McConachie v. British Columbia (Superintendent of Motor Vehicles)

2016 BCCA 205 McConachie v. British Columbia (Superintendent of Motor Vehicles) COURT OF APPEAL FOR BRITISH COLUMBIA Citation: McConachie v. British Columbia (Superintendent of Motor Vehicles), 2016 BCCA 205 Date: 20160513 Docket: CA42378 Between: Christopher John McConachie Respondent (Petitioner) And The Superintendent of Motor Vehicles Appellant (Respondent) Before: The Honourable Mr. Justice Donald The Honourable Madam Justice D. Smith The Honourable Mr. Justice Savage On appeal from: An order of the Supreme Court of British Columbia, dated October 27, 2014 (McConachie v. British Columbia (Superintendent of Motor Vehicles), 2014 BCSC 2009, Vancouver Docket S145449). Counsel for the Appellant: R. Mullett and A. K. Harlingten Counsel for the Respondent: K. M. Lee Place and Date of Hearing: Vancouver, British Columbia April 11, 2016 Place and Date of Judgment: Vancouver, British Columbia May 13, 2016 Written Reasons by: The Honourable Mr. Justice Donald Concurred in by: The Honourable Madam Justice D. Smith The Honourable Mr. Justice Savage Summary: The appellant Superintendent appeals the order of a Supreme Court judge allowing a petition for judicial review of an adjudicator's decision reviewing a roadside driving suspension issued to the respondent driver under the immediate roadside prohibition ("IRP") scheme in the Motor Vehicle Act. Two approved screening devices were used to test two samples of the respondent's breath, and both returned a "fail." To be reliable, the test must be administered at least 15 minutes after the driver's last drink. The first test was administered 10 minutes after the respondent's estimate that his last drink was 5 minutes ago. The reviewing judge found the adjudicator had erred in confirming the prohibition because the officer could not be sure that 15 minutes had elapsed before the first test was administered. Held: Appeal allowed. The reviewing judge's conclusion is premised on the notion that the immediate roadside prohibition scheme entitles a driver to two valid tests. The scheme only requires one reliable analysis. No issue was taken with the reliability of the second analysis in this case. It follows that the adjudicator's decision upholding the prohibition was reasonable. Reasons for Judgment of the Honourable Mr. Justice Donald: Introduction [1] The Superintendent of Motor Vehicles appeals from the order of a Supreme Court judge allowing a petition for judicial review of a decision by an adjudicator designated by the Superintendent to review a driving suspension issued under the Immediate Roadside Prohibition ("IRP") scheme: Motor Vehicle Act, R.S.B.C. 1996, c. 318, as amended S.B.C. 2012, c. 26 (the "Act"). [2] For reasons indexed as 2014 BCSC 2009, the judge remitted the review of the prohibition to the Superintendent for a new hearing before a different adjudicator on the ground that the adjudicator failed to resolve a crucial factual issue, namely, whether the first roadside breath test was taken within 15 minutes of the respondent driver's last drink and was therefore unreliable. [3] This appeal was heard together with Ucrainet v. British Columbia (Superintendent of Motor Vehicles). Our reasons for judgment for both cases are issued concurrently. They have in common the focus of the reliability of the first of two breath samples taken at roadside by approved screening devices ("ASD"). In both cases, the results of the second test were the same as the first: a "Fail" was registered in both tests. The issue as to the reliability surrounds the risk that residual mouth alcohol from the driver's last drink may contaminate the breath sample unless the test is taken 15 minutes later. In the present case, the reviewing judge found that since the first test was given 10 minutes after the driver's estimate that his last drink was 5 minutes prior, there was no margin for error and the adjudicator should have determined whether the first test was reliable. In Ucrainet, the appeal alleges the adjudicator's decision was unreasonable in relying on the second test to support the driving prohibition, even if, on the driver's version of the timing, the first test was taken 8 minutes after the last drink. [4] The premise underlying the driver's position in both cases is that the scheme entitles the driver to two reliable tests. The Superintendent attacks the premise as unsupported by the legislation and case authority. [5] I agree with the Superintendent's position and would accordingly allow the appeal and dismiss the petition. Background The IRP Scheme [6] The IRP scheme has been intensely litigated and many decisions have described its features. For present purposes, the description by Mr. Justice Moldaver in Wilson v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 47, will serve very well: [8] The amended ARP [Automatic Roadside Prohibition] scheme is dependent upon, and is only triggered by, a roadside demand for a breath sample made under s. 254 of the Criminal Code. Under the ARP scheme, when a driver registers a "Warn" or "Fail" on the ASD, the peace officer must issue a Notice, provided he or she has reasonable grounds to believe, as a result of the analysis, that the driver's ability to drive is affected by alcohol. A driving prohibition must also be issued to individuals who fail or refuse to comply with a demand for a breath sample without