R. v. Gordon,

• Jurisdiction: British Columbia
• Judge: Finch, C.J.B.C., Braidwood and Mackenzie, JJ.A.
• Neutral Citation: 2002 BCCA 224
• Citation: 2002 BCCA 224,(2002), 166 B.C.A.C. 285 (CA),100 BCLR (3d) 35,166 BCAC 285,44 Admin LR (3d) 55,[2002] BCJ No 713 (QL),23 MVR (4th) 165,[2002] B.C.J. No 713 (QL),166 B.C.A.C. 285,(2002), 166 BCAC 285 (CA)
• Date: 07 March 2002
• Court: Court of Appeal (British Columbia)

Gordon v. R. (2002), 166 B.C.A.C. 285 (CA);

    271 W.A.C. 285

MLB headnote and full text

Temp. Cite: [2002] B.C.A.C. TBEd. AP.023

Bob Gordon (respondent/petitioner) v. Her Majesty the Queen and The Superintendent of Motor Vehicles (appellants/respondents)

(CA028152; 2002 BCCA 224)

Indexed As: Gordon v. R. et al.

British Columbia Court of Appeal

Finch, C.J.B.C., Braidwood and Mackenzie, JJ.A.

April 11, 2002.

Summary:

The accused was charged with driving a motor vehicle while having an excessive blood-alcohol content. He was served with a 90 day driving prohibition. The accused applied to have the suspension reviewed pursuant to ss. 94.4 to 94.6 of the Motor Vehicle Act.

An Adjudicator confirmed the driving prohibition. The accused petitioned under the Judicial Review Procedure Act to quash the Adjudicator's decision and the suspension.

The British Columbia Supreme Court granted the petition, quashed the Adjudica­tor's decision and remitted the matter back for reconsideration. The Crown and Superin­tendent of Motor Vehicles appealed.

The British Columbia Court of Appeal allowed the appeal and dismissed the peti­tion for judicial review.

Motor Vehicles - Topic 7240

Licensing and regulation of drivers - Licence - Suspension of - Appeals and judicial review - An officer opined that a driver involved in an accident was impaired - Breathalyzer samples were taken within one and one-half hours of the accident - The driver was charged with a breathalyzer offence and served with a 90 day driving prohibition by the Superin­tend­ent of Motor Vehicles - There was a con­flict between the breathalyzer readings and the accused's evidence of his alcohol consump­tion - The British Columbia Court of Appeal held that an adjudicator review­ing the sus­pension was entitled to consider the ac­cused's indicia of impair­ment and the cir­cumstances of the acci­dent, in the absence of expert evidence linking those facts to a higher or lower blood-alcohol content - See paragraphs 12 to 17.

Motor Vehicles - Topic 7240

Licensing and regulation of drivers - Licence - Suspension of - Appeals and judicial review - The British Columbia Court of Appeal held that the decision of an adjudicator under the Motor Vehicle Act should only be reviewed if it was patently unreasonable - The court con­sider­ed the adjudicator's expertise, the purpose of the legislation, and the fact that there was no statutory right of appeal and no privative clause - See paragraphs 18 to 28.

Cases Noticed:

Dennis v. Superintendent of Motor Vehicles (B.C.) et al. (2000), 146 B.C.A.C. 73; 239 W.A.C. 73; 82 B.C.L.R.(3d) 313 (C.A.), refd to. [para. 12].

Jones v. Superintendent of Motor Vehicles (B.C.) et al., [2001] B.C.T.C. 1168 (S.C.), refd to. [para. 19].

Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20; 144 D.L.R.(4th) 1, refd to. [para. 20].

Pushpanathan v. Canada (Minister of Citi­zenship and Immigration), [1998] 1 S.C.R. 982; 226 N.R. 201, refd to. [para. 21].

Pezim v. British Columbia Securities Com­mission et al., [1994] 2 S.C.R. 557; 168 N.R. 321; 46 B.C.A.C. 1; 75 W.A.C. 1, refd to. [para. 22].

Hundal v. Superintendent of Motor Vehicles (1985), 20 C.C.C.(3d) 466 (B.C.C.A.), refd to. [para. 27].

Dixon v. Love (1977), 431 U.S. 105 (S.C.), refd to. [para. 27].

Counsel:

Robert C. Mullett, for the appellants;

Bruce Ralston, for the respondent.

This appeal was heard in Vancouver, British Columbia, on March 7, 2002, before Finch, Braidwood and Mackenzie, JJ.A., of the British Columbia Court of Appeal. The decision of the court was delivered by Mackenzie, J.A., on April 11, 2002.