Date: 20091126

Docket: S096037

Registry: Vancouver

Between:

Kenneth Stephenson

Appellant

And

The Superintendent of Motor Vehicles and

Attorney General of British Columbia

Respondent

Before: The Honourable Madam Justice Gropper

Reasons for Judgment

Introduction

[1] Mr. Stephenson applies to set aside a 90 day driving prohibition imposed upon him under s. 94.1(b) of the Motor Vehicle Act, R.S.B.C. 1996, c. 318 [the Act] and confirmed by an adjudicator reviewing that prohibition under s. 94.4 of the Act.

[2] The application is made under the provisions of the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241 [the JRPA].  Mr. Stephenson asserts that the adjudicator made findings of fact which were not supported by or were contradicted by the evidence and that the adjudicator failed to exercise her jurisdiction by failing to consider legal argument placed before her.

[3] The prohibition has been stayed pending my reasons in this matter.

Issue

[4] The issue is whether the adjudicator’s decision was reasonable.

Background

[5] The driving prohibition was imposed on Mr. Stephenson by a police officer on July 17, 2009.  It was based on the police officer having reasonable and probable grounds to believe that Mr. Stephenson refused, without reasonable excuse, to comply with the demand that he supply a sample of his breath under s. 254 of the Criminal Code, R.S.C. 1985, c. C-46 [the Code] in respect of his operating or controlling a motor vehicle.

[6] The police officer issued an administrative driving prohibition to Mr. Stephenson.  He provided a sworn statement in his Report to Superintendent as he is required to do under s. 94.3(d) of the Act, advising of the driving prohibition.  The police officer described the date of driving/care or control as July 17, 2009 at 23:31 hours.

[7] The police officer stated that he asked Mr. Stephenson to provide a breath sample suitable for analysis.  The police officer considered that Mr. Stephenson refused to provide one.  In his explanation of that refusal, the police officer stated:

He was instructed (explained and example) on how to provide a breath sample suitable for analysis and he barely blew in the A.S.D. [approved screening device].

[8] As a result of that alleged refusal, the police officer read Mr. Stephenson his Charter rights and an official warning and issued the prohibition.

[9] Mr. Stephenson applied to the Superintendent for a review of the driving prohibition in accordance with s. 94.4 of the Act.  Section 94.5(1) of the Act requires the Superintendent to consider the Report and “any relevant sworn or solemnly affirmed statements and any other relevant information.” The Superintendent, after considering the application, can confirm or revoke the driving suspension or make other relevant orders.

[10] The review was undertaken by an adjudicator appointed as the Superintendent’s delegate.  The adjudicator confirmed the prohibition.

The Adjudicator’s Decision

[11] The adjudicator considered the officer’s Report to Superintendent as well as the submission from Mr. Stephenson’s counsel.  She addressed three issues:

1.       Did Mr. Stephenson operate or have care and control of a motor vehicle?

2.       Did Mr. Stephenson fail or refuse to comply with a demand?

3.       Did Mr. Stephenson have a reasonable excuse for failing or refusing to comply with the breath demand?

[12] In respect of the first issue, the adjudicator noted that the Report to Superintendent (the “Report”) described that Mr. Stephenson was driving at 23:31 hours and refused the demand for a breath sample at 23:42 hours.  It also stated that the demand was issued at 22:36 hours.  The Report stated that the demand was made almost one hour before the police officer observed Mr. Stephenson’s driving.

[13] The adjudicator concluded that the reference to the demand having occurred at 22:36 hours was an error.  She concluded that there was a “common sense inference that the demand actually took place at 23:36 hours since the time of driving was 23:31 hours and Mr. Stephenson refused at 23:42 hours.”  On that basis, the adjudicator was satisfied that a proper demand had been made.

[14] With respect to the second issue, counsel for Mr. Stephenson submitted two arguments: first, that the refusal must be “unequivocal” and that the officer had a duty to go further to determine whether Mr. Stephenson’s conduct was an unequivocal refusal to provide a breath sample or just a misunderstanding; and second, that a medical condition may have prevented Mr. Stephenson from adequately blowing into the A.S.D.  Counsel stated that Mr. Stephenson had informed him that the medical condition “may well have ... prevented him from adequately providing a breath sample into the A.S.D. during the one opportunity he was given.”

[15] In response to the first submission, the adjudicator said this:

I have considered that the Constable not only provided you with verbal instruction on how to provide a breath sample, he also demonstrated what you needed to do.  You barely blew into the device.  Although you did not verbally refuse to comply, barely blowing into the device demonstrated an unwillingness or inability to comply.

[16] The adjudicator then considered the third question of whether Mr. Stephenson had a reasonable excuse for failing or refusing to comply with the breath command.  She noted that counsel for Mr. Stephenson provided clinical records demonstrating that Mr. Stephenson had attended a hospital emergency department on July 17, 2009 (the date of the driving prohibition) because he was experiencing chest pain and acute dizziness.  She also noted that tests were performed and Mr. Stephenson was released later the same day.

