2005 BCSC 99 Dhinsa v. Superintendent of Motor Vehicles et al

IN THE SUPREME COURT OF BRITISH COLUMBIA

The Judicial Review Procedure Act, RSBC 1996 C. 241

Citation:	*Dhinsa v. Superintendent of Motor Vehicles et al,*
	2005 BCSC 99

Date: 20050126
Docket: L043158
Registry: Vancouver

Between:

Paramjit Singh Dhinsa

Petitioner

And

The Superintendent of Motor Vehicles and
The Attorney General of British Columbia

Respondents

Before: The Honourable Mr. Justice Wong

Reasons for Judgment

Counsel for the Petitioner:	Joseph M. Doyle
Counsel for the Respondents:	Bryant A. Mackey
Date and Place of Hearing:	January 13, 2005
	Vancouver, B.C.

INTRODUCTION

[1] The Petitioner seeks judicial review of the decision of a delegate of the Superintendent of Motor Vehicles (the “Adjudicator”), which confirmed an administrative driving prohibition. The administrative driving prohibition at issue was served on the Petitioner, Paramjit Singh Dhinsa, by a police officer on November 29, 2004. A chronology of the events that followed are:

a. The Petitioner, on November 30, 2004, applied to the Superintendent for an oral hearing reviewing the administrative driving prohibition;

b. An oral hearing took place on December 10, 2004;

c. The Adjudicator confirmed the driving prohibition in a decision-letter, dated December 16, 2004;

d. The Petitioner filed a Petition for judicial review on December 22, 2004.

[2] The Petition is to be heard on its merits.

[3] Four grounds of error by the Adjudicator were advanced by the Petitioner for judicial review:

1. That the Adjudicator erred by misapprehending a crucial fact in Elliott v. Superintendent of Motor Vehicles, unreported February 14, 2002 Victoria No. 01-0696 (B.C.S.C.), which was relied on and formed the basis for the adjudicator’s decision in the case at bar. The Adjudicator proceeded on the assumption that there was no numerical breath result obtained in Elliott, when it is clear there was a reading of 220 milligrams of alcohol per 100 millilitres of blood (“220 mgs %”) with two refusals (Elliott, para. 3). The Adjudicator relied on this misapprehension of the facts of Elliott to distinguish Elliott and to infer that a breath result of 150 mgs % meant the demand in the case at bar was a demand to blow into the BAC Datamaster C, not the Approved Screening Device, when, in Elliott, no such inference was made. Therefore, the Adjudicator’s interpretation of Elliott was fundamentally flawed and the decision based on a misinterpretation of the facts and therefore, of the law.

2. That the Adjudicator erred in drawing the inference that a proper demand was made under section 254 of the Criminal Code from the evidence of the existence of one valid sample. There is insufficient information in the report for a valid inference that a proper demand was made as is required by MVA s. 94.1(1)(b) when a driving prohibition is based upon a failure or refusal.

3. That there was an insufficient evidentiary basis for a finding of a valid demand, as there is no evidence in the Report to Superintendent of the content of the demand or other means of assessing the quality of the demand.

4. That there was insufficient evidence of a demand under s. 254 CCC, therefore, there was no jurisdiction for the issuance of a Notice of Driving Prohibition or for the administrative process pursuant to ss. 94.1 – 94.6 MVA to have been undertaken.

[4] I have concluded the Petitioner’s complaints must fail. These are my reasons.

THE BACKGROUND

[5] The affidavit of Jill Walker, Deputy Superintendent of Motor Vehicles, dated January 7, 2005, sets out the documents that were contained in the file of the Superintendent, and which were before the Adjudicator when the review was conducted. A summary of the relevant material is as follows:

(a) Notice of Driving Prohibition which indicates that at 01:16 hours on November 29, 2004 Constable Sandberg had reasonable and probable grounds to believe that Mr. Dhinsa operated a motor vehicle, or had care or control of a motor vehicle, and he failed or refused, without a reasonable excuse, to comply with a demand to supply a sample of his breath under section 254 of the Criminal Code [Exhibit “A” at page 5];

(b) Report to Superintendent from Constable Sandberg [Exhibit “A” at pages 6-8], which indicates that:

(i) Constable Sandberg stopped Mr. Dhinsa because he was having difficulty operating his motor vehicle (i.e., Mr. Dhinsa was having “problems reversing”);

(ii) Constable Sandberg noted in prior contact with Mr. Dhinsa that he carried a strong odour of liquor on his breath and on his person; that his eyes were watery, bloodshot and glassy-red; that his balance was uncertain; and that he was staggering;

