COURT OF APPEAL FOR BRITISH COLUMBIA
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Citation: |
Mackenzie v. British Columbia (Superintendent of Motor Vehicles), |
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2018 BCCA 354 |
Date: 20180919
Docket: CA45051
Between:
Todd Warren Mackenzie
Respondent
(Petitioner)
And
Superintendent of
Motor Vehicles and
the Attorney General of British Columbia
Appellants
(Respondents)
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Before: |
The Honourable Mr. Justice Willcock The Honourable Mr. Justice Fitch The Honourable Mr. Justice Hunter |
On appeal from: An order of the Supreme Court of British Columbia, dated December 27, 2017 (Mackenzie v. British Columbia (Superintendent of Motor Vehicles), 2017 BCSC 2392, Victoria Docket S171949).
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Counsel for the Appellant: |
K. Horsman, Q.C. S. Bevan |
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Counsel for the Respondent: |
J. Teryn |
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Place and Date of Hearing: |
Vancouver, British Columbia May 30, 2018 |
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Place and Date of Judgment: |
Vancouver, British Columbia September 19, 2018 |
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Written Reasons by: |
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The Honourable Mr. Justice Fitch |
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Concurred in by: |
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The Honourable Mr. Justice Willcock The Honourable Mr. Justice Hunter |
Summary:
Appeal by the Superintendent of Motor Vehicles and AGBC from an order made by a chambers judge granting a petition for judicial review and setting aside a decision made by a delegate of the Superintendent to uphold an immediate roadside prohibition issued to the respondent after he refused to provide a breath sample in response to a demand made pursuant to s. 254(2) of the Criminal Code. The officer said he detected an odour of liquor on the respondent’s breath. The respondent denied having anything to drink. His claim was supported by a third party who was in the company of the respondent the evening of the stop. The chambers judge concluded that the adjudicator’s decision was unreasonable within the meaning of Dunsmuir because it was neither transparent nor intelligible. Specifically, the chambers judge held that it was not possible to discern from the adjudicator’s reasons why disputed factual issues material to the outcome of the review – including whether the demanding officer could have detected alcohol on the respondent’s breath and honestly believed that the respondent had alcohol in his body at the time of the stop – were resolved against the respondent. On appeal, the Superintendent submits that the chambers judge erred in his application of the “reasonable suspicion” test, overstated the extent of the conflict between the evidence of the officer and that of the respondent, held the adjudicator to standard of explicit credibility adjudication when the discrepancies in the evidence did not require such an approach, and inappropriately parsed the adjudicator’s reasons. Held: Appeal dismissed. The chambers judge identified the appropriate standard of review and applied it correctly. He appreciated the elements of the “reasonable suspicion” test. While the chambers judge may have overstated the extent to which the evidence was actually in conflict, this had no material bearing on the resolution of the petition. The adjudicator was obliged to resolve material conflicts in the evidence central to the resolution of the review application – most significantly, on whether the demanding officer could have detected an odour of alcohol on the respondent’s breath and, therefore, honestly believed that the respondent had alcohol in his body at the time of the demand. She failed to do so expressly and her reasons for judgment could not support a conclusion that disputed factual issues material to the outcome of the review were implicitly resolved against the respondent. The chambers judge made no error in remitting the respondent’s application to review the driving prohibition for a rehearing.
Reasons for Judgment of the Honourable Mr. Justice Fitch:
[1] This is an appeal by the Superintendent of Motor Vehicles and the Attorney General of British Columbia (collectively the “Superintendent”) from an order made by a Supreme Court judge granting a petition for judicial review and setting aside a decision made by a delegate of the Superintendent (the “adjudicator”) to uphold an immediate roadside prohibition (“IRP”) issued to the respondent on August 20, 2015, under s. 215.41(4) of the Motor Vehicle Act, R.S.B.C. 1996, c. 318 (the “Act”). The IRP was issued after the respondent refused to provide a breath sample demanded by the officer pursuant to s. 254(2) of the Criminal Code, R.S.C. 1985, c. C-46 (the “Code”).
[2] After the IRP was issued, the respondent engaged the administrative review procedure under ss. 215.48–215.5 of the Act. He sought revocation of the driving prohibition and vehicle impoundment as well as cancellation of the monetary penalty. The essence of the respondent’s position was that the officer who stopped him and made the approved screening device (“ASD”) demand lacked reasonable grounds to suspect he had alcohol in his body. As a result, the respondent submitted he had a reasonable excuse for failing to comply with the demand.
[3] The accounts put before the adjudicator by the officer who made the demand and by the respondent differed in some material ways. Most significantly, the officer swore that while dealing with the respondent he noticed a strong odour of liquor on the respondent’s breath that was easily detectable from a distance of three to four feet. In his statutory declaration, the respondent said that on the day in question he had not consumed any alcohol and advised the officer of this. The adjudicator also had before her a statutory declaration prepared by a friend of the respondent who said the respondent was at her house from 8:30 p.m. on August 19, 2015, to 2:15 a.m. on August 20, 2015 (about 25 minutes before the stop occurred) and that he did not consume any alcohol during this time.
[4] The adjudicator undertook a comprehensive summary of the evidence and concluded that the observations reported by the officer were sufficient to ground a reasonable suspicion that the respondent had alcohol in his body when the stop occurred. As a result, the driving prohibition, monetary penalty and vehicle impoundment were confirmed.
[5] The issue on judicial review was whether the adjudicator addressed conflicting evidence central to the determination of whether the officer honestly suspected the respondent had alcohol in his body at the time of the stop. The chambers judge concluded that the adjudicator’s decision was unreasonable within the meaning of Dunsmuir v. New Brunswick, 2008 SCC 9 because it was neither transparent nor intelligible. Specifically, the chambers judge held that it was not possible to discern from the reasons why factual issues central to the outcome of the review – the most important of which was whether the officer detected alcohol on the respondent’s breath – were resolved against the respondent. The Superintendent takes issue with aspects of the analytical approach taken by the chambers judge and with his conclusion that the decision was unreasonable.
[6] For the reasons that follow, I would dismiss the appeal.
[7] I will briefly summarize the legislative provisions relevant to the disposition of this appeal.
