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CRIMINAL CODE offences - Impaired driving or driving over the legal limit - Roadside screening test

Tuesday, July 30, 2019 @ 9:52 AM  


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Appeals by four motorists from judicial review judgments challenging the constitutional validity of the Motor Vehicle Act’s Immediate Roadside Prohibition (IRP) scheme. In 2016, amendments to the IRP scheme placed the burden of proof on a motorist when seeking review of an IRP before the Superintendent of Motor Vehicles. The appellants each received 90-day IRPs after providing roadside breath samples that registered “fail” results, or for failing to provide suitable samples for analysis. The IRPs were upheld on review by the Superintendent and following judicial review that challenged the Superintendent’s decisions and the constitutionality of the legislative scheme. On appeal, the appellants submitted that the scheme violated s. 8 of the Charter by precluding meaningful review of roadside breath sample results underlying an IRP. The appellants argued that it was not possible to obtain success on review, as the reverse onus provision imposed a presumption of reliability on peace officer evidence and the roadside breath sample results.

HELD: Appeals dismissed. Under the IRP scheme, the placement of the burden of proof on the person seeking to revoke a driving prohibition generally comported with the principle that the person who sought to establish a point bore the burden of so doing. In the regulatory, administrative context, ss. 215.5(1) and 215.4(4) did not create a reverse onus involving an illogical imposition of the burden of proof. Nor did the amendments deprive a motorist of the ability to meaningfully challenge the issuance of an IRP or the underlying roadside test results. The new statutory provisions did not create a presumption of reliability operating in favour of police evidence or roadside test results. A burden remained on police to provide the necessary information in a sworn report that disclosed the case to be met. On review, an adjudicator was required to consider the whole of the evidence, assess credibility and reliability where necessary, and issue a reasonable decision. There was no baseline credibility or presumption of reliability given to a peace officer’s report. The chambers judge did not err in finding that the statistical evidence undermined the appellants’ contention that meaningful review of an IRP was a practical impossibility, nor overemphasized the importance of the statistics. The judicial review decisions regarding two of the prohibitions were affirmed.

Lemieux v. British Columbia (Superintendent of Motor Vehicles), [2019] B.C.J. No. 1153, British Columbia Court of Appeal, J.E.D. Savage, B. Fisher and S.A. Griffin JJ.A., June 24, 2019. Digest No. TLD-July292019006