Dennis v. Superintendent of Motor Vehicles (B.C.), (2000) 146 B.C.A.C. 73 (CA)

• Judge: Donald, Saunders and Low, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: September 22, 2000
• Jurisdiction: British Columbia
• Citations: (2000), 146 B.C.A.C. 73 (CA);2000 BCCA 653

Dennis v. Supt. of Motor Vehicles (2000), 146 B.C.A.C. 73 (CA);

    239 W.A.C. 73

MLB headnote and full text

Temp. Cite: [2001] B.C.A.C. TBEd. JA.027

Dean Dennis (petitioner/respondent) v. The Superintendent of Motor Vehicles for the Province of British Columbia and Her Majesty The Queen in right of the Province of British Columbia and the Attorney General of British Columbia (respondents/appellants)

(CA026160)

Kevin Allen McKay (petitioner/respondent) v. The Superintendent of Motor Vehicles for the Province of British Columbia and Her Majesty The Queen in right of the Province of British Columbia and the Attorney General of British Columbia (respondents/appellants)

(CA026161)

Bruce Murray Donald Morgan (petitioner/respondent) v. The Superintendent of Motor Vehicles for the Province of British Columbia and Her Majesty The Queen in right of the Province of British Columbia and the Attorney General of British Columbia (respondents/appellants)

(CA026162)

(2000 BCCA 653)

Indexed As: Dennis v. Superintendent of Motor Vehicles (B.C.)

British Columbia Court of Appeal

Donald, Saunders and Low, JJ.A.

December 7, 2000.

Summary:

Dennis and Morgan both failed a breathalyzer test and McKay failed a blood sample test, after all three had had care and control of a motor vehicle. All three had their driving licences suspended for 90 days pursuant to the Motor Vehicle Act (B.C.). All applied for a review of the suspensions. In each case the adjudicator, by the process of extrapolating the readings obtained back to the time of the care and control, was satisfied that the burden of proof was discharged and affirmed the suspensions. The Act did not contain a presumption that a properly obtained blood-alcohol sample was proof of the concentration of alcohol in the blood at the time of the alleged offence. The drivers all petitioned for judicial review under the Judicial Review Procedure Act, asserting that the adjudicators, in conducting the extrapolation, relied on material that was not submitted as evidence at the hearing.

The British Columbia Supreme Court, in a decision reported in 15 B.C.T.C. 251, allowed the applications and quashed the adjudicators' decisions. The court found that the adjudicators erred: (1) in conducting the extrapolation and using it as a basis for their decision without giving the drivers the opportunity of leading evidence or making submissions on that subject, and (2) by utilizing their own knowledge and training as a substitution for evidence that was essential to bridge the gap between the reading at the time of the test and the reading at the time of care and control. Specialized training could be of assistance in understanding and evaluating the evidence but it was not a substitute for evidence. The Superintendent appealed in each case.

The British Columbia Court of Appeal allowed the appeals. In the cases of Dennis and Morgan, the court set aside the Supreme Court's decision to revoke the suspensions. The court remitted the matters back for a new hearing. In the case of McKay, the court quashed the decision to revoke without remittance back, on advice that he did not seek a new hearing.

Administrative Law - Topic 350

The hearing and decision - Nature or extent of the hearing - Opportunity to present evidence - Drivers gave breath or blood samples, in each case some time after being in care and control of a motor vehicle - All samples analyzed at over 80 milligrams of alcohol in 100 millilitres of blood - Each driver's licence was suspended under the Motor Vehicle Act - On review, an adjudicator extrapolated the blood-alcohol reading back to the time each was in care and control of the vehicle - The British Columbia Court of Appeal affirmed that the adjudicator was not entitled to use his or her own expertise to so extrapolate; further, no judicial notice could be taken - Also, the adjudicator erred in using such extrapolation as a basis for its decision without giving the drivers the opportunity of leading evidence or making submissions - See paragraphs 4 to 17.

Administrative Law - Topic 623

The hearing and decision - Evidence and proof - Opportunity to call evidence - [See Administrative Law - Topic 350 ].

Administrative Law - Topic 2493

Natural justice - Procedure at hearing - Right to make submissions - [See Administrative Law - Topic 350 ].

Administrative Law - Topic 2494

Natural justice - Procedure at hearing - Opportunity to present evidence - [See Administrative Law - Topic 350 ].

Administrative Law - Topic 2609

Natural justice - Evidence and proof - Reliance on evidence not adduced by parties - [See Administrative Law - Topic 350 ].

Evidence - Topic 1315

Relevant facts - Relevance and materiality - Body condition - Blood sample to prove impairment by drugs or alcohol - [See Administrative Law - Topic 350 ].

Evidence - Topic 1316

Relevant facts - Relevance and materiality - Body condition - Breath sample to prove impairment - [See Administrative Law - Topic 350 ].

Evidence - Topic 2290

Special modes of proof - Judicial notice - Particular matters - Human body - Effect of alcohol and drugs - [See Administrative Law - Topic 350 ].

Evidence - Topic 2292

Special modes of proof - Judicial notice - Particular matters - Human body - Results of tests on - [See Administrative Law - Topic 350 ].

Motor Vehicles - Topic 7225.3

Licensing and regulation of drivers - Licence - Suspension of - Summary suspension - Testing impaired - [See Administrative Law - Topic 350 ].

Cases Noticed:

R. v. Stevenson (1972), 14 C.C.C.(2d) 412 (B.C.C.A.), refd to. [para. 14].

R. v. McBurney (1974), 21 C.C.C.(2d) 207 (Man. C.A.), refd to. [para. 14].

Renaud v. Société de l'assurance automobile du Québec et al., [1999] 3 S.C.R. 855; 249 N.R. 2, refd to. [para. 26].

Statutes Noticed:

Motor Vehicle Act, R.S.B.C. 1996, c. 318, sect. 94.1(1), sect. 94.2(1)(a), sect. 94.4(1), sect. 94.5, sect. 94.6(1)(a), sect. 94.6(2)(a), sect. 94.6(2)(c), sect. 94.6(4) [para. 7].

Counsel:

R.C. Mullett and G.H. Copley, for the appellants;

J.B. Jackson, for the respondent, Dean Dennis;

R.P. Helme, for the respondent, Bruce Murray Donald Morgan.

These appeals were heard before Donald, Saunders and Low, JJ.A., of the British Columbia Court of Appeal, at Vancouver, British Columbia, on September 22, 2000. The decision of the court was delivered on December 7, 2000, by Saunders, J.A.