[8] Section 254(2) of the Code provides that if a peace officer has reasonable grounds to suspect that a person has alcohol in his or her body and that the person has, within the preceding three hours, operated a motor vehicle, the peace officer may, by demand, require the person to provide forthwith a sample of breath that will enable a proper analysis to be made by means of an ASD.
[9] The IRP provisions of the Act utilize as their starting point the investigative power conferred on peace officers under s. 254(2) of the Code. Section 215.41(4) of the Act provides that if a peace officer has reasonable grounds to believe that a driver failed or refused, without reasonable excuse, to comply with an ASD demand, the peace officer must take possession of the person’s driver’s licence and serve upon them a notice of driving prohibition. Drivers who refuse, without reasonable excuse, to comply with a demand are treated the same as those who submit to an ASD demand and register a “fail”, indicating a blood-alcohol concentration of at least 80mg/100ml. In either circumstance, the IRP must be for 90 days (s. 215.43(2)), a monetary penalty of $500 applies (Motor Vehicle Act Regulations, BC Reg. 26/58 s. 43.09(d)) and the driver’s vehicle is impounded for a period of 30 days (s. 253(7)).
[10] The Act is intended to provide a speedy process for enhancing public safety by ensuring that individuals who drive with not less than a blood-alcohol concentration of 50mg/100ml and thereby register a “warn” are immediately prohibited from driving: see s. 215.43(1) and Goodwin v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 46 at paras. 58–9.
[11] A police officer who serves a notice of IRP must promptly forward to the Superintendent a number of supporting documents, including a report sworn or solemnly affirmed providing evidence of the basis upon which the IRP was issued: s. 215.47.
[12] A person served with a notice of IRP has seven days to apply to the Superintendent for a review: s. 215.48(1). The Act requires the review to proceed by way of an oral hearing only if the IRP was for 30 or 90 days and the applicant requests an oral hearing: s. 215.48(5).
[13] An oral hearing was not requested in this case. As a result, the adjudicator was obliged to determine the matter solely on the basis of written evidence and submissions.
[14] As Newbury J.A. recently commented in Rohl v. British Columbia (Superintendent of Motor Vehicles), 2018 BCCA 316 at para. 7, the review process is a bit “rough and ready”. A similar observation was made by this Court in Kenyon v. British Columbia (Superintendent of Motor Vehicles), 2015 BCCA 485 at para. 59. The usual rules of evidence do not apply. In conducting a written review, the adjudicator must consider the report of the peace officer who served the IRP and any other documents or information provided by that officer. In addition, the adjudicator must consider any other relevant documents and information forwarded by another peace officer, including police reports that have not been sworn or solemnly affirmed. The adjudicator must also consider any written statements or evidence provided by the applicant: s. 215.49(1). Even where an oral hearing is held, no person may be cross-examined on the review: s. 215.49(2). The adjudicator may determine the weight to be given to any document or other information: s. 215.49(4).
[15] The adjudicator must revoke the IRP, cancel the monetary penalty and direct that the applicant’s driver’s licence be returned if satisfied that “the person did not fail or refuse or had a reasonable excuse for failing or refusing to comply with the demand”: s. 215.5(4)(c).
[16] Since introduction of the IRP provisions on September 20, 2010, there have been three main versions of the scheme in effect over time: version 1 – the scheme as originally enacted; version 2 – the scheme as amended to address constitutional infirmities identified in Sivia v. British Columbia (Superintendent of Motor Vehicles), 2011 BCSC 1639; and version 3 – the scheme as further amended on April 1, 2016, to introduce a new s. 215.5(1) clarifying that “[t]he burden of proof in a review of a driving prohibition under section 215.48 is on the person on whom the notice of driving prohibition was served”: Motor Vehicle Amendment Act, 2015, S.B.C. 2015, c. 13, s. 32.
[17] The version of the legislation in effect on August 20, 2015, the date upon which the IRP was issued to the respondent, was version 2.
[18] The Superintendent takes the position that the April 2016 burden of proof amendment has no application in this case because the amendment post-dates the date upon which the IRP was issued. In Rohl at para. 38, Newbury J.A. expressed doubts about the correctness of this approach but proceeded to resolve the appeal on the footing suggested by the Superintendent. I have done the same in this case.
[19] Constable Christians of the Victoria Police Department solemnly affirmed and submitted to the Superintendent’s office a report and accompanying narrative detailing his interactions with the respondent, his grounds for making the ASD demand, and the uncontested fact that the respondent refused to comply with that demand.
[20] The circumstances upon which Constable Christians appears to have relied to make the ASD demand may be summarized as follows:
· The respondent, who was driving a Harley-Davidson motorcycle, appeared to be unsteady on his bike as he left the intersection of Fort and Quadra Streets in downtown Victoria shortly before the stop;
· Fort and Quadra are in close proximity to downtown bars and nightclubs;
· Constable Christians stopped the respondent at 2:40 a.m., shortly after the bars and nightclubs close in Victoria;
· the respondent was confrontational about the reason for the stop, went on a tirade about his right to immediately call a lawyer and refused to acknowledge that he understood the ASD demand even after it was explained to him in simple terms on multiple occasions;
· the respondent appeared to have some difficulty removing his driver’s licence from his wallet, signalling to Constable Christians that he was experiencing motor skill impairment;
· while speaking to the respondent, Constable Christians noticed a strong odour of liquor on the appellant’s breath that was easily detectable from a distance of 3–4 feet;
· the respondent said he had been at a restaurant; and
· the respondent refused to answer a question about when he had consumed his last drink.
[21] In his statutory declaration, the respondent gave a different version of events, including on two critical issues – whether he had consumed any alcohol that evening, and when he was asked to produce his driver’s licence.
[22] On the issue of alcohol consumption, the respondent said, “[A]t no time on the day in question had I consumed any alcohol”, and that he told Constable Christians this. He said Constable Christians asked him if he had been drinking and he immediately replied, “No”. He said that he reiterated later in his interaction with Constable Christians that he “wasn’t drinking”. He said he told Constable Christians that he was coming from a late dinner, not from a bar.
