Here at the Acumen Law Justice Centre, we have a number of projects underway at any given time. Many of them are projects we are undertaking in secret, and that we do not talk about on our blog.
We’re not the type of people who give up easily. Or at all. We appealed this decision again.
One of the secret projects we have been working on pertains to the reliability of certain information in the Certificates that police are required to submit for IRP review hearings. Beginning last spring, we began to notice that although certain types of information was required to be consistent it often was not. Instead, we found discrepancies in the information provided by the police. This called into question the reliability of all the information on this point.
Because we care about our clients, we used this material in numerous IRP review hearings to our clients’ advantage. And we succeeded.
The Government didn’t like this. They don’t appear to like much that we do. Oh well.
In response to our success in using the inconsistent police evidence we had accumulated, the RCMP made changes to a standard form, known as the Technical Information on the Operation and Calibration of ASDs in British Columbia document. It is, and remains, unclear to us how the RCMP found out what arguments we were making and why we were succeeding. We have our suspicions but have been unable to confirm them.
In any event, these changes were designed with the sole purpose of allowing the Superintendent of Motor Vehicles to confirm IRPs, despite the contrary information and despite our arguments. We thought that stunk. The police don’t just get to say “This is the way it is” and have that be the evidence the tribunal relies on. That isn’t how the legislation is written. The whole reason the legislation was found unconstitutional in the first place was because there was no opportunity to challenge the ASD results. And here the RCMP and Government were trying to bring that back.
The adjudicators wrote almost identical decisions in a number of cases:
In this case, for ASD 203738 and ASD 203829, the dry gas Alcohol Standard used was AG429301. The expiry date provided on each Certificate is “2016-10-20”. Ms. Lee provides three other Certificates which show three other expiry dates 2015-09-12 and 2015-10-20 and 2015-09-17.
The Officer has disclosed the Certificate for each ASD used. This is comprised of the Certificate, which sets forth evidence of the calibration check, as well as ‘Technical Information’ which presents information more generally on “the operation and calibration” of ASDs in BC. The document, in the final section, provides “Valid DryGas Lot Numbers” as well as expiry dates for each. This information provides that the expiry date of AG429301 is “2016-10-20”. I find this information matches that provided on each Certificate for the ASDs used by the officer in this IRP.
I find this evidence provided by the officer to be consistent in the information it presents. I find this is not outweighed by the evidence showing different dry gas Alcohol Standard expiry dates at use in different RCMP jurisdictions. I find the officer’s evidence shows a consistent record of the dry gas Alcohol Standard expiry date. I find this evidence consistent with the evidence presented in the affidavit of Paul Doroshenko where he states: “it is not the case that the same lot of alcohol standard, properly identified, will have more than one expiry date.” I find this constitutes evidence to establish a reliable dry gas expiry date, with the ‘Technical Information’ component as well as the related portion of each Certificate corroborating each other.
I find on a balance of probabilities the ASD calibration was checked with a proper and valid dry gas Alcohol Standard. I am satisfied each Certificate is properly incorporated in the officer’s sworn Report. This evidence, on my finding, constitutes “information relating to the calibration” of the ASD, required as per s. 215.47(e) of the Act
On the evidence presented, I am satisfied that each ASD was reliable and functioning on July 18, 2015, and moreover that the “ASD test referred to in this report were conducted by a qualified ASD operator and the ASD units were functioning correctly” as provided for in the Report.
And so we challenged it.
We succeeded in the first case. The judge found that the adjudicator did not properly resolve the conflict in the evidence. It did not matter where the Certificates were prepared. The reality was that there was unreliable information somewhere. But which piece was not reliable could not be determined.
At that point, we thought this issue would be put to rest. It was a short-lived argument, anyway, since the gas canisters that were not reliable were soon going to expire.
We were wrong. We forgot that reason doesn’t necessarily win out with this Government.
