Yuen v British Columbia Superintendent of Motor Vehicles

IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

Yuen v. British Columbia (Superintendent

of Motor Vehicles),

2022 BCSC 986

Date: 20220613

Docket: S170780

Registry: Vancouver

Between:

And

Amanda Maria Yuen

Petitioner

The Superintendent of Motor Vehicles and the Attorney General of British

Columbia

Respondents

Before: The Honourable Justice Fitzpatrick

Reasons for Judgment

(Hearing proceeded via MS Teams)

Counsel for the Petitioner:

Counsel for the Respondents:

Place and Date of Hearing:

A. Chamgoulova

K. Chewka

Vancouver, B.C.

May 11, 2022

Place and Date of Judgment:

Vancouver, B.C.

June 13, 2022

Yuen v. British Columbia (Superintendent of Motor Vehicles)

Page 2

Introduction

[1]

On July 9, 2016, the petitioner, Amanda Yuen, was served with a Notice of

Driving Prohibition (the “Notice”) under s. 215.41(4) of the Motor Vehicle Act,

R.S.B.C. 1996, c. 318 [Act] for refusing to comply with a demand for a breath

sample.

[2]

Pursuant to s. 215.48 of the Act, Ms. Yuen applied to the respondent,

Superintendent of Motor Vehicles (the “Superintendent”), for a review of the driving

prohibition, arguing that the prohibition under the Notice should be revoked. On

November 18, 2016, M. Dimech, the Superintendent’s delegate (the “Adjudicator”)

issued a decision declining to revoke the driving prohibition (the “Decision”).

[3]

In January 2017, Ms. Yuen filed this petition, seeking judicial review of the

Decision. From 2017-2022, this hearing for judicial review was delayed given that

other persons had filed constitutional challenges to the Immediate Roadside

Prohibition (IRP) scheme created by the Act (the “IRP Scheme”). Those challenges

ultimately failed: Lemieux v. British Columbia (Superintendent of Motor Vehicles),

2019 BCCA 230; leave to appeal ref’d [2020] S.C.C.A. No. 38807.

[4]

Accordingly, the parties are now ready to proceed to the merits of the judicial

review. Ms. Yuen argues that the Adjudicator made an unreasonable decision in

concluding that she refused to comply with a demand to provide a sample of breath

into an “approved screening device” or ASD. The respondents disagree, stating that

the Decision “is transparent, justifiable, and intelligible and falls within a range of

possible, acceptable outcomes defensible in respect of the facts and the law”.

Legislative Framework

[5]

The respondents have helpfully summarized the IRP Scheme as is relevant to

this judicial review, which I have lightly edited for readability:



Sections 215.41-215.51 of the Act establish the IRP Scheme as an

administrative regime designed to deter alcohol-impaired driving

through the issuance of roadside prohibitions and promote public

safety. The IRP scheme has two phases: firstly, an officer issues the

Yuen v. British Columbia (Superintendent of Motor Vehicles)

Page 3

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:

o

The Superintendent may determine the weight to be given to

any document or other information: Act, s. 215.49(4);

o

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)-

(6).



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,

s. 215.5(1).

Yuen v. British Columbia (Superintendent of Motor Vehicles)

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The Decision

[6]

On the review, the Adjudicator considered various materials forwarded by the

Vancouver Police Department (VPD), the relevant documents being:

a)

b)

The Notice;

Constable Rieger’s (the VPD officer who served the Notice on

Ms. Yuen) Report to Superintendent dated July 9, 2016 (the “Report”);

c)

d)

The Certificate of a Qualified Alco-Sensor FST Calibrator, Serial

Number 204636 dated June 20, 2016 which included various technical

information (the “Certificate”); and

Constable Rieger’s Occurrence Report or narrative dated July 9, 2016

(the “Narrative”).

[7]

In support of her position, Ms. Yuen filed her affidavit sworn July 26, 2016,

along with the affidavit of Paul C. Doroshenko sworn April 30, 2015. Ms. Yuen’s

counsel also forwarded various submissions to the Adjudicator for consideration.

[8]

The fundamental issue before the Adjudicator was whether Ms. Yuen failed or

refused to blow into the ASD device properly so as to cause a reading, so as to

engage s. 215.5(4)(c) of the Act. Constable Rieger’s evidence was that she had

purposely not blown properly. Ms. Yuen’s evidence was that she had done her best

but the ASD device had not registered a reading. Otherwise, Cst. Rieger and

Ms. Yuen’s respective evidence as to the circumstances of the traffic stop were

substantially consistent.

[9]

Prior to considering the competing evidence and assessing the credibility of

Cst. Rieger and Ms. Yuen, the Adjudicator was required to address certain

evidentiary issues, which in part form the grounds for Ms. Yuen’s review. I will

discuss those below.

Yuen v. British Columbia (Superintendent of Motor Vehicles)

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Standard of Review

[10] The parties agree on the applicable standard of review, being

reasonableness. The parties further agree that Canada (Minister of Citizenship and

Immigration) v. Vavilov, 2019 SCC 65 [Vavilov] is the leading authority on the

reasonableness standard of review.

[11] In this Court’s first review of a driving prohibition after Vavilov, Justice Crerar

in Wood-Tod v. The Superintendent of Motor Vehicles, 2020 BCSC 155 at

paras. 31-47 summarized the process and principles that apply from Vavilov. In

Mason v. British Columbia (Superintendent of Motor Vehicles), 2020 BCSC 1619 at

paras. 4-9, Justice Hori similarly succinctly summarized the process and principles

from Vavilov in respect of this type of review. I need not repeat what is found in

those respective decisions.

[12] Both counsel agree that pre-Vavilov BC cases applied the same approach

that was later confirmed in Vavilov in 2019 and that, as such, those prior decisions

remain relevant today: Rossiter v. British Columbia (Attorney General), 2021 BCSC

1743 at paras. 13-16.

