2005 BCSC 110 Culley v. British Columbia (The Superintendent of Motor Vehicles)

Before: The Honourable Mr. Justice Joyce

Reasons for Judgment

Counsel for the petitioner	H. Smith
Counsel for the respondent	S. Martorana
Date and Place of Trial/Hearing:	October 6, 2004 and January 21, 2005
	New Westminster and Chilliwack, B.C.

[1] On April 18, 2004 the police stopped a car being driven by the petitioner because of the manner in which the car was being driven. The police officer demanded that the petitioner provide a sample of his breath by means of an approved screening device, pursuant to s.254(2) of the Criminal Code, R.S.C. 1985, c.C-46, which provides:

(2) Where a peace officer reasonably suspects that a person who is operating a motor vehicle or vessel or operating or assisting in the operation of an aircraft or of railway equipment or who has the care or control of a motor vehicle, vessel or aircraft or of railway equipment, whether it is in motion or not, has alcohol in the person's body, the peace officer may, by demand made to that person, require the person to provide forthwith such a sample of breath as in the opinion of the peace officer is necessary to enable a proper analysis of the breath to be made by means of an approved screening device and, where necessary, to accompany the peace officer for the purpose of enabling such a sample of breath to be taken.

[2] The petitioner refused to provide a sample of his breath, whereupon the police officer issued a Notice of Driving Prohibition under s.94.1 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318 (the “Act”). That section reads as follows:

94.1 (1) If a peace officer has reasonable and probable grounds to believe

…

(b) that a person failed or refused, without a reasonable excuse, to comply with a demand made on the person to supply a sample of his or her breath or blood under section 254 of the Criminal Code in respect of the operation or care or control of a motor vehicle,

the peace officer must,

(i) take possession of the person's licence or permit if the person has it in his or her possession, and

(ii) serve on the person a notice of driving prohibition…

[3] On April 22, 2004 the petitioner applied for a review of the administrative driving prohibition pursuant to s.94.4 of the Act. He argued that there was no factual basis upon which the police officer could reasonably have suspected that the petitioner had alcohol in his body, and therefore the police officer had no proper basis for making a demand under s.254(2) and the petitioner had a reasonable excuse for failing to comply with the demand.

[4] The powers to be exercised by the adjudicator on the review are set out in s.94.6 of the Act, the material portions of which read as follows:

94.6 (1) If after considering an application for review under section 94.4, the superintendent is satisfied that

…

(b) the person failed or refused, without a reasonable excuse, to comply with a demand made on the person to supply a sample of his or her breath or blood under section 254 of the Criminal Code in respect of the operation or care or control of a motor vehicle

the superintendent must confirm the driving prohibition.

(2) If after considering an application for review under section 94.4, the superintendent is satisfied that

…

(b) the person

(i) did not fail or refuse to comply with a demand made on the person to supply a sample of his or her breath or blood under section 254 of the Criminal Code in respect of the operation or care or control of a motor vehicle, or

(ii) had a reasonable excuse for failing or refusing to comply with the demand referred to in subparagraph (i),

the superintendent must

[5] The adjudicator stated the issues before him as follows:

(a) whether the petitioner operated or had care and control of a motor vehicle,

(b) whether the petitioner failed or refused to comply with a demand and

[6] He held he could not consider the petitioner’s argument regarding lack of reasonable grounds and upheld the driving prohibition.

[7] The petitioner now seeks a review of the decision of the adjudicator pursuant to the Judicial Review Procedure Act, R.S.B.C. 1996, c.241. The respondent concedes that the adjudicator erred in not considering the petitioner’s argument and says the decision should be quashed and the matter remitted for re-hearing.

[8] The petitioner had originally sought by way of remedy not only that the decision of the adjudicator be quashed, but also that the driving prohibition be quashed or stayed. However, the petitioner’s counsel later conceded that the appropriate remedy is to quash the decision and remit the matter to an adjudicator for rehearing.

[9] The only matter requiring determination on this hearing, therefore, is where in the analysis of the issues arising under s.94.6 the adjudicator should consider the question whether the police officer had the grounds necessary to demand a breath sample.

[10] The petitioner submits the adjudicator must consider the question when determining both the second and third issues that he identified. The respondent submits that the question of whether there were reasonable grounds for the demand is to be considered only at the third step in determining whether the petitioner had a reasonable excuse for failing to comply with the demand.

[11] The petitioner says the issue is significant as it may affect the burden of proof: the officer has the burden to establish on a balance of probabilities that a demand was made under s.254 while the driver has the burden of establishing reasonable excuse.

[12] With respect to the issue of whether the petitioner failed or refused to comply with a demand under s.254 of the Criminal Code, the adjudicator said:

… your lawyer argued that the officer could not have had a reasonable suspicion to believe that you had consumed alcohol and, therefore, could not issue a demand pursuant to s.254 of the Criminal Code. In Watts v. The Superintendent of Motor Vehicles [(2002), 1 M.V.R. (5^th) 227, 2002 BCSC 1877], the Court ruled that whether or not the officer had reasonable and probable grounds to demand a breath sample was not an issue within the scope of an administrative review by the Superintendent of Motor Vehicles. Therefore, I cannot consider this argument.

