Chohan v. BC (Superintendent of Motor Vehicles)

2022 BCSC 805 Chohan v. British Columbia (Superintendent of Motor Vehicles)

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Chohan v. British Columbia (Superintendent of Motor Vehicles), 2022 BCSC 805 Date: 20220513 Docket: S215714 Registry: Vancouver Between: Dilbagh Singh Chohan Petitioner And The Superintendent of Motor Vehicles Respondent Before: The Honourable Justice Marzari Reasons for Judgment Counsel for the Petitioner: K.M. Lee Counsel for the Respondent: P.G.R. Batten Place and Date of Hearing: Vancouver, B.C. April 22, 2022 Place and Date of Judgment: Vancouver, B.C. May 13, 2022 Table of Contents Introduction.. 3 Legislative Framework.. 3 Standard of Review.. 5 Grounds of Review.. 7 Determination.. 8 The Calibration Certificate. 8 Use of Mouthwash. 10 The Second Test 16 Conclusion.. 19 Introduction [1] On April 3, 2021, the petitioner, Dilbagh Singh Chohan, was issued a 90-day immediate roadside driving prohibition ("IRP") pursuant to s. 215.41(3.1) of the Motor Vehicle Act, R.S.B.C. 1996, c. 318 [Act], after providing a breath sample into an approved screening device ("ASD") that registered a "fail" result. [2] On April 7, 2021, Mr. Chohan applied to the Superintendent of Motor Vehicles (the "Superintendent") for a review of the IRP. In that application, Mr. Chohan indicated that he was pursuing every possible ground of review, including a number of grounds that clearly had no application to his circumstances or his type of

prohibition. His counsel then submitted multiple written arguments on various legal topics, most totalling 20 pages or more. These arguments raised numerous grounds and issues, but appeared to be somewhat generic in nature and not always related to Mr. Chohan's particular application for review. This appears to be the same practice that was noted by this Court in Flores v. British Columbia (Superintendent of Motor Vehicles), 2022 BCSC 358 at para. 16. [3] The IRP review hearing was held on April 19, 2021 before a delegate of the Superintendent (the "Adjudicator"), and on June 3, 2021, the Adjudicator rendered a written decision confirming Mr. Chohan's IRP and associated penalties. [4] On June 15, 2021, the petitioner filed this petition for judicial review of the Adjudicator's decision, and soon after that, applied for a stay of Mr. Chohan's driving prohibition. On July 16, 2021, this Court ordered that Mr. Chohan's IRP be suspended pending this determination. Legislative Framework [5] Sections 215.41 to 215.5 of the Act set out the legislative scheme pursuant to which IRPs are issued and determined. [6] Section 215.41(3.1) requires a peace officer to issue an IRP where a driver provides a sample breath to an ASD that registers a "warn" or "fail" result, and 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. [7] Section 215.42 provides that if an analysis of breath registers a "warn" or "fail" the driver has the right to request a second test, and the peace officer must inform the driver of that right before serving them with an IRP. Where a person requests a second test, the lower of the two samples governs: s. 215.42(3) of the Act. [8] When an officer serves an IRP, s. 215.47 of the Act requires the officer to forward several documents to the Superintendent, including a copy of the IRP and information relating to the calibration of the ASD. [9] Section 215.48(1) sets out that, within seven days of receiving an IRP, a driver may apply to the Superintendent for review of the prohibition. The Act details the procedures the Superintendent must follow, as well as the information the Superintendent must consider on review. Pursuant to the Act, the Superintendent is required to determine the weight accorded to any document or evidence considered in the review. [10] Section 215.5(4)(b) sets out the only grounds upon which the Superintendent may revoke a 90-day IRP resulting from a breath sample registering a "fail" on an ASD, including that: a) the person was not advised of his or her right to forthwith request and be provided with a second analysis: s. 215.5(4)(b)(i); b) the ASD registered a fail as a result of something other than the concentration of alcohol in

