Larry Edward Lemieux Petitioner v. The Superintendent of Motor Vehicles and, 2018 BCSC 1064

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Lemieux v. British Columbia (Superintendent of Motor Vehicles), 2018 BCSC 1064 Date: 20180627 Docket: S165671 Registry: Vancouver Between: Larry Edward Lemieux Petitioner And The Superintendent of Motor Vehicles and The Attorney General of British Columbia Respondent 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 S. Leamon S. Roudette Counsel for the Respondent: A. Harlingten K.

Chewka Place and Dates of Hearing: Victoria, B.C. December 13-14, 2017 Place and Date of Judgment: Vancouver, B.C.

June 27, 2018 Table of Contents Introduction .. 3 Background .. 3 The Police Narrative . 3 The Petitioner’s Version of Events . 4 Submissions to the Superintendent’s Delegate . 5 The Decision of Adjudicator Morton . 5 The Legislative Scheme .. 6 The Standard of Review ... 7 Introduction [ 1 ] The petitioner, Larry Edward Lemieux, applies for judicial review of an adjudicator’s decision to confirm 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 April 27, 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. Lemieux’s application for judicial review of the adjudicator’s decision to uphold the driving prohibition issued to him.

Background The Police Narrative [ 3 ] Constable Anne-Marie Savard saw a grey Volvo leave O’Hare’s Bar on Steveston Highway in Richmond at 11:45 p.m. on April 26, 2016. She stopped the vehicle. The driver identified himself as Larry Lemieux. Upon inquiring into how much Mr. Lemieux had to drink, he admitted he had one drink that he finished at 11:30 p.m. [ 4 ] Constable Savard could smell liquor on Mr. Lemieux’s breath and noted that he had glassy eyes and slurred speech. She checked off the boxes on the Report to the Superintendent that she observed Mr.

Lemieux in care or control, formed her suspicion concerning alcohol in his system, and read the Approved Screening Device (“ASD”) demand, all at 23:45 hours. [ 5 ] Constable Savard administered the first test at 23:50 hours. The result was a “FAIL”. She advised Mr. Lemieux of his right to a second test and administered it at 0006 hours. The second test resulted in a “FAIL” as well. The constable served the IRP on Mr. Lemieux and arranged for his vehicle to be towed for impoundment. The Petitioner’s Version of Events [ 6 ] Mr.

Lemieux swore an affidavit on May 13, 2016 in support of his application for a review of the IRP. He stated that he arrived at O’Hare’s Pub at 9:00 p.m. He ordered one beer when he arrived, a 16-ounce pint of Canadian. He ordered a second one, but did not specify at what time, and then ordered a third one at 11:30 p.m. Mr. Lemieux said he only drank half of the third beer. [ 7 ] Mr. Lemieux decided to leave the pub just before 11:45 p.m. He paid his bill, leaving about half of the last beer in his glass. He took one sip of it before leaving the pub and getting in his vehicle.

He pulled out of the parking lot onto Railway Avenue and was immediately stopped by police. He estimated less than a minute had passed since his last sip of beer. [ 8 ] The police officer who approached him, Constable Savard, asked for his driver’s licence and registration and asked when he had his last drink. Mr. Lemieux responded it was at 11:30 p.m. Mr. Lemieux deposed in the affidavit provided to the adjudicator: I did not intend to be untruthful with Constable Savard when she asked the time of my last drink. I had ordered my last drink at 11:30 p.m. This is why I told her that.

I did not realize at the time that she needed to know the last time I took a sip of alcohol. I did not think it was important to provide that time. I also did not mean to deceive the officer by saying that I had one drink. She asked when I had my last drink, and I said “I had one at 11:30”. I did not mean that I had my last sip and I did not mean that I only had one. I did not tell Constable Savard that I had taken a sip of beer before leaving the pub. I did not think it mattered. I thought one sip of beer could not make any difference.

Had I know that the time I last had a sip of alcohol was important to getting a reliable reading on the machine, I would have told Constable Savard that I had just finished a drink, less than a minute earlier. [ 9 ] Mr. Lemieux was shocked when he failed the first ASD test. He understood that a second test would only be used if it could benefit him. He failed the second test. [ 10 ] Mr. Lemieux deposed that upon consideration of what happened that evening, he learned about the effects of mouth alcohol and was certain his last drink was less than 15 minutes from the time of his first ASD test.

