The Court denied the petition seeking an order in the nature of certiorari quashing a 24-hour driving prohibition against the petitioner driver, on the basis that the peace officer who issued the prohibition believed, on reasonable and probable grounds, that the driver’s ability to operate a motor vehicle was affected by a drug, other than alcohol. Merely showing that the officer may have been mistaken about the presence of drugs in her system did not negate the fact that she was driving as if she were on drugs. A reasonable and probable belief that a driver’s ability to drive has been affected by a drug includes the context of the driving itself, and rebutting the belief includes rebutting fault for that driving and not merely raising a question about the presence of drugs alone.

24. September 2013 0

Administrative law – Decisions of administrative tribunals – Superintendent of Motor Vehicles – Motor Vehicles – Suspension of driver’s licence – Judicial review – Procedural requirements and fairness

Wilson v. British Columbia (Superintendent of Motor Vehicles), [2013] B.C.J. No. 1778, 2013 BCSC 1458, British Columbia Supreme Court, August 13, 2013, T.M. McEwan J.

The petitioner driver was issued a 24-hour driving prohibition and report to ICBC under s.215 of the Motor Vehicle Act, on the basis that her ability to drive a motor vehicle was affected by a drug other than alcohol. The driver conceded she was driving erratically and that she had to be removed from the road. However, she argued that she could not be prevented, as a matter of procedural fairness and jurisdiction, to later challenge the prohibition by way of evidence rebutting the inference respecting drugs, through a negative drug and alcohol screening test conducted 14 hours after the prohibition was issued. She submitted that she was not in fact affected by a drug at the time the prohibition was issued, or in the alternative, it was through no fault of own. She was concerned about the consequence of the 24-hour prohibition, which was reported to ICBC and became a permanent part of her driving record. An accumulation of such reports may result in a review of one’s driving record and a lengthy period of suspension and, based in part of the 24-hour prohibition, her driving privileges had been suspended for 4 months.

On judicial review, the driver sought an order in the nature of certiorari quashing the 24-hour driving prohibition as well as removal of the 24-hour prohibition from her driving record. The Court noted that the power to issue a roadside suspension required good faith by the officer that a person’s ability to drive was affected in one of the ways authorized by the statute. It would undermine the concept of “reasonable and probable grounds” if the police could, on an unreviewable basis, allege probable grounds based on drugs as a mere pretext. Accordingly, a driver ought to be able to offer evidence to negate the allegation that his or her ability to drive was affected by drugs. The burden is on the respondent. Proof on a balance of probabilities requires that, on consideration of all of the evidence, it is more probable than not that that officer’s conclusion at the scene was correct. In the present case, the driver had not met the case. Merely showing that the officer may have been mistaken about the presence of drugs in her system does not negate the fact that she was operating a motor vehicle in a manner that might reasonably be described as a marked departure from the norm, the standard applied in the cases of dangerous driving. In order to succeed in the petition, the driver would have to negate the presumption that she is responsible for the consequences of putting her vehicle in motion on a more detailed basis than to simply cast doubt on the presence of a list of drugs in her system. Accordingly, while the driver had a right to challenge the 24-hour prohibition, she had not met the case against her and the petition was dismissed.

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