IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
Adams v. British Columbia (Superintendent of Motor Vehicles), |
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2018 BCSC 1997 |
Date: 20181113
Docket: S180742
Registry: Vancouver
Between:
Christine Adams
Petitioner
And
Superintendent of Motor Vehicles and
The Attorney General of British Columbia
Respondents
Before: The Honourable Mr. Justice N. Smith
On judicial review from: An order of the Superintendent of Motor Vehicles,
dated December 8, 2017, affirming IRP #21-797088
Reasons for Judgment
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Counsel for the Petitioner: |
M. Forhan |
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Counsel for the Respondents: |
G. Morley |
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Place and Date of Hearing: |
Vancouver, B.C. October 17, 2018 |
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Place and Date of Judgment: |
Vancouver, B.C. November 13, 2018 |
[1] The petitioner applies to set aside a decision made by the Superintendent of Motor Vehicles (“Superintendent”) that upheld a 90-day immediate roadside driving prohibition (“IRP”) under the Motor Vehicle Act, R.S.B.C. 1996, c. 318 [MVA].
[2] The petitioner was a passenger in a vehicle when a police officer demanded that she provide a breath sample into an approved screening device (“ASD”). The MVA provides for such a demand where an officer has reasonable grounds to believe that a driver’s ability to drive a motor vehicle is affected by alcohol. A “driver” in this context “includes a person having the care or control of a motor vehicle”: s. 215(1) of the MVA. The only evidence of the petitioner being a driver came from a witness who told police she had seen the petitioner driving the vehicle prior to the police arriving on scene.
[3] Tests on two different ASDs produced “Fail” readings. By operation of s. 215.41 of the MVA, a “Fail” reading on an ASD indicates “that the concentration of alcohol in a person's blood is not less than 80 milligrams of alcohol in 100 millilitres of blood.” The petitioner says those readings were affected by beer she drank after she had been driving.
[4] The IRP was issued on November 17, 2017. The petitioner applied for an oral review by the Superintendent, which was held on November 30, 2017. The adjudicator appointed by the Superintendent delivered a written decision on December 8, 2017.
[5] The events giving rise to the IRP began when a witness saw the petitioner back her vehicle into another vehicle while she was parallel parking in North Vancouver. The witness spoke to the petitioner and subsequently called 911 to report her as impaired after the petitioner entered a beer tasting establishment called the Beere Brewery.
[6] According to the police “occurrence reports” that were before the adjudicator, the witness remained on the telephone with the 911 operator. She reported that she continued to watch the petitioner from outside the tasting room and saw her sit down at a table near the window.
[7] Constables Kennedy and Tollentino of the North Vancouver RCMP arrived on scene at the same time as Corporal Coleman, also of the North Vancouver RCMP. Upon their arrival the witness identified the petitioner in the passenger seat of the vehicle she had previously been driving. She told Constable Kennedy that she had watched the petitioner the entire time she was in the tasting room and saw her drink only a small sample of beer in an approximately one-ounce shot glass.
[8] The occurrence reports indicate that the initial call was received at 7:57 p.m. and the police arrived at 8:09 or 8:10 p.m. The petitioner disputes these times. In her affidavit before the adjudicator she deposed that she was already in the tasting room by 7:57 p.m. and remained there for at least 15 minutes.
[9] The petitioner’s affidavit said she joined her boyfriend and two other friends inside, where she had two six‑ounce “medium sized tasting glasses” of beer and took “a few sips” of the different beers that others at the table were drinking. She said it was not possible for the witness to have seen how much she drank because she was sitting with her back to the window at a table that was near the back of the establishment. She estimated there were about 40 customers in the room.
[10] The petitioner’s boyfriend, Mr. Hashemi, also provided an affidavit saying the petitioner had dropped him off in front of the tasting room, then joined him and their friends inside about five to seven minutes later. He also said the petitioner drank two six‑ounce “medium sized tasting glasses” of beer in about 15 minutes.
[11] Both the petitioner and Mr. Hashemi said that the police arrived within about 30 seconds to one minute after they got into their vehicle, with Mr. Hashemi in the driver’s seat. The occurrence reports confirm that the petitioner was in the passenger seat when she was asked about her alcohol consumption. They report her saying that she had “one beer at home, and two small beer tasters inside”.