the person's blood being at or above 80 mg%; s. 215.5(4)(b)(iii); and c) the ASD result was not reliable: s. 215.5(4)(b)(iv). [11] Section 215.5(1) of the Act sets out 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." Standard of Review [12] The parties agree that the reasonableness standard of review set out in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, applies to this judicial review. I agree that reasonableness is the applicable standard of review of the Adjudicator's decision in this case. [13] At paras. 99-107, the majority in Vavilov explained that two types of flaws will render a decision unreasonable: (1) where the reasoning is internally incoherent, and (2) where the decision is unjustified in light of the legal and factual constraints that bear on the decision. [14] On a review, the court must refrain from asking what decision it would have made in place of the administrative body, attempting to ascertain the range of possible conclusions that would have been open to the decision maker, conducting a de novo analysis of the issue, or seeking to determine the "correct" solution to the problem: Vavilov at para. 83. [15] Although our Court of Appeal's decision in Kenyon v. British Columbia (Superintendent of Motor Vehicles), 2015 BCCA

485 predates Vavilov, the Court's direction at paras. 53-55 is nonetheless consistent with the task of the reviewing court as described in Vavilov--namely, that a reviewing court is not to "parse or dissect" an adjudicator's reasons, that an unreasonable decision is one in which the decision-making is "manifestly flawed," and that "any flaw in reasoning should be obvious and should be fundamental to the conclusion reached by the adjudicator." [16] In Kirby v. British Columbia (Superintendent of Motor Vehicles), 2019 BCSC 1625, Justice Matthews considered some examples of what qualifies as "manifestly flawed" reasoning in judicial reviews of IRPs: [14] In summary, a decision will be unreasonable if the route to the decision engages in a "manifestly flawed" reasoning process that is central to the decision - that is, if unjustifiable, non-transparent, or unintelligible reasoning is used to arrive at the result - such that the flaw is obvious and fundamental to the conclusion. A decision is not unreasonable if, despite defects or debatable findings of fact or debatable reasoning, it is apparent that the adjudicator has considered and analyzed the evidence in manner which is defensible and transparent. Credibility findings are the purview of the adjudicator and so long as they are based on evidence and are transparent, deference shall be given to them, see: [Citations

omitted]. [17] At para. 15 of Kirby, Matthews J. lists examples of manifestly flawed reasoning processes that have led to the quashing of an adjudicator's reasons in various IRP cases, including: a) the adjudicator, in assessing credibility, according a presumption of reliability to the police officer's report and requiring the respondent to refute the statements in the report; e) the reliance on facts not supported by evidence; g) making negative credibility findings on the basis of a manifestly flawed rationale ; and h) presuming compliance with the statutory requirements, sometimes referred to as a "presumption of regularity". [Citations omitted.] [18] Continuing at para. 16, Matthews J. notes: [16] A reviewing court should not take this list and [engage] in a "treasure hunt" for such errors. On the other hand, if there is a manifest error, it is not open to the reviewing court to determine that the same conclusion could be reached without an error in reasoning and thereby uphold the immediate roadside prohibition. The reviewing court may not repair manifestly flawed reasoning by substituting a reasonable analysis with the same result: Petro‑Canada at para. 56. [19] It is also important to keep in mind the limitations of the statutory scheme under which an IRP adjudicator makes their findings. As noted by Justice Kent in Seldon v. British Columbia (Superintendent of Motor