[13] Both Ms. Yuen and the Superintendent place some emphasis on the Court of

Appeal’s discussion of what “manifest flaws” could render a decision to be

unreasonable. In Kenyon v. British Columbia (Superintendent of Motor Vehicles),

2015 BCCA 485, the court stated that the route to or reasoning leading to a decision

must be reasonable as well as the decision itself:

[53]

… Judicial review judges should read the reasons of the adjudicator

as a whole in order to assess whether the reasoning is so lacking in logic, or

is otherwise flawed, that it renders the decision unreasonable despite the fact

there is some evidence to support a conclusion that the decision falls within a

range of acceptable outcomes.

[54]

The phrase “manifestly flawed” was used in Scott, and it appears that

judges of the Supreme Court have seized upon the phrase. The use of the

term was not intended to replace the requirement that judicial review judges

should review the reasons as a whole in order to assess whether the pathway

to the conclusion is reasonable.

[55]

Judicial review judges should not parse or dissect the reasoning. In

order to set aside the decision, any flaw in reasoning should be obvious and

should be fundamental to the conclusion reached by the adjudicator. In

Yuen v. British Columbia (Superintendent of Motor Vehicles)

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reviews of roadside driving prohibitions, where credibility is frequently the

central issue, judges should not substitute their own credibility findings in

place of those of the adjudicator. The fact that the adjudicator’s reasoning is

flawed in one respect does not necessarily lead to the conclusion that the

reasoning as a whole is unreasonable. It is necessary to consider the

reasons as a whole and determine whether the flaw is central to the

conclusion.

[14] In Kirby v. British Columbia (Superintendent of Motor Vehicles), 2019 BCSC

1625, Justice Matthews summarized the “contours of reasonableness” in IRP cases:

[14]

Several decisions of this court and several appellate decisions have

addressed the contours of reasonableness in immediate roadside prohibition

cases. In summary, a decision will be unreasonable if the route to the

decision engages 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: Kenyon v. British Columbia

(Superintendent of Motor Vehicles), 2015 BCCA 485 at para. 53-55; Pawloski

v. British Columbia (Superintendent of Motor Vehicles), 2017 BCCA 406 at

para 20; Clark v. British Columbia (Superintendent of Motor Vehicles), 2015

BCCA 487 at para. 28; Scott v. British Columbia (Superintendent of Motor

Vehicles), 2013 BCCA 554 at para. 31, leave to appeal ref’d [2014] S.C.C.A.

No. 73; Whyte at para. 11; Nagra at paras. 27-28; Pan v. British Columbia

(Superintendent of Motor Vehicles), 2012 BCSC 1766 at paras. 21-22; Mains

v. British Columbia (Superintendent of Motor Vehicles), 2015 BCSC 1701 at

para 19; and Rangi v. British Columbia (Superintendent of Motor Vehicles),

2014 BCSC 2343 at paras. 24-26.

[15] Finally, in Kirby at para. 15, Matthews J. provided examples of a “manifestly

flawed reasoning process”. Credibility was one of the main issues before the

Adjudicator. Accordingly, Ms. Yuen places some emphasis on one of those

examples from Kirby, as follows:

[15]

…

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;

Yuen v. British Columbia (Superintendent of Motor Vehicles)

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Grounds for Judicial Review

[16] Ms. Yuen argues the Decision is unreasonable in concluding that she refused

to comply with the demand to provide a breath sample into an ASD. In argument,

Ms. Yuen’s counsel confirmed the two grounds for this judicial review:

a)

The Adjudicator did not reasonably resolve the issue as to which ASD

device was used by Cst. Rieger; and

b)

The Adjudicator did not reasonably resolve the conflict in the

respective evidence of Cst. Rieger and Ms. Yuen as to the failure to

comply with the demand for a breath sample, in arriving at the

Adjudicator’s credibility findings. Within this issue, Ms. Yuen also

argues that the Adjudicator unreasonably addressed Cst. Rieger’s

evidence in relation to the issue as to whether there was a delay in

administering the ASD test.

Discussion

[17] I will address the two grounds for judicial review separately below. However,

Ms. Yuen argues that the Adjudicator’s unreasonable resolution of the first issue

(which ASD device was used) also impacts on the Adjudicator’s credibility findings

with respect to Cst. Rieger.

Type of ASD Used

[18] In BC, two ASDs are currently being used by police: the Intoximeter Alco-

Sensor IV DWF (the “DWF”) and the Intoximeter Alco-Sensor FST (the “FST”). Both

devices are prescribed ASDs for the purpose of ss. 215 and 215.41(2) of the Act,

pursuant to the Approved Screening Device Regulation, B.C. Reg. 590/2004

[Regulation].

[19] In the Report, Cst. Rieger was required to “tick” which of these ASD devices

he had used. He “ticked” that the DWF had been used. In the Report, he also noted

that the serial number of the ASD was “204636” and that the ASD temperature was

“within range”.

Yuen v. British Columbia (Superintendent of Motor Vehicles)

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[20] However, the other police evidence—the Narrative and the Certificate—both

referred to an FST being used, not a DWF:

a)

In the Narrative, in relation to making a demand for a breath sample,

Cst. Rieger specifically referred to the ASD as “FST, (SN#204636; had

temperature within range).” In describing Ms. Yuen’s total number of

blowing attempts, Cst. Rieger also referred to her blowing into the

“FST”; and

b)

The Certificate specifically related to the FST and recorded the same

serial number as noted on the Report and the Narrative. In addition,

the Technical Information in the Certificate confirmed that FST devices

had a six digit serial number starting with a “2”; that it had to be “within

the acceptable temperature range” before it would work; and, that “if

there is no attempt to blow a sample” within three minutes of a test

sequence, the device will show a “TIME OUT” message.