He maintained that at no time did the constable explain to him that the time of his last drink could have an impact on the test. Had he known this, he would have told the constable he had just taken a drink before pulling out of the parking lot. Submissions to the Superintendent’s Delegate [ 11 ] The submissions to the Superintendent’s delegate, Adjudicator Morton, were lengthy and transmitted by facsimile in several batches on May 13, 2016. The time stamp on the May 13 submissions indicates they were not necessarily sent (or received) in a logical sequence.

An indication on the front of the documents concerning the sequence in which they are to be read would have been of some assistance in discerning the logic and flow of the submissions. [ 12 ] The submissions of counsel related to several general topics: the credibility of the police officer; whether or not the Report to Superintendent was properly sworn; a request for further disclosure of documents; and a further submission that the Report to the Superintendent was not properly sworn. [ 13 ] Counsel also faxed Mr. Lemieux’s affidavit to RoadSafety BC on May 13. [ 14 ] On May 16 counsel for Mr.

Lemieux faxed a three-page document entitled “Superintendent’s Report on Calculating Blood Alcohol Concentration (BAC)”, indicated she would rely on it in the oral hearing. [ 15 ] On May 26, counsel wrote in response to the Notice of Extension issued by the adjudicator on May 18, notifying counsel that he

would not render his decision in the review hearing within the statutorily prescribed time but would send a decision by June 1. The letterwas a lengthy objection to the extension. The Decision of Adjudicator Morton [16] The adjudicator’s reasons are divided into three sections: an Introduction, Preliminary Matters and Issues. [17] The Introduction summarized the date of service of the IRP, the burden of proof on an application for review, the documentsdisclosed and the six grounds of review selected on the application for review.

The adjudicator noted that the submissions onlyaddressed one of the six grounds: “The ASD registered a fail, but my blood alcohol content was less than 0.08 (80 milligrams of alcoholin 100 millilitres of blood).” I note parenthetically that, while counsel is entitled to pursue every legally available avenue available tothem in furthering their client’s interests, counsel should endeavor to hone in on the most relevant legal or evidentiary issues wherepossible.

It is preferable to avoid transmitting a mass of submissions to adjudicators or judges which are not relevant to what is ultimatelybefore the decider of a particular issue. [18] The Preliminary Matters

section canvassed counsel’s submissions on assessing credibility; a violation of procedural fairness dueto a lack of disclosure of the police case prior to applying and paying for a review hearing; an allegation that the Report toSuperintendent was not properly sworn; institutional bias; lack of institutional independence; the effect of Charter violations on policecredibility; and the statutory pre-requisites for an ASD demand. The adjudicator dealt with each issue in turn, either disagreeing withcounsel’s

interpretation of the authorities or finding that the issues were not within his statutory jurisdiction on a review. [19] The Issues

section dealt with whether Mr. Lemieux had established that while the ASD registered a fail, his blood alcoholcontent was less than 0.08. [20] I will have more to say about the adjudicator’s reasons later in my judgment. The Legislative Scheme [21] 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. [22] The significant difference between the current IRP regime and its predecessors is that the applicant on a review bears theburden of proof.

The Standard of Review [23] 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: 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. [24] 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. [25] 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 one

respect does not necessarily lead to the conclusion that the reasoning as a whole is unreasonable. It is necessary to consider the reasons as a whole and determine whether the flaw is central to the conclusion. [ 26 ] Counsel for the petitioner summarized the issues on review into three broad areas: 1. The adjudicator made an unreasonable decision in his consideration of the Charter issues raised by the applicant; 2. The adjudicator made an unreasonable decision in his assessment of credibility, and in doing so applied a manifestly flawed reasoning process; 3.

The adjudicator did not reasonably interpret the statute in relation to requiring him to revoke if the result on the basis of which the prohibition was served was not reliable. [ 27 ] In my view, the adjudicator’s decision on credibility is determinative of this matter. [ 28 ] In her oral submissions to the adjudicator, counsel for Mr. Lemieux provided a calculation of his estimated BAC based on his drinking pattern. The result was lower than 0.08 and thus inconsistent with the FAIL results shown on the two ASDs.

The drinking pattern relied upon by counsel was two 16-ounce pints of beer and one-half 16-ounce pint of beer, as Mr. Lemieux stated in his affidavit. [ 29 ] The adjudicator said: …I find it important to note, however, [Ms. Lee] has not factored in the last “sip” of beer you state you consumed immediately prior to leaving the pub. Moreover, I find that as per your affidavit, your version of events with respect to your drinking pattern is not entirely consistent. In para 4 of your affidavit, you state that you arrived at the pub at 9:00 pm and ordered your first beer.