[23] The essence of the respondent’s position was that Constable Christians could not have detected liquor on his breath because he “wasn’t drinking … on the day in question”. The respondent’s version of events was confirmed to some extent by his friend, Dulce Gabas, who submitted a statutory declaration attesting to the fact that the respondent was at her house on the evening in question for dinner and movies. She said the respondent was in her presence between 8:30 p.m. and 2:15 a.m. She said that “[a]t no time during the evening in question did [the respondent] consume any alcohol”. She said the respondent left her home at about 2:15 a.m., telling her that he was going to take the scenic route home by going down the Old Island Highway via the downtown because it was such a beautiful and warm night.
[24] On the issue of whether he had difficulty retrieving his driver’s licence from his wallet, the respondent said he was only asked for his driver’s licence after Constable Christians determined to issue the IRP as a consequence of his refusal to comply with the ASD demand. In submissions filed on the respondent’s behalf on the review, his counsel added that the respondent denied having any difficulty removing his driver’s licence from his wallet. Counsel also underscored the respondent’s sworn evidence that he was not asked to produce his licence until after the ASD demand had been made. The conflict on this point was relevant to the central issue on the review. If Constable Christians made this observation after the ASD demand had been made, it could not inform evaluation of whether he reasonably suspected the respondent had alcohol in his body.
[25] The respondent also denied wobbling on his motorbike as he proceeded from the intersection of Fort and Quadra, but explained that some wobbling should be expected given that he drove his 800 lb. touring bike from a dead stop through an intersection just as a police car sped up from behind with lights and sirens blazing and proceeded to tailgate him to a quick stop.
[26] By letter faxed to the respondent’s counsel at 11:47 a.m. on August 24, 2015, the Superintendent advised that the written review would take place at 9:30 a.m. on August 26, 2015. Counsel was informed that any written submissions to be filed on the respondent’s behalf had to be received before then. In the result, the respondent’s counsel had less than two full days to prepare written submissions for the adjudicator.
[27] The respondent’s counsel faxed written submissions to the Superintendent on August 25, 2015. In that submission, counsel reminded the adjudicator that police officers are not deemed to have a credibility advantage (citing Spencer v. British Columbia (Superintendent of Motor Vehicles), 2011 BCSC 1311), that a decision-maker is required to weigh the evidence and provide a reasonable justification for factual findings that are central to the outcome (citing Costain v. British Columbia (Superintendent of Motor Vehicles), 2012 BCSC 1426), and that the onus of proof rested with the Superintendent.
[28] The respondent argued that because Constable Christians lacked reasonable grounds for suspecting that the appellant had alcohol in his body at the time of the stop, he had a reasonable excuse for failing to comply with the ASD demand. Counsel for the respondent referenced three lower court decisions said to support the proposition that “the jurisprudence across Canada has consistently held that an ASD demand made with insufficient indicia of impairment is invalid”. Copies of the three cases were not included in the respondent’s submissions that were sent to the Superintendent.
[29] Under s. 215.5(6) of the Act, the Superintendent must render a written decision within 21 days of the date the IRP was served on the driver. Section 215.5(7) provides that if the Superintendent is unable to send the decision to an applicant seeking a review within 21 days, the Superintendent may extend that period for a period determined by the Superintendent. Section 215.5(9) requires the Superintendent to promptly give the applicant notice of an extension made under subsection (7).
[30] By letter dated September 10, 2015, the Superintendent informed the respondent that the time for sending a decision had been extended to March 10, 2016. The respondent’s driving prohibition was stayed as of that date. By letter dated May 26, 2016, the Superintendent informed the respondent that a decision could not be sent by March 10, 2016, and that the time for sending a decision had been extended to October 21, 2016. On October 21, 2016, the Superintendent informed the respondent that a decision could not be sent by October 21, 2016, and that time for sending the decision had been extended to January 24, 2017. On January 23, 2017, the Superintendent informed the respondent that a decision could not be sent by January 24, 2017, and that time for sending the decision had been extended to February 7, 2017.
[31] Written reasons on the review were sent by the adjudicator to the respondent on February 7, 2017. The review was resolved approximately 18 months after the IRP was issued.
[32] The respondent served the first 20 days of his 90-day IRP between August 20, 2015, and September 10, 2015. The remainder of the driving prohibition was served by the respondent after the adjudicator had rendered a decision, but before the respondent petitioned for judicial review.
[33] Given the submission made by the respondent to the adjudicator, repeated on the application for judicial review and before this Court, that “an ASD demand made with insufficient indicia of impairment is invalid” and that “without ascertaining a time of last drink, there can be no reasonable suspicion”, I consider it necessary to restate some well-established principles on the application of the reasonable suspicion standard required by s. 254(2) of the Code.
[34] There is both a subjective and objective aspect to the reasonable suspicion standard.
[35] The demanding officer must subjectively entertain an honest suspicion that the detained driver has alcohol in his or her body. Credibility issues and the need to make factual findings as a consequence thereof will most commonly arise in resolving whether the officer subjectively entertained the requisite honest suspicion.
[36] Further, the suspicion must be based on objectively verifiable circumstances which, taken together and subjected to independent judicial scrutiny, establish that the suspicion subjectively entertained by the officer was reasonable: R. v. Chehil, 2013 SCC 49 at paras. 26 and 29. The inquiry is based on circumstances known to the police officer at the time and asks whether it was reasonable, based on the totality of those circumstances, for the officer to suspect that the driver had alcohol in his or her body. The objective component of the test may be framed in these terms: “[W]ould a reasonable person, standing in the shoes of the investigating police officer and aware of all of the objectively verifiable evidence, reasonably suspect the driver had alcohol in his or her body?”: R. v. Yates, 2014 SKCA 52 at paras. 33‒34.
[37] The inquiry is “fact-based, flexible, and grounded in common sense and practical, everyday experience”: Chehil at para. 29.