[21] Before the Adjudicator, Ms. Yuen argued this was a material conflict in the

police evidence and that if Cst. Rieger:

… cannot properly record which device he used then he cannot possibly say

with confidence that [Ms. Yuen] intentionally refused.

[22] In other words, Ms. Yuen advanced this argument as indicating that

Cst. Rieger’s evidence as to Ms. Yuen’s blowing attempts was not reliable. The

Adjudicator provided reasons for rejecting this argument.

[23] Now, on this judicial review, Ms. Yuen advances a different argument. She

now contends that:

… without knowing what ASD was used, [Ms. Yuen] could not be found to

have refused to comply with an [ASD] demand, since the identification of the

device as an ASD was not clear.

[24] As the Superintendent’s counsel notes, this argument was not raised before

the Adjudicator and is only now being raised on this judicial review. For that reason

Yuen v. British Columbia (Superintendent of Motor Vehicles)

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alone, the Superintendent says that the Adjudicator cannot be said to have erred by

failing to consider an argument that was advanced before her on the review and that

this “new” argument ought to be summarily rejected: Vandale v. Workers’

Compensation Appeal Tribunal, 2013 BCCA 391 at para. 54.

[25] I agree. In that event, this argument, at best, stands to be considered within

the overall issue as to how the Adjudicator addressed the reliability of Cst. Rieger’s

evidence, just as it was framed before the Adjudicator.

[26] In any event, for the sake of completeness, I will address the merits of

Ms. Yuen’s “new” argument, as now framed.

[27] The Adjudicator agreed there was a conflict in the evidence as to which type

of ASD was used, but ultimately rejected Ms. Yuen’s argument. The Adjudicator

provided reasons why she considered that reasonable inferences arose from the

evidence to establish that Cst. Rieger had, in fact, used an FST device and that he

had simply “ticked the wrong box on the Report”. The Adjudicator referred to the

following factors in coming to this conclusion:

 The consistent serial number recorded by the officer is 204636. The

Technical Information tells us that Alco-Sensor FST devices used in

BC have a six digit serial number starting with a 2.

 The officer recorded the ASD temperature as “within range”. The

Technical Information sheet tells us that the Alco-Sensor FST is

designed to provide maximum accuracy when the internal

temperature is between -12 and 55 degrees C. The Alco-Sensor FST

temperature is displayed briefly before a test is started and operators

are trained to ensure the unit is within the acceptable temperature

range (emphasis mine) before conducting a test. The device will not

proceed with a subject test if the displayed temperature is not in the

acceptable range of -12 and 55 degrees C, and therefore Alco-Sensor

FST operators are not required to note the operating temperature.

 On page 2 the Narrative, the officer wrote that he “provided

[Ms. Yuen] with no less than 15 opportunities to blow into the FST …”

 The officer recorded that the ASD provided a “time out” message. The

Technical Information tells us that with the Alco-Sensor FST, if there

is no attempt to blow a sample within a 3 minute window of the test

sequence, it will end with a “TIME OUT” message.

Yuen v. British Columbia (Superintendent of Motor Vehicles)

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[28] It is clear the Adjudicator was aware of the inconsistency in the evidence and

that, if the “ticking” in the Report was in error, to what extent “ticking” the DWF box

negatively impacted the reliability of Cst. Rieger’s evidence. The Adjudicator

concluded:

… I do not question the officers’ ability to properly record his observations of

your blow behavior simply because he ticked the wrong box on the Report.

[29] Ms. Yuen argues that the Adjudicator could not have concluded that an FST

device was used because of a lack of evidence as to what technical information

might have related to DWFs. Specifically, she says that the Adjudicator employed

“logical fallacies” in her conclusions, in that DWFs may have the same type of serial

numbers (six digits starting with “2”) and be operated in the same fashion as FSTs

(with a correct operating temperature and with a “TIME OUT” message). In essence,

Ms. Yuen argues that, without other evidence as to the features of a DWF, the

Adjudicator could not have reasonably concluded that the stated features of the FST

were unique and specific to the FST only.

[30] In my view, this argument has no merit.

[31] As argued by the Superintendent, the resolution as to whether Cst. Rieger

used an FST or DWF device has no impact on the essential requirements to support

the issuance of the Notice. Both the DWF and FST are approved ASDs under the

Regulation. Constable Rieger was only required to prove a failure or refusal to

comply with a “demand” for a sample of breath and that it be for analysis “by means

of an approved screening device”: Act, s. 215.41(4).

[32] Further, there was a substantial evidentiary record before the Adjudicator that

Cst. Rieger had used an ASD, despite the confusion about whether it was a DWF or

FST. In the Report, the DWF was “ticked” in the box labelled “ASD Identification”.

There are many references in the Narrative to ASDs generally, the “ASD demand”

and to the FST in particular. Constable Rieger refers to asking Ms. Yuen to exit her

vehicle so that he could administer a “roadside screening device”. He then refers

specifically to the FST, its serial number and that it had “temperature within range”.

Yuen v. British Columbia (Superintendent of Motor Vehicles)

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[33] Finally, the Certificate provided to the Adjudicator referred to the FST with the

same serial number noted by Cst. Rieger in both the Report and the Narrative.

[34] In my view, there was evidence before the Adjudicator to support the

conclusion that Cst. Rieger used an ASD (namely, the FST) in conjunction with his

demand for a sample of breath.

[35] The facts in Swaby v. British Columbia (Superintendent of Motor Vehicles),

2012 BCSC 1612 are distinguishable. In Swaby, Justice Williamson found that there

was no evidence to establish that the officer had used an ASD and therefore, the

decision to uphold the driving prohibition was unreasonable: paras. 9-14.