You state you then ordered a second one, not providing a time of when this occurred. You then state you ordered your third beer around 11:20 pm, drinking only half. In para 9 of your affidavit, however, you state that you ordered your last drink at 11:30 pm. I find there is an inconsistency of 10 minutes in your version of events with respect to your last drink. … I do not find the evidence provided accurately supports the conclusion she has drawn. Consequently, I reject Ms.

Lee’s BAC calculation attributed to your drinking pattern, as she has not factored in the entirety of your consumption nor has she addressed the inconsistency in when you ordered your last drink. [emphasis added] [ 30 ] On my review of the record, the only part of Mr. Lemieux’s consumption that Ms. Lee did not factor into her submissions was his last sip before leaving the pub. The adjudicator appears to reject Mr. Lemieux’s evidence that it was a sip, or an inconsequential amount of alcohol, without explaining why, yet gave it great significance in rejecting Ms. Lee’s BAC calculation. If, in fact, Mr.

Lemieux had a sip just prior to leaving the pub, it is highly unlikely this would have any appreciable impact on his BAC calculation, apart from the effects of mouth alcohol. [ 31 ] The adjudicator also placed great significance on the inconsistency between Mr. Lemieux’s statements of when he ordered his last drink, whether it was 11:20 or 11:30. Given the short period of time, I have further concerns that Ms.

Lee’s calculation was rejected outright, rather than having its weight be considered with the additional caveats that it may be less reliable based on the noted inconsistencies. [ 32 ] The level of scrutiny the adjudicator applied to Mr. Lemieux’s version of events and Ms. Lee’s submissions relating to them is in stark contrast to the adjudicator’s approach to a similar discrepancy in the investigating officer’s version of events. [ 33 ] There was a five-minute gap between when the officer read the ASD demand to Mr. Lemieux and when he registered a FAIL on the ASD.

The gap is documented in the Report to the Superintendent. The time of last drink is noted to be at 23:30 hours. In response to the question “Was there a delay in making the demand or administering the first ASD test?” the officer checked the “NO” box. The form then provides an officer with the opportunity to explain a “YES” answer in narrative form. The investigating officer did not do so. [ 34 ] I note that Constable Savard’s narrative is exceedingly brief.

While there is no obligation for police officers to write great treatises upon issuing IRP’s, Constable Savard’s narrative is so skeletal that it provides little guidance on what happened at the scene of events. While it is questionable as to whether 5 to 10 minutes may constitute a delay, the ease with which Constable Savard may have accounted for this time lapse in the narrative and failed to do so must be taken into account in this particular factual matrix.

It may be tempting for adjudicators, given their workload and the amount of materials submitted to them, to disproportionally rely on officer narratives to guide their decisions. However, the duty of fairness adjudicators owe to all participants in the IRP process indicates that all submissions and evidence must be considered and none given a presumptive credibility or weight advantage. [ 35 ] The adjudicator made only cursory reference to this glaring discrepancy in the officer’s documentation and it was effectively ignored as the adjudicator dismissed the Charter argument to which it related.

No comment was made to deal with why the delay did not affect the possible calculation of Mr. Lemieux’s BAC calculation. In contrast, the adjudicator gave significant effect to a 10-minute discrepancy in Mr. Lemieux’s account of events. [ 36 ] Under the latest version of the IRP scheme, the applicant on a review bears the burden of proof in having a prohibition set aside. It is more important than ever for adjudicators to apply a fair and consistent level of scrutiny to the submissions of an applicant on review.

In the event that an adjudicator does not agree with submissions of the petitioner, it is even more important to identify when evidence may simply be factored into the balancing equation, or dismissed outright due to possible critical defects. [ 37 ] While it is not for a judge on judicial review to substitute his or her view of credibility for that of the adjudicator, intervention is permissible when the result reached by the adjudicator was unreasonable.

Notwithstanding that the adjudicator relied on the second ASD result to uphold the IRP, the decisions that led to this point were unreasonable. [ 38 ] I find the adjudicator subjected Mr. Lemieux’s version of events and Ms. Lee’s BAC calculations to a level of scrutiny that was

unreasonable in the circumstances and as a result failed to fairly consider whether, on the basis of his stated consumption, his BAC was lower than 0.08 at the relevant time. Further, I have concerns that Constable Savard’s evidence may have been given additional weight that it was not entitled to have upon review. In either event, it is impossible to reach a reasonable result when the adjudication process is marred by such deficiencies. [ 39 ] The decision of the adjudicator is set aside and a new hearing before a different adjudicator is ordered. “Duncan J.” ________________________________ The Honourable Madam Justice Duncan