Administrative law – Judicial review application – Practice and procedure – Adjournment – Motor vehicles – Breathalyser test – Decisions of administrative tribunals – Superintendent of Motor Vehicles – Hearings – Failure to produce records
Bahia v. British Columbia (Superintendent of Motor Vehicles),  B.C.J. No. 2948, British Columbia Court of Appeal, November 16, 2006, Southin, Rowles and Mackenzie JJ.A.
Bahia was arrested after two witnesses observed him swerve, strike a parked car, and continue driving until he eventually pulled over. The witnesses held Bahia outside his vehicle until police arrived. A breath sample taken approximately 90 minutes after his arrest revealed that Bahia had a blood-alcohol level in excess of the legal limit. The report of the Adjudicator who issued the driving prohibition stated that Bahia had care and control of the vehicle at the time he was observed by the witnesses, as opposed to when the police officer arrived. The Superintendent consented to a rehearing of the matter on the basis that Bahia did not receive full disclosure. Bahia never received the accident report and the breath sample tickets, because they were rendered illegible by the fax transmission from the RCMP. Bahia’s request for an adjournment at the rehearing was refused on the basis that both parties received an illegible fax. The driving prohibition was confirmed and Bahia then petitioned for judicial review of this confirmation.
In allowing Bahia’s petition for judicial review, the reviewing judge found that the Superintendent did not fulfil his statutory duties at the second hearing. The Superintendent was obliged to consider all relevant information, which included the illegible documents. The documents were relevant because they had the potential of determining the question of whether Bahia had care and control of his vehicle at the time alleged by the police and thus whether the breath samples were given within the required time period. Legible copies were available from the RCMP detachment. The reviewing judge determined that the Adjudicator erred in refusing Bahia’s request for an adjournment. The Superintendent appealed this decision.
The Court of Appeal held that the Adjudicator had correctly held that the partly-legible documents were of no evidentiary value and that other documents warranted confirmation. If Bahia had considered that the documents in legible form might have assisted his case, he could have sought them himself. The legislative purpose of the relevant sections of the Motor Vehicle Act was to establish a rapid response to someone driving while impaired, while giving a summary avenue of redress to a driver where a police officer was wrong in his judgment. It was not in keeping with the legislative purpose to import into this administrative process the many procedural protections an accused enjoyed in criminal prosecution. In the result, the appeal was allowed and Bahia’s petition was dismissed.
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