[36] A more relevant and compelling authority is Pan v. British Columbia

(Superintendent of Motor Vehicles), 2012 BCSC 1766. In Pan, Justice Fisher, as she

then was, upheld a driving prohibition where the officer had failed to record the type

or serial number of the ASD. Nevertheless, the officer referred to the demand as an

“ASD demand” and also referred to the device as an “ASD”: para. 11. At paras. 37-

38, this Court noted that this was “some evidence” to support that an ASD was used.

[37] Similarly, in Polson v. British Columbia (Superintendent of Motor Vehicles),

2014 BCSC 700, the officer’s Report to Superintendent had not been completed to

indicate which device had been used: para. 74. However, the narrative or

occurrence report made various references to an ASD being used. At paras. 93-95,

Justice Skolrood followed Pan and found that the adjudicator’s reliance on this

evidence was reasonable toward finding that an ASD had been used.

[38] The lack of evidence as to the specifics and operating procedures of a DWF

device had no impact on the Decision. As such, it cannot be said that the Adjudicator

effectively reversed the onus of proof onto Ms. Yuen to “disprove” that an ASD has

been used. Even if it had been proven that Cst. Rieger used a DWF device, the

Adjudicator would have gone on to consider the issue as to whether Ms. Yuen had

failed or refused to blow into the ASD.

Yuen v. British Columbia (Superintendent of Motor Vehicles)

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[39] In any event, as stated above, the Adjudicator identified and addressed the

conflict in the evidence on the issue of which ASD device had been used. I disagree

with Ms. Yuen that the Adjudicator “sidestepped” the reasoning process toward

resolving this conflict. The Decision clearly addresses the issue and, in my view,

show a path of reasoning that is supportable in the circumstances.

[40] In that regard, the Adjudicator was entitled to consider the evidentiary record

and decide the weight to be given to Cst. Rieger’s evidence: Act, s. 215.49(4). The

Adjudicator did not “supply” the evidence upon which she relied, as Ms. Yuen

contends. In my view, the Adjudicator properly identified those parts of the evidence

(quoted above) that supported her conclusion that the DWF “tick” was in error.

[41] Finally, I see no merit in Ms. Yuen’s argument that the Adjudicator ignored

evidence in the Narrative—i.e., Cst. Rieger’s reference to the ASD device as an

“instrument”—as it relates to this issue. This specific argument was not put before

the Adjudicator. Further, when the Narrative is read as a whole, it is very apparent

that Cst. Rieger was referring to the ASD when his report refers to an “instrument”.

The fact that he did not use the technical word “device” set out in the Regulation

does not detract from his evidence.

[42] The Decision, in relation to this point, was reasonable. The Adjudicator

addressed the issue before her and stated the factors that supported her

conclusions. Both the reasoning on this point and the Adjudicator’s conclusions are

supportable by the evidence. Further, having resolved the issue as to which ASD

was used, the Adjudicator reasonably found that the error in the “ticking” of the ASD

box did not detract from the reliability of Cst. Rieger’s evidence. Frankly, I do not see

that any measure of common sense would dictate a different conclusion.

[43] I see no error on the part of the Adjudicator. The Decision reflects the

Adjudicator’s conclusion that Cst. Rieger made this clerical error. In that event, the

Adjudicator then properly then turned to a consideration of Cst. Rieger’s other

evidence on the merits in the context of the larger issue, namely, whether Ms. Yuen

had failed or refused to blow into the ASD.

Yuen v. British Columbia (Superintendent of Motor Vehicles)

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Credibility

[44] Ms. Yuen argues that the Decision was unreasonable in that the Adjudicator

preferred Cst. Rieger’s evidence regarding her blowing behaviour, rather than her

own evidence.

[45] Ms. Yuen did not contend that Cst. Rieger failed to make a valid demand for a

breath sample. Again, the evidence concerning what happened after the demand

was made was substantially consistent as between the officer and Ms. Yuen.

[46] Constable Rieger stated that prior to reading the ASD demand, he explained

how to provide the sample. After the ASD demand was made at 1:27 a.m., the

officer then proceeded to have Ms. Yuen attempt to blow into the ASD. After two

failed attempts, the officer again demonstrated to Ms. Yuen how to blow into the

ASD. Constable Rieger describes that 15 attempts were made, which led to either

an insufficient sample or a “TIME OUT” message. Constable Rieger states that at

1:40 a.m., he then advised Ms. Yuen that she was refusing to provide a breath

sample and he issued the Notice to her.

[47] Ms. Yuen also states in her affidavit that she made 15 attempts to blow into a

“roadside breathalyzer” after Cst. Rieger demanded a breath sample and explained

the procedure. She further confirms that she attempted to blow 15 times, with

Cst. Rieger further providing demonstrations or explanations over that time. Finally,

Ms. Yuen confirmed that eventually, after all these attempts, Cst. Rieger “wrote up

some documents” and handed them to her while explaining the driving prohibition

and the impounding of her vehicle. Ms. Yuen’s evidence did not refer to the times of

the ASD demand and the service of the Notice as the “Refusal” so as to confirm the

time lapsed between these two events while the 15 attempts were taking place.

[48] Accordingly, the substance of the issue was the Adjudicator’s assessment of

the evidence as regards Ms. Yuen’s 15 attempts to blow into the ASD. Constable

Rieger stated that she had not done it properly on purpose. Ms. Yuen stated the

opposite, namely that she had made best efforts to blow properly. She denies that

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she “intentionally pretend[ed] to blow or block the [ASD’s] mouthpiece or puff[ed] out

air”.

[49] Prior to turning to this central issue, one aspect of the Decision concerned

another admitted conflict in the evidence—namely, Ms. Yuen’s contention that there

was a 13-minute delay between the time of demand and the time of the first test with

the ASD test. Before the Adjudicator, Ms. Yuen argued that (a) a 13-minute delay

took place; and (b) that the delay resulted in a breach of her s. 8 Charter rights. The

Adjudicator resolved this issue on the first question only. She found that no 13-

minute delay occurred and therefore, there was no Charter violation.