(iii) Constable Sandberg noted that in communication prior to the incident, Mr. Dhinsa had “asked Police to call a taxi because of alcohol in his body”;

(iv) Constable Sandberg indicated that at 01:19 hrs. a “Breath Sample” Demand was made, and indicates that the result was an “Invalid Fail” which is noted as occurring at 02:30 hrs;

(v) Constable Sandberg noted that a second attempt was made to obtain a valid sample, and that at 02:39 hrs. Mr. Dhinsa recorded a second “Invalid Fail” result [Exhibit “A” at page 7];

(vi) Constable Sandberg noted that after each invalid sample Mr. Dhinsa was given a warning about the consequences of failing to provide the requested samples [Exhibit “A” at page 8];

(vii) Constable Sandberg noted that a third attempt was made to obtain a valid “Breath Sample”, and that this attempt registered a Valid Result of “150 mg % in 100 ml”. This result is nearly double the legal limit.

(viii) Constable Sandberg noted that three subsequent attempts were made to obtain a second valid sample, and that each attempt resulted was invalid.

(ix) Constable Sandberg noted that “All samples are invalid as a result of Dhinsa not providing proper sample of breath. At 03:33 hrs. Cst. Sandberg advised Dhinsa he was being charged with s. 254 C.C.C.”.

(c) Application for Review of Driving Prohibition in which Mr. Dhinsa indicates that he wishes an oral review, and that he will claim that he had a reasonable excuse for failing or refusing to comply with a demand under section 254 of the Criminal Code [Exhibit “A” at page 3];

(d) Written submissions in the form of a memorandum from Sylvia [Andrews] to Russ [Chamberlain], counsel for Mr. Dhinsa, faxed to OSMV, which confronts the question: “Does there have to be a demand under s. 254 of Criminal Code to sustain a refusal?” [Exhibit “C”];

(e) The written decision of the Adjudicator, A. Bailey, confirming the prohibition [Exhibit “G” at pages 26-8].

[6] The Adjudicator begins by breaking the issue of whether Mr. Dhinsa failed or refused to comply with a demand into two sub-issues: (a) whether there was a demand made; and, (b) whether Mr. Dhinsa failed or refused to comply with the demand. With respect to the first sub-issue, the Adjudicator, in the decision-letter dated December 16, 2004 (Affidavit of Jill Walker, Exhibit “G” at page 27), summarized the evidence of a demand for “breath sample” as follows:

In your case, the Report to Superintendent indicates in the grid on page two that a breath demand was made at 01:19 hours on November 29, 2004. Unlike Elliott v. the Superintendent of Motor Vehicles, the grid also indicates that you provided one sample of breath recording a reading of 150 milligrams of alcohol per 100 millilitres of your blood (“150 mg %”). Further, within the narrative on page 3 of the report, the officer confirmed that one valid sample of 150 mg % was obtained. This reading cannot be obtained from an approved screening device. Therefore, I am able to deduce that the demand was one for a breath sample into an approved breath analysis instrument as required by s. 256 of the Criminal Code.

[7] This point addresses the Petitioner’s use of Elliott v. Superintendent of Motor Vehicles [unreported], Victoria Registry, 01 0696, Feb. 14, 2002 (B.C.S.C.). In fact, the point in Elliott, supra, is that a driver agreeing to give a breath sample pursuant to an ASD demand at the roadside (under s. 254(2) of the Criminal Code) cannot be equated with an agreement to further offer a breath sample to a qualified technician for the purposes of establishing the numerical blood/alcohol percentage (as under s. 254(3)) at a later time. To satisfy the requirements of the Legislation, irrespective of whether an ASD demand is made, complied with or refused, one needs a demand for a sample of breath under circumstances in which a qualified technician is employing a “breathalyser-type” machine (as opposed to an ASD) to determine precisely the driver’s blood/alcohol percentage.

[8] With respect to the second sub-issue, the Adjudicator summarized the evidence of Mr. Dhinsa’s failure or refusal to comply with a demand for “breath sample” as follows:

Having been satisfied that a valid demand had been made I must now consider whether you failed or refused to comply with the demand. Two breath samples are required. You provided one valid sample recording 150 mg %. The grid indicates that you failed to provide a suitable sample on three other occasions. Below the grid the officer noted that you failed or refused to provide a (demanded) sample. You understood the demand. Within the narrative, the officer noted that six attempts were made to acquire samples, of which only one was valid. You were given warnings regarding refusing to comply with the demand but still failed to provide proper samples of breath on five occasions.

Therefore, I am satisfied that you failed or refused to comply with a demand.