reasonable excuse. [9] Drivers who blow a "Warn" -- when the ASD registers a blood alcohol concentration of 50 milligrams of alcohol in 100 millilitres of blood ("50 mg%") or higher -- receive a Notice prohibiting them from driving for 3, 7, or 30 days, depending on their driving history: MVA, s. 215.43(1). There is a corresponding fine of $200, $300, or $400, respectively: Motor Vehicle Act Regulations, B.C. Reg. 26/58, s. 43.09. Drivers who blow a "Fail" -- when the ASD registers a blood alcohol concentration of 80 milligrams of alcohol in 100 millilitres of blood ("80 mg%") or higher -- and drivers who refuse or fail to provide a breath sample receive a Notice prohibiting them from driving for 90 days and a $500 fine: MVA, s. 215.43(2.1); Motor Vehicle Act Regulations, s. 43.09. Drivers who receive either a 30- or 90-day driving prohibition are subject to a mandatory 30-day vehicle impoundment: MVA, ss. 215.46(2) and 253(7). At the peace officer's discretion, drivers who are served with a 3- or 7-day driving prohibition may also have their vehicle impounded for the duration of their driving prohibition: MVA, ss. 215.46(1) and 253(6). Drivers may also be subjected to a variety of other consequences, including enrollment in a remedial program and the imposition of an ignition interlock device: MVA, ss. 215.45 and 25.1(1). Drivers are required to bear the costs of these programs, and must pay a fee to have their licence reinstated and their vehicle released if it has been impounded. [10] An individual who has been issued a Notice may apply to the Superintendent of Motor Vehicles for review. However, the review is limited and the Superintendent may only revoke a Notice under certain grounds prescribed in s. 215.5 of the MVA. For an individual who has blown a "Warn" or "Fail", the factors the Superintendent is to consider are: - Whether the person was a "driver" within the statutory meaning; - Whether the person was advised of his or her right to a second ASD analysis and provided with a second analysis (if requested); - Whether the second analysis, if requested, was performed with a different ASD machine; - Whether the Notice was served on the basis of the lower of the two analysis results; - Whether the ASD registered a "Warn" as a result of the driver's blood alcohol concentration being at least 50 mg% or the ASD registered a "Fail" as a result of the driver's blood alcohol concentration being at least 80 mg%; - Whether the result of the analysis was reliable; and - In the case of a 7-day prohibition, whether it was the driver's second prohibition, and in the case of a 30-day prohibition, whether it was the driver's third or subsequent prohibition. Facts [7] On 17 October 2013, in Kelowna, the respondent was driving the wrong way on a one-way street and was stopped by a police officer at 22:15 hours. The officer made a demand for a breath sample at 22:17 hours and administered a test at 22:27 hours, which produced a "Fail" result. The officer's evidence was that having been told by the respondent that he had his last drink 5 minutes before being stopped, the officer waited until 15 minutes had elapsed from the last drink before giving the test. The respondent accepted the offer of a second test and at 22:32 hours, he produced another "Fail". [8] At the review before the adjudicator, the respondent presented an affidavit with an elaborate narrative of his drinking prior to the stop. In this version, he had an open can of beer in his vehicle and had been sipping from it shortly before the stop. He said he told the officer he had his last drink less than five minutes before, at an establishment called the Tap House. He admits that he lied about the location, and he did not drink at the Tap House. He explained that he wanted to avoid a ticket for having an open beer in the vehicle. He complained that the officer did not tell him the significance of the time estimate, and had he known that the time was so important, he would have been more exact. [9] The adjudicator preferred the officer's evidence and confirmed the prohibition: I acknowledge that an officer should wait 15 minutes from the time of last known drink. In considering the case before me, it is clear from both the officer's evidence and your evidence that the officer asked you when you consumed your last drink. However, there is a conflict between the officer's evidence and your evidence with respect to your response. In considering your evidence, I note that you admit that you lied to the officer about where you had been drinking in order to avoid punishment for wrongdoing. It appears that you were dishonest with the officer to best help your situation. This causes me to question the truthfulness of your evidence and as a result, I have placed less weight on your affidavit. Given that you have not provided an exact time for your last drink, I am not persuaded by your statements that as you had a sip of beer in the parking lot a police vehicle approached you, that you are certain that your last drink was less than fifteen minutes from the time you blew, that your last drink was just before 10:15 pm, or that no more than 15 minutes passed between your last drink of alcohol and the time you blew. In considering the officer's evidence, I note that he recorded your response to the question regarding the time of your last drink in quotation marks in the Narrative. I find it reasonable to conclude that because