Vehicles), 2019 BCSC 1437 at para. 43: [43] The [administrative driving prohibition] regime contemplates a review hearing conducted on written materials and the rules of evidence do not strictly apply. Evidence is often provided by unsworn and even unsigned statements of witnesses. Even sworn affidavits drafted by lawyers or paralegals can, and often do, obscure the affiant's authentic view. The nature and quality of this evidence makes any assessment of its credibility and reliability very challenging. Not surprisingly, the internal consistency of any witness's account of events may play a critical role in that regard. So, too, will its consistency with other evidence and its inherent plausibility in the context of the case as a whole. [20] In Kenyon at para. 59, the Court of Appeal noted the imperfections of credibility findings in such a regime, including the lack of cross-examination and response materials from the peace officer who issued the IRP. Nevertheless, the adjudicator often must make credibility findings, and is generally entitled to deference with respect to those findings, provided that their reasoning process is not manifestly flawed on a substantive point fundamental to their conclusion. [21] The burden is on the petitioner to show that the Adjudicator's decision is unreasonable. Grounds of Review [22] The petitioner says that the Adjudicator's decision was

unreasonable with respect to two broad areas: 1. in finding that the Mr. Chohan's blood alcohol concentration exceeded 80 mg%; and 2. in finding that the Mr. Chohan was advised of his right to a second test. [23] With respect to the first issue, the petitioner says that this Court should find that the following aspects of the Adjudicator's decision are manifestly flawed and therefore unreasonable: a) the Adjudicator's finding that she could rely upon the calibration certificate for the ASD used to test Mr. Chohan's blood-alcohol level, despite the fact that it was unsigned; and b) the Adjudicator's rejection of Mr. Chohan's evidence that he had used mouthwash just prior to the ASD test. [24] The Superintendent responds that it was open to the Adjudicator to accept the calibration certificate despite the fact that it was unsigned, and that her decision to do so was reasonable in this case. [25] The Superintendent argues that the Adjudicator's reasoning in rejecting as implausible the petitioner's version of events, including his alleged use of mouthwash shortly before the administration of the ASD test, was sound and reasonable. [26] Finally, the Superintendent objects to the petitioner advancing an argument as to whether Mr. Chohan was advised of his right to a second test, because the petition for judicial review does not reference this aspect of the Adjudicator's decision. In

any event, the Superintendent says that the Adjudicator's decision in this regard was reasonable. Determination [27] I will first address the Adjudicator's reasoning with respect to the issue of the unsigned calibration certificate. [28] I will then address the Adjudicator's reasoning with respect to the reliability of the ASD test result in relation to Mr. Chohan's evidence that he had used mouthwash prior to the test that would render the ASD result unreliable. [29] Finally, I will consider the petitioner's submissions with respect to the second test. The Calibration Certificate [30] The officer prepared and provided a report to the Adjudicator in support of the IRP. This report contained a certificate completed by a qualified ASD calibrator (the "Certificate") which states that the ASD used to measure Mr. Chohan's blood alcohol level had been calibrated on March 24, 2021, and that its calibration was valid until April 21, 2021. The Certificate shows the name of the qualified calibrator and his unique PIN number, the ASD serial number, the date of calibration, and the date the calibration certification expires. It also contains pre-populated certification language indicating that the ASD was found to be within the recommended limits; the check was conducted in accordance with the calibrator's training; and the Alcohol Standard used to check the device was suitable for this

purpose. The Certificate contains a space for the calibrator's signature. However, it was not signed. [31] Mr. Chohan submitted a report from Grant Gottgetreu, a retired corporal who states that he has been qualified to provide opinion evidence in proceedings before the BC Provincial Court, including with respect to ASDs. Mr. Gottgetreu opined that a certificate of calibration should be originally signed by the calibrator or it cannot be relied upon as evidence that the ASD has been properly calibrated. In support of this, he included a one-page excerpt from a 2014 Calibrator Manual, which states at page 20 under the heading "7.0 ASD Calibrator Policies & Recommendations" that "only original signatures are acceptable." [32] The Adjudicator reviewed Mr. Gottgetreu's report and the Certificate at issue, and concluded that the unsigned Certificate was still reliable evidence that the ASD had been properly calibrated and had accurately recorded Mr. Chohan's blood alcohol level on April 3, 2021. [33] In doing so, the Adjudicator made a number of findings about the reliability of the information that was contained on the Certificate, which she considered established that the named calibrator had, in fact, calibrated the identified ASD on the date stated on the Certificate. The Adjudicator also found that Mr. Gottgetreu's evidence was dated, selective, and reflected a best practice

