The Petitioner sought a judicial review of a decision of an adjudicator who, in a “letter decision”, concluded that the Petitioner had failed to comply with the demand under section 254 of the Criminal Code to supply a breath sample and imposed a prohibition of driving for 90 days. The test on judicial review was whether the decision was patently unreasonable. The court held that there was no evidence that the officer read the written demand to the accused and therefore the adjudicator’s decision to impose a 90-day prohibition was patently unreasonable.

Administrative law – Motor vehicles – Refusal of breathalyzer test – Suspension of driver’s licence – Adjudication – Evidence – Judicial review – Standard of review – Patent unreasonableness

Hewitt v. British Columbia (Superintendent of Motor Vehicles), [2003] B.C.J. No. 1877, British Columbia Supreme Court, May 9, 2003, Williamson J.

The Petitioner sought a judicial review of a decision of an adjudicator who was a delegate of the Superintendent of Motor Vehicles. The adjudicator, by written letter, concluded that the Petitioner had failed to comply with a demand under section 254 of the Criminal Code (failure to supply a breath sample). The Petitioner received a driving prohibition of 90 days.

The test on judicial review was whether the decision was patently unreasonable. The Petitioner raised two questions. First, did the reviewing officer err in law by failing to consider whether the Petitioner had a reasonable excuse for failing or refusing to comply with the demand under section 254. Second, did the adjudicator err in finding any evidence that the Petitioner failed or refused to comply with the demand.

The court dealt with the second question noting that section 94.6(1) requires the Superintendent to be satisfied “that the person has failed…to comply with a demand.”

The court reviewed the evidence filed by the police and the Petitioner and noted that nowhere in the evidence did any witness state that the officer read a demand pursuant to the Criminal Code. The officer noted that he had asked the driver to blow into the screening device; however, there was no mention of section 254 of the Criminal Code or a demand thereunder. The very foundation of the prohibition is a failure to comply with the demand pursuant to section 254 and the court did not find any evidence that a demand had been made and therefore it could not possibly have been a refusal. The court held that it was patently unreasonable to confirm the prohibition and the matter was set aside. The notice of driving prohibition was stayed and the Superintendent was prohibited from confirming the driving prohibition.

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