[12] Constable Kennedy demanded the petitioner provide a breath sample. That test produced a “Fail” result at 8:23 p.m. The petitioner requested a second test, which produced a “Fail” result at 8:35 p.m. Constable Kennedy then served the IRP.
[13] The IRP was issued under s. 215.41(3.1) of the MVA, which reads:
(3.1) If, at any time or place on a highway or industrial road,
(a) a peace officer makes a demand to a driver under the Criminal Code to provide a sample of breath for analysis by means of an approved screening device and the approved screening device registers a warn or a fail, and
(b) the peace officer has reasonable grounds to believe, as a result of the analysis, that the driver's ability to drive is affected by alcohol,
the peace officer, or another peace officer, must,
(c) if the driver holds a valid licence or permit issued under this Act, or a document issued in another jurisdiction that allows the driver to operate a motor vehicle, take possession of the driver's licence, permit or document if the driver has it in his or her possession, and
(d) subject to section 215.42, serve on the driver a notice of driving prohibition.
[14] Section 215.5 deals with reviews of driving prohibitions by the Superintendent and reads, in part:
215.5 (1) The 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.
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(4) If, after considering an application for review under section 215.48, the superintendent is satisfied by the person that the person was not a driver within the meaning of section 215.41 (1) or is satisfied by the person that,
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(b) in respect of a 90-day driving prohibition resulting from a sample of breath for analysis by means of an approved screening device and the approved screening device registering a fail,
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(iv) the result of the analysis on the basis of which the notice of driving prohibition was served was not reliable, or
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the superintendent must
(d) revoke the driving prohibition,
...
[15] On the review in this case, the adjudicator had to determine whether the result of the analysis was unreliable under s. 215.5(4)(b)(iv) because it was likely to have been significantly affected by alcohol consumption after the petitioner had been driving. That required the adjudicator to determine how much the petitioner drank after driving, which required her to weigh sworn affidavit evidence put forward by the petitioner against hearsay evidence of what the witness told police she had observed.
[16] The only sworn evidence from the police that was before the adjudicator was a Report to Superintendent sworn by Constable Kennedy. That is a printed form on which the officer fills out details of the ASD tests, the grounds for making a breath demand, and the relevant times. The more detailed information, including all of the evidence of what the witness said, was contained in the occurrence reports, which were not sworn.
[17] In response to a submission by counsel about the hearsay nature of the evidence from the witness, the adjudicator said:
..the Complainant was identified by name and gave a detailed report of what was happening from moment to moment, until police arrived, at which time the Complainant pointed you out as the driver she had witnessed. I find the evidence from the Complainant to be probative and reliable, which is consistent with Jacobs, cited by Ms. Walker.
[18] The adjudicator was referring to Jacobs v. British Columbia (Superintendent of Motor Vehicles, 2013 BCSC 1353, where the Court said at para. 17 that in administrative proceedings such as those before the Superintendent, hearsay evidence that is “probative and reliable” is admissible, although the weight to be given to it is a separate question.
[19] In addition to the affidavits of the petitioner and Mr. Hashemi, the adjudicator had before her an affidavit from an articled student in the office of the petitioner’s counsel. The student said she visited the tasting room and observed that it had dark tinted, reflective windows that made it difficult to see the interior from outside. However, the adjudicator noted that the photographs accompanying the affidavit had been taken in daylight:
… I find it consistent with common knowledge and logic that it would be easier to see inside such a building at night when the lights on inside. The Complainant said she was watching you from outside at night when it would have been dark out.
According, I reject Ms. Waker’s argument that the Complainant would not have been able to see you inside the establishment.