for such certificates, but a signed certificate was not a legal requirement. [34] The petitioner says that the Adjudicator improperly discounted the weight Mr. Gottgetreu's opinion was entitled to. He points to numerous reasons why more weight could or should have been placed on this opinion. [35] The Superintendent says that the Adjudicator was correct that there is no legal requirement that the Certificate be signed by the calibrator. The Superintendent points to the Ontario Supreme Court decision of R. v. Moonessar, 2019 ONSC 340, in which that Court considered the admissibility of a similar unsigned certificate filed in relation to an impaired driving charge pursuant to s. 258(1)(g) of the Criminal Code, R.S.C. 1985, c. C-46. Justice Harris found that an unsigned certificate is admissible for the purposes of proceedings that do not expressly require a signed certificate. The issue in such proceedings is one of weight. [36] Although Moonessar does not relate to the administrative process in this case, I am satisfied that the reasoning in that case supports the Superintendent's position that an unsigned certificate could be admissible in an IRP review under the Act, which incorporates relaxed rules of evidence. I am also satisfied that the lack of signature on such a certificate will generally go to the weight to be given to that certificate. [37] The weighing of evidence is

within the purview of the administrative decision maker, and this Court will generally not engage in a reweighing of evidence on judicial review. Although the Adjudicator could have found Mr. Gottgetreu's report to be more helpful than she did, and she might have placed more weight on his opinion rather than on the unsigned Certificate, determining the weight of this evidence was within the Adjudicator's statutory role and expertise. While the petitioner raises a number of points that may have led this Court to come to a different conclusion, I do not consider that any of them constitute manifest flaws in the Adjudicator's reasoning on this point. [38] I therefore find the Adjudicator's decision that the unsigned Certificate was sufficiently reliable to establish that the ASD was calibrated properly was reasonable. Accordingly, I would not quash the decision on that basis. Use of Mouthwash [39] Mr. Chohan's evidence before the Adjudicator in relation to the reliability of the test result was in the form of an unsworn affidavit (it is not necessary that evidence be sworn in these applications). [40] Briefly, Mr. Chohan's evidence was that he was shopping and running errands on the morning of April 3, 2021, and that he used mouthwash that morning because he woke up with an unpleasant taste in his mouth that did not go away after brushing his teeth. His first stop was the liquor

store. He put on his face mask to go into the liquor store and became aware that his breath was still unpleasant. When he returned to his vehicle, he rinsed his mouth with mouthwash from a small bottle that he keeps in his glove compartment and uses frequently to freshen his breath. He regularly refills that bottle from the larger bottle of Listerine Cool Mint mouthwash at his house, an image of which was submitted with his evidence. Having nowhere to spit out the mouthwash, he swallowed it. He then put his face mask back on and drove across the street to another parking lot, where he was stopped by the officer. [41] Mr. Chohan stated that he recognized the officer as a former co-worker and bus driver, and that he and the officer did not get along because he would often board Mr. Chohan's bus while intoxicated and be disruptive. Mr. Chohan also stated: "I am aware that he recently became a member of the [RCMP]." Mr. Chohan denied that the officer could or would have smelled alcohol on his breath before taking the breath sample because they were both wearing masks, and that if the officer had smelled anything, it would have been the smell of mouthwash, not alcohol. [42] Mr. Chohan stated that he indicated to the officer that he had consumed mouthwash "moments" before being stopped and that the officer "did not seem to be concerned about this at all." He told the officer that he

