A few weeks ago, I wrote about how the Alco-Sensor FST manual was changed to support a certain unscientific and inaccurate belief about mouth temperature. My concern with any of this is, of course, the fairness of the Immediate Roadside Prohibition review process and whether drivers are given a reasonable opportunity to challenge the apparent results of their breath tests.
Sadly, today I learned of yet another change the Superintendent of Motor Vehicles has made to make the review process less effective and fair to drivers. I have to say, sometimes participating in this review process is like attempting to play a chess match with Death, except Death can change the rules of the game at any point.
In every Immediate Roadside Prohibition review case, the officer is required to submit a particular form. This is a form, established by the Superintendent, and it is required to be sworn or affirmed by a peace officer. The Report to Superintendent form sets out the evidentiary basis upon which the prohibition has been issued.
The purpose of the form is for the driver to have notice of the case against them, and the evidence of the officer. Except, given the recent changes to the form, it is no longer the evidence of a peace officer.
Just look at this copy of the new form I received today:
Instead of allowing the officer to record the information about what approved screening device was used, the Superintendent simply assumes that it was a particular device. This is notwithstanding that the Motor Vehicle Act Approved Screening Device Regulation approves three devices for use in BC: the Alco-Sensor FST; the Alco-Sensor IV DWF; and the Alcometer SL-2. Never mind the fact that the Technical Information on the Operation and Calibration of ASDs in British Columbia describes that there are currently TWO approved screening devices in use in British Columbia.
But it’s easier to just pre-record the evidence of the police for them. Even though the Superintendent is not a party to the proceeding, is not providing the evidence for the police, and is supposed to be impartial and merely consider the versions tendered by each side.
What’s even more troubling about this new form is the Superintendent’s indication at Line 14, which reads: “Any ASD tests referred to in this report were conducted by a qualified ASD operator and the ASD units were functioning correctly and within the acceptable operating temperature range of -12 to 55 degrees C…”
Temperature, as I explained in my earlier post, is a fundamental issue affecting the reliability of the sample. When the officer is not required to record the temperature, and instead the evidence is pre-printed for him stating that all was well with the temperature, there is no practical ability to challenge this information.
It remains unclear to me how the Superintendent can predict the temperature of all ASDs when the future is completely unknowable.
At this point, it feels like the concerns of the Court in Sivia and Goodwin have all but been forgotten. How can a driver have any opportunity, much less a reasonable one, to challenge the result of the ASD and the basis of the prohibition, if the evidence is pre-recorded by the person who is reviewing the case.
Is the Superintendent going to find its own form unreliable? Unlikely.
Is the Superintendent going to reduce the weight of that statement because it wasn’t direct evidence of the officer? Unlikely.
And because the temperature of the device is not revealed to the driver roadside, whether that statement is inaccurate becomes impossible to prove. It is information that is unknown to and unknowable by the driver. Because applicants cannot cross-examine or otherwise compel disclosure of that evidence they are effectively denied the ability to rebut an assumption — nay a presumption — by the Superintendent that the temperature was in the acceptable range.
This is wrong. And it compromises the fairness, transparency, and efficacy of the review process.
Vancouver Criminal Lawyer with a focus on impaired driving, cannabis legalization and related issues, and immediate roadside prohibition defence.