An adjudicator’s decision which confirmed a driving prohibition under the Motor Vehicle Act was set aside on the basis that the adjudicator erred in relying on a Report to Crown Counsel which did not form part of a sworn or affirmed report from a peace officer, as required by the Act
Administrative law – Motor vehicles – Suspension of driver’s licence – Adjudication – Decisions of administrative tribunals – Judicial review – Compliance with legislation – Procedural requirements and fairness
Neill v. British Columbia (Superintendent of Motor Vehicles),  B.C.J. No. 1197, British Columbia Supreme Court, June 10, 2004, Cullen J.
The Petitioner sought a review of an adjudicator’s decision which confirmed a driving prohibition arising from a Notice of Driving Prohibition served on the Petitioner pursuant to section 94.1 of the Motor Vehicle Act. The peace officer who conducted the investigation which led to the driving prohibition at issue, purported to forward a sworn Report to the Superintendent under section 94.3(b) by appending a Report to Crown Counsel setting forth the relevant details justifying the existence of his reasonable and probable grounds to believe that the Petitioner had operated a motor vehicle while over the legal blood alcohol limit. While the Report to Crown Counsel was at some point physically attached to the sworn Report and forwarded to the Superintendent, it was never identified by the Commissioner taking the oath, or by the peace officer, as being the Report to Crown Counsel, the contents of which he intended to incorporate into the Report to the Superintendent. The issue before the court was whether the adjudicator had erred in considering the contents of the Report to Crown Counsel in confirming the prohibition.
Section 94.3(d) of the Motor Vehicle Act requires a peace officer who has served a Notice of Driving Prohibition on a person under section 94.1 to promptly forward to the Superintendent a report, in the form established by the Superintendent, sworn or solemnly affirmed by the peace officer. The authorities indicate that the statute requires the peace officer who served the Notice of Driving Prohibition to provide a sworn or affirmed report before it can be considered by an adjudicator and, in circumstances where there is no indication in the sworn Report to the Superintendent that the contents of any additional report is incorporated, a supplementary narrative provided by the arresting officer cannot be considered by the adjudicator. This requirement rests on the legislature’s recognition that although a prohibition against driving will usually have serious adverse consequences for the person prohibited, there is no right in the driver to have the officer attend before the adjudicator to challenge the grounds for his or her belief. In those circumstances, the requirement for the Report to be sworn is to ensure a degree of fairness in the process leading to confirmation of the prohibition.
In this case, there was nothing in the sworn Report identifying the specific Report to Crown Counsel at issue as being attached and there was nothing in the Report to Crown Counsel identifying it as being part of the Report when it was sworn before the commissioner. There was no evidence before the adjudicator on which she could have concluded such. Before an adjudicator can consider the content of a Report to Crown Counsel submitted to confirm a driving prohibition, he or she must conclude it was sworn or affirmed. In the result, the Notice of Prohibition was stayed and the Superintendent was prohibited from confirming the driving prohibition.
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