[38] The reasonable suspicion standard engages the reasonable possibility, not probability, that a driver has alcohol in his or her body: Chehil at paras. 27‒28; R. v. Schouten, 2016 ONCA 872 at paras. 27‒28. Application of the standard means that in some cases a police officer will reasonably suspect that a driver has alcohol in his or her body based on circumstances that are subsequently determined to be attributable to an innocent explanation. For example, an officer might reasonably suspect that a driver has alcohol in his or her body based on the detection of a strong odour of liquor coming from the area of the vehicle in which the driver is seated. In such a case, the officer might reasonably attribute the odour to the driver. That the source of the odour might later be determined to be coming from liquor spilled on the floor boards underneath the driver’s feet, and not attributable to the driver’s consumption of alcohol, does not necessarily mean that the officer’s suspicion was unreasonable.
[39] While a police officer is obliged to take into account the totality of the circumstances, including exculpatory, neutral or equivocal information known to the police officer at the relevant time, the officer does not have an obligation to undertake an investigation to rule out possible innocent explanations for sensory observations or observed behaviour. As noted in Yates at para. 34, “[T]he reviewing court is not to consider whether the investigating officer’s suspicion was accurate or whether other inferences could be drawn from the constellation of circumstances, or to consider whether the investigating officer could have taken further steps to confirm or dispel a prima facie reasonably held suspicion that alcohol was present in the driver’s body”. As applied to this case, there might, for instance, be an innocent explanation for the wobble of the respondent’s motorbike as it left the intersection and for what Constable Christians said about the respondent’s difficulty in retrieving his driver’s licence from his wallet (assuming that this latter observation was made before the ASD demand). The existence of possible innocent explanations does not necessarily take these observations out of the mix. The officer is entitled to take these observations into account as part of the totality of the circumstances.
[40] Importantly, the reasonable suspicion inquiry cannot logically take account of circumstances learned after the demand was made. If, for example, Constable Christians’ observation that the respondent had difficulty extracting his driver’s licence from his wallet was made after the ASD demand (as the appellant asserts), it is not a factor that could be taken into account in determining whether the officer’s suspicion that the respondent had alcohol in his body was reasonable at the time of the demand.
[41] This takes me to the respondent’s assertion that “an ASD demand made with insufficient indicia of impairment is invalid”. On hearing of the petition, counsel for the respondent explained that the Superintendent uses this language to describe the reasonable suspicion inquiry. Regardless of the source of this language, it is wrong as a matter of law and should be avoided in the future. While objectively discernible indicia of impairment may be sufficient to ground a valid ASD demand, such observations are not necessary to the making of a valid demand. A detaining officer who is found to have detected a strong odour of liquor on the mouth of a driver but no observable signs of impairment will, in all likelihood, have a reasonable suspicion that the driver has alcohol in his or her body.
[42] The respondent’s suggestion on appeal that “without ascertaining a time of last drink, there can be no reasonable suspicion” is also wrong. An officer may reasonably suspect that a driver has alcohol in his or her body based on mouth odour even if the driver refuses to respond when questioned as to when he or she consumed their last drink. Alternatively, an officer may reasonably suspect that a driver has alcohol in his or her body based on other indicia of impairment in the absence of a detectable odour of liquor on the driver’s breath.
[43] The adjudicator acknowledged at the outset of his reasons that “a decision-maker must carefully and conscientiously weigh evidence and provide a justification for his or her choice”. The adjudicator said that she was mindful of this principle and applied it in her review.
[44] The adjudicator noted that the respondent referenced three lower court decisions in support of his submission that “an ASD demand made with insufficient indicia of impairment is invalid”. The adjudicator said that because copies of these authorities were not supplied by the respondent’s counsel, “I am unable to determine their relevance”.
[45] The adjudicator thoroughly reviewed the evidence of Constable Christians and the evidence and other information supplied by the respondent. She noted her obligation to “consider all relevant information provided to me”.
[46] In assessing the validity of the ASD demand and the related question of whether the respondent had a reasonable excuse for failing to comply with that demand, the adjudicator said this:
When looking at the validity of the ASD demand, I find it important to look at the reasonableness of the officer at the time. This includes whether he was subjectively and objectively reasonable in forming his reasonable suspicion. … I note that you deny having anything to drink. However, I am mindful that what is important to this particular issue is whether the officer was subjectively and objectively reasonable, at the time of the demand, in suspecting that you had alcohol in your body, based on the information he had. The reasonable suspicion requirement for a roadside ASD demand is of a relatively low standard. Essentially, it is a suspicion of alcohol being in the body of the driver and no more. I note that the officer specifically stated that he observed a “strong odour of liquor” which was “easily detectable” from 3-4 feet away from you. He also noted that you were unsteady on your motorcycle. I find that under the circumstances, the officer’s observations were sufficient for him to have formed a reasonable suspicion, at 0243 hours, that you had alcohol in your body and subsequently read you the ASD demand at 0245 hours.
I am satisfied that the peace officer made a valid ASD demand.
…
Your lawyer argues that because the officer lacked the reasonable grounds for suspecting alcohol consumption, you had a reasonable excuse for failing to comply with the ASD demand. However, I already found that the officer made a valid demand, and that he had sufficient grounds to form his reasonable suspicion. As such, I do not find you had a reasonable excuse in this regard.
[47] It was common ground on the petition that the adjudicator’s decision attracted a reasonableness standard of review. Citing Dunsmuir at para. 47, the chambers judge recognized that reasonableness is concerned with the existence of justification, transparency and intelligibility within the decision-making process and whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. Citing Kenyon at paras. 54‒55, the chambers judge also recognized that judicial review judges should not parse or dissect the reasoning of an adjudicator, but should review the reasons as a whole in order to assess whether the pathway to the conclusion is reasonable. He accepted that any flaw in the adjudicator’s reasoning should be obvious and fundamental to the conclusion reached.
[48] It is apparent that the chambers judge focused on the transparency and intelligibility of the adjudicator’s reasons. He relied on Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para. 16 for the proposition that if the adjudicator’s reasons “allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met”.
[49] Relying on Petrov v. British Columbia (Superintendent of Motor Vehicles), 2015 BCCA 486 at para. 34, the chambers judge noted that “a failure to address conflicting evidence central to the outcome of the review will render an adjudicator’s decision unreasonable”. He accepted that an adjudicator can resolve conflicts in the evidence by providing reasons as to why he or she accepts one story and, implicitly, prefers it to a conflicting version of events: see Clark v. British Columbia (Superintendent of Motor Vehicles), 2015 BCCA 487 at para. 28.
