



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Bisaillon v. British Columbia (Superintendent of Motor
  Vehicles),









2018 BCCA 19




Date: 20180112

Docket: CA43722

Between:

Bruno Bisaillon

Appellant

(Petitioner)

And

The Superintendent
of Motor Vehicles

Respondent

(Respondent)




Before:



The Honourable Mr. Justice Frankel

The Honourable Mr. Justice Groberman

The Honourable Madam Justice Garson




On appeal from: An
order of the Supreme Court of British Columbia, dated
May 19, 2016 (
Bisaillon v British Columbia (Superintendent of Motor
Vehicles)
,
2016 BCSC 892, Vancouver Docket No. S144178).

Oral Reasons for Judgment




Counsel for the Appellant:



K.M. Lee





Counsel for the Respondent:



K. Chewka





Place and Date of Hearing:



Vancouver, British
  Columbia

January 12, 2018





Place and Date of Judgment:



Vancouver, British
  Columbia

January 12, 2018








Summary:

The appellant was stopped by
police, who had reason to believe he was driving while impaired. A police officer
administered a breath test, which the appellant failed. The officer
administered a second test, on a different approved screening device, which the
appellant also failed. The appellant sought a review hearing, at which he
argued that he had not been properly advised of his right to a second breath
test, and that, because his English skills were limited, he had a right to be
provided with information about the second test in French. The adjudicator
confirmed the suspension, finding that the officer had fully explained the
right to a second test, and that the appellants skills in English were
sufficient to understand that right. The appellants application for judicial
review was dismissed. Held: Appeal dismissed. The requirement to notify a
driver of the right to request a second test is a functional one, to ensure
that a driver dissatisfied with the first test has a second opportunity to
provide a breath sample. Where, as here, the driver has had the advantage of a
second test, and failed both tests, the statutory goals have been satisfied. In
any event, the adjudicator made no error in finding that the appellant had been
provided with notification.

[1]

GROBERMAN J.A.
: The appellant appeals the dismissal of a judicial
review petition in which he challenged an administrative driving suspension
under s. 215.41 of the
Motor Vehicle Act
, R.S.B.C. 1996,
c. 318. He argues that, although he was administered and failed breath
tests on two different approved screening devices, his prohibition ought to
have been cancelled because it was not proven that he was properly advised of
his right to undergo the second test. He argues that the information provided
to him by the police officer led him to conclude that the second test was
mandatory. He also says that he should have been advised of his rights in
French, which is his first language, rather than in English.

Factual Background

[2]

On January 11, 2014, the appellant attended at a liquor store in North
Vancouver and attempted to purchase a bottle of wine. The employee of the store
detected signs of impairment and refused to sell him alcohol. She also went to
his car as he left the store, asked if he was sure he was OK to drive, and then
suggested that he not drive. Finally, she threatened to call the police if he
drove away. The appellant did drive away. The employee called the North
Vancouver RCMP to report her suspicion that the appellant was driving while
impaired, and provided his vehicle registration number.

[3]

A police officer attended at the appellants home, and waited there
until he drove into the parking lot. The officer stopped the appellant, and
observed him to smell strongly of alcohol and to show other signs of
impairment. The officers initial communications with the appellant were in
English, but as the conversation progressed, the appellant began to switch back
and forth between English and French. The appellant asked to speak to a
French-speaking officer. Although it appears that the officer did attempt to
have a French-speaking officer attend, the evidence does not indicate that any
officer subsequently engaged with the appellant in French.

[4]

The officer made a demand, in English, that the appellant provide a
breath sample. The appellant initially refused, stating that he did not have to
provide one because he was on private property. The officer explained that the
demand was a lawful one, and that the appellant would be deemed to have failed
the breath test, and would be issued a 90-day driving suspension, if he refused
to provide a sample. The appellant ultimately provided a breath sample, which
registered as a Fail, indicating that the alcohol level in his blood was over
80 mg. per 100 ml.

[5]

The evidence of the officer and of the appellant diverge at this point.
The officer says that, reading from a card, he provided the appellant with a
notification of his right to a second breath test. The appellant stated that he
wished to consult a lawyer. The officer stated that he could call a lawyer if
he wished, but he had very little time, as the second test would have to be
requested without delay. He said the appellant could think about it while he
completed paperwork. He provided the appellant with some encouragement to take
the second test, telling him that having given a breath sample that registered
a failure, things could not get worse. On the other hand, if his second breath
test registered Warn, the length of the suspension would be only 3 days
rather than 90, and if he passed the test, he would receive no suspension at
all.