[20] The adjudicator said she preferred the evidence of the witness, who she found would likely have gone inside to observe the petitioner if she had difficulty seeing through the window:
In your affidavit, you said you joined your group of friends who you said were seated at the back of the brewery and that you had your back to the window, so the Complainant could not have seen what you were drinking. This is inconsistent with the evidence from the Complainant in the OR3 that you “sat down at a table inside the business by the window.” I find that the evidence about this person in the OR3 and in your affidavit indicates that she was determined to keep an eye on you to assist the police. Her evidence has been consistent with your version of events until this point, and given her probative and reliable evidence overall, I find it more likely than not that she did not start to fabricate evidence about you at this point. It is reasonable to conclude from the nature of her evidence that if she had not been able to see you from the window, it is likely she would have entered the business to be able to keep an eye on you until the police arrived. As a result of considering the evidence overall, I find I prefer the Complainant’s version of events in the police submissions over yours on this matter.
[21] The adjudicator then concluded:
The reliable evidence before me is that you were in the brewery for less than 15 and closer to ten minutes. I find it inconsistent with common sense and logic that you could have ordered and consumed two six-ounce glasses of beer, as you allege, in addition to having tasted your friends’ drinks in this amount of time. Constable Kenney [sic.] said when asked, that you told her you had consumed “one beer at home, and two small beer tasters inside”. This answer is more consistent with what the Complainant said she saw you consume - “a small sample of beer (shot approx. size 1 oz.)” -- rather than what you allege you consumed in the short period you were inside the brewery.
[Emphasis added]
[22] As for the affidavit of Mr. Hashemi, which supported the petitioner’s evidence, the adjudicator said:
I note, however, that Mr. Hashemi corroborated your evidence about the amount you consumed, but since it is inconsistent with other evidence noted above and with common sense, I find that he fabricated his evidence in this regard to assist you.
[23] The adjudicator then concluded:
I note your reported driving behavior, the Complainant’s observations of you before you entered the brewery, your admitted consumption of alcohol prior to driving, and the symptoms the peace officers observed of you. I find these observation are consistent with the results of the ASD analyses, which results reflect the alcohol you had in your body when you were driving.
You have not satisfied me that your BAC was less than 80 mg% even though the ASD registered a “FAIL”.
[24] It is common ground that the adjudicator’s decision is to be reviewed on a standard of reasonableness, which the Supreme Court of Canada described in Dunsmuir v. New Brunswick, 2008 SCC 9 at para. 47:
47 Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquiries into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. 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.
[Emphasis added]
[25] In Kenyon v. British Columbia (Superintendent of Motor Vehicles), 2015 BCCA 485, the Court of Appeal said that in reviews of this kind, the Court should not finely parse the adjudicator’s decision.
[53] … Judicial review judges should read the reasons of the adjudicator as a whole in order to assess whether the reasoning is so lacking in logic, or is otherwise flawed, that it renders the decision unreasonable despite the fact there is some evidence to support a conclusion that the decision falls within a range of acceptable outcomes.
[26] The Court in Kenyon adopted what was said in Rangi v. British Columbia (Superintendent of Motor Vehicles), 2014 BCSC 2343:
[24] Obviously, an adjudicator’s reasons for deciding whether or not to confirm a prohibition are not meant to be the equivalent of judicial reasons for judgment. What is required is evidence reasonably supporting the conclusion that was reached and a route to that conclusion that does not involve a manifestly flawed reasoning process. …
[Emphasis added]
[27] One “route to a conclusion” that the Court has recognized may be “manifestly flawed” is one that begins by giving police evidence the benefit of a presumption of baseline reliability. In Scott v. British Columbia (Superintendent of Motor Vehicles), 2013 BCCA 554. The Court of Appeal said at para. 32:
[32] In the present case, although there was some evidence from which the adjudicator could have reasonably concluded that the respondent had unequivocally refused to provide a breath sample, her assessment of credibility was manifestly flawed because she afforded a presumption of reliability to the officer’s report and required the respondent to refute the statements in the report. As her reasoning process was not reasonable, her decision cannot stand.
[28] The same issue was considered by Justice Burnyeat in Macht v. British Columbia (Superintendent of Motor Vehicles), 2016 BCSC 250 where the Court also commented on the need to weigh sworn affidavit evidence against unsworn police reports:
[37] As well, there is no commentary by the Adjudicator regarding whether a greater weight should be given to the two Occurrence Reports which were not sworn or solemnly affirmed. I am satisfied that it is insufficient to merely attach occurrence reports and assume that, because a report is sworn or affirmed, that the affiant is also swearing or affirming as to the truthfulness what is set out in an occurrence report.
