Administrative law – Motor vehicles – Suspension of driver’s licence – Judicial review application – Procedural requirements
Higgins v. British Columbia (Attorney General),  B.C.J. No. 545, British Columbia Supreme Court, March 14, 2002, E.R.A. Edwards J.
Higgins was served with a Notice of Driving Prohibition by a police officer on April 7, 2001 and completed an application to review this driving prohibition on April 13, 2001. On April 17, 2001, the Office of the Superintendent made disclosure of documents and a hearing was set for April 25, 2001.
Higgins submitted that the original Notice of Driving Prohibition was a nullity as the officer checked both boxes on the form. One box indicated that the officer had grounds to believe that Higgins had a blood alcohol concentration over 80 mg/100 ml of blood. The other box indicated that Higgins had failed or refused to provide a breath sample without reasonable excuse. Higgins relied on the decision on Lang v. British Columbia (Superintendent of Motor Vehicles),  B.C.J. No. 2452, where Bouck J. held a Notice to be a nullity on the basis that neither box was checked and, therefore, the officer had failed to particularize the precise reason for issuing the Notice. In the case at bar, the court rejected this argument, as the officer had reasonable and probable grounds to believe that Higgins had contravened both s. 94.1(1)(a) and (b) of the Motor Vehicle Act, R.S.B.C. 1996, c. 318. Therefore, both boxes on the Notice were applicable.
The court held that the burden of proof applicable to the delegate of the Superintendent of Motor Vehicles (the “Adjudicator”) when the Adjudicator confirmed the administrative driving prohibition of Higgins was the civil, not the criminal, burden.
The court first considered whether or not the Adjudicator had correctly considered the issue of whether Higgins’ blood alcohol concentration exceeded 80 mg in 100 ml of blood. The court held that the Adjudicator had incorrectly cited Duthie v. British Columbia (Superintendent of Motor Vehicles),  B.C.J. No. 3121 for the principle that one breath sample is insufficient evidence to establish that an individual’s blood alcohol concentration exceeded the limit. The police officer in the case at bar had only obtained one successful test of Higgins. The court noted that under s. 94.5(1)(a) of the Act, the Adjudicator must consider “any relevant sworn or solemnly affirmed statement and any other relevant information”. The court reviewed the report provided by the arresting officer which stated that Higgins admitted drinking a couple of beers between ten o’clock and midnight and had a moderate odour of alcohol on her breath, flushed face and bloodshot eyes. The court stated that, while this evidence did not establish blood alcohol concentration, it tended to rebut the suggestion that the machine used to take the single breath sample had wrongly detected blood alcohol. Therefore, the court held that, in the absence of any relevant information or evidence challenging the validity of the reading resulting from the initial breath sample, there was evidence upon which the Adjudicator could be satisfied on a balance of probabilities that Higgins’ blood alcohol concentration exceeded the limit.
The court further held that the Adjudicator had sufficient evidence to be satisfied on balance of probabilities that there was a contravention of s. 84(6)(1)(b) where Higgins had provided a first breath sample but then refused to provide a second breath sample. The court held that under the authority of Duthie, supra, the failure to provide a second breath sample was a “failure to comply with a breath sample demand without reasonable excuse” pursuant to that section.
In the result, the court held that the matter should be reconsidered by the Adjudicator and specifically directed that at the re-hearing, the Adjudicator may make findings of fact in relation to both ss. 94.6(1)(a) and (b).
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