had last consumed alcohol two days prior. After providing his breath sample and being informed that it registered a "fail," Mr. Chohan stated that he was surprised and that he "asked the officer how this could be possible as [he] had not consumed alcohol since the night before." The officer did not discuss the option of a second test, and Mr. Chohan remained silent because he understood it was the best course of action and did not expect any leniency from the officer. [43] The officer's report of this traffic stop is markedly different in a number of respects. The officer records the time of various events, including the time of the stop, the time of the first demand, and the time he says he offered a second test. The officer's report indicates that standard warnings and information were provided to Mr. Chohan by reading them from a card. [44] In his Narrative Occurrence Report ("Narrative"), the officer noted that he observed Mr. Chohan's vehicle parked in the parking lot of a liquor establishment (also referred to in the Narrative as a "liquor store"), then driving approximately ten metres to another parking stall and pausing there for a few minutes before driving across the road into another parking lot. This is where the officer stopped Mr. Chohan' s vehicle. The officer noted that he could smell alcohol on Mr. Chohan's breath despite both of them wearing a face mask. After

he took Mr. Chohan's breath sample, the officer noted that Mr. Chohan asked him to "use discretion." The officer does not mention Mr. Chohan's possible use of mouthwash, nor the smell of mouthwash, either before the test or afterwards when he examined Mr. Chohan's mouth. The officer also does not mention being familiar with Mr. Chohan; however, he did provide Mr. Chohan a courtesy ride home after issuing him the 90-day driving prohibition. [45] It is uncontested that, if Mr. Chohan was found to have consumed mouthwash containing alcohol shortly before providing the breath sample, the blood alcohol reading on the ASD would not be reliable. [46] Mr. Chohan had the persuasive burden before the Adjudicator to establish that the ASD result was not reliable and that his blood alcohol content was below 80 mg per 100 mL of blood. Mr. Chohan had the benefit of the officer's report before providing his evidence in this regard. However, the officer did not (and generally would not) provide responsive evidence to the Adjudicator. Accordingly, where questions arise as to discrepancies between the officer and Mr. Chohan's accounts, there is no process for the Adjudicator to ask the officer questions about them. [47] In this case, after the Adjudicator extensively reviewed the evidence before her in her reasons, she rhetorically questioned Mr. Chohan's version of events, before rejecting his

evidence. She did so using language like "this causes me to question" and "I find it questionable," in relation to Mr. Chohan's version of events and his counsel's submissions. Similar language was found to be "problematic" by this Court in Flores at para. 33. [48] As was the case in Flores, the Adjudicator's many questions about Mr. Chohan's version of events often relate to an inference the Adjudicator is making regarding common sense assessments of plausibility and implausibility based on inferences about ordinary human behaviour. While Adjudicators are entitled to draw inferences from the evidence and to rely on their common sense, doing so can be precarious because it can lead to inferences that are unsupported by evidence that can amount to manifestly flawed reasoning. [49] In Flores, Kent J. found such a fatal flaw in reasoning, stating: [30] Drawing the line between permissible "common-sense" assessments of plausibility based on human experience and impermissible "common-sense" considerations about human behaviour that are not tethered to the evidence can be extremely challenging. [31] However, as noted in R. v. JC: [61] Properly understood, the rule against ungrounded common-sense assumptions does not bar using human experience about human behaviour to interpret evidence. It prohibits judges from using "common-sense" or human experience to introduce new considerations,

not arising from evidence, into the decision-making process, including considerations about human behaviour. [32] In this case, the adjudicator did not believe or accept as credible Mr. Flores' testimony that he had no intention to drive his vehicle after he exited the club. Although she does not explicitly say so, she was rejecting his whole story as implausible and in doing so, she did indeed bring to bear "common-sense" considerations about human behaviour that were neither grounded in the evidence nor appropriately supported by judicial notice, i.e., not losing out-of-town friends while clubbing, napping in the car instead of trying to find them or going to the hotel, not parking the car at the hotel at the outset, and not telling the police constable about the plan to stay at the hotel that night. The last point in particular, failing to give an explanation to the policeman at the scene, is not a permissible consideration for rejecting Mr. Flores' testimony: see Linares paras. 32-33. [Emphasis in original.] [50] In Kirby, the Court quashed an adjudicator's decision based on a similar unsupported inference. [51] The petitioner in this case argues that the Adjudicator made the same fundamental and fatal errors in her review of the evidence. While conceding that the Adjudicator could validly consider and rely on Mr. Chohan's inconsistent statements regarding his drinking

