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CRIMINAL CODE OFFENCES - Impaired driving or driving over the legal limit

Friday, July 26, 2019 @ 6:09 AM  

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Appeal by the Crown from a judicial review judgment setting aside a roadside driving prohibition. The respondent, Adams, drove to a brewery to meet friends. While parallel parking, the respondent struck the vehicle parked behind her. She checked for damage and returned to her vehicle to write a note including her contact information prior to entering the brewery. A witness approached and told the respondent that she was going to call police. The witness called 911 and told police that she smelled alcohol on the respondent’s breath, and that the respondent entered the brewery and consumed one small sample of beer. The respondent exited her vehicle when police arrived and advised she had one beer at home and two samples inside the brewery approximately 15 minutes earlier. She acknowledged colliding with the other vehicle and advised of her intent to leave a note. Police detected glassy eyes and a strong smell of alcohol on the respondent’s breath and issued a roadside demand. The respondent provided two breath samples that registered a “fail” reading. Police issued an immediate 90-day roadside prohibition and impounded the vehicle. An adjudicator affirmed the prohibition following a review, finding that the respondent failed to establish her blood-alcohol level was legal when she drove to the brewery, and that her evidence of further consumption within the brewery was unreliable. On judicial review, the chambers judge set aside the ruling due to the adjudicator’s failure to scrutinize the police hearsay evidence for threshold reliability and a manifestly flawed assessment of the evidence. The Crown appealed.

HELD: Appeal allowed. The common law requirements of threshold reliability of hearsay evidence did not apply to a roadside prohibition review under s. 215.48 of the Motor Vehicle Act. In addition, s. 215.49(1)(d) did not compel police to produce all relevant information and documents in their possession for a review in the absence of any such request from an applicant. The chambers judge erred in finding that the adjudicator’s decision was unreasonable due to the failure by police to disclose the content of the witness’s statement. Despite concerns regarding the adjudicator’s rejection of the respondent’s evidence, the reasons for the decision disclosed a reasonable pathway. The respondent did not tender any evidence to establish that her drinking at the brewery impacted the reported symptoms of her alcohol consumption and her roadside “fail” reading. The adjudicator reasonably concluded that the respondent failed to prove that the fail result was inaccurate. The chambers judge’s decision was set aside, and the prohibition was reinstated.

Adams v. British Columbia (Superintendent of Motor Vehicles), [2019] B.C.J. No. 1132, British Columbia Court of Appeal, M.E. Saunders, D.M. Smith and H. Groberman JJ.A., June 20, 2019. Digest No. TLD-July222019014