Mr. Helgesen was served with a 90-day administrative driving prohibition after refusing to provide a breath sample. Mr. Helgesen appealed to an adjudicator arguing that he had a reasonable excuse. The adjudicator disagreed and Mr. Helgesen petitioned for judicial review. The court concluded that the adjudicators decision was not patently unreasonable and the judicial review was dismissed.

Administrative law – Motor vehicles – Refusal of breathalyser test – Suspension of driver’s licence – Adjudication – Judicial review application – Standard of review – Not patently unreasonable

Helgesen v. British Columbia (Superintendent of Motor Vehicles), [2002] B.C.J. No. 2238, British Columbia Supreme Court, October 3, 2002, Macaulay J.

Mr. Helgesen was driving a motor vehicle when a police officer pulled him over and detained him on a suspicion of impaired driving. Upon arriving at the police station, the officer demanded, pursuant to section 254 of the Criminal Code, that Mr. Helgesen provide a breath sample into a breathalyser machine. Mr. Helgesen demanded to call his lawyer prior to providing a sample. Upon contacting the lawyer, Mr. Helgesen requested that the officer speak to the lawyer to inform him of the grounds for the detention. The officer refused to do so. The lawyer informed Mr. Helgesen that without knowing whether the police had reasonable grounds for the detention, he was unable to advise whether or not he should provide a breath sample. Mr. Helgesen informed the police that he would not blow unless advised to do so by counsel. Mr. Helgesen was then charged with the criminal offence of failing to provide a breath sample. The police officer also served Mr. Helgesen with notice of a 90-day administrative driving prohibition pursuant to section 94.1 of the Motor Vehicle Act, 1996 R.S.B.C. c. 318. Section 94.1(b)(1) of the Act permits a peace officer to serve the notice if the peace officer has reasonable and probable grounds to believe, that a person has, without reasonable excuse, refused to comply with a demand for a breath sample under section 254 of the Criminal Code. Pursuant to the statute, the administrative driving suspension comes into effect automatically after a period of time in which the driver may initiate a review by the Superintendent of Motor Vehicles, or an adjudicator delegated by the Superintendent for that purpose. Mr. Helgesen sought a review and at the hearing, the adjudicator confirmed the prohibition. The primary issue before the adjudicator was whether Mr. Helgesen had a “reasonable excuse” for failing to comply with the demand for a breath sample. At the hearing Mr. Helgesen argued that he had been unable to get instruction from counsel due to the officer’s failure to provide counsel with the grounds for the detention and that this constituted a “reasonable excuse”. The adjudicator determined that Helgesen had no ”reasonable excuse” and the appeal was denied. In determining that the adjudicator’s decision was not patently unreasonable, the court noted that investigating officers are not compelled to speak with the lawyer of the accused. There was clearly evidence indicating that the accused knew what he had been detained for, and that although the accused was not fully advised by his lawyer, he was given a reasonable opportunity to speak to a lawyer. The court refused to find that Mr. Helgesen had a “reasonable excuse”.

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