Because we deal with so many Immediate Roadside Prohibition review hearings, we recognize patterns in the decisions. That’s not necessarily a bad thing. There is a requirement for adjudicators and administrative tribunals to be consistent in decision-making. The RoadSafetyBC tribunal should be no different.[pullquote][/pullquote]
It has been the subject of so much discussion from our courts that it boggles the mind to see it continuing to occur.
However, when the patterns relate to improper ways in which evidence is assessed it can be frustrating. And, as we have said before, it’s often frustrating when tribunals do not follow the law.
One of the worst patterns we see with the RoadSafetyBC tribunal is that the adjudicators will speculate or invent evidence for the purpose of patching up defects in the officer’s case. This has been going on since the beginning.
Working through RoadSafetyBC issues
The examples abound. Look at the Modhgill decision, where the adjudicator imagined the officer had made a clerical error in recording expiry dates, so that she could conclude the device was reliable. Or Clark, where the adjudicator decided that in the time period between two tests, the officer went and got a different device:
The adjudicator makes the inference that Constable Turner, during the six minute time period, retrieved the second ASD. This is despite the fact that Constable Turner provided no evidence on this point and both the petitioner and Ms. Noble deny this occurred. There is no factual foundation for this inference being made by the adjudicator.
In Kenyon, the Court commented that many of the cases appear to be examples of adjudicators attempting to rationalize desired results.
There are many more examples out there.
Very recently, Kyla argued a case where the adjudicator had to resolve whether the ASD demand was lawful. One of the elements of a lawful ASD demand is that it must be made immediately. In this case, there were six minutes of unexplained time before the demand was made. When Kyla argued that this meant the demand was not made immediately, the adjudicator rejected this argument.
I have considered Ms. Lee’s arguments; but I do not find them compelling.
…. I am satisfied that a series of events would occur from the time that you were stopped by the officer, until he formed his suspicion and subsequently read the ASD demand. There is no evidence before me regarding the delay from the reasonable suspicion to the demand, and I do not find the six minute timeframe from the time of driving to the ASD demand to be unreasonable.
Again, the adjudicator speculated (guessed) at the evidence. Rather than tackle the problem posed by the lack of evidence, he invented evidence sufficient to uphold the prohibition.
There are many problems with this type of reasoning. Not only is it impermissible in review hearings generally, but it has also been the subject of so much discussion from our courts that it boggles the mind to see it continuing to occur. We are left to wonder when will the RoadSafetyBC tribunal get the message that they cannot do this?
Sometimes a judicial review is the only solution
The judge in Kyla’s case understood the problem (Verdonk v. British Columbia (Superintendent of Motor Vehicles), 2015 BCSC 215). The judge wrote what we believe is the clearest statement to date about how and why adjudicators cannot continue to invent or imagine evidence:
[45] The standard of review of reasonableness requires considerable deference to a decision-maker. However, an adjudicator within this regulatory scheme must be neutral and is not permitted to simply assume facts most favourable to the police officer. If the Adjudicator was taking a form of judicial notice of something that regularly happens in cases of roadside demands of breath samples, it would be important to express those facts so that they could be subject of review.
[46] An adjudicator cannot supply necessary facts to uphold a driving prohibition if evidence of those facts is lacking. By doing so, the Adjudicator’s Decision was unreasonable.
We are very pleased that the judge who considered the RoadSafetyBC decision on judicial review recognized this as an issue of a lack of neutrality.
How can a person be confident that they are getting a fair hearing where the adjudicators regularly speculate about what took place to support the prohibition?
The BC Supreme Court says that the RoadSafetyBC tribunal is not permitted to supply necessary facts with the aim of upholding the prohibition. If they do, it indicates that the adjudicator is not neutral. RoadSafetyBC assumes facts favourable to the police as we have seen, but it is not permissible and it betrays a lack of neutrality.
What you can do
If an adjudicator in your case assumed facts favourable to the police officer to support the officer’s evidence, give us a call. We can conduct a judicial review of your decision and look into the possibility of having it sent back for re-hearing on the basis of this case.
Previous discussions of RoadSafetyBC issues
(formerly the OSMV or the Office of the Supreintendent of Motor Vehicles)