[9] With respect to the issue of whether Mr. Dhinsa had a reasonable excuse for his refusal or failure to comply with a demand for breath sample, before confirming the prohibition the Adjudicator summarized the evidence relating reasonable “excuse” as follows:

There is no evidence of an excuse in fact (at the time of refusal) for failing to provide a suitable breath sample.

THE APPLICABLE LAW

[10] The regulatory purpose of the Administrative Driving Prohibition Program is to enhance highway traffic safety by deterring persons from driving when their ability to drive a motor vehicle is impaired by alcohol through prohibition from driving for a period 90 days. In accordance with R. v. Gordon 2002 B.C.C.A. 224, the hearing before the Adjudicator is in the nature of a civil proceeding in which issues are determined on the balance of probabilities, and that the Adjudicator has the power to accept evidence that may not meet normal court standards. The standard of review to be applied is one of patent unreasonableness and that the Adjudicator’s findings of fact must be supported if there is any rational evidence before the Adjudicator of providing an evidentiary basis for the decision in question. The requirement for a demand under s. 254 of the Code is an integral element of the adjudication and there must be some evidentiary basis supporting the finding of a valid demand to satisfy the standard of review: Helgesen v. Superintendent of Motor Vehicles 2002 B.C.J. 2238.

ANALYSIS

[11] As mentioned previously, findings of fact, including drawing inferences from the evidence, is the responsibility of the Adjudicator. So long as there is some rational evidence to support the findings, the court cannot interfere. The Adjudicator can apply a common sense inference that arises from general knowledge available to any trier of fact: Gordon, supra, at para. 17.

[12] Although the Adjudicator erred in distinguishing Elliott factually as a case in which there was no breathalyser reading, I do not think that is determinative of the result.

[13] Recently Newbury J.A., speaking for the Court of Appeal in Taylor v. Superintendent of Motor Vehicles 2004 B.C.J. No. 2613 confirmed that if a demand for a breath sample is made there is no need for direct evidence linking the demand for breath sample with s. 254 of the Criminal Code, provided there was some evidence from which an inference may be drawn that the demand had been made: para. 16.

[14] In this case, on page 2 of Cst. Sandberg’s Report, under the heading “Demand(s) for Samples”, the notations on the “grid” indicate that a demand was made of Mr. Dhinsa for “Breath Sample 1” at 01:19 hrs. on November 29, 2004. Of note is the fact that there are no notations corresponding with “Approved Screening Device”, indicating that no ASD test was administered in this case, thus distinguishing the instant case from Elliott, supra.

[15] If the judicial review judge in Elliott at paras. 16 – 19 concluded that the grid found in page 2 of the Report to Superintendent entitled Demand(s) for Sample(s) filled in with a valid breathalyser reading and other failed samples cannot establish inferentially that a demand for breath samples under s. 254 of the Code had been made, that is contrary to the opinion of the Court of Appeal in Taylor, supra at para. 16. To that extent Elliott may be regarded as having been implicitly overruled.

[16] The Criminal Code contemplates two types of breath demands: one that requires the person to provide a sample of breath as necessary to enable a proper analysis by an approved screening device, which records a result of a “pass” or “fail” basis; and one that requires the person to provide samples of breath necessary to enable a proper technical analysis to determine the precise concentration of alcohol in the person’s blood, such as was done in the case at bar (e.g., “150 mg %”). Criminal Code, R.S.C. 1985, Chap. C-46, ss. 254(2) and 254(3).

[17] The evidence is clear that at least one demand for “Breath Sample” was made of Mr. Dhinsa. Furthermore, there is ample evidence that such a breath demand was made in the context of an investigation under ss. 253 and 254 of the Criminal Code. See Affidavit of Jill Walker, Exhibit “A” Report to Superintendent at pages 6 – 8.

[18] The ‘common sense inference’ available to the Adjudicator is that Mr. Dhinsa was given a proper demand for a sample of breath under s. 254. Such an inference is available to any trier of fact, but is certainly available to the Adjudicator who considers these matters and this type of evidence on a regular basis.

[19] Applying these standards it cannot be said the Adjudicator’s decision that a demand under s. 254 of the Code was made by Cst. Sandberg was patently unreasonable.

[20] The complaint that deletions and additions to the “Time/Date of Demand(s)” column in row marked “breath sample 1” in the grid on page 2 of the sworn Report to Superintendent was not initialled by the Commissioner is a technical flaw of no moment. Even if that information in row marked “Breath Sample 1” of the grid is excised from consideration, there still exists other rational evidence in the report to justify the inference drawn by the Adjudicator.

CONCLUSION

[21] Accordingly the petition to set aside the Adjudication Order is dismissed.

“R.S.K. Wong, J.”
The Honourable Mr. Justice R.S.K. Wong