the officer recorded your response in quotation marks that those were the exact words that you used. I also note that the officer stated that at 22:17 [sic] hours after 15 minutes from the time of your last drink, you provided a sample. In my assessment of the evidence I find that the officer was diligent in following the proper procedure by waiting to provide the test based on your response regarding the time of your last drink. Further, I find it reasonable for the officer to believe that the results were reliable based on your response. [10] On judicial review, the judge said the adjudicator's reasoning process was "manifestly flawed" because of a failure to determine whether in fact 15 minutes had elapsed before the first test: [32] While there is merit in both of those arguments, I find that the adjudicator failed to consider a further and, in this context, more important question. The issue was less one of credibility than one of objective fact: whether the first test was reliable. [33] The timing of the petitioner's last drink is evidence that impacts directly on whether the ASD properly registered a fail: Gillies [Gillies v. British Columbia (Superintendent of Motor Vehicles), 2011 BCSC 899] at para. 96. If the required 15 minutes had not elapsed before the first test, the effect of mouth alcohol had to be considered and the validity of the result questioned. [34] The adjudicator found that the petitioner used the words "five minutes ago." Even if that was a reasonable finding on the evidence, it does not address the issue of whether that statement had been accurate at the time. [35] A driver asked about the time since his last drink will not have been timing that period with a stopwatch. Any time period given must be taken as an estimate subject to some margin of error. This is particularly so when the police officer fully understands the significance of that time period and the driver does not. If any authority is needed for that proposition, it is found in Ulrich [R. v. Ulrich (10 May 2012), Smithers 21933-1 (B.C. Prov. Ct.)]. That is, in fact, the main point of Ulrich, but the adjudicator appears to have taken that case as standing only for the need to wait 15 minutes. [36] Constable Brydon at the roadside took the petitioner's alleged reference to five minutes as an accurate-to-the-minute statement and added exactly ten minutes. In the circumstances, he could not reasonably have been confident that a total of 15 minutes had in fact elapsed since the petitioner's last drink. In approaching the matter as purely one of credibility focussed on the words used, the adjudicator fell into the same error and failed to resolve the important factual issue. [37] For those reasons, I must find that the reasoning process was "manifestly flawed," within the meaning of Scott [Scott v. British Columbia (Superintendent of Motor Vehicles), 2013 BCCA 554, leave to appeal ref'd [2014] S.C.C.A. No. 73]. The adjudicator's decision cannot be saved by the fact that a second test, five minutes after the first, also registered a "fail." The petitioner was entitled to two valid tests. The matter is remitted to the superintendent for a new hearing before a different adjudicator. Issues [11] The Superintendent asserts that the chambers judge failed to properly apply the reasonableness standard of review to the adjudicator's decision. Specifically, the Superintendent says that the judge erred in: i. applying a 'spectrum of reasonableness'; ii. re-weighing the evidence in the record, substituting his own view of the evidence that was before the adjudicator, and reaching conclusions on that evidence; and iii. concluding without any analysis of the statute or case law that the petitioner was entitled to "two valid tests". Discussion [12] I do not find it necessary to dwell at length on the first two grounds. [13] I agree that the judge seemed to adopt the notion of a "spectrum of reasonableness" in his reasons. This cannot be correct; the law does not recognize variable degrees of deference within the reasonableness standard of review: Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Association, 2011 SCC 61, [2011] 3 S.C.R. 654 at para. 47. However, I do not see that a less stringent standard of review played any role in the judge's decisive reasoning. [14] Neither do I see that the reasoning was influenced by any different view of the evidence taken by the judge. His analysis was based on the adjudicator's acceptance of the officer's recollection of what the driver told him. [15] I therefore focus my analysis on the crux of the case, which lies in the proposition that the driver is entitled to two valid ASD tests under the IRP scheme. The judge's ruling was not accompanied by any analysis of the Act or a consideration of other authority. In my view, it defies the logic of the scheme. [16] Section 215.41(3.1) provides: 215.41 (1) (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. [17] The right to a second analysis is set out in s. 215.42 of the Act: 215.42 (1) If an analysis of the breath of a person by means of an approved screening device under section 215.41 (3.1) registers a warn or a fail, (a) the person has a right to forthwith request and be provided with a second analysis, and (b) a peace officer must inform the person of that right before the peace officer serves on the person a notice of driving prohibition. (2) A second analysis performed under this