[6]

The appellant relates a somewhat different version of events. He says
that he asked to speak to a lawyer, but the officer told him that there was no
time to do so. He says that the officer conveyed to him that he was required to
provide a second breath sample, and told him if you pass the second test, you
can go home. He says he understood that he was required to take the second
breath test.

[7]

The appellant did take the second test, and registered a Fail once
again,

Review Before the
Adjudicator

[8]

The appellant sought a review of the suspension. Among other arguments,
he claimed that he had not been notified of his right to have a second test,
and that he had been denied the right to communications in French. The
adjudicator rejected the arguments, stating as follows:

I acknowledge your assertion that you were not given accurate
information about your right to request a second ASD test, and that you were told"
to take the second test. You said that if you had been allowed to speak with a
French-speaking officer this would have been clarified for you. However, I note
the following from your evidence:



You had a conversation with the employee of the liquor store, both
inside and outside of the store.



You said you are bi-lingual.



When you believed you had done nothing wrong, you did not mind speaking
in English.



You had a conversation with the Officer when he first approached your
vehicle. The conversation was about your belief that you were on private
property and that you did not have to answer his questions.



You had a conversation with the Officer about how much alcohol you
consumed.



When you felt you were being investigated, you asked to be spoken to in
French.



You had a conversation with the Officer about the contents of your water
bottle.

In my view, I find it reasonable to conclude from the above
examples of conversations between you and the store employee and you and the
Officer that you have a demonstrated ability to speak and understand English.
As such, I do not find your claim that your right to request a second ASD test
would have been clarified for you if you had a French-speaking police officer
present to be very credible. As well, I note that you said the Officer never
explained anything about the second test, other than to say "if you pass
the second test, you can go home". However, I note from the Officer's
evidence that there is an eleven minute delay between the first and second
test. On page 8 of the Officer's Narrative, he explains this delay. He said
that you were not sure you wished to provide a second test and that he
explained your options. I find it reasonable to infer that if the Officer
simply held the ASD in front of you and said "if you pass the second test,
you can go home", it would not have taken eleven minutes. This eleven minute
delay is consistent with the time the Officer said he took to explain your
right to request a second test, as I outlined on the previous page of this
letter.

I note that the Officer said he read you the ASD
demand
from the issued Charter of Rights card, and then read you the
right to
request a second test
from the provided IRP information card (purple in
color). I would point out that the second ASD test is for the benefit of the
driver because the lower of the two test results prevails. In your case,
because you had already blown a "fail" result, any subsequent test
results could-not have resulted in any greater jeopardy to you.

Based on a consideration of the
evidence in its totality, I find that the Officer provided you with detailed,
accurate information and that you were properly advised about the second ASD
test.

Judicial Review
Proceedings

[9]

On judicial review, the appellant argued that the adjudicator erred in
finding that there was an 11 minute delay. He noted that the 11 minutes was the
total time between the two tests, while the officers notes state that he
advised the appellant of his right to take a second test at 7:52 p.m., that the
appellant made the request at 7:55 p.m. and the test was administered at 7:58
p.m. The appellant characterized the delay as being a three - or six-minute delay.

[10]

The judicial review judge began her analysis by questioning whether it
mattered which version of events was correct:

[11]      The petitioner's
position was that he was told he was required to take the second test, not that
he had a right to take the second test. In any event, it is unclear to me why
this matters. If he refused the second test on an understanding it was
optional, he would still have met the criterion to get the prohibition. Thus,
no beneficial consequence flows to the petitioner even if his position is
accepted.

[11]

She
did not, however, return to this issue. Instead, she found that the
adjudicators weighing of credibility and reliability stood up to examination,
even if the delay was as short as three minutes. She also rejected the idea
that the appellant had a right to be spoken to in French by an officer
administering a provincial statute.

Issues on Appeal

[12]

On
appeal, counsel for the appellant makes three arguments. First, she says that
the chambers judge erred in embarking on an interpretation of the statute, when
that issue was not properly before her. Second, she says that the chambers
judge erred in finding the adjudicators assessment of credibility to have been
reasonable. Third, she contends that the judge erred in finding that there is
no place for language rights in an administrative regime.

Interpretation of the
Statute

[13]

The
idea that a court is not entitled to interpret the statute on which a case
before it depends is an entirely novel proposition, and I have some difficulty
understanding how it can be advanced. While courts are required, in many
instances, to give deference to a tribunals interpretation of a statute, that requirement
cannot mean that if the tribunal has not engaged in an interpretation exercise,
the court is precluded from considering the statutory provisions. The statutory
provisions are the very essence of the administrative scheme, and it would be
impossible for a court to deal with a judicial review petition if it were
unable to interpret the statute. It is absurd to suggest that a court is
prohibited from examining the statutory provision.

