Facts: At 00:45 am police were dispatched to a call concerning an erratic driver (speed erratic, swerving within lane, etc.). An officer located the reported vehicle, pulling it over and then had dealings with the driver. The officer noted indicia that the driver had consumed alcohol (odour of liquor, exaggerated movements, etc.) and the driver admitted to previous alcohol consumption. The police made an ASD demand and the driver provided two samples of breath into two separate ASD devices. Both devices registered “FAIL” readings. The driver was served with a Notice of Driving Prohibition (NODP) and hired a lawyer to appeal that prohibition. The materials being disclosed by the OSMV to the driver’s lawyer had attached a Report to Superintendent (“RTS”)which was indeed signed by the investigating police officer but the jurat of the RTS (the place where it was supposed to have the Justice of the Peace’s (JP’s) signature, etc) was defective and incomplete. The defect was noted by the OSMV adjudicator who then adjourned the appeal to a subsequent date so that the RTS could be properly sworn before a JP (as is required owing to the BCCA decision in R. v. Murray 2013 BCCA 363). New material was thereafter disclosed by the police to the OSMV and later to the driver’s lawyer that appeared to correct the defect in the jurat. At the subsequent appeal hearing the new material was objected to by the driver’s lawyer as being suspicious in form and perhaps even fraudulently modified by the police officer and NOT sworn in front of a Justice of the Peace as the new document seemed to suggest. As a result an argument was made that the OSMV did not have any evidence to consider in the hearing to support the prohibition at all. Decision: The SMV’s adjudicator on the IRP found as follows: “Having reviewed the evidence, I am not satisfied that it was the commissioner for taking affidavits who modified the jurat, and as such, I do not find that the Report to Superintendent and attached evidence is properly before me. Consequently, I do not have sufficient evidence before me to support the prohibition indicated in the Notice”. As a result of these findings the driving prohibition (which had previously been stayed awaiting disclosure of the new RTS with jurat modified) was revoked, and the monetary penalty and fees for towing and storage costs were suggested by the OSMV to be returned by the driver under the Lien on Impounded Motor Vehicle Regulation of the Motor Vehicle Act. (March 2014)