[50] The chambers judge viewed the evidence given by Constable Christians and the respondent as being “significantly at odds” and gave a number of examples of what he considered to be conflicts as between their respective versions of events. He noted Constable Christians’ claim that he smelled liquor on the respondent’s breath in circumstances where the respondent denied having anything to drink, a version of events confirmed by the evidence of Ms. Gabas. In addition, the chambers judge noted the apparent reliance by Constable Christians on his observation that the respondent fumbled in getting his driver’s licence from his wallet and the respondent’s position that he was not asked to produce his licence until after the ASD demand had been made.
[51] The chambers judge concluded that the adjudicator failed to resolve conflicts in the evidence central to the outcome of the review. He said this:
48. The Decision failed to address any part of this conflict in the evidence. It was open for the Adjudicator to accept either version of the evidence but it would have been necessary to explain, however briefly, why that was so.
49. This is also not a case, as counsel for the Superintendent suggests, where the Adjudicator made “implicit findings” of fact. The difficulty is not that the Adjudicator purported to accept the officer’s evidence and then failed to explain why he or she rejected the Petitioner’s evidence. The difficulty is that he or she did neither.
50. I also consider that it might have been open to the Adjudicator to say that he or she did not consider it necessary to resolve any conflict in the evidence because other uncontested facts supported the officer’s reasonable suspicion but the Adjudicator did not do this either.
51. The reason why this is important is evident. Assume the Adjudicator concluded that the mere fact the Petitioner was out at 2:00 a.m. in the vicinity of restaurants and bars was sufficient to ground the officer’s reasonable suspicion. This would then allow both the Petitioner and the Court to then consider the reasonableness of that conclusion. Arguably this fact, in isolation, might not be sufficient in that it “attaches to a particular activity or location rather than to a specific person”: Chehil at para. 28, per Bastarache J., at para. 151 of R. v. A.M., 2008 SCC 19. Two further examples or illustrations are helpful. In the Declaration that the Petitioner swore he said “At no time on the day in question had I consumed any alcohol. I advised the officer as such”. Counsel for the Respondent argued that because the Petitioner was stopped at 2:40 a.m. the Adjudicator may have concluded that the Petitioner was simply saying he had not had anything to drink “that day”, that being since midnight ... though it would still have been necessary to address the sworn Declaration of Ms. Gabas. The real point, however, is that the Adjudicator did not say that he or she had come to any such conclusion. The real point is that counsel for the Respondent, as well as the Petitioner and the Court, are pressed to speculating about what the Adjudicator decided and why he or she did so.
…
61. … Dunsmuir emphasized both the importance of giving deference to administrative decisions and the important role that judicial review serves. A great many subsequent authorities have developed and supported the deference side of this equation. Courts are not meant to parse reasons. Courts should not expect reasons from administrative decision makers that are similar, in structure or content, to what a court would issue. Both the reasons of an adjudicator and the outcomes of a decision should be viewed holistically to support the decision. A reviewing judge should endeavor to supplement the reasons of the decision made before subverting them.
62. At the same time there has to be some meaningful content to the other side of the equation - that being the supervisory role that courts perform on judicial review. That role should not be cosmetic and it should not be a mere rubber stamping of the decision on review. The role is important because it provides ongoing guidance to tribunals and to adjudicators about what is acceptable and what is not. It also ensures that petitioners are afforded a meaningful right of appeal or review.
63. In this case I do not consider that the Decision is reasonable. The Adjudicator, for the most part, simply recited the evidence and arguments that had been presented. The Adjudicator failed to address, in any way, the significant conflict in the evidence before him or her. Furthermore it is simply not possible to discern the basis for the Adjudicator’s decision from either the record or the Decision itself. I consider that these deficiencies go to the essence of the Decision. The application is allowed and the Decision is set aside. It is to be remitted for a re-hearing.
[52] I note that paras. 61 and 62, excerpted above, were recently cited with approval by this Court in Rohl at para. 35.
[53] Having come to the conclusion that the petition should be allowed and the review remitted for a rehearing, the chambers judge addressed: (1) the failure of the adjudicator to consider cases cited but not provided by the respondent’s counsel; and (2) the delay occasioned in the resolution of the review application. On the first issue, he concluded that it was not acceptable for the adjudicator to ignore authorities referred to by the respondent’s counsel in respect of which neutral citations had been provided. On the second issue, which the chambers judge recognized was not raised in the petition, he concluded that a delay of 18 months is unacceptable in the administration of a scheme designed to provide an expeditious process for the resolution of driving prohibition reviews: see Nagra v. British Columbia (Superintendent of Motor Vehicles), 2010 BCCA 154 at para. 26. In the absence of prejudice to the respondent, he declined, however, to make a costs award as a consequence of the delay.
[54] Against this background, the Superintendent submits that the chambers judge erred by failing to accord deference to the decision and reasoning of the adjudicator. The Superintendent submits that misapplication of the reasonableness standard flowed, more particularly, from errors made by the chambers judge in:
1. Failing to assess the record and the adjudicator’s decision through the lens of the legal standard being applied; that is, the low legal standard of reasonable suspicion, a test attuned to possibility and requiring the exclusion of hindsight assessment;
2. Overstating the extent of the conflict between the evidence of the officer and that of the respondent;
3. Holding the adjudicator to a standard of explicit credibility adjudication when the discrepancies in the evidence did not rise to the level of requiring such an approach; and
4. Parsing the adjudicator’s reasons, rather than assessing them as a whole in light of the record.
[55] The parties agree that the standard of review that was applicable to the adjudicator’s decision is the deferential standard of reasonableness. The parties also agree that the standard of review applicable on appeal from judicial review in these circumstances is correctness. The inquiry is twofold: did the chambers judge identify the appropriate standard of review and did he apply it correctly: Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at para. 45; Henthorne v. British Columbia Ferry Services Inc., 2011 BCCA 476 at para. 74; British Columbia (Ministry of Public Safety and Solicitor General) v. Mzite, 2014 BCCA 220 at para. 45.