[14]

In this case the key statutory provisions to be interpreted are in ss. 215.42(1),
and 215.5 of the
Motor Vehicle Act
as they read in 2014:

215.42(1) If an analysis of the breath of a person by means
of an approved screening device under section 215.41(3.1) registers a warn or a
fail,

(a) the person has a right to
forthwith request and be provided with a second analysis

(b) a peace officer must inform
the person of that right before the peace officer serves on the person a notice
of driving prohibition.



215.5 (1) If, after considering [a review] application, the
superintendent is satisfied  that,



(b) in respect of a 90-day driving
prohibition resulting from a sample of breath for analysis by means of an
approved screening device and the approved screening device registered a fail,

(i) the person was advised of his
or her right to forthwith request and be provided with a second analysis under
section 215.42(1),

(ii) the second analysis, if the
person requested a second analysis, was provided by the peace officer and was
performed with a different approved screening device than was used in the first
analysis and the notice of driving prohibition was served on the person on the
basis of the lower analysis result,

(iii) the approved screening device
registered a fail and registered the fail as a result of the concentration of
alcohol in the person's blood being not less than 80 milligrams of alcohol in
100 millilitres of blood, and

(iv) the result of the analysis on
the basis of which the notice of driving prohibition was served was reliable,

the superintendent must confirm the driving prohibition .



(4) If, after considering [a review application], the
superintendent is satisfied  that,

(b) in respect of a 90-day
prohibition resulting from a sample of breath for analysis by means of an
approved screening device and the approved screening device registering a fail,

(i) the person was not advised of
his or her right to forthwith request and be provided with a second analysis
under section 215.42(1)

(ii) the second analysis, if the
person requested a second analysis, was not provided or not performed with a
different approved screening device than was used in the first analysis and the
notice of driving prohibition was not served on the person on the basis of the
lower analysis result,

(iii) the approved screening device
did not register a fail or the approved screening device did not register the
fail as a result of the concentration of alcohol in the person's blood being
not less than 80 milligrams of alcohol in 100 millilitres of blood, or

(iv) the result of the analysis on
the basis of which the notice of driving prohibition was served was not
reliable,



the superintendent must

(d) revoke the driving prohibition .

[15]

The
appellant contends for a literal interpretation of the statute, holding that a
failure to notify a person of the right to be provided with a second analysis
is fatal to the driving prohibition. I accept that such an interpretation 
which would turn the notification into a mandatory, mechanical requirement  is
possible on the language of the statute. The modern rule of statutory
interpretation, however, must be considered, as discussed in
Rizzo &
Rizzo Shoes Ltd. (Re)
, [1998] 1 S.C.R. 27:

[21]      Although much has been written about the
interpretation of legislation (see, e.g., Ruth Sullivan,
Statutory
Interpretation
(1997); Ruth Sullivan,
Driedger on the Construction of
Statutes
(3rd ed. 1994) (hereinafter Construction of Statutes);
Pierre-André Côté,
The Interpretation of Legislation in Canada
(2nd ed.
1991)), Elmer Driedger in
Construction of Statutes
(2nd ed. 1983) best
encapsulates the approach upon which I prefer to rely.
He recognizes that
statutory interpretation cannot be founded on the wording of the legislation
alone
. At p. 87 he states:

Today there is only one principle
or approach, namely, the words of an Act are to be read in their entire context
and in their grammatical and ordinary sense harmoniously with the scheme of the
Act, the object of the Act, and the intention of Parliament.

[Emphasis added.]

[16]

A
purposive approach cannot be ignored, then, when interpreting a statute. The
intention of this statute, quite clearly, is to give a driver the option of
providing a second breath sample. On the face of it, the driver cannot be
disadvantaged by providing a second sample, since the statute provides that the
one showing the lower concentration of alcohol in the blood is to be taken as
accurate.

[17]

It
would be absurd to suggest that, if a driver requests a second sample be taken,
a police officer would still have a duty to then advise the driver of the right
to request one, failing which, there could be no driving prohibition. The
legislature cannot have intended that such a bizarre formality be mandatory.
Clearly, what is intended is that the driver be provided with enough
information to appreciate that giving a second sample may be to the drivers
advantage, and given to understand that there is a right to demand that a
second sample be taken.

[18]

In
this case, even taking the appellants statement at its highest, and ignoring
the contrary police evidence, the appellant was given appropriate notice. He
was told that if he provided a second sample and it passed, he would be
released with no suspension. He was also given the opportunity to give a second
sample, and did so. He was not, at any time, told that failure to provide a
second sample was punishable.

