A Superintendent of Motor Vehicles-delegated adjudicator decision that a driver (“Taylor”) was issued a valid breathalyzer demand prior to being suspended was restored on the Superintendent’s appeal from a judgment which had remitted the matter to a delegate of the Superintendent for disposition

22. February 2005 0

Administrative law – Motor vehicles – Refusal of breathalyzer test – Adjudication – Evidence – Judicial review – Compliance with legislation – Standard of review – Patent unreasonableness

Taylor v. British Columbia (Superintendent of Motor Vehicles), [2004] B.C.J. No. 2613, British Columbia Court of Appeal, December 8, 2004, Lambert, Newbury and Saunders JJ.A.

On March 27th, Taylor was observed driving his vehicle suspiciously and well above the speed limit. A police officer stopped Taylor and noted the smell of liquor on his breath. Taylor failed the screening device test, and was issued a breath demand that the constable read off a card, and explained in layman’s terms. Taylor acknowledged that he understood the demand. Taylor declined to give the breath sample.

A prohibition from driving was issued pursuant to s.94.6 of the Motor Vehicle Act, R.S.B.C. 1996, c.318, a section providing that a police officer may issue a notice of driving prohibition if he or she has reasonable and probable grounds to believe that the person failed or refused to provide a breath sample after being issued with a demand under s.254 of the Criminal Code.

Taylor applied to the Superintendent for review of his driving prohibition. Taylor’s counsel argued that there was no evidence before the adjudicator on the review on which she could determine whether a s.254 demand had indeed been made, and noted that the card containing the breath demand wording was not in evidence. The adjudicator rejected this argument and upheld the suspension. She referred to the police officer’s evidence that the breath demand was read to Taylor and explained to him. The adjudicator stated: “Although I do not have before me the actual words of the breath demand, in this administrative process I can infer that the officer read the demand from the standard card police officers carry on their person”.

Taylor appealed to the British Columbia Supreme Court. The Honourable Mr. Justice Grist referred to R. v. Gordon, 2002 BCCA 224 for the proposition that the hearing before the adjudicator is in the nature of a civil proceeding in which issues are determined on a balance of probabilities, and also that the adjudicator has the power to accept evidence that may not meet normal court standards. His Lordship agreed with Taylor’s submission that there was no evidence of a breathalyzer demand being made.

At the Court of Appeal, the Superintendent submitted that the Chambers judge erred in failing to apply the test of patent unreasonableness, which it was submitted entailed a determination only of whether there was any evidence before the adjudicator capable of providing a basis for the decision.

Newbury J.A., writing for the Court, commented on the characterization of the patently unreasonable standard of review:

It is enough for the purposes of this case to note that the “patently unreasonable” standard is not always simply a matter of deciding whether there is “any” evidence to support the tribunal’s decision. The standard also involves a consideration of the rationality of the decision and whether the evidence, “viewed reasonably, is capable of supporting the conclusion”. (Toronto v. Ontario Secondary School Teacher’s Federation, [1997] S.C.J. No. 27)

The Court of Appeal restored the adjudicator’s decision stating:

The fact remains that the adjudicator here is held only to a civil standard and is not bound by the normal rules of evidence, and that the standard of review is one of patent unreasonableness. Applying these standards, I am of the view that it cannot be said the adjudicator’s decision was patently unreasonable. Indeed, I think the adjudicator was entitled to take notice of the contents of the cards carried by police officers providing the officially sanctioned wording for demands under s.254 for breath or blood. The box on the form ticked by the constable was evidence that the demand had been made. The purpose of the cards carried by police officers is to ensure that approved wording is used uniformly and that disputes of this kind do not arise. The fact that the police officer did not write out in longhand the warning she gave, is not in my opinion fatal to the validity of the demand and constitutes evidence reasonably capable of supporting the adjudicator’s conclusion that a demand was made under s.254 of the Criminal Code.

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