[13] With regard to the issue of reasonable excuse, the adjudicator said:

There is no evidence before me that you had a reasonable excuse in fact; that is, at the time the demand was made. … you stated that you believed that you had the right to refuse in circumstances where the police officer could not have possibly known if you had been drinking or not. A reasonable excuse can only be applied to matters outside the requirements of s.254 of the Criminal Code as found in the case R. v. Taraschuk [[1977] 1 S.C.R. 385, 62 D.L.R. (3d) 84]. That an officer requires reasonable grounds to make a demand is a requirement of the Criminal Code. Therefore, this excuse is not reasonable.

[14] Counsel for the petitioner submits that if Watts stands for the proposition that the adjudicator cannot consider whether the police officer had a reasonable suspicion to justify the demand, it is wrongly decided.

[15] The respondent says the adjudicator should have considered the decision in Helgesen v. British Columbia (Superintendent of Motor Vehicles), [2002] B.C.J. No. 2238, 2002 BCSC 1391, which is subsequent to Watts. Counsel for the respondent stated his position as follows:

The respondents concede at the outset that the Adjudicator erred. The court applied Watts without further consideration to the decision in Helgesen. In the latter decision, Mr. Justice Macaulay held that for the purposes of consistency, the test for determining a reasonable excuse under the highway traffic legislation and the Criminal Code and Charter should be consistent. Accordingly, in refusal to blow cases, the Superintendent must consider the Petitioner’s argument that the police officer had no reasonable/probable grounds to make the demand.

[16] In Watts, the petitioner sought a review of a driving prohibition issued under s.94.1 of the Act for failing to comply with a demand, on the ground that there was a reasonable excuse for the failure to comply because the police officer did not have reasonable and probable grounds to believe the petitioner had committed an offence under s.253 of the Criminal Code, as required when demanding a breath sample. The adjudicator considered that argument and found that the evidence did reveal the required grounds for making a breath demand.

[17] Upon judicial review, the reviewing judge concluded that there was evidence to support the adjudicator’s conclusion that the required grounds for making the demand existed. Later in her reasons, the reviewing judge made the following comment (at paragraph 20), which is the basis upon which the adjudicator in this case concluded that he could not consider the argument that the police officer lacked the necessary grounds:

With respect to whether or not there existed reasonable and probable grounds in the first place to stop the vehicle, or whether or not there was reasonable and probable grounds to make a demand for a breath sample, this is not in issue, as s.94.6(1) and (2) and the cases that I have cited make clear that the sole issue is whether or not the person drove while over 0.8, or failed or refused to provide a breath sample.

[18] In Helgesen the petitioner refused to provide a breath sample upon demand because the police officer refused to tell the petitioner’s lawyer on the phone the specific observations and symptoms she relied on in forming her opinion that the petitioner was impaired. Upon an administrative review of the driving prohibition, the petitioner argued that he had a reasonable excuse for not providing a sample. The adjudicator rejected the argument and confirmed the driving prohibition. On judicial review, the petitioner argued that the adjudicator erred in not using the test developed under the Criminal Code and the Canadian Charter of Rights and Freedoms to determine a reasonable excuse.

[19] At paragraph 11, Mr. Justice Macaulay set out the role of the adjudicator:

The task of the adjudicator is to review the evidence and information to determine whether the conditions required before an officer is entitled to serve a notice of prohibition were met. The burden falls on the officer to satisfy the adjudicator on the civil standard of proof. Accordingly, before confirming the prohibition, the adjudicator must be satisfied that it is more probable than not that the individual’s circumstances fell within s. 94.6(1)(a) or (b). See Larose v. British Columbia (Superintendent of Motor Vehicles), [2000] B.C.J. No. 482 at para. 22 (S.C.).

[20] Mr. Justice Macaulay noted that the circumstances described in s.94.6(1)(b) mirror precisely the elements of the criminal offence found at s.254(5) of the Criminal Code. He went on at paragraphs 13-15 to observe that:

Just like subsection (b), the Code expressly excludes from its reach any person who has a reasonable excuse for failing to comply with the demand. Section 254(3) of the Code sets out the circumstances in which a peace officer may demand a breath sample and subsection (5) provides that anyone commits an offence “who, without reasonable excuse, fails or refuses to comply with a demand made to him by a peace officer under this section”.

Because the Legislature similarly limited the circumstances in which an administrative driving prohibition will be justified, the adjudicator is required, according to counsel for Helgesen, to consider what constitutes a reasonable excuse. This in turn, requires a consideration of cases decided in the context of the criminal law and the Charter of Rights.

With deference to one of my colleagues who apparently concluded otherwise in Doman v. Superintendent of Motor Vehicles, [2001] B.C.J. No. 2713 (S.C.), the position of counsel is correct, but only insofar as an alleged Charter breach is imbedded in the reasonable excuse.