[50] As with the first issue (which ASD device was used), Ms. Yuen has

substantially recast her argument from that which was before the Adjudicator. Now,

Ms. Yuen does not press the overall argument toward establishing any Charter

violation. Rather, she contends that the Adjudicator’s resolution of the underlying

factual issue—whether there was a 13-minute delay—was unreasonable and was

therefore, not considered in her overall assessment of the reliability and/or credibility

of Cst. Rieger’s evidence.

[51] Constable Rieger’s evidence on the delay issue is as follows.

[52] In the Report, Cst. Rieger noted the following actions and times of those

actions:

 01:25 hours - Driving or Care or Control

 01:25 hours - Suspicion formed

 01:27 hours - ASD Demand

 01:40 hours - Time of Test

 01:40 hours - Time of Refusal

[53] In the Narrative, Cst. Rieger also stated:

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 01:25 hours - Constable Rieger stopped Ms. Yuen’s vehicle, noted a

strong smell of alcohol coming from the driver and observed that she had

glassy, reddish eyes and cheeks that were blushed.

 Constable Rieger then described Ms. Yuen’s various attempts to blow. He

made no note of the specific times for some or all of the 15 attempts.

 01:40 hours - Constable Rieger informed Ms. Yuen that she was refusing

to provide a breath sample, read her the “Refusal” from a Charter card

and informed her of the 90-day driving prohibition.

[54] Ms. Yuen argues that Cst. Rieger’s timeline in the Report is not possible and

that there was a 13-minute unexplained delay between the time of the ASD demand

(01:27 hours) and the time of the first test (01:40 hours).

[55] The Adjudicator rejected the argument that there had been a 13-minute delay

between the ASD demand and the first test. As she was required to do, the

Adjudicator’s assessment of this issue involved considering all the evidence,

including that found in the Report and the Narrative. In resolving the conflict between

those documents, the Adjudicator found that 01:40 hours was not the time of the first

test; rather, it was the time the officer informed Ms. Yuen that she was refusing to

provide a sample of breath.

[56] The Adjudicator stated at pp. 7-8 of the Decision:

... Turning to the officer’s evidence in the Narrative, he records that at 01:27

he read the ASD demand to you. He describes his observations of your

attempts to provide a sample, and at 01:40 hours he stated that he informed

you that you were refusing to provide a breath sample and read the “Refusal”

from the departmental issued Charter card. In my view, based on a common

sense reading of the officer’s evidence in the Narrative, I am able to conclude

two things:

1.

The officer’s recording in the Report of 01:40 hours as the time of the

first test amounts to a clerical error only. I find that 01:40 hours was

not the time of the first test (i.e. not the time you first started

attempting to provide a sample), rather 01:40 hours is the time the

officer informed you that you were refusing to provide a sample.

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2.

There was no thirteen minute “delay”. Rather, the thirteen minute

“delay” [Ms. Yuen’s counsel] referred to as a “flagrant and wilful”

Charter violation was not a delay at all. Instead, it was the amount of

time the officer allowed for you to provide a suitable breath sample.

Based on my analysis, I do not agree with [Ms. Yuen’s counsel] that there

was a thirteen minute delay. As such, there is no section 8 Charter violation.

Consequently, there is no reason for me to reduce the reliability or credibility

of the officer’s evidence in this matter based on [Ms. Yuen’s counsel’s]

allegation of a Charter violation.

[Emphasis added.]

[57] Leaving aside the now abandoned Charter issue, Ms. Yuen argues that the

Adjudicator “supplied” the necessary facts or filled in “gaps” in the evidence, so as to

sidestep the issue of delay between the ASD demand and the test. On judicial

review, Ms. Yuen argues that the Adjudicator, “rather than asking whether the

evidence supported that the test was administered immediately after the demand,

effectively put a burden on the petitioner to provide an alternative sequence of

events”.

[58] In support of her argument, Ms. Yuen cites Mason and Verdonk v. British

Columbia (Superintendent of Motor Vehicles), 2015 BCSC 215.

[59] In Mason, at paras. 28-32, Hori J. found that the adjudicator did not

adequately address, analyze or explain the evidentiary issue that arose as to the

time of the ASD demand and time when the ASD test took place. In that case, the

officer’s evidence was that the demand and the test both took place at the same

time (23:41 hours). However, the evidence also indicated a series of events between

the demand and the test, including that the driver had made four separate attempts

to blow between the demand and the final fourth test result of “FAIL”. All of this

strongly suggested that the two stated times indicated a seemingly improbable

scenario that all this occurred within one minute.

[60] The adjudicator in Mason did not reconcile the evidence on this point. Rather,

the adjudicator noted the “investigation was brisk” and that the “timeline of events is

somewhat unlikely” but then concluded:

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[29] … I also note that there is no alternative timeline of events present for

consideration. I must therefore accept Cst. Smillie's evidence on the timeline

of events leading to the FAIL result.

[61] On judicial review, Hori J. in Mason at para. 30 commented that the

adjudicator was “not bound to accept” the officer’s evidence simply because the

petitioner failed to present an alternative timeline. The Court set aside the decision,

further stating:

… To accept this evidence, without a corresponding explanation of how the

events from the initial demand to the final sample could have occurred within

one minute, is a flaw in the adjudicator’s reasoning.

[62] The respondents agree that the Adjudicator was not “bound to accept”

Cst. Rieger’s evidence regarding the timing of events.