[38] Here the Adjudicator made no comment about the relative weight to be given to the Occurrence Reports that are not sworn even though they form “part of this sworn document”. As well, there is no consideration of the relative reliability between the Occurrence Reports which are not sworn and the sworn Affidavits of Mr. Macht and Ms. Weber. Rather, a baseline reliability of what was in evidence from Constable Price was the starting point of the Decision and should not have been.
[29] It is clear that the police officers made no independent observation of the petitioner driving and could have had no grounds for making the breath demand without the information provided to them by the witness. The evidence of what the witness observed was either hearsay (her statements to the police officers at the scene) or double hearsay (her statements to the 911 operator, which were relayed to the police officers).
[30] As stated in Jacobs, the reception of hearsay evidence involves a two‑stage analysis. The determination that the evidence is probative and reliable goes to admissibility. Once the evidence is found to be admissible, the weight it is given must be decided in the context of all of the evidence. In other words, a finding that the evidence is probative and reliable does not automatically result in that evidence being accepted in all respects and all contrary evidence rejected. That is consistent with what the Supreme Court of Canada said in R. v. Khelawon, 2006 SCC 57 at para. 3:
3 The distinction between threshold and ultimate reliability reflects the important difference between admission and reliance. Admissibility is determined by the trial judge based on the governing rules of evidence. Whether the evidence is relied upon to decide the issues in the case is a matter reserved for the ultimate trier of fact to decide in the context of the entirety of the evidence. The failure to respect this distinction would not only result in the undue prolongation of admissibility hearings, it would distort the fact-finding process. In determining the question of threshold reliability, the trial judge must be mindful that hearsay evidence is presumptively inadmissible. The trial judge's function is to guard against the admission of hearsay evidence which is unnecessary in the context of the issue to be decided, or the reliability of which is neither readily apparent from the trustworthiness of its contents, nor capable of being meaningfully tested by the ultimate trier of fact.
…
[31] More recently, in R. v. Bradshaw, 2017 SCC 35, the Court said at paras. 26 and 27:
26 To determine whether a hearsay statement is admissible, the trial judge assesses the statement's threshold reliability. Threshold reliability is established when the hearsay "is sufficiently reliable to overcome the dangers arising from the difficulty of testing it" .These dangers arise notably due to the absence of contemporaneous cross-examination of the hearsay declarant before the trier of fact. In assessing threshold reliability, the trial judge must identify the specific hearsay dangers presented by the statement and consider any means of overcoming them. The dangers relate to the difficulties of assessing the declarant's perception, memory, narration, or sincerity and should be defined with precision to permit a realistic evaluation of whether they have been overcome.
27 The hearsay dangers can be overcome and threshold reliability can be established by showing that (1) there are adequate substitutes for testing truth and accuracy (procedural reliability) or (2) there are sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy (substantive reliability).
[Citations omitted.]
[32] In deciding threshold reliability, one consideration must be whether the hearsay evidence being tendered provides a full and accurate account of what the declarant said. Presentation of only a portion of the hearsay information may deprive a party of a meaningful opportunity to challenge its reliability and the weight to be accorded to it.
[33] In this case, the narrative in the occurrence reports includes things that the witness said to police and the 911 operator before the breath demand was made and the IRP issued. Those same reports also indicate that, after those events, Constable Tolentino took a further statement from the witness. That further statement was not put before the adjudicator nor disclosed to the petitioner. Therefore, neither the petitioner nor the adjudicator were able to determine whether the occurrence reports provided a complete and accurate recitation of what the witness said she observed. Further, they were unable to determine if there were any inconsistencies between the occurrence reports and the subsequent statement.
[34] I find that the existence of a further statement from the witness that was not put before the adjudicator should have been fatal to the threshold reliability of the hearsay evidence. The decision relying primarily on that evidence is therefore unreasonable. This is sufficient to dispose of the matter, but I also find the adjudicator’s reasoning to be manifestly flawed in other respects.