[21] Even though the reasonable excuse argued in Helgesen was founded upon an alleged Charter breach at the time of the demand, rather than on the lack of reasonable/probable grounds, the case appears clearly to stand for the proposition that when considering what is a reasonable excuse in the regulatory or administrative law context under the Act, the adjudicator must have regard to what constitutes a reasonable excuse in the criminal law context. The respondents concede that the petitioner’s belief that the police officer lacked reasonable grounds for suspecting the presence of alcohol can provide a reasonable excuse in the criminal law context and, therefore, also in the administrative law context. The respondents concede that the adjudicator’s failure to consider this issue is patently unreasonable.

[22] I note that Helgesen does not refer to Watts. However, I do not regard Watts as precluding applying Helgesen in this case. In my view, the statement in paragraph 20 of Watts, upon which the adjudicator relied to conclude that whether the officer had reasonable and probable grounds to demand a breath sample was not within the scope of an administrative review by the Superintendent, is obiter dictum. The adjudicator did consider the issue and made a finding that the police officer had the required grounds for making the demand and there was evidence to support this finding.

[23] Neither counsel on this proceeding dealt with the adjudicator’s conclusion that Taraschuk precluded him from considering the lack of reasonable grounds as constituting a reasonable excuse. With respect, I think the adjudicator overstated the decision in Taraschuk. In that case, the issue was whether a person charged with an offence under what was then s.235(2) of the Criminal Code (failing, without reasonable excuse, to comply with a demand for a breath sample) was entitled to an acquittal by invoking as a reasonable excuse the fact that he was acquitted of an offence under then s.234 (driving while impaired). The court held that he was not. There was no issue in that case, however, that the police had reasonable and probable grounds to make the demand. The court expressly noted that,

The present case is unembarrassed by any issue as to whether the peace officer who made the demand here had reasonable and probable cause within s.235(1). Counsel for the appellant conceded this.

[24] I am satisfied that Taraschuk does not preclude consideration of the lack of reasonable grounds as affording a reasonable excuse.

[25] While counsel for the respondent concedes that the adjudicator was required to consider whether the police officer had grounds that would support a reasonable suspicion, she submits that the issue of reasonable grounds is to be considered in the context of a reasonable excuse. She says that is what Helgesen decides.

[26] In order to confirm the prohibition under s.94.6(1)(b) the adjudicator must find that the circumstances fell within that subsection (per Helgesen). This requires proof of three things:

(a) operation or care and control of a motor vehicle,

(b) a demand under s.254 and

[27] It is necessary in the criminal law context to establish that the police officer has the required grounds to reasonably suspect that the person has alcohol in his or her body in order to found a charge. In my opinion it is also necessary in the administrative law context to establish the required grounds in order to uphold a driving prohibition. The adjudicator must be satisfied from the evidence that the grounds existed in order to confirm the prohibition. The driver may assert an excuse founded on alleged lack of grounds for the demand as in this case. But in other circumstances, a driver might seek a review on some other ground such as lack of care and control or he or she might assert some other excuse for not complying that is not related to the issue of the grounds for the demand. In those cases, the adjudicator must still be satisfied that grounds existed for the demand. He or she must not only be satisfied that a demand was made; he or she must also be satisfied that there is evidence of grounds that support the demand.

[28] In my view, this conclusion is in accord with what the statute provides concerning the evidence that must be forwarded to the adjudicator and the evidence he or she must consider. Section 94.5(1) provides that the adjudicator must consider, amongst other evidence, the report of the police officer forwarded under s.94.3(d). That report is to be “in the form established by the superintendent”. The form of the report includes a heading called “Observations/Reasonable and Probable Grounds for Demand(s)” with boxes to check and space to provide information concerning the following categories of evidence:

Driving Behaviour (describe driving behaviour and include any admissions, including time of last drink)

weaving

collision

violation

slow driving

other

Admission of consumption (describe, including time of last drink)

Physical Symptoms of driver (check any and all applicable boxes, or provide other information as applicable)

(a number of sub-categories are set out with further descriptors)

[29] There is no indication that the adjudicator gave any consideration to whether or not grounds existed for making the demand. In fact, the adjudicator appears to have concluded he need not consider that issue based on Watts. In my view, that constitutes an error that renders the decision patently unreasonable.

[30] The petition is allowed, the decision of the adjudicator quashed and the matter is to be remitted to the adjudicator to be re-heard. The form of order will be as suggested by counsel for the respondents:

(a) the decision of the adjudicator dated May 5, 2004 is set aside;

(b) the Superintendent of Motor Vehicles must rehear the application of the petitioner to review the driving prohibition served pursuant to s. 94.1 of the Motor Vehicle Act on April 18, 2004;

(c) the rehearing must be heard within 21 days of the date of this order, unless the Superintendent is unable to send the decision within this period, in which case the Superintendent may extend this period pursuant to s.94.6(4) of the Act;

(d) the petitioner is prohibited from operating a motor vehicle for the balance of the 90 day prohibition, effective 21 days from the date of this order, unless the Superintendent extends the 21 day period pursuant to s. 94.6(4) or revokes the driving prohibition pursuant to s. 94.6(2) of the Act.

“B.M. Joyce, J.”
The Honourable Mr. Justice B.M. Joyce

Citation:	Culley v. British Columbia (The Superintendent of Motor Vehicles)
	2005 BCSC 110