[63] In Verdonk, at paras. 45-46, Justice Griffin, as she then was, set aside an IRP

notice. In that case, the adjudicator had improperly assumed facts or was possibly

taking “judicial notice” of what might be assumed to have occurred at roadside

between the time of the vehicle stop and the ASD demand.

[64] In my view, neither Mason nor Verdonk support Ms. Yuen’s arguments. Here,

the Adjudicator identified the issue and reconciled the conflicting times as between

the Report and the Narrative. In fact, the manner in which it was reconciled was

consistent with the evidence of both Cst. Rieger and Ms. Yuen in that Ms. Yuen

made a substantial amount (15) of attempts between the time of the ASD demand

(1:27 a.m. per the officer), just minutes after the vehicle was stopped, and the later

“Refusal” determination by Cst. Rieger some 13 minutes later (1:40 a.m. per the

officer). The only “outlier” information was recorded in the Report by Cst. Rieger in

that the “time of test” was also at 1:40 a.m.

[65] However, as the Superintendent notes, it was open to the Adjudicator to

accept the officer’s evidence. The Adjudicator considered the evidentiary record,

including the Report and the Narrative, with the latter setting out an explanation of

how the sequence of events unfolded. In the Decision, the Adjudicator applied logic

and reason in reconciling the “outlier” information in the Report by concluding that it

Yuen v. British Columbia (Superintendent of Motor Vehicles)

Page 18

was an error on Cst. Rieger’s part. Based on the evidentiary record, this finding was

open to her in that it was supported by the evidence. This is more akin to what

Griffin J. described in para. 44 of Verdonk, referring to another decision “where there

was evidence of what the officer was doing and where the accused was in the [time

delay] between the time reasonable suspicion was formed and the time of the

demand was made”.

[66] I cannot conclude that the Adjudicator effectively placed a burden on

Ms. Yuen to provide an alternative timeline. As above, Ms. Yuen’s affidavit was

silent as to the respective times of the events. In the absence of evidence to the

contrary, it was open to the Adjudicator to accept Cst. Rieger’s evidence and

conclude that there was no 13-minute delay. As the Court stated in Scott v. British

Columbia (Superintendent of Motor Vehicles), 2013 BCCA 554 [Scott BCCA]:

[34]

… The respondent may well not have commented on the officer’s

evidence about her answers to his questioning because it may have been

true. Her failure to address these two aspects of the officer’s evidence may

have permitted the adjudicator to accept the officer’s evidence on those

points, but it does not make the respondent less credible.

[Emphasis added.]

See also Toor v British Columbia (Superintendent of Motor Vehicles), 2020 BCSC

1701 at paras. 70-71.

[67] The Adjudicator’s resolution of the delay issue was reasonable.

[68] Ms. Yuen’s final argument goes to the heart of the review before the

Adjudicator—whether she had intentionally failed or refused the blow into the ASD

properly. Ms. Yuen argues that the Adjudicator failed to resolve the “clear conflict” in

the evidence as to her “blowing behavior”. She says that the Adjudicator paid scant

attention to her evidence that she was making genuine attempts to provide a sample

of breath. She contends that the Adjudicator improperly concluded that her evidence

was internally inconsistent. Finally, Ms. Yuen argues that the Adjudicator preferred

Cst. Rieger’s evidence only because it was more detailed.

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Page 19

[69] On this central point, the evidence was only available from two sources—

Cst. Rieger and Ms. Yuen. The Adjudicator extensively summarized their oral

evidence at pp. 5-6 of the Decision, as supplemented by Cst. Rieger’s Report and

Narrative. There was no other evidence upon which the Adjudicator could resolve

the issue. The admittedly “clear conflict” between their respective evidence was

identified by the Adjudicator on a plain reading of the Decision. This led to a classic

“he said/she said” scenario.

[70] The court’s comment in Lemieux is instructive on this point:

[55]

The burden of proof establishes the party who, at law, is required to

prove the relevant facts to succeed. The allocation of the burden of proof

does not affect the obligation of the decision maker to consider all of the

evidence, whoever brings it, and it only comes into play if the decision maker

is unable to conclude the case one way or another. That is, the burden of

proof will only be the determining factor where there is an evidentiary tie.

[71] Having identified the evidence, and the conflict that arose, the Adjudicator

then summarized the factors that she considered as to whether Ms. Yuen had

intentionally failed to comply with the ASD demand, at p. 10 of the Decision:



The officer explained and demonstrated twice how [Ms. Yuen] should

take a deep breath in and to blow out a long steady breath.

[Ms. Yuen’s] assertion that [she was] making genuine attempts to

provide a sample.

[Ms. Yuen’s] internally inconsistent statements that the officer took the

machine away before [her] lungs were exhausted of air (paragraph 8)

but also stated that [she] exhausted all the air [she] could fill her lungs

with (paragraph 9).



The officer’s evidence that he informed [Ms. Yuen] that [she was] not

blowing because no air was entering the instrument.



The officer’s evidence that [Ms. Yuen was] pretending to blow.

The officer’s evidence that on thirteen of [Ms. Yuen’s] fifteen attempts

[she] did not provide any air into the device and that “no air was

entering the instrument.”



The officer’s evidence that [Ms. Yuen] would not blow any air into the

instrument at all.

The ASD was reliable at the time.

[72] Ultimately, the Adjudicator found as follows:

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Page 20

I find the officer’s evidence was well documented and thorough in terms of his

observations of [Ms. Yuen’s] blow behaviour, and that [Ms. Yuen] provided air

into the device twice in fifteen attempts. I find the officer’s evidence to be

more reliable and therefore more credible than yours.

[73] I have concluded that Ms. Yuen’s arguments are unpersuasive, that the

Adjudicator’s chain of reasoning was reasonable and that the Decision was

supportable by the evidence and therefore, within a range of possible, acceptable

conclusions.

