The BC Supreme Court has rendered a decision in Longstaff v. British Columbia (Superintendent of Motor Vehicles) changing the way Administrative Driving Prohibitions DUI cases are going to be addressed by the OSMV tribunal, particularly with respect to missing certificate cases.
An ADP is different from an IRP, but has many of the similar consequences. See: Different Types of DUIs and Driving Prohibitions in BC.
Many years ago it was a defence to an ADP to say that no Certificate of Qualified Technician showing the breathalyzer readings was been provided, when the ADP Report to Superintendent indicated the Certificate was included in the disclosure material. The law was amended in 2010 to allow the OSMV tribunal to conduct the hearing without the Certificate. If a Certificate was not attached, the hearing would likely proceed in any event.
The Superintendent relied on this interpretation of the law to say that even if no explanation was provided by the officer for the absence of the Certificate, they could continue to conduct the hearing.
Defence lawyers viewed this as problematic for several reasons. The ADP Report to Superintendent contains a grid wherein the officer can record the readings. But absent a Certificate, there is no contemporaneous or confirmatory record of what the readings were. In other words, the entire ADP was based on the credibility of one officer. In the vast majority of cases, this was not even the officer who conducted the breath tests.
The Certificate also contains evidence about other controls run at the time of the testing, including the control standard used to check the instrument. If an incorrect standard is used, or the lot is not properly identified, the reliability of the readings can be compromised. Absent this evidence, there is a completely untested presumption that the readings are correct and reliable.
What’s more, where an officer indicates a document exists but fails to provide it, we think should give rise to an adverse inference about the contents of the document. And a finding that the credibility of the officer is suspect. But that wasn’t the approach the OSMV adopted.
The OSMV simply found that the presence or absence of a Certificate had been made irrelevant by the new law.
Finally, there has been some clarification from the BCSC regarding this issue. No longer is it appropriate for the OSMV to proceed with a hearing in the absence of a Certificate where the evidence indicates one exists. It must be attached, or an explanation must be provided from the officer regarding its absence. This was the Court’s ruling in Longstaff.
If you argued your ADP case and indicated that there was a Certificate attached, but no Certificate was provided, contact us. You may have grounds for an appeal due to the missing certificate.
We prefer to be your lawyers from the first day that you get your DUI because that way we can do the most for you. But even if you tried it on your own, just give us a call and we’ll see if we can fix it for you.