Yuen v. British Columbia (Superintendent of Motor Vehicles)
notice of driving prohibition; secondly, a driver has the option of
seeking a review of the prohibition by the Superintendent.
If reasonable grounds exist, an officer must issue a notice of roadside
prohibition to the driver where the officer makes a demand, pursuant
to the Criminal Code, for a sample of breath for analysis by an ASD,
and the driver fails or refuses, without reasonable excuse, to provide a
sample of breath into the ASD: Act, s. 215.41(4).
An officer who serves a notice of driving prohibition on a driver must
promptly forward several documents to the Superintendent: the
driver’s licence or permit, a copy of the notice of driving prohibition, a
certificate of personal service on the driver, a report and, in the case
of a driving prohibition resulting from the analysis of a sample of
breath, information relating to the calibration of the ASD. The officer is
not required to forward information relating to the calibration of the
ASD where there was a refusal or failure to provide a breath sample:
Act, s. 215.47.
Within seven days of receiving an IRP, a driver may apply to the
Superintendent for a review of the prohibition and the Act sets out the
required procedures for the review: Act, s. 215.48.
On a review, the Superintendent must consider information from a
variety of sources, including any relevant statement or evidence
submitted by the applicant, the officer’s report, a copy of the notice of
driving prohibition and other relevant documents and information
forwarded by a peace officer who served the notice: Act, s 215.49(1)
In relation to the information before the Superintendent on review:
The Superintendent may determine the weight to be given to
any document or other information: Act, s. 215.49(4);
The Superintendent may consider any information that may
assist him or her in coming to a decision, including “technical
materials”, which includes “technical, medical or scientific
evidence or information” relating to ASDs: Act, s. 215.49(5)-
Section 215.5(4) of the Act sets out the sole grounds on which the
Superintendent may revoke the driving prohibition. To revoke an IRP
issued for failure or refusal to comply with a demand for a breath
sample, the Superintendent must find that the driver did not fail or
refuse to provide the sample, or had a reasonable excuse for failing to
comply with the demand: Act, s. 215.5(4)(c).
The applicant/person served with the notice of driving prohibition who
seeks the review bears the burden of proof on that review: Act,