[74] Firstly, the Adjudicator was required to, and did, carefully assess the

credibility of Ms. Yuen’s evidence not only as it relates to Cst. Rieger’s conflicting

evidence, but also whether it was internally consistent. This approach was entirely

consistent with this Court’s approach to a credibility assessment, as discussed by

Justice Dillon in Bradshaw v. Stenner, 2010 BCSC 1398 at paras. 185-187; aff’d

2012 BCCA 296. In this Court, Dillon J. stated:

[187] It has been suggested that a methodology to adopt is to first consider

the testimony of a witness on a ‘stand alone’ basis, followed by an analysis of

whether the witness’ story is inherently believable. Then, if the witness

testimony has survived relatively intact, the testimony should be evaluated

based upon the consistency with other witnesses and with documentary

evidence. The testimony of non-party, disinterested witnesses may provide a

reliable yardstick for comparison. Finally, the court should determine which

version of events is the most consistent with the “preponderance of

probabilities which a practical and informed person would readily recognize

as reasonable in that place and in those conditions” (Overseas Investments

(1986) Ltd. v. Cornwall Developments Ltd. (1993), 12 Alta. L.R. (3d) 298 at

para. 13 (Alta. Q.B.)). I have found this approach useful.

[Emphasis added.]

[75] Constable Rieger’s evidence was that Ms. Yuen either did not blow or was

“pretending” to blow or that when she did blow, provided an insufficient sample or

the ASD timed out.

[76] Ms. Yuen’s recounted her first two attempts in para. 8 of her affidavit:

Constable Rieger held up the machine and asked me to blow into it. I did as

he asked. I blew genuinely for as long as I could. After I was done blowing,

he took the machine away and told me that I had not blown properly. He gave

me another demonstration in the air and asked me to try again. I told him I

understood and I would try better, even though I had been doing my best. I

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Page 21

tried a second time. Again, it did not work. I had blown as long and hard as I

possibly could. He did not give me the opportunity to keep blowing until my

lungs were exhausted of air. Instead, he would take away the machine before

I was done.

[77] Similarly, Ms. Yuen recounted her third attempt in para. 9 of her affidavit. As

such, in respect of her first three attempts, Ms. Yuen stated that she had finished

blowing as hard as she could. In para. 8, she stated she kept blowing until as long

and hard as she possibly could. In para. 9, she repeated this in stating that she had

“exhaust[ed] all the air [she] could fill her lungs with”.

[78] Yet, in para. 8, Ms. Yuen also stated that the officer had taken the ASD away

“before [she] was done”. This was clearly contradictory of her having just before said

(in the same para. 8) that she had exhausted her lungs of air.

[79] It was only on this one point that the Adjudicator identified the internal

inconsistency. Further, it was one of many factors considered by the Adjudicator and

she was in a position to assign weight to that factor: Act, s. 215.49(4). I see no error

in her conclusion that Ms. Yuen’s affidavit, as drafted by her, exposed an

inconsistency: Kuzmanovic v. The Superintendent of Motor Vehicles, 2019 BCSC

1913 at para. 47.

[80] Secondly, Ms. Yuen argues that Cst. Rieger’s evidence was preferred only

because it was more detailed. She cites Scott v. British Columbia (Superintendent of

Motor Vehicles), 2013 BCSC 676 at para. 40; aff’d Scott BCCA, where Justice

Schultes stated:

[40]

Finally, finding the officer's narrative compelling because it is detailed is a

wholly illegitimate approach. Again, an assessment of the weight to be given to that

narrative, in light of an application of legitimate credibility considerations, was

required.

[81] This aspect of Scott in this Court was upheld on appeal. In Scott BCCA at

paras. 23(d) and 27, the court characterized this error as the adjudicator according a

“presumption of reliability” to the officer’s report that the driver was then required to

refute.

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Page 22

[82] I agree with the Superintendent that the Adjudicator’s approach here in

relation to the credibility assessments was entirely consistent with the statements in

Kenyon:

[52]

In requesting such guidance, the Superintendent points to one

decision where Scott is said to have been properly applied by a judicial

review judge, Rangi v. British Columbia (Superintendent of Motor Vehicles),

2014 BCSC 2343. It is, coincidentally, a decision of the same judge who

conducted the judicial review in Scott, Mr. Justice Schultes. He said the

following about the appropriate approach to a review of adjudicators’

decisions to confirm roadside driving prohibitions, which are predominantly

decided on the basis of credibility assessed solely on a written record:

[24]

Obviously, an adjudicator’s reasons for deciding whether or

not to confirm a prohibition are not meant to be the equivalent of

judicial reasons for judgment. What is required is evidence reasonably

supporting the conclusion that was reached and a route to that

conclusion that does not involve a manifestly flawed reasoning

process. A reviewing judge must not parse out the decision minutely,

but rather consider whether, when read fairly and as a whole, it meets

the reasonableness requirement.

…

[26]

Without requiring adjudicators to mimic judicial reasoning

precisely, it would certainly be preferable if they considered an

officer’s report as evidence that needs to demonstrate its own

credibility and reliability, based on the same considerations that apply

to any other sworn evidence on the review. It may well be that

thorough, well-documented and coherent narratives by police officers

in their reports will persuade adjudicators that they should accept the

police evidence, but that acceptance needs to be the product of an

actual transparent reasoning process, and not simply assumed or left

unconsidered.

[53]

I agree with these comments. Judicial review judges should read the

reasons of the adjudicator as a whole in order to assess whether the

reasoning is so lacking in logic, or is otherwise flawed, that it renders the

decision unreasonable despite the fact there is some evidence to support a

conclusion that the decision falls within a range of acceptable outcomes.

[Emphasis added.]