history, the petitioner nonetheless alleges numerous manifest flaws in the Adjudicator's reasons for rejecting all aspects of Mr. Chohan's version of events, including that: i. The Adjudicator found Mr. Chohan's version of events "questionable," in part because he did not provide an explanation as to why he moved parking stalls in the liquor store parking lot. The petitioner points to Rangi v. British Columbia (Superintendent of Motor Vehicles), 2014 BCSC 2343, where the Court at para. 27 questions this type of reasoning, stating "it is not a sound approach to base disbelief of a driver's evidence on his or her failure to dispute things sworn to by the officer . . . that do not logically undermine the driver's position even if they are accepted." ii. The Adjudicator disbelieved Mr. Chohan's version of events in part because she found it unlikely that the officer would "recently" have become a member of the RCMP. The Adjudicator relies on her own specialized knowledge that the rank of corporal is not an entry level position. In so doing, Mr. Chohan says the Adjudicator was relying on information that she personally had but did not disclose to the petitioner, contrary to requirements of procedural fairness discussed in Byron v. British Columbia (Superintendent of Motor Vehicles), 2017 BCSC 1125 at para. 53, citing Ergen v. British Columbia (Superintendent of Motor Vehicles), 2016

BCSC 643 at para. 24. iii. The Adjudicator misapprehended the evidence with respect to the presence of alcohol in the mouthwash that Mr. Chohan stated he used. While the Adjudicator found there was no evidence that it contained alcohol, a review of the record before the Adjudicator indicates that Mr. Chohan had submitted an image from a website listing the ingredients of Listerine Cool Mint mouthwash, which showed "alcohol" as the first inactive ingredient. iv. The Adjudicator unreasonably presumed that, had the use of mouthwash been disclosed, this would have been noted in the officer's Narrative and ruled out by the officer: see Sayami v. British Columbia (Superintendent of Motor Vehicles), 2016 BCSC 451. v. The Adjudicator made unfavourable credibility findings based on "common sense" inferences and speculative assumptions, which are not based in the evidence regarding bad breath and the use of mouthwash more generally: see Adams v. British Columbia (Superintendent of Motor Vehicles), 2019 BCCA 225 at para.

63. These include chains of reasoning like the following found at page 17 of the Adjudicator's decision: Based on ordinary common sense and ordinary human experience, a bad smell and taste do not just appear in your mouth especially after brushing your teeth and using mouthwash. Rather, it is logical that this would be gradual and that you would have been able to detect either the smell or bad taste before putting your mask on. It is not logical for you to expect me to accept your breath was fresh after using mouthwash at home and as soon as you put your mask on you immediately became aware of this unpleasant breath. In my view, if you had bad breath and taste you would have been able to detect this without putting a mask on. [52] While these are not the only manifest flaws that the petitioner alleges, they are, in my view, the most significant. [53] Judicial review does not require, or even permit, a line-by-line search for error in an adjudicator's decision. Furthermore, this Court has directed adjudicators that it is an error not to consider and grapple with the contradictory evidence before them. In this case, the Adjudicator was considering and grappling with a great deal of legal arguments and contradictory evidence. Her reasons transparently reflect her decision-making on all of the above points. [54] Nevertheless, I agree with the petitioner that the Adjudicator's

