Re: A.B. v. British Columbia (Superintendent of Motor Vehicles)
B.C. SUPREME COURT

Lawyer: Kyla Lee

CASE FACTS:

Client was issued a 90-day Immediate Roadside Prohibition for failing an ASD test. She was offered a second test, but the device did not accept a breath sample. The police evidence indicated that the device was outside the operating temperature range. An internal memo created by the Superintendent of Motor Vehicles was used to say that there was no basis to conclude the device would not function outside the temperature range.

ARGUMENT:

The Superintendent acted without jurisdiction in relying on their own internal report as evidence in the hearing. The only parties permitted to provide evidence were the police and the applicant. There was no statutory authority allowing the Superintendent to rely on their own self-made report.

HELD: MATTER REMITTED FOR REHEARING

The RoadSafetyBC tribunal could no longer rely on the Superintendent’s Report on ASDs.

Re: D.M. v. British Columbia (Superintendent of Motor Vehicles)
B.C. SUPREME COURT

Lawyer: Kyla Lee

CASE FACTS:

Client was issued a 90-day Immediate Roadside Prohibition for refusing an ASD test. He was stopped by police inside a parkade, which was locked with a gate. On judicial review, it was argued that there was insufficient evidence that the client was on a highway or industrial road, as required by the Motor Vehicle Act.

ARGUMENT:

The adjudicator must be satisfied that the driver is in care and control on a highway or industrial road. Not all parking lots meet the definition of highway or industrial road. The evidence must establish that the driving occurred on this place, or the tribunal cannot confirm the prohibition. In the absence of this evidence from the police, the tribunal could not be satisfied that the client was a driver.

HELD: MATTER REMITTED FOR REHEARING

The RoadSafetyBC tribunal had insufficient evidence from which it could be said that the client was a driver within the meaning of the Motor Vehicle Act.

Re: C.M. v. British Columbia (Superintendent of Motor Vehicles)
B.C. SUPREME COURT

Lawyer: Kyla Lee

CASE FACTS:

Client was issued a 90-day Immediate Roadside Prohibition for failing two ASD tests. He told the police that he had his last drink “5 minutes ago.” The police waited an additional 10 minutes to allow for residual mouth alcohol to eliminate. The tribunal found that the results were reliable and the officer had sufficiently turned his mind to mouth alcohol by waiting only ten minutes.

ARGUMENT:

The officer could not reasonably rely on the test results. The tribunal failed to consider the reasonableness of the officer’s conduct given that people are not timing the time period from their last drink with a stop watch. Any answer at roadside must be taken as an estimation with some margin of error.

HELD: MATTER REMITTED FOR REHEARING

Re: W.R. v. British Columbia (Superintendent of Motor Vehicles)
B.C. SUPREME COURT

Lawyers: Kyla Lee and Paul Doroshenko

CASE FACTS:

Client was issued a 90-day Immediate Roadside Prohibition for failing two ASD tests. She had glassy eyes, but no other symptoms of impairment. On review, she argued that the tribunal had to apply Wilson v. British Columbia (Superintendent of Motor Vehicles) and revoke the prohibition. The tribunal refused to follow the decision.

ARGUMENT:

The Superintendent’s tribunal is bound by decisions of a higher court. It was wrong to not follow the BC Supreme Court Law. Adjudicators are not entitled to pick and choose which cases to follow and which to ignore.

HELD: MATTER REMITTED FOR REHEARING

A tribunal is bound be decisions of the BC Supreme Court interpreting their legislation. The RoadSafetyBC tribunal is not entitled to ignore the law.

Re: C.A.M. v. British Columbia (Superintendent of Motor Vehicles)
B.C. SUPREME COURT

Lawyer: Kyla Lee

CASE FACTS:

Client was issued a 90-day Immediate Roadside Prohibition for refusing to comply with an ASD demand. The officer told him it was his choice to blow or not blow. He was not told that it was mandatory to provide a sample, or that he would receive a 90-day Immediate Roadside Prohibition if he did not comply.

In the hearing, the client provided a version of events contrary to that of the officer. His evidence was rejected because statements he made were “odd.”

ARGUMENT:

The adjudicator needs to scrutinize the evidence of the officer to the same degree of the applicant. The reasons for rejecting the client’s evidence were spurious. There was nothing odd about his statements. The evidence of the officer was accepted and the client’s evidence was measured against it.

HELD: MATTER REMITTED FOR REHEARING

There is no baseline of reliability attached to police evidence. The adjudicator must engage in a proper credibility assessment of all of the parties. The adjudicator failed to do so.