We continued to make the argument in a number of cases. And then we received another set of reasons, now preferring the evidence based on when it was prepared:
Both pieces of evidence regarding ASD serial number 203459 were created by the same person – Mr. Anderson. According to Ms. Lee’s reference to the Kenyon case, the Certificate and the Accuracy Check cannot, therefore, bolster the credibility of the other document. Paragraph 19 of Kenyon states: “I should note immediately that it does not matter how many times the officer said what he said. Prior consistent statements cannot be cited to bolster credibility.” Accordingly, these two documents equate to one piece of evidence in this matter.
In contrast, the evidence about the expiry date of the dry gas alcohol standard on the two pages of each Certificate in your case came from different sources. The second page of the Certificates is a document entitled: “Technical Information on the Operation and Calibration of ASDs in British Columbia” (the “Technical Information”). While the Calibrator in your case prepared the evidence on page one of the Certificates, there is no evidence before me that he had anything to do with the preparation of the evidence on page two in the Technical Information. Further, there is no evidence that Constable Pho prepared either page of the Certificates. Even if I reduce the weight I give to the evidence in the Certificates, because they were not sworn, they are still more persuasive than the single piece of unsworn evidence Ms. Lee provided regarding ASD serial number 203459.
In addition, the date at the bottom of the calibration documents for ASD 203459, is “2014-11”. In contrast, both the Certificates and the Technical Information in your investigation are dated “2015-07”. While this is a minor consideration, I find it is consistent with common sense and ordinary human experience to infer the evidence in your case is more up-to-date than that of Mr. Anderson, so I should find the police evidence in your case to be marginally more reliable on this basis.
The only meaningful evidence before me to resolve which dry gas alcohol standard expiry date in the Certificates is accurate is in the Technical Information under the heading “Valid Dry Gas Lot Numbers”. While I cannot give this evidence a baseline of accuracy, there is nothing plausible before me to indicate that it is not accurate. This evidence states that the dry gas alcohol standard of lot number AG416701 expires on 2016-06-16. Given this, as well as Mr. Doroshenko’s affidavit evidence, I find it reasonable to infer that the Certificate produced by Mr. Anderson has an erroneous expiry date, and the Certificates completed by Mr. Davies were accurate, since they correspond to the Information under “Valid Dry Gas Lot Numbers” in the Technical Information. As a result, I reject Ms. Lee’s argument in this regard.
Again, identical reasons in several cases.
We’re not the type of people who give up easily. Or at all. We appealed this decision again.
In late May, 2016, we received the decision from the Court finding that this was also not a proper process of assessing the evidence. The Court agreed with us again. The judge there – a particularly insightful and experienced BC Supreme Court judge with a background in dealing with impaired driving trials in criminal court – found that the adjudicator was wrong to rely on the information provided by the police. She stated:
[21] In my view, the adjudicator effectively reversed the onus of proof by placing the burden on the petitioner to displace a negative proposition. That is, in light of the absence of evidence that Constable Davies was also the source for the information contained in page 2 about the expiry date for the dry gas lot in question, the petitioner must prove that the constable was responsible for page 2 in order to prove his case. Instead of requiring some positive evidence that Constable Davies did not also provide the expiry dates on page 2 of his Certificates in satisfaction of the burden on the RCMP to prove reliability on a balance of probabilities, the adjudicator essentially reversed the onus of proof by requiring that the petitioner rebut an assumption that the constable played no role in the determination of the expiry dates described on page 2 of his Certificates.
[22] Not only was this a reversal of the onus of proof, but the adjudicator imposed an impossible burden on the petitioner. Whether or to what extent Constable Davies played a role in supplying the information on page 2 of his Certificates is a matter that was solely within the knowledge and control of the RCMP. Because the petitioner cannot cross-examine Constable Davies or otherwise compel disclosure of this evidence, he is effectively denied the ability to rebut the assumption made by the adjudicator. [25] Clearly there is a less onerous standard for the admissibility of evidence in a hearing before an adjudicator under the Motor Vehicle Act. “Other relevant information” under s. 215.49(1)(d) of the Act does not set a high bar for admissibility; “other relevant information” is not required to meet the same test for admissible evidence applied in a criminal or civil proceeding. “Other relevant information” that is submitted to an adjudicator can be considered and weighed whether or not it is formally validated or otherwise authenticated: Fowler v. British Columbia (Superintendent of Motor Vehicles), [1999] B.C.J. No. 2747, 48 M.V.R. (3d) 78 (S.C.).