reasoning process, leading to her ultimate conclusion to reject Mr. Chohan's version of events with respect to the use of mouthwash, was manifestly flawed with respect to the points listed above at para. 51, with the last being the most problematic. While I find it was open to the Adjudicator to reject the various aspects of Mr. Chohan's version of events on the evidence before her, her reasoning process for coming to that rejection must be free from manifest flaws in reasoning on a material point and grounded in the evidence rather than speculation. When the Adjudicator rejected one aspect of Mr. Chohan's evidence, including the rejections noted above, the Adjudicator did not simply discount that evidence, but relied upon her rejection of that evidence as demonstrative of Mr. Chohan's overall lack of credibility. [55] The Adjudicator ultimately relied upon the whole of the evidence before her, and it is possible that no one single flaw in her reasoning would have been so fundamental as to necessitate the quashing of her decision. However, I find in this case that the flaws and their impact on the Adjudicator's assessment of Mr. Chohan's credibility were cumulative on the issue of Mr. Chohan's credibility with respect to his stated use of mouthwash. I therefore find that the Adjudicator's reasoning was manifestly flawed with respect to the issue of the reliability of the test

due to the possible presence of mouth alcohol, and I would quash this aspect of the decision. The Second Test [56] As noted above, the Act requires a peace officer to offer a person who fails their first breath sample test the opportunity to provide a second breath sample using a different ASD, and to advise them that the lower reading governs. In his petition for judicial review of the Adjudicator's decision, Mr. Chohan argued that the officer did not provide him with an opportunity to give a second sample. [57] The Adjudicator had conflicting evidence before her as to whether the officer offered to conduct a second test. [58] The officer's Narrative stated that the officer informed Mr. Chohan of his right to a second test at a specific time using the language on a card, and that Mr. Chohan had declined that test, stating "No it's just BS." [59] Mr. Chohan's evidence before the Adjudicator was that he came to understand that the officer should have offered him the option of giving a second breath sample with a different device, and that the officer did not do so. Mr. Chohan denies that he would use language like "BS." [60] The Adjudicator's reasoning with respect to this point is relatively brief. The Adjudicator notes the officer's detailed evidence regarding the timeline of events, including the precise time at which he notes that he read Mr. Chohan his right to request a

second test and Mr. Chohan's answer. At pages 19-20 of her reasons, the Adjudicator concludes as follows on this issue: Therefore, when I take into consideration the totality of the evidence before me, I find it more likely than not the officer did read you the right to request a second test as he has indicated. In my view, it is not logical to accept that the officer would follow proper procedure throughout the investigation, yet purposefully and intentionally disregard informing you of your rights to a second test. Furthermore, the officer has provided a quote of what you said after he informed you of your rights to a second test with you indicating, "No it's just BS". While you dispute ever saying this, when I take into consideration the inconsistencies noted above, and the steps and procedures the officer followed throughout the investigation, I find it more likely than not you were read your right to request a second test, however, you declined your right by indicating "No it's just BS". [61] The petitioner did not plead that the Adjudicator's finding that a second test had been offered was unreasonable, or reference the statutory requirement to offer a second test in the petition. Although the petitioner raises the issue of the Adjudicator relying on presumptions of regularity, and other alleged errors with respect to her assessments of credibility, he makes no mention of

the second test, or the Adjudicator's findings in relation to it. Given the many issues that the Adjudicator did address, and the limited statutory grounds upon which the Adjudicator could overturn the IRP that include the second test requirement, I find that the petitioner should have identified this as a ground of review in this petition if he intended to challenge the reasonableness of this conclusion. His failure to do so put the respondent at a procedural disadvantage, and I find that it would be unfair for the petitioner to expand the grounds of review at the hearing: see Polson v. British Columbia (Superintendent of Motor Vehicles), 2014 BCSC 700 at paras. 56-61. [62] In any event, I find that this aspect of the Adjudicator's decision was reasonable. [63] The Adjudicator's decision on this issue relies primarily upon her finding that there was a distinction between the detailed version of events provided by the officer, in contrast with the less specific evidence on this point in Mr. Chohan's statement. The Adjudicator was entitled to prefer this more specific and detailed evidence, and the Adjudicator's finding that Mr. Chohan failed to discharge his persuasive burden in this respect is a reasonable one. [64] To the extent that this aspect of the Adjudicator's decision also relies on the credibility and reliability of the officer's evidence, the Adjudicator addresses