[17] The adjudicator stated that there was no evidence from Mr. Stephenson or in the Report that a medical condition might have prevented him from adequately blowing into the device or to show that he had informed the police officer at the time that he had health issues or felt unwell or that a medical condition affected his ability to expel air.

[18] The adjudicator concluded:

Although the medical information you provided does show you attended a medical facility on the day before this incident occurred [sic], I do not find it sufficiently supports that a medical condition prevented you from providing a breath sample into the A.S.D.

Overall, a balance of probabilities, I am not satisfied you had a reasonable excuse for failing or refusing to comply with the demand.

Position of the Parties

Mr. Stephenson

[19] Mr. Stephenson argues that the adjudicator made findings of fact which were not supported by or contradicted by the evidence.  In that regard, he says that the adjudicator erred in her determination that “common sense” allowed her to construe that the demand for a breath sample was made at 23:36 hours, when the Report states that it was made 22:36 hours.  He argues that common sense does not substitute for actual evidence before the adjudicator.  It is a prerequisite that the demand for a breath sample must be made before there is an automatic driving prohibition.  From the Report, it appears that the demand was made before the police officer observed Mr. Stephenson’s driving and Mr. Stephenson allegedly refused to provide a breath sample.

[20] Mr. Stephenson asserts that the adjudicator’s finding that a refusal had taken place is not supported by the evidence.  He argues that the refusal to blow must be unequivocal, but the adjudicator did not consider whether or not it was unequivocal.  She simply repeated what the officer said.  Mr. Stephenson argues that there must be more than just not blowing hard enough.  There were no inquiries made, no warnings given and, Mr. Stephenson argues, no actual refusal to provide a breath sample.

[21] Mr. Stephenson also says that the adjudicator failed to exercise her jurisdiction by refusing to consider the legal argument made by counsel for Mr. Stephenson that a refusal to provide a breath sample must be unequivocal.  Instead, the adjudicator merely stated that she did not have the case to which counsel referred.

[22] Finally, Mr. Stephenson argues that the adjudicator made an unreasonable finding of fact when she stated that the clinical notes provided to her did not provide evidence that medical condition may have prevented Mr. Stephenson from adequately providing a breath sample.  The adjudicator determined that Mr. Stephenson had attended a medical facility “the day before this incident occurred” (emphasis added).  This finding of fact was unreasonable as the medical reports disclosed that Mr. Stephenson’s attendance at the medical facility was on July 17, 2009, the day he was alleged to have refused to comply with the breath demand and the date upon which the administrative driving prohibition was imposed.

The Respondents

[23] In response to the Mr. Stephenson’s arguments, the respondents assert that there was conflicting evidence before the adjudicator.  The issues in dispute were whether the Mr. Stephenson refused to provide a sample and whether he had a reasonable excuse for doing so.  There was evidence before the adjudicator on both these issues.  The adjudicator reviewed the Report to Superintendent from the police officer, particularly the area of the Report headed “Refusal of Demand”.  There was no indication that there was any medical and/or physical condition, as the officer left that space blank in the Report.

[24] In respect of the adjudicator addressing the timing in the Report and making a common sense inference that the demand was made at 23:36, rather than 22:36 as stated in the Report, the respondents assert that it is within the adjudicator’s jurisdiction to reach such a conclusion: Gordon v. Superintendent of Motor Vehicles, 2002 BCCA 224, 166 B.C.A.C. 285 [Gordon].

[25] The respondents argue that there was no direct evidence from Mr. Stephenson.  He did not provide any evidence that he blew into the A.S.D. to the best of his ability or that he misunderstood how to properly provide a sample.  While Mr. Stephenson provided his clinical records of his visit to the hospital on July 17, 2009, there was no evidence from Mr. Stephenson that he was not feeling well when he was dealing with the police officer or that his medical condition may have prevented him from adequately blowing into the A.S.D.

[26] In respect of Mr. Stephenson’s position that the adjudicator did not consider the proper legal test for determining whether there was a refusal to blow, the respondents point out that, while the adjudicator did not refer to the specific case referred to by counsel for the Mr. Stephenson, she considered the argument that the failure to blow must be unequivocal.  She found that the evidence demonstrated that the police officer provided a verbal instruction on how to provide a breath sample and a demonstration on what Mr. Stephenson needed to do.  She accepted the police officer’s statement that Mr. Stephenson barely blew into the device.  The adjudicator stated: “although you did not verbally refuse to have comply, barely blowing into the device demonstrated an unwillingness or inability to comply.”  That was a proper statement of the legal test for refusal to blow.  It supports a conclusion on a balance of probabilities that Mr. Stephenson failed or refused to provide a breath sample.