section must be performed with a different approved screening device than was used in the first analysis. (3) If a person provides a sample of breath for a second analysis in accordance with this section, the lower of the first and second analysis results governs for the purposes of section 215.41 (3.1). [Emphasis added.] [18] My first observation is that s. 215.41(3.1)(b) refers to "analysis" in the singular, and the second is that s. 215.42(3) requires only the lower analysis result to be acted upon - again a single analysis requires the officer to serve a prohibition. The obvious purpose of adding a second test in the 2012 amendments to the scheme was to provide a safeguard against the possibility that the first test result may be unreliable, perhaps by reason of mouth alcohol contamination. [19] In Bro v. British Columbia (Superintendent of Motor Vehicles), 2014 BCSC 1682, the court was asked to consider the constitutional validity of the scheme as modified by the 2012 amendments. In the course of his reasons finding the legislation to be valid, Mr. Justice Macaulay addressed the two-test feature of the scheme and concerns arising from the fact that only one test need be reliable: [69] At the heart of this submission is the petitioner's concern about the reliability of the ASD testing process. If one accepts, for the moment, that the process is reasonably valid, then a second test using a different device that gives the same result provides a reasonable assurance that both devices were working properly. If the second device reveals a different result, depending on the particular result, it may suggest one or the other device malfunctioned or that the intervening time or circumstances affected the presence of mouth alcohol. Because the consequence for the driver is dictated by the lower of the two results, a second test is one reasonable way to test the probable reliability of the analysis. I note, in addition, that s. 215(1)(b)(iv) says that "the result of the analysis on the basis of which the notice of driving prohibition was served" is the analysis which is required to be reliable. Given that the notice of driving prohibition can only be issued based on the lower of the two results, it appears to follow that the driver need only show that the lower result was unreliable to have the Superintendent revoke the prohibition. [70] A number of the examples of "undesirable scenarios" that the petitioner says arise from the fact that only one of the tests need be reliable do not appear to me to be plausible, or to support the petitioner's argument. The petitioner suggests that "the officer may take two tests within seconds of one another and both may be impacted by residual mouth alcohol." In that case, it would be open to the petitioner to challenge the notice of prohibition on the basis that the analysis used for the notice of prohibition was unreliable because the ASD was contaminated by mouth alcohol. The petitioner then suggests that the officer may wait 15 minutes after the first test to take the second, so that "any potential mouth alcohol concerns respecting the first analysis are irrelevant." It seems to me that this outcome is in fact the purpose of a second analysis: the driver has the right to have the first sample, potentially contaminated by mouth alcohol, replaced by a sample which is not affected by those same concerns. [20] The reviewing judge in the present case did not advert to a decision rejecting the "two valid tests" proposition. In Ricard v. British Columbia (Superintendent of Motor Vehicles), 2014 BCSC 129, Madam Justice Dardi wrote: [25] The Adjudicator stated that while the MVA provides a driver with entitlement to a second test, it does not "specifically require that both tests be reliable". The Adjudicator, noting that there was no evidence before him to indicate that the second ASD test was unreliable, found that the second analysis produced a reliable test. He considered this the lower analysis result and the analysis upon which the driving prohibition was issued. I am not persuaded that to do so was unreasonable. On a plain reading of the legislation and in particular s. 215.5, the Superintendent is required to confirm the 90-day driving prohibition on the basis of a single reliable test if he or she is satisfied that the other requirements of s. 215.5 are satisfied. S. 215.5(b)(iv) mandates that the analysis on which the notice of driving prohibition was served be reliable. The wording of the section is unambiguous. The MVA requires that only one analysis be reliable; there is no express requirement for two reliable tests as postulated by the petitioner. In my view the Adjudicator's interpretation of the requirements of s. 215.5 falls "within a range of possible acceptable outcomes which are defensible in respect to the facts and law". [Emphasis added.] [21] I respectfully adopt that interpretation as the correct construction of the Act. [22] In the present case, the adjudicator found both tests reliable. In light of the evidence that both tests produced a "Fail" and that no issue was taken regarding the reliability of the second test, it must follow that the second test confirmed the first and the adjudicator's finding was reasonable. Disposition [23] I would allow the appeal and dismiss the petition. "The Honourable Mr. Justice Donald" I agree: "The Honourable Madam Justice D. Smith" I agree: "The Honourable Mr. Justice Savage"