[19]

Given
that the appellant contended that he was not inebriated, and that he found the
first failure to be shocking, the obvious option for him was to provide a
second sample, which he did. While, on the appellants evidence, the
notification he received was not a model of perfection, essential information
was conveyed, and the ultimate result was that the appellant was afforded the
ability to take advantage of the only option that made any sense in his
situation.

[20]

In
my view, the statutory requirements must be interpreted in a purposive and
functional manner. Where a person asks to give a second sample, the requirement
to advise that person of the right to do so becomes superfluous. Similarly,
where a person has given a second sample, there is no need to inquire as to
whether notification was given or a request was made. In such a situation,
those requirements are superfluous and must be taken to be subsumed in the
actual furnishing of the sample.

[21]

The
appellant argues, based on this Courts judgments in
McConachie v. British
Columbia (Superintendent of Motor Vehicles)
, 2016 BCCA 205 and
Ucrainet
v. British Columbia (Superintendent of Motor Vehicles)
, 2016 BCCA 206, that
circumstances can arise where a driver is disadvantaged by having taken a
second test. Such circumstances do not arise in this case, as the appellant has
not cast any doubt on the validity of the first test. It may be that if a
driver is able to show that the first test was invalid, and the police could not
establish that a second test was taken voluntarily, a driver could seek to have
the second test result ruled inadmissible as unfairly obtained evidence. That
question need not be answered in the current appeal.

[22]

It
follows that, the appellant having taken and failed both breath tests, and no
challenge having been brought to their validity, it was incumbent on the
adjudicator to confirm the driving prohibition.

Reasonableness of the
Adjudicators Factual Findings

[23]

I
will deal only briefly with the other arguments presented. I am not persuaded
that the adjudicators reasons for preferring the evidence of the officer to
that of the appellant were faulty. She noted the length of time that elapsed
between the two tests  11 minutes  and accepted that that time was more
consistent with the officers version of events than with the appellants.

[24]

On
the officers evidence, it is, of course, possible to further parse the
11-minute period. The officer took five minutes after the first test before
advising the appellant of a right to a second test. The appellant then took a
further 3 minutes before deciding to take the second test  a period of time
completely consistent with the officers version of the discussions. Following
the appellants request to take the second test, it took a further three
minutes before it was administered.

[25]

The
appellants evidence, on the other hand, does not adequately explain the lapse
of 11 minutes between the tests. He contends that the officer simply told him
that he had to take a second test, then forced him to do so. The adjudicator,
evidently, considered the 11-minute period between tests to be largely
unaccounted for on that version of events. The appellant, in attempting to deal
with the finding, suggests that the real period unaccounted for is only 3 or 6 minutes
 but that suggestion depends on accepting the officers evidence that he
notified the appellant of his right to request a second test at 7:52 pm, and
that the appellant made the request at 7:55 pm. The appellant, of course, says
that neither of those events took place.

[26]

Before
this Court, the appellant makes a further argument. He says that it was
inappropriate to rely on the officers evidence of time in finding that the
drivers version of events was less credible than the officers. He says that
the adjudicator should have inferred that the driver disagreed with the
officers timeline.

[27]

In
the absence of any challenge to the officers timeline, it does not seem to me
that the adjudicator erred in accepting it. Nor do I accept that the
appellants affidavit evidence implicitly challenged the officers timeline. I
would not give effect to that argument.

French Language
Communication

[28]

I
deal, finally, with the issue of communication in the French language. The appellant
does not advance any constitutional argument on this point, and the appellant
does not provide any basis for the suggestion that there is a statutory or
common law right to communication in French that is applicable within a British
Columbia administrative law regime.

[29]

The
appellant does say that the statute, in order to meet its purposes, must
require that drivers understand what is being asked of them, and understand
information imparted to them. In this case, however, the adjudicator, on the
basis of all of the evidence, was satisfied that the appellant was capable of
understanding the demand for a breath sample, and also understanding the
possible benefits of providing a second sample. There does not appear to be any
essential information that was not successfully conveyed to him. I note, as
well, that the appellant did swear a detailed affidavit in English, and that he
deposed, in that affidavit, that he is bilingual.

[30]

In
the circumstances, there is no basis for a finding that the officers had a duty
to provide the appellant with information in French.

Conclusion

[31]

In
the result, I am not persuaded that the adjudicator made any error in her
assessment of the materials before her, nor am I satisfied that any statutory
requirements were breached in this case.

[32]

I
would dismiss the appeal.

[33]

FRANKEL
J.A.
: I agree.

[34]

GARSON
J.A.
: I agree.

[35]

FRANKEL J.A.
: The appeal is dismissed.

The Honourable Mr. Justice Groberman