[27] The respondents assert that the adjudicator was acting within her jurisdiction and rendered a decision which must be given the degree of deference to be accorded to it by the reviewing court.  The hearing before the adjudicator was a civil proceeding and thus the standard of proof is “a balance of probabilities”; Mr. Stephenson was given the opportunity to provide evidence to contradict what the officer had written, but did not do so. Despite whether the court would have reached the same decision on the evidence, the adjudicator’s decision was based on evidence before her and the correct law.

Decision

[28] Judicial review of the Superintendent’s decision is not an appeal or a full reconsideration.  The test to be applied is whether the decision is unreasonable: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 [Dunsmuir]; Bisceglia v. British Columbia (Superintendent of Motor Vehicles), 2009 BCSC 310, [2009] B.C.J. No. 435 [Bisceglia].

[29] Dunsmuir describes the standard of reasonableness at para. 47:

[47]      ... In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.

[30] The court must defer to the adjudicator’s findings of fact and should not interfere as long as there is some evidence upon which the adjudicator’s finding could reasonably have be made: Shadow v. British Columbia (Superintendent of Motor Vehicles), 2002 BCSC 790, 29 M.V.R. (4th) 145 at para. 13.

[31] The scheme of the Act regarding administrative driving prohibitions has, as its purpose, the improvement of highway safety by summarily removing from the highways anyone who engaging in the activity of drinking and driving: Helgesen v. British Columbia (Superintendent of Motor Vehicles), 2002 BCSC 1391, 55 W.C.B. (2d) 412 at para. 9; Doman v. British Columbia (Superintendent of Motor Vehicles), 2001 BCSC 1730, 21 M.V.R. (4th) 47.  The administration of the Act should not be shackled by the procedural protections available in a criminal prosecution:Bahia v. British Columbia (Superintendent of Motor Vehicles), 2006 BCCA 511, 232 B.C.A.C. 219 at para. 24.

[32] The test to be applied was expressed succinctly by Mr. Justice N. Smith in Bisceglia at para. 14:

[14]      ... [T]he court will not interfere if it can see the process by which the adjudicator reached the decision and if the decision is one that was open to the adjudicator on the evidence.

[33] I find that the adjudicator’s decision was within the range described in Dunsmuir and was open to the adjudicator on the evidence.

[34] The adjudicator noted the time discrepancy on the police report between the time of driving and the time of the demand.  The discrepancy was not raised in Mr. Stephenson’s counsel’s submission seeking a review of the driving prohibition.  The demand appears to be almost one hour before the police officer’s observation of Mr. Stephenson’s driving.  The adjudicator made a common sense inference that the time of the demand was misstated and that it must have occurred at 23:36 hours.  The adjudicator was entitled to make such an inference.  This was expressed by the court in Gordon at para 17:

[17]     ... It is a "common sense inference" that arises from general knowledge available to any trier of fact. It does not depend upon special expertise of an adjudicator, although the general experience of an adjudicator may be brought to bear in weighing the inference.

[35] In respect of the adjudicator’s decision that Mr. Stephenson’s refusal to provide a breath sample was unequivocal, the adjudicator’s found that there was no evidence to support the conclusion that Mr. Stephenson failed to provide the sample because he misunderstood or was unclear about how he was to provide the sample.  She had submissions from counsel, but no direct evidence from Mr. Stephenson.  She had direct evidence in the Report to Superintendant, which is a sworn statement of the police officer, that the officer provided verbal instructions as well as a demonstration to Mr. Stephenson about how he was to provide a breath sample, and the officer’s statement that Mr. Stephenson “barely blew.”  The adjudicator’s conclusion was open to her on the evidence.

[36] I reach the same result regarding the adjudicator’s decision that there was no evidence that a medical condition prevented Mr. Stephenson from providing a breath sample.  The adjudicator had the clinical records of Mr. Stephenson’s visit to the hospital on July 17, 2009 and the suggestion from Mr. Stephenson’s counsel that his failure to blow may have been “caused by a medical condition.”  Again, Mr. Stephenson did not provide evidence to support such a conclusion.  In his Report to the Superintendent, the police officer does not reference any medical condition or any reference to it by Mr. Stephenson in response to the demand nor do the hospital records suggest such a condition.

[37] The adjudicator referred to the documentation showing that Mr. Stephenson experienced chest pain and acute dizziness on July 17, 2009 and was taken to a hospital emergency department and released the same day.  In the paragraph following, the adjudicator referred to the records as showing that Mr. Stephenson “attended a medical facility the day before the incident occurred.”   Despite the reference to the hospitalization being the “day before” which is clearly incorrect, the adjudicator’s decision that there was no evidence to support Mr. Stephenson’s submission that his failure to blow was caused by a medical condition was within the range of “possible acceptable outcomes.”

[38] The petition is therefore dismissed.

Gropper J.