[83] Here, the Adjudicator accepted Cst. Rieger’s evidence, which she found to be

thorough and well-documented in respect of Ms. Yuen’s 15 attempts to blow. By any

measure, this statement was the result of a transparent reasoning process. After

having reviewed his evidence in detail, I can detect no hint in the Decision to indicate

that the Adjudicator simply preferred Cst. Rieger’s evidence because it was “more

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Page 23

detailed” or presumed to be true. It cannot be concluded that such a presumption

was applied simply because the Adjudicator did not equally describe Ms. Yuen’s

evidence as detailed. A plain reading of the Decision reveals that this conclusion

was reached after an equally rigorous analysis and assessment of Ms. Yuen’s

evidence, both competing and supportive of various aspects of the Narrative.

[84] Ultimately, the Adjudicator preferred Cst. Rieger’s evidence over that of

Ms. Yuen; nor did she find that there was an “evidentiary tie” as referred to in

Lemieux. This finding was entirely open to the Adjudicator based on the state of the

evidence. As stated in Clark v. British Columbia (Superintendent of Motor Vehicles),

2015 BCCA 487 at para. 28:

[28]

When an adjudicator is faced with conflicting stories, the adjudicator

can resolve the conflict by providing reasons why he or she accepts one

story, or by providing reasons why he or she does not accept the other story,

or by providing reasons why he or she prefers one story over the other: see

R. v. R.E.M., 2008 SCC 51 at para. 66, and F.H. v. McDougall, 2008 SCC 53

at para. 86. In my view, it is not an error or unreasonable for the adjudicator

to provide reasons only why he or she accepts one story (and implicitly

prefers it over the other story). Here, the adjudicator provided reasons why he

was satisfied on a balance of probabilities that the officer used a different

approved screening device for the analysis of the second breath sample. It

was not essential for the adjudicator to explicitly address the credibility of

Mr. Clark and Ms. Noble or the reliability of their evidence.

[Emphasis added.]

[85] Finally, Ms. Yuen argues that the Adjudicator merged and conflated the

concept of reliability with the concept of credibility. She points to the Decision where

the Adjudicator stated that she found Cst. Rieger’s evidence to be “more reliable and

therefore more credible” than that of Ms. Yuen.

[86] I agree that the concept of reliability and credibility are distinct, although they

are frequently assessed at the same time. I also acknowledge that, at times, a

presider will use these concepts interchangeably. Arguably, this can be found in

Bradshaw at paras. 186-187.

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Page 24

[87] A useful statement discussing the differences between the two concepts is

found in R. v. J.M., 2019 BCPC 105 at paras. 89-92, endorsed by the Court of

Appeal in R. v. J.M., 2021 BCCA 263 at para. 53:

[89]

In order to determine liability, I must assess what evidence I

find reliable and credible. As Justice Cory commented in R. v. S.

(R.D.), 1997 324 (SCC), assessing the credibility of a witness

is more of an ‘art than a science’. It is a task that can be particularly

daunting where a court must assess the credibility of two witnesses

whose testimony is diametrically opposed.

[90]

Reliability and credibility are not the same. Reliability involves

the accuracy of the witness’s testimony. It engages consideration of

the witness’s ability to observe, recall and recount: R. v. H.C., 2009

ONCA 56 () at para. 41. Credibility, on the other hand,

concerns the veracity of a witness. Simply put, credibility addresses

whether a witness is lying, whereas reliability is about honest

mistakes.

[91]

Assessing credibility engages a number of factors, including:

(a) the plausibility of the witness’s evidence; (b) any independent

supporting or contradicting evidence; (c) the external consistency of

the evidence; (d) the internal consistency of the evidence; (e) the

“balance” of the evidence, meaning the witness’s apparent willingness

to be fair and forthright without any personal motive or agenda; and to

a lesser extent (f) the witness’s demeanour while testifying, meaning

not so much what is said but how it is said.

[92]

It goes without saying that evidence that is not credible is not

reliable; however, the corollary is not true: evidence that is credible

may nevertheless be unreliable: H.C.at para. 41 citing R. v. Morrissey,

1995 3498 (ONCA).

[Emphasis added.]

[88] Again, this criticism must be considered after a consideration of the entire

Decision. The reference to Ms. Yuen’s counsel’s submissions (p. 8 of the Decision)

clearly indicates that both the reliability of Cst. Rieger’s evidence and his credibility

were in issue. The Adjudicator’s resolution of the “which ASD device was used”

issue was directed toward the issue of reliability of his evidence, similar to the

conclusion on the timing issue. Both were identified as an error or clerical error and

the Decision indicates that both were factored into the reliability analysis. The

reliability issue was also engaged in terms of Cst. Rieger’s recounting of Ms. Yuen’s

attempts to blow.

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[89] It is equally possible to read the Decision as engaging in a credibility analysis

of both Cst. Rieger’s and Ms. Yuen’s evidence, particularly as to the internal

consistency of their respective accounts of the blowing attempts. The Adjudicator set

out her analysis of the quality of that respective evidence in the Decision.

[90] In that context, I do not see that any issue arises from the Adjudicator’s

statement, which Ms. Yuen reads as a reference to reliability leading inexorably to a

positive finding of credibility. In my view, read holistically, the Decision indicates that

both concepts were considered by the Adjudicator in coming to her conclusions.

Conclusion

[91] As I read the Decision, and in light of the record that was before the

Adjudicator, the Decision is reasonable and the pathway of the Adjudicator’s

reasoning in reaching that Decision is equally reasonable. On a fair reading, the

Adjudicator’s reasons and findings were justified, transparent and intelligible, and fell

within “a range of possible, acceptable outcomes which are defensible in respect of

the facts and law”: Vavilov at para. 86 and 99; Dunsmuir v. Brunswick, 2008 SCC 9

at para. 47.

[92] The petition is dismissed. As agreed, there will be no order of costs in favour

of any party.

“Fitzpatrick J.”