain further disclosure from Constable Schuhmacher after he was issued the IRP.

He wasunsuccessful. The adjudicator addressed this in her reasons: You stated that you were not able to obtain the information you wanted from the police detachment when you attended there. Iacknowledge your statements on this matter. However, they are not issues I have the authority to consider. If you have issues with theway the police handled your requests, you may wish to direct your concerns to the appropriate police authority.

You also stated that the officer did not provide that he is a qualified ASD operator and you listed several different documents the officerdid not provide, which you feel he should have. However, I find it important to note that there is no requirement under the Act for him todo so and he has submitted the documentation which was required of him. [40] Mr. Wyborn was not charged with a criminal offence, which would entitle him to disclosure of a broad range of materials fromthe police.

The IRP regime does not mandate adjudicators to obtain further disclosure from police, because it does not engage the samejeopardy as a Criminal Code impaired driving charge. [41] Mr. Justice Punnett canvassed disclosure issues in Walji v. British Columbia (Superintendent of Motor Vehicles), 2016 BCSC1906. In that case, the investigating officer created an audio-visual recording of his interactions with the petitioner. The recording wasnot produced to either the petitioner or the adjudicator, although its existence was disclosed in the material provided to the petitioner’scounsel by the Superintendent.

The petitioner maintained that failure to require production of the audio-visual material was demonstrablyunreasonable and the resulting reasoning process was manifestly flawed. Punnett J. observed: [10] The petitioner submits that there was a duty of disclosure as described in R. v. Stinchcombe, (SCC), [1991] 3S.C.R. 326, respecting the audio-visual recording.

The short answer to this submission is that Stinchcombe obligations arise in the“context of criminal proceedings where innocence of the accused was at stake”; as innocence is not at stake in the administrative contextthe Stinchcombe principles do not apply (May v. Ferndale Institution, 2005 SCC 82 at paras. 89-93). [11] Although the obligation for disclosure and production of relevant evidence is clear in the criminal context, the IRP scheme isdistinguishable from a criminal prosecution and conviction. In Wilson v.

British Columbia (Superintendent of Motor Vehicles), 2015 SCC47, the Court said this with respect to s. 215.43(3.1) of the MVA: [33] … [I]t has long been recognized that regulatory legislation, such as the [Motor Vehicle Act], differs from criminal legislation inthe way it balances individual liberties against the protection of the public. Under regulatory legislation, the public good often takes on

greater weight. In R. v. Wholesale Travel Group Inc., (SCC), [1991] 3 S.C.R. 154, at p. 219 this Court held that [r]egulatory legislation involves a shift of emphasis from the protection of individual interests and the deterrence and punishment of actsinvolving moral fault to the protection of public and societal interests.

While criminal offences are usually designed to condemn andpunish past, inherently wrongful conduct, regulatory measures are generally directed to the prevention of future harm through theenforcement of minimum standards of conduct and care. [34] These comments are particularly apt in the case of regulatory legislation involving roadside driving prohibitions: R. v. Gordon,2002 BCCA 224, 100 B.C.L.R. (3d) 35. Roadside driving prohibitions are a tool to promote public safety. As such, the legislationnecessarily places greater weight on this goal.

Unlike the criminal law regime, persons who register a “Warn” or “Fail” under theregulatory regime do not end up with a criminal record, nor are they exposed to the more onerous sanctions under the criminal law,including the risk of incarceration. In short, regulatory legislation does not share the same purpose as the criminal law, and it would be amistake to interpret it as though it did. … [42] The adjudicator correctly pointed out that she did not have the authority under her statutory mandate to consider Mr.

Wyborn’scomplaints about disclosure and that the officer submitted the documentation which was required of him by statute. The adjudicator’sdecision on this issue was reasonable. Issue 4 – the adjudicator’s refusal to consider good character evidence [43] As noted earlier in these reasons, s. 215.49(1)(

a) of the MVA prescribes that on a review of a driving prohibition unders. 215.48, the superintendent must consider any relevant written statements or evidence submitted by the applicant. Ms. Lee submits thatthe adjudicator erred in failing to consider Mr. Wyborn’s submission about his clean driving record, which was evidence of his goodcharacter. [44] The adjudicator’s reasons do not mention Mr. Wyborn’s clean driving record.