[56] In Telus Communications Inc. v. Telecommunications Workers Union, 2018 BCCA 331 Willcock J.A., for the majority, emphasized that the reasonableness standard of review requires that attention be paid to both the outcome and the way in which it is articulated:
[2] … [T]he Supreme Court of Canada in both Dunsmuir v. New Brunswick, 2008 SCC 9, and Canada (Attorney General) v. Igloo Vikski Inc., 2016 SCC 38, identified two crucial aspects to meaningful judicial review: on one hand, we are called upon to examine the reasonableness of the substantive outcome of the decision, and, on the other, the process of articulating that outcome.
[3] As Bastarache and LeBel JJ. noted in that case, at para. 47:
In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process.
[4] Because there are two aspects to meaningful judicial review, it is not enough to pose only the question whether the arbitrator’s conclusion is within the range of acceptable outcomes. An affirmative answer to that question is not determinative. The outcome must be justified in a transparent and intelligible manner.
[Emphasis added.]
[57] The Superintendent argues that the chambers judge “did not appreciate or meaningfully apply” the reasonable suspicion standard contemplated by s. 254(2) of the Code in reviewing the adjudicator’s decision.
[58] I see no merit in this argument. The chambers judge quoted extensively from Chehil, the leading authority on this issue. Although the submission made on the respondent’s behalf (that there must be sufficient indicia of impairment to ground a valid ASD demand) was capable of misleading the chambers judge, it is obvious from the record that the submission did not have this effect. That the chambers judge was not led astray by this submission is evident, not only in the reasons for judgment, but in this exchange between the judge and counsel for the Superintendent in oral argument of the petition:
Counsel for the Superintendent: … [T]here is no support for the proposition that there had to be more than an odour of alcohol. What I understood my friend to be doing is saying that in the absence of that new burden provision, we need to heighten the threshold of reasonable suspicion. It has to be more than an odour of alcohol.
The Court: … I wouldn’t accept that. I mean, I think if one believed there was an odour of alcohol, that would be plenty. The problem is there’s some issue about that.
[Emphasis added.]
[59] The Superintendent further submits that the chambers judge erred by focusing on purported conflicts in the evidence that were either non-material or irrelevant to the reasonable suspicion inquiry.
[60] I accept that the chambers judge may have overstated, in some respects, either the extent to which the evidence of Constable Christians and the respondent were actually in conflict or the materiality of the inconsistencies he found. For example, Constable Christians said the respondent told him he had been at a restaurant just before the stop. The respondent said he told Constable Christians, “I wasn’t coming from a bar, but from a late dinner”. In my respectful view, the evidence on this point was not “significantly at odds”, as the chambers judge suggested, nor was it material to the reasonable suspicion inquiry. In addition, the chambers judge found the two versions of events to be at odds because, while Constable Christians said that the respondent “refused to tell him whether he had been drinking”, the respondent said he immediately told the officer that he had not had a drink that day. The chambers judge was mistaken as to the substance of the evidence on this point. Constable Christians did not say that the respondent refused to tell him whether he had been drinking. Rather, he said that the respondent refused to provide an answer when asked when he consumed his last drink. The respondent did not contest Constable Christians’ evidence that he refused to answer this question. I see no material conflict in the evidence on this particular point.
[61] In my view, however, the chambers judge did not err in identifying the two central evidentiary conflicts in this case – whether Constable Christians could have smelled liquor on the respondent’s breath and whether Constable Christians’ observation that the respondent fumbled in retrieving his driver’s licence occurred before or after the ASD demand was made.
[62] The essence of the respondent’s position on review was that Constable Christians could not have identified liquor on his breath because he had not consumed any liquor that evening. As I have noted, the respondent’s evidence on this point was confirmed, to some extent, by Ms. Gabas. This evidence put the veracity of Constable Christians’ evidence on this point in issue – it challenged whether the officer subjectively (honestly) suspected that the respondent had alcohol in his body at the time of the stop. If the officer’s evidence was accepted on this point, there can be little doubt that his suspicion was objectively reasonable.
[63] I agree with the chambers judge that the adjudicator was obliged to resolve the reliability and credibility issues that underpinned the two disputed facts that were material to the outcome of the review: Petrov at para. 34. The obligation to do so is neither unreasonable nor particularly onerous. As this Court explained in Clark:
28. When an adjudicator is faced with conflicting stories, the adjudicator can resolve the conflict by providing reasons why he or she accepts one story, or by providing reasons why he or she does not accept the other story, or by providing reasons why he or she prefers one story over the other: see R. v. R.E.M., 2008 SCC 51 at para. 66, and F.H. v. McDougall, 2008 SCC 53 at para. 86. In my view, it is not an error or unreasonable for the adjudicator to provide reasons only why he or she accepts one story (and implicitly prefers it over the other story). Here, the adjudicator provided reasons why he was satisfied on a balance of probabilities that the officer used a different approved screening device for the analysis of the second breath sample. It was not essential for the adjudicator to explicitly address the credibility of Mr. Clark and Ms. Noble or the reliability of their evidence.
[64] It was open to the adjudicator to accept the evidence of Constable Christians that he smelled a strong odour of liquor on the respondent’s breath. On the totality of the evidence, it would have been open to the adjudicator to prefer the evidence of Constable Christians on this point. It was also open to the adjudicator to find that the respondent had not consumed any alcohol and that Constable Christians could not have detected an odour of liquor on his breath. As a third option, it was open to the adjudicator to conclude that she could not resolve the issue in which case the IRP would have to be revoked as a consequence of the Superintendent’s failure to discharge its onus of proof. Whatever the outcome, the adjudicator was required to resolve material inconsistencies in the evidence and to do so without affording a presumption of reliability to the officer’s report: Spencer at para. 63; Scott v. British Columbia, 2013 BCCA 554 at para. 32.
[65] The adjudicator did none of these things. She thoroughly summarized the evidence but did not resolve material inconsistencies in that evidence. The adjudicator’s “finding” that the officer’s observations were sufficient for him to have formed a reasonable suspicion that the respondent had alcohol in his body at the time of the stop appears to me to be premised on acceptance of the officer’s version of events, particularly on the critical issue of breath odour, in face of unresolved and conflicting evidence led by the respondent and Ms. Gabas.
