This decision relates to a judicial review of the decision of a delegate of the Superintendent of Motor Vehicles that confirmed a notice of an immediate roadside prohibition issued to the petitioner under section 215.41 of the Motor Vehicle Act

Administrative law – Decisions reviewed – Superintendent of Motor Vehicles – Motor vehicles – Suspension of driver’s licence – Breathalyser test – Judicial review – Compliance with legislation – Statutory interpretation – Evidence – Standard of review – Reasonableness

Bawa v. British Columbia (Superintendent of Motor Vehicles), [2018] B.C.J. No. 29, 2018 BCSC 32, British Columbia Supreme Court, January 11, 2018, T.W. Bowden J.

An officer formed a reasonable suspicion that the petitioner consumed alcohol and operated a motor vehicle within the preceding three hours after the petitioner admitted to consuming alcohol and the officer smelled alcohol on the petitioner’s breath. The petitioner failed two attempts using an approved screening device (“ASD”) and was served with an immediate roadside prohibition (“IRP”).

A review of the IRP was conducted and a delegate of the Superintendent declined to revoke the IRP. A second review was consented to and the adjudicator also declined to revoke the IRP (the “Decision”).  The Decision considered two issues; namely, the petitioner’s blood alcohol content and that the ASD was not reliable.  The petition adduced evidence from a toxicologist who opined that “a failure to change a mouthpiece can result in a falsely high breath test reading”.  The Decision, however, preferred the evidence of a Technical Information publication on the calibration of ASD’s in British Columbia observing that this publication does not require that a mouthpiece be changed.  In addition, the Technical Information publication did not comment upon whether a failure to change a mouthpiece will cause a falsely high result.

At judicial review, the petitioner argued that the ASD was unreliable and the Decision failed to accept the evidence with respect to his drinking pattern and expert evidence of a toxicologist.

After concluding that the standard of review was one of reasonableness, the Court held that the Decision was “not so lacking in logic or otherwise flawed so as to render the decision unreasonable” as “there was some evidence to support the conclusion of the adjudicator” (at paras. 24-25). In reaching its decision, the Court noted that it declined to dissect the reasoning of the Decision and dismissed the petition with costs to the respondent.

This case was digested by Jackson C. Doyle, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please contact Jackson C. Doyle at jdoyle@harpergrey.com.

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