[35] The adjudicator appears to have conflated the test of threshold reliability with the question of weight. In stating that she found the evidence probative and reliable—and therefore admissible—the adjudicator relied on the fact that the witness “gave a detailed report of what was happening from moment to moment, until police arrived”.
[36] The accuracy of the observations giving rise to that “moment to moment” report was one of the issues on which the adjudicator was required to weigh the hearsay evidence against the sworn testimony of the petitioner and her witnesses. Instead, the adjudicator treated the finding that the evidence was probative and reliable as also being a conclusive determination that it was credible. Having done so, the adjudicator then either interpreted other evidence in the manner that was most consistent with the hearsay or rejected any evidence that contradicted it.
[37] For example, the adjudicator compared the petitioner’s reported statement to the police that she had “two small beer tasters” to her affidavit that refers to “two medium-sized tasting glasses” of beer. The adjudicator then found the statement to the police was more consistent with the witness’s reference to “a small sample of beer (shot approx. size 1 oz.)”.
[38] The petitioner’s initial statement to police and her affidavit both referred to two tasting glasses of beer. The two statements are inconsistent to the extent that one referred to small glasses and the other to medium-sized glasses (although the distinction is somewhat imprecise and subjective), but I fail to see how a reference to two glasses of beer can be described as more consistent with a reference to one glass than with another reference to two. As a matter of pure logic, the most that could be said is that the petitioner’s statement to the police was not entirely consistent with either her affidavit or the statement of the witness.
[39] The adjudicator also found it inconsistent with common sense and logic that the petitioner could have “ordered and consumed” the amount of beer she gave evidence of in the 10 to 15 minutes that she was in the tasting room. In fact, neither the petitioner’s affidavit nor Mr. Hashemi’s said anything about the petitioner ordering beer.
[40] The petitioner said she entered the tasting room and joined Mr. Hashemi and two other friends at a table. Mr. Hashemi said the two other friends were at the table when he entered five to seven minutes before the petitioner. There was no evidence as to whether the petitioner ordered beer or drank beer that was already on the table.
[41] It not clear on what basis the adjudicator found that two six‑ounce glasses in 10 to 15 minutes was “inconsistent with common sense and logic”. All that can be said from common sense and logic is that individuals may drink beer (or anything else) at different rates and the same individual may do so at different rates at different times.
[42] The adjudicator rejected affidavit evidence that it would have been difficult for the witness to see through the windows, based on “common sense and logic that it would be easier to see inside such a building at night when the lights are on inside”. While that general statement may be true, the ease with which a witness could see inside a particular building and the details that would be visible must depend both on the extent to which the window glass was darkened and the level of lighting inside. There was no evidence on that point and the adjudicator appears to have simply made the assumption most favourable to the credibility of the evidence she had already decided to accept. An adjudicator cannot supply necessary facts to uphold a driving prohibition if evidence of those facts is lacking: Verdonk v. British Columbia (Superintendent of Motor Vehicles), 2015 BCSC 215 at para. 46.
[43] I am also troubled by the adjudicator’s approach to the evidence of Mr. Hashemi. She simply dismissed his sworn affidavit as being fabricated, largely because it corroborated the petitioner’s evidence and was not consistent with the hearsay evidence. There are many reasons the evidence of a witness may not be accepted, including issues relating to accuracy of observation and reliability of memory. But, in my view, a trier of fact must be cautious about expressly accusing witnesses of perjury solely because their evidence is not consistent with other evidence.
[44] The adjudicator’s treatment of Mr. Hashimi’s evidence was similar to, if not more serious than, the error identified by the Court in Petrov v British Columbia (Superintendent of Motor Vehicles), 2014 BCSC 274. In that case, the adjudicator referred to the fact that the wording of the petitioner’s affidavit was in places identical to that in the affidavit of a witness and concluded that the two affidavits “do not represent separate accounts”. The Court said at para. 24:
[24] This reasoning is flawed. The adjudicator was faced with two sworn accounts of the same event. The fact that the accounts were similar is not surprising. Indeed if the two affiants are accurately describing the event in question then consistency in their observations would be expected. The adjudicator ignores the evidence contained in the affidavits and appears to equate their similarity with a lack of credibility. It was unreasonable to do so. …
[45] Having considered the adjudicator’s reasons as a whole, including the matters referred to above, I find that she afforded the hearsay evidence of the witness a baseline reliability. She began by declaring the evidence “probative and reliable”—a conclusion that properly goes only to admissibility and not weight—then effectively rejected all contrary evidence out of hand. As such, the reasoning process was “manifestly flawed” and the decision was unreasonable.