[66] Like the chambers judge, I am not persuaded that it is implicit in the reasons of the adjudicator that she preferred the evidence of Constable Christians over the evidence led by the respondent. In my view, nothing in the reasons suggests that the adjudicator wrestled with and implicitly resolved the central factual issues in dispute.
[67] While I acknowledge that the adjudicator did not specifically refer to the observations made by Constable Christians that the respondent fumbled getting his driver’s licence out of his wallet in the excerpts referred to herein (at para. 46), elsewhere in the reasons the adjudicator did refer to this evidence in the context of determining whether Constable Christians reasonably suspected that the respondent had alcohol in his body. I note, as well, that the adjudicator appears to have taken into account all of Constable Christians’ reported observations in determining whether his stated suspicion rested on objectively reasonable grounds. It cannot, therefore, be said with confidence that the adjudicator did not take this evidence into account in her analysis. Before doing so, she was, in my view, required to make a factual finding about whether these observations were made before or after the ASD demand was made. Again, that disputed factual issue, material to the outcome of the review, was not resolved by the adjudicator.
[68] As no clear factual findings were made by the adjudicator on issues that were central to the outcome of the review, I agree with the chambers judge that the adjudicator’s reasons fail to explain why the IRP was confirmed.
[69] Before leaving this ground, I wish to address a further submission made by the Superintendent about the meaning that can properly be ascribed to the respondent’s evidence. The Superintendent submits that the statutory declaration of the respondent should be read as going no further than denying alcohol consumption “on the day in question” – in other words, from midnight to 2:40 a.m. on August 20, 2015. The Superintendent submits that the respondent’s version of events sidestepped rather than contradicted Constable Christians’ account. The Superintendent submits that the chambers judge’s finding that the evidence was in conflict on the fundamental question of whether the respondent had consumed alcohol flowed from a failure, on his part, to be attentive to the limits of the respondent’s evidence.
[70] I do not accept the Superintendent’s position on this point. Although inelegantly drafted, the respondent’s statutory declaration, read as a whole and in conjunction with the rest of the evidence, including the evidence of Ms. Gabas, cannot reasonably bear the interpretation the Superintendent urges upon us. Elsewhere in the statutory declaration, the respondent says that when asked by Constable Christians if he had been drinking, he said “No”. He also says that he told the officer that he “wasn’t drinking”. No temporal limitation was put on this evidence. In my view, this Court should construe the respondent’s statutory declaration from a practical, common-sense perspective, taking the whole of its contents into account. Doing so leads me to the conclusion that the statutory declaration cannot reasonably bear the interpretation advanced by the Superintendent.
[71] More to the point, the adjudicator did not bring this interpretation to the statutory declaration. The chambers judge was understandably reluctant to engage in an interpretive exercise not undertaken by the adjudicator. This reluctance is reflected not only in his reasons for judgment (referenced herein at para. 51) but in the following exchange with counsel for the Superintendent during the argument of the petition:
The Court: … Honestly, is this the exercise that I’m supposed to go in and look for some -- because this is what he says. I mean this is what the decision-maker should say. The decision-maker should say the affidavit’s no[t] terribly persuasive. I mean, am I supposed to parse through it in that kind of way to say, well, maybe he meant that?
I see no error in principle in the way in which the chambers judge determined to deal with this issue.
[72] It would, of course, be a serious error in judgment for a review applicant, or anyone acting on that person’s behalf, to prepare a statutory declaration that, while factually accurate, is designed to mislead. I emphasize that my comments in this regard are general in nature and should not be read as being directed to the circumstances of this case.
[73] The Superintendent submits that the chambers judge overstated the conflicts in the evidence, finding that the evidence was in “dramatic conflict” and “in numerous material aspects, diametrically opposed”.
[74] As I have said, I am respectfully inclined to the view that the chambers judge overstated, in some respects, the extent to which the evidence was actually in conflict. I am not, however, persuaded that any overstatement that may have occurred had any material bearing on the resolution of the petition. Accordingly, I would not give effect to this ground of appeal.
[75] The Superintendent’s position on this point is premised on its argument that there were few conflicts in the evidence and none material to the questions of whether Constable Christians honestly suspected the respondent had alcohol in his body at the time of the stop and, if he did, whether that suspicion was reasonably held.
[76] As is apparent from the foregoing discussion, I disagree with the Superintendent that there were no conflicts in the evidence material to the outcome of the review that needed to be resolved by the adjudicator. In my view, the adjudicator was obliged to resolve whether Constable Christians could have detected an odour of liquor on the respondent’s breath and, therefore, honestly believed that the respondent had alcohol in his body at the time of the ASD demand. In my view, the adjudicator should also have resolved whether the alleged fumbling with the licence occurred at all and, if she found that it did, whether it occurred before or after the ASD demand was made. Imposing upon adjudicators in IRP reviews the obligation to resolve conflicts in the evidence material to the outcome of the application is not new. It is an obligation well-established in the jurisprudence of this Court.
[77] Judicial insistence that this obligation be discharged will not, even under version 2 of the legislation, necessarily result in the revocation of driving prohibitions in circumstances where, as here, the demanding officer and the driver provide different accounts about the presence of breath odour. The detection of liquor on a driver’s breath, ordinarily sufficient to justify an ASD demand, will often be accompanied by other observations suggesting the presence of alcohol in the driver’s body. As I have said, it was open to the adjudicator in this case to prefer the evidence of Constable Christians on the critical issue of whether the respondent’s breath smelled of liquor. Evidence that tended to support Constable Christians’ account included the time and area of the stop, the wobble, the respondent’s irrational behaviour after the stop, and the licence fumbling – if this latter observation was found to have occurred before the ASD demand was made. In addition, I note that Constable Christians was accompanied by another officer at the time of the stop. There is a suggestion in the material before us that the accompanying officer also detected liquor on the respondent’s breath. As noted earlier, it was open to that officer to forward to the Superintendent an unsworn report confirming Constable Christians’ version of events. Unfortunately, that simple step was not taken in this case. Had such a report been submitted, the adjudicator would have been obliged to take it into account: s. 215.49(1)(d). Further, had such a confirmatory report been submitted, it is likely that the adjudicator would not have had difficulty resolving the conflict in the evidence about whether Constable Christians detected liquor on the respondent’s breath and honestly believed that the respondent had alcohol in his body at the time of the stop.
