Facts: The police reports obtained on the IRP appeal indicated that a witness (no name) had called the police reporting that the SB was an “N” driver and had been drinking and gave the address of a nearby hotel where the vehicle was headed. A police officer (the 1st officer) saw the vehicle when it approached the hotel and indicated SB was the driver. The vehicle detoured away and the 1st police officer broadcast the direction of travel. Another (2nd)police officer unit found the vehicle parked with SB “walking away from the vehicle” and jogging away from the scene. SB was detained for breath sampling and advised the 2nd police officer that he had been drinking earlier at the Canucks game at GM Place. The 1st police officer attended the scene to confirm with the 2nd officer that indeed SB was the one he saw driving. SB protested that it was not he who had been driving the vehicle. A demand for breath samples was made and two FAIL results were given on two separate ASDs. ON APPEAL to the SMV IRP panel SB provided affidavit evidence suggesting that he had an argument with a girlfriend and had left the hotel with his (male) friend with the intent to re-park his vehicle. He and his male counterpart detoured to a bar and drank a few beers and thereafter attended to pick up SB’s vehicle which was illegally parked to park it at the hotel for the night. The friend drove the vehicle to the hotel from its earlier resting place but then detoured from there when he saw the police and later “ditched” the car by parking in nearby and leaving the scene and SB. SB’s version was supported by a written statement from his male counterpart. SB’s girlfriend did not provide any statement. There were therefore two different versions about who was driving before the IRP adjudicator on the appeal. The IRP police report was prepared by the 2nd police officer and NOT the 1st officer who witnessed the alleged actual driving by SB. On appeal a legal argument was developed based upon the BCSC decided case called Jacobs v. SMV, 2013 BCSC 1353 wherein the BC Supreme Court found that limited use might be made of hearsay from an third party person in these types of administrative decisions, especially when that person (here the police officer who actually allegedly witnessed SB driving) does not provide direct evidence or a report in support of same for the IRP panel. DECISION: “After considering the evidence, I am satisfied that you were not a driver within the meaning of section 215.41(1) of the Act”. Driving prohibition revoked, no fines imposed, towing and storage fees paid by the SMV (April 2014).
