Investigative timelines in IRP reviews

There are a lot of times when investigative timelines in IRP reviews just don’t add up. If the series of events the prosecution puts forward is questionable, it is usually enough to sway things in the driver’s favour. A recent appeal of a judicial review of a 90-day driving prohibition shows just that.

In this Supreme Court of BC case, Gabriel Jordan Mason appealed her judicial review of a 90-day driving prohibition. She received the prohibition following a roadside blood alcohol test. An approved screening device (ASD) gave a “Fail” reading after she provided a breath sample. However, this was came after Ms. Mason tried and failed to provide an adequate sample of breath four times.

Ms. Mason appealed the prohibition to the Superintendent of Motor Vehicles, however, an adjudicator upheld the IRP so she petitioned the BC Supreme Court for a judicial review. The petitioner submitted that the adjudicator’s decision was not reasonable it did not explain how she blew into the ASD three times and without a “BLOW VOID” message shown. Also, it failed to address some issues with the investigative timeline in the RCMP officer’s report. Namely, the report gave the time of both the ASD demand and the ASD test as 11.41 pm.

The petitioner said the Superintendent of Motor Vehicles adjudicator failed to address how in that time the officer had to retrieve the ASD device from his vehicle; the petitioner attempted four times to give a breath sample; and between each of the attempts the officer had to explain the proper method to provide a sample. All of this allegedly happened in one minute.

The standard of review in judicial reviews of administrative matters is reasonableness. In other words, the petitioner had to show the adjudicator’s decision was unreasonable. The petitioner argued the adjudicator did not meet the reasonableness standard of review by not addressing the evidentiary timeline issue.

The BC Supreme Court judge found the issue of the ASD not displaying a “BLOW VOID” message was not sufficient to set aside the adjudicator’s decision. The adjudicator concluded the three failed attempts could have been the result of the driver not blowing into the device at all. The Supreme Court judge saw no flaw in this reasoning.

The judge did have an issue, however, with the failure to address the questionable timeline. The judge said:

“The Adjudicator did not analyze or explain how the police officer could make the ASD demand at 23:41 hours, retrieve the ASD device from his police cruiser, have the petitioner make four attempts to provide a breath sample, explain the proper method to provide the sample between the first three attempts, and do all of that within the minute of 23:41 hours.”

The Supreme Court judge also had issue with the adjudicator’s “circular reasoning”. The adjudicator concluded the ASD was working properly because it “accepted a valid FAIL reading”.

The judge said: “When the issue is whether the ASD was working properly, it is not logical to accept that because the device produced a FAIL reading it was working properly.”

The Court concluded the adjudicator’s decision was flawed because of the evidentiary timeline issue and the circular reasoning. The case was sent back for rehearing before a different Superintendent of Motor Vehicles adjudicator.

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