this earlier in her reasons in response to Mr. Chohan's allegations of inconsistency in the officer's report. These alleged inconsistencies were things like stating that there are 11 pages "incorporated" into the officer's report, rather than simply stating that the report totals 11 pages. The Adjudicator reasonably found there were no inconsistencies in the officer's report, and was entitled to find that it was reliable. [65] As was noted in Seldon at para. 43, "the internal consistency of any witness's account of events may play a critical role" in credibility assessments made based on limited written materials. In contrast, inconsistencies can be more problematic in the absence of an explanation. [66] The Adjudicator also relies upon the inconsistencies "noted above" without detailing them. The primary "inconsistency" noted above was in relation to Mr. Chohan's evidence regarding his drinking pattern prior to the traffic stop. In his application to the Superintendent, he states that his last drink had been two days prior, and he said something similar to the officer when he was first stopped. However, after the breath sample was taken, Mr. Chohan informed the officer that he had finished his last drink the previous night. This constitutes an unexplained inconsistency and it was reasonable to the Adjudicator to find, as she did at page 16 of her reasons, that it was "more

likely than not you were being untruthful about your stated drinking pattern." [67] As was noted by Justice Crerar in Jennings v. The Superintendent of Motor Vehicles, 2019 BCSC 1911 at paras. 31-32, the driver has the advantage in the adjudication process of being able to respond to the complete package prepared by the officer, while the officer generally does not provide any further reply. As such, Crerar J. explains: [32] . . . [The driver] knows that he bears the onus of persuasion. If the driver presents evidence that includes conspicuous omissions, or is imprecise or incomplete, as presented by the petitioner in the present case, those gaps may speak volumes. [68] In relation to the question of whether a second test was offered, I consider that it was open to the Adjudicator to consider the officer's evidence on this point reliable, and to consider the unexplained inconsistency in Mr. Chohan's evidence regarding his drinking pattern a factor in rejecting Mr. Chohan's conflicting account. To the extent that the Adjudicator may also have considered other aspects of Mr. Chohan's credibility with respect to the use of mouthwash, these do not appear to be fundamental to her decision in this regard. Accordingly, I find this aspect of the decision to be reasonable. Conclusion [69] The Adjudicator in this case had to consider and meaningfully address a broad range of legal

arguments, not all of which were clearly applicable to the matter before her. I find that the Adjudicator did so effectively with respect to numerous grounds that formed the initial application to set aside the IRP before her, the majority of which were not challenged in this judicial review. I also find that the Adjudicator's findings did not suffer from any manifest flaws in reasoning with respect to: a) her decision to place weight on the unsigned Certificate; and b) her decision to prefer the officer's evidence over the petitioner's with respect to the second test. [70] However, I find that the Adjudicator's reasoning with respect to the petitioner's evidence regarding the use of mouthwash prior to providing a breath sample did suffer from several manifest flaws. Furthermore, I am unable to find that these flaws in her reasoning would not have affected her overall decision on this point. As such, I remit that aspect of the decision to the Superintendent for rehearing. [71] This is not an appropriate case for this Court to make its own determination of this issue. Although the Adjudicator engaged in flawed reasoning with respect to the mouthwash issue, it is possible that the same result could be reached without that flawed reasoning (just as it is possible that a different result may be reached). [72] I find that the initial application before the Adjudicator was

unnecessarily unwieldy, and similar errors may occur if it is allowed to be supplemented. I therefore direct that the rehearing of this matter be done on the existing record and submissions, and only with respect to the issue of whether the ASD sample was contaminated by mouth alcohol. [73] I direct that the suspension of the IRP will continue until this matter is reheard and determined by the Superintendent or their delegate. The Superintendent does not oppose this further extension, and it will ensure that the IRP is not served before the new hearing, which would render the new hearing moot. "Marzari J."