[78] In light of the conclusion I have reached – that there were unresolved conflicts in the evidence material to the resolution of the review application – I am unable to give effect to this ground of appeal.
[79] The Superintendent submits that the chambers judge failed to accord the required deference to the adjudicator’s reasons for decision. Instead, the Superintendent submits that the reasons of the chambers judge rest on a minute parsing of language used in the adjudicator’s decision, combined with an insistence that the adjudicator resolve every conflict in the evidence no matter how peripheral it was to the issue of reasonable suspicion.
[80] I would not give effect to this ground of appeal. First, it is evident that the chambers judge understood full well the deferential standard of review he was obliged to apply. He referenced Newfoundland and Labrador Nurses’ Union for the propositions that the “adequacy” of the reasons is not a stand-alone basis for quashing a decision and that, in applying the reasonableness standard, it is necessary to read the reasons together with the outcome to determine whether the result falls within a range of possible outcomes. He expressly acknowledged, by reference to this Court’s judgment in Kenyon, that judicial review judges should not parse or dissect the reasoning of a decision-maker. He understood that any flaw in the reasoning process should be obvious and fundamental to the conclusion reached by the adjudicator. In my view, the chambers judge correctly articulated the governing law.
[81] Having said this, the Superintendent has, in my respectful view, established one occasion on which the chambers judge brought an excessively critical eye to the language used by the adjudicator in the reasons for decision. This occurred when the chambers judge took issue with the adjudicator’s statement that the test for a valid ASD demand is “a suspicion of alcohol being in the body of the driver and no more”. As I understand the reasons of the chambers judge, the adjudicator’s description of the standard gave rise for concern because it failed to explicitly address the objective component of the test – that the officer’s suspicion be reasonable in all the circumstances. With respect, there is merit in the Superintendent’s position that the chambers judge read this line in the adjudicator’s reasons for decision out of context. In my view, examination of the adjudicator’s reasons as a whole leave no room for doubt that the adjudicator understood the objective component of the test.
[82] The Superintendent argues that the chambers judge’s erroneous application of the deferential standard of review also manifested itself when he lifted out of context a single line from the adjudicator’s reasons – “I note that the officer was 3-4 feet away from you” – and concluded that it was not clear what the adjudicator meant in this passage. The Superintendent submits that, taken in context and read as a whole – “I note that the officer specifically stated that he observed a ‘strong odour of liquor’ which was ‘easily detectable’ from 3-4 feet away from you” – the impugned passage is not at all unclear. For convenience, I have set out below the entirety of the impugned portion of the chambers judge’s reasons:
…[T]he Adjudicator remarks “I note that the officer was 3-4 feet away from you”. It is not clear what this means. Is the Adjudicator saying that he or she believes Officer Christian smelled alcohol on the Petitioner? If so, why not say this? Or is the Adjudicator simply asserting that a suspicion, without more, on the part of the officer was sufficient to ground the demand?
[Emphasis added.]
[83] In my view, the Superintendent’s position on this point rests on a misunderstanding of what the chambers judge was attempting to convey in this portion of his reasons. I do not understand the chambers judge to be saying that the passage is unclear in and of itself. Rather, I understand the chambers judge to be expressing uncertainty about whether the adjudicator was making a factual finding that Constable Christians smelled liquor on the respondent’s breath. The absence of any finding on this disputed fact was central to the decision of the chambers judge to allow the petition and remit the matter for a rehearing. Given the context in which the remark was made, I am not persuaded that it reflects an inappropriate parsing of the adjudicator’s language.
[84] Although the chambers judge, on one occasion, adopted what I consider to be an overly critical approach to the reasons of the adjudicator, I am not satisfied that this isolated instance establishes a general departure from the deferential standard of review. In addition, I would note that despite finding reason for concern in the failure of the adjudicator to expressly note the objective prong of the test in the passage discussed herein at para. 81, the chambers judge nevertheless concluded that he did not consider that this statement caused the decision to be unreasonable. In the result, I am unable to conclude that the Superintendent’s submission on this issue has been shown to justify appellate intervention.
[85] As noted earlier, the chambers judge addressed, by way of obiter, the appropriateness of the adjudicator’s refusal to consider authorities that were cited in the respondent’s submission but not provided to him; the failure of the Superintendent to give the respondent timely notice of the extension that was granted after the March 10, 2016, deadline passed; and the impact of the delay and whether it warranted an award of costs. He concluded his consideration of these two issues with the following remarks:
75. In this case the failure to address the conflicts in the evidence in a meaningful way, the failure to read the authorities that the Petitioner relied on, the failure to give notice of the need for an extension and the excessive delay in rendering the Decision, in combination, cannot help but undermine confidence in the Decision and in the process of review. I do not wish to be harsh but I do not consider that this is a decision to which deference or respect, in the broad sense, should be given.
[86] None of these issues are properly before us. I wish to be clear, however, that nothing in these reasons should be construed as endorsing the proposition that delay in the resolution of a review is a consideration that goes to the assessment of whether the decision is reasonable. Further, nothing in these reasons should be taken as addressing the availability of successive extensions under s. 215.5 of the Act or whether a further extension of time may be granted after the time fixed for sending a decision to the applicant has expired.
[87] I conclude with two observations. First, adjudicators should consider it part of their responsibility to familiarize themselves with cases relied on by an applicant where those cases are easily accessible. Second, the delay in resolving the respondent’s review application is unexplained and unacceptable. I wish to be clear that I intend no criticism of the adjudicator assigned to this case. I say only that a delay of 18 months in the resolution of a straightforward review application in the context of a scheme billed as promoting the timely resolution of disputes concerning administrative driving prohibitions can only serve to undermine public confidence in the legislative scheme.
[88] For the foregoing reasons, I would dismiss the appeal.
“The Honourable Mr. Justice Fitch”
I AGREE:
“The Honourable Mr. Justice Willcock”
I AGREE:
“The Honourable Mr. Justice Hunter”