The question is whether she was required to takehis clean driving record into account as evidence of good character which might be probative of an issue on the review. [45] Good character evidence was considered in Hathaway v. British Columbia (Superintendent of Motor Vehicles), 2013 BCSC938. The petitioner was issued an IRP for failing or refusing to provide a breath sample. She denied having any alcohol in her systemwhen she was stopped by police.

On review, her counsel submitted her driving record and evidence of good character in statementsprovided by several individuals, one of which attested to the petitioner’s advocacy against drinking and driving. [46] The adjudicator did not consider herself authorized to consider the petitioner’s personal circumstances or driving history anddismissed the application to set the IRP aside. [47] On judicial review, Mr.

Justice Johnston found the adjudicator was “simply wrong” to find she was not authorized to considerthe evidence of good character set out in the petitioner’s statutory declaration and in the evidence from her friend confirming thepetitioner’s advocacy against drinking and driving: [18] By leading this evidence, the petitioner put her character in issue, which she had the right to do: see, Plester v. Wawanesa Mutualinsurance Company, (ON CA), 269 D.L.R. (4th) 624, [2006] O.J. No. 2139, at paras. 41-44 (Ont. C.A.).

On thereasoning in Plester, if one can put character in issue in civil proceedings in order to defend against an allegation that would amount to acrime if made in criminal proceedings, I can see no good reason to prevent the petitioner here from putting her character in issue on herapplication 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 beenconsidered, not as evidence that the petitioner did or did not drive with impermissible quantities of alcohol in her system, or that shefailed or refused to provide a breath sample, but as evidence bearing on the likelihood of either.

While it was open to the adjudicator toreject that evidence, it was not open to her to refuse to consider it. [48] I find the circumstances of Mr. Wyborn’s case are more closely aligned with those in Erickson v. The Superintendent of MotorVehicles (24 November 2017), Vancouver S169127 (B.C.S.C.). The petitioner argued on judicial review that the adjudicator disregarded,as irrelevant, evidence of his good character. That evidence consisted of the petitioner’s submission that this was his first drunk drivingoffence, that he would lose his job without his licence, and that he had learned his lesson.

The adjudicator referred to the submissionabout hardship but said the petitioner’s personal circumstances were not relevant to the grounds for review. [49] Bernard J. considered Hathaway and concluded: [22] I am not persuaded that Hathaway supports Mr. Erickson’s position in the instant petition. In Hathaway, there was no question:(

a) that Ms. Hathaway put her good character in issue by tendering evidence from herself and a friend to the effect that she was not thesort of person who would drink and drive; and (

b) that this character evidence was relevant to whether she might have had reason toevade the provision of breath samples or not. [23] In the instant case, the penultimate paragraph of Mr. Erickson’s submission did not, in my view, put Mr. Erickson’s character inissue. The clear purpose of this paragraph was to explain to the adjudicator the hardship of the prohibition to Mr. Erickson and to assurethe adjudicator that it had already had its deterrent effect, in the hope that this information might have some bearing on the adjudicator’sdecision.

This is how the adjudicator read the submission, and there has been no suggestion at this review that evidence of theconsequences of the prohibition and the assurances of future good behaviour were not properly rejected as irrelevant. [24] Even if I were wrong in this regard, and this aspect of Mr. Erickson’s submission fell within the ambit of character evidence, Iam satisfied that the adjudicator did not refuse to consider it; rather, she properly rejected it as so lacking in probative value in relation tothe live issues that it was essentially irrelevant.

Notably, the evidence is clearly distinguishable from the sort that was tendered in

Hathaway . [ 50 ] I do not find that Mr. Wyborn put his good character in issue by tendering his clean driving record, thereby triggering a requirement for the adjudicator to deal with the evidence. The lack of any previous offences is not relevant to any of the issues the adjudicator had to decide, including credibility. Mr. Wyborn cannot advance the proposition that he is a man of good character and thus not likely to have been drinking and driving, because he admitted to doing precisely that.

He simply “rolled the dice” on whether his consumption of beer over the course of the day would exceed permissible levels if he was stopped by police. [ 51 ] Even if Mr. Wyborn’s character were in issue, it is difficult to gauge how probative his lack of previous driving infractions would be in relation to whether the IRP was properly issued. The adjudicator’s decision was not unreasonable. Conclusion [ 52 ] I find the adjudicator acted reasonably and within her statutory mandate in dismissing Mr. Wyborn’s application to set aside the IRP.

This petition is dismissed. “Duncan J.” ____________________________________ The Honourable Madam Justice Duncan