[26] Nevertheless, when an adjudicator seeks to rely on unsworn and unidentified “information” submitted by the police in satisfaction of the onus of proof, there must be something in the document that is capable of adding probative value to the other admissible evidence.
[27] Page 2 of the Certificates provides only general information about ASDs. While the bottom of the page identifies various dry gas lot numbers and expiry dates, there is nothing to suggest where this information comes from or how the dates were determined. In particular, there is nothing to suggest that the expiry dates were not provided by Constable Davies who included these pages as part of his Certificates. Thus even if the adjudicator considered that “validation” by the Impaired Driving Advisory Committee was the source of independent evidence, which is not expressly stated in her reasons, the weight that could be applied to this information is negligible. Indeed, the adjudicator recognized the negligible evidentiary value of this document when she commented that it could not be given “a baseline of accuracy”.
[28] The adjudicator also considered that the most recent calibration certificates were more accurate based on “common sense and ordinary human experience”. I am unaware of such a common sense assumption but, in any event, the adjudicator’s comparison of the dates was in error. The date on the form that constituted Certificate No. 2 was 2014-11 and the date on the form that constituted the Certificates was 2015-07; however, all of the certificates were completed in or about the same time (Certificate No. 2 was signed on June 7, 2015 and the Certificates were signed on July 30, 2015). There is nothing to suggest that the expiry dates got more accurate between June 7 and July 30, 2015.
[29] In the background of the adjudicator’s decision is the existence of problems regarding inconsistent dry gas lot expiry dates in a number of certificates authored by certified calibrators within the RCMP in this province. Counsel for the Attorney General advised the Court that the RCMP attempted to address this inconsistency by attaching the technical information document to certificates as page 2. Counsel also conceded that the adjudicators are aware of this problem and the RCMP’s solution. Had the RCMP submitted this background information to the adjudicator as part of its case against the petitioner, and permitted him to respond to it, the adjudicator could properly have considered this “information” when determining whether the reliability of the ASD test results had been proven on a balance of probability. Unfortunately, the adjudicator did not have this information before her in a formal sense. As a consequence, the information could not be used to enhance the cogency or sufficiency of the evidence presented by the RCMP.
[30] I find the adjudicator engaged in an unreasonable decision-making process by reversing the burden of proof and by essentially failing to properly resolve the conflict in the evidence concerning the expiry date for the dry gas lot used to test the calibration of the ASDs. The adjudicator’s conclusion that page 2 of Constable Davies’ Certificates was an independent source of evidence for the expiry date was erroneous because it was not supported by the evidence before her. In addition, the adjudicator’s reliance upon the dates on the forms, in preference to the dates the Certificates and Certificate No. 2 were signed, was in error. Lastly, it is not disputed that the conflict in expiry dates was critical to the adjudicator’s determination that the ASD test results were reliable.
This decision is a huge victory for us. It’s the culmination of a lot of hard work on some of our secret projects and it clarifies very clearly that just because the police submit a form that says something is true that it doesn’t necessarily mean that is the case.
All of that is wonderful. But the battle is far from over. The Government has appealed the decision, and we will have to continue to argue this issue at the Court of Appeal. We see this as an important case that doesn’t just deal with questions of the reliability of the ASDs in those particular cases on that particular evidence, but the reliability generally of the report the police prepared to replace the Superintendent’s Report on ASDs found inadmissible in Buhr. And we aren’t going to back down from our position that this information is not entitled to presumptive reliability.