[46] The usual order in cases of this kind is that the matter be remitted to the Superintendent for reconsideration by a different adjudicator. The petitioner submits that in this case the Court should simply quash the Superintendent’s decision, arguing that there is no reasonable basis on which the IRP could be confirmed on a rehearing.
[47] A court will only rarely make the decision which legislation assigns to the administrative tribunal: Dennis v. British Columbia (Superintendent of Motor Vehicles), 2000 BCCA 653 at para. 26. One exception is where the result of a rehearing is inevitable because it is impossible to arrive at any other conclusion on the evidence: Martin v. British Columbia (Superintendent of Motor Vehicles), 2015 BCSC 1357 at para. 37.
[48] In this case, I have found that the hearsay evidence from a witness should not have been accorded threshold reliability because a further statement from the same witness was known to exist but not put into evidence. In the absence of evidence from that witness, there is no evidence that the petitioner was driving at all, much less that she did so while her ability to drive was affected by alcohol, and there would be no basis on which the IRP could be upheld.
[49] Section 215.49(1) of the MVA sets out the material the Superintendent may consider in a review, including the report of the peace officer and:
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(d) any other relevant documents and information forwarded to the superintendent by the peace officer who served the notice of driving prohibition or any other peace officer, including peace officers' reports that have not been sworn or solemnly affirmed,
...
[50] The full statement of the witness was not forwarded under para. (d), although it could have been. The question is whether the Superintendent would have jurisdiction to consider it on a rehearing.
[51] In Stenner v. British Columbia (Superintendent of Motor Vehicles), 2015 BCSC 2318, the petitioner driver sought to introduce fresh evidence on an IRP review. Justice Voith held that the issue of whether the Superintendent is able to re-open a case, or to reconsider its decision when fresh evidence exists, had to be considered first by the Superintendent: paras. 57-62. The governing principle is that a statutory decision-maker is entitled to interpret its home statute and provide reasons that can then be considered on judicial review.
[52] However, Voith J. added in obiter dicta his view that the Superintendent did, in fact, have the ability to consider fresh evidence, at least in limited circumstances. Upon the matter being remitted to the Superintendent, he declined to follow that obiter dicta. Instead, the Superintendent relied on cases that, according to him, stood for the proposition that he only had powers expressly assigned to him by legislation. On a further judicial review, Stenner v. British Columbia (Superintendent of Motor Vehicles), 2016 BCSC 1690, Justice Sharma found that decision by the Superintendent to be reasonable.
[53] If the Superintendent took the position that there was no jurisdiction to consider further evidence provided by the driver, it is difficult to see how the position could be any different in respect of further evidence from the police, particularly when that evidence could have been put forward at the original hearing.
[54] However, that question must be decided in the context of this case and was not argued before me in any event. In the first instance, it is for the Superintendent to consider. The matter must therefore be remitted to the Superintendent for rehearing before a different adjudicator.
[55] The petitioner also seeks special costs against the Superintendent. Costs are not generally awarded in cases of this kind unless there are extraordinary circumstances and/or misconduct: Lang v. British Columbia (Superintendent of Motor Vehicles), 2005 BCCA 244.
[56] In Lang, the Court of Appeal upheld an award of costs in one of three cases before it because the adjudicator’s remarks illustrated a lack of neutrality and gave rise to a reasonable apprehension of bias. While some of the adjudicator’s comments in this case (including her treatment of Mr. Hashemi’s evidence) come close to what was criticized in Lang, I am not prepared to automatically equate a flawed reasoning process with bias. I decline to award costs.
[57] In summary, the petition is allowed. The decision of the Superintendent is set aside and the matter remitted to the Superintendent for reconsideration. There is no order as to costs.
“N. Smith J.”