B.C’s New Drinking Driving Law Unfair, B.C. Supreme Court Justice T. Mark McEwan Rules

Update:                             

Kristen Debra-Lee Spencer - photo from facebook

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An Abbotsford resident who says she was injured by an “aggressive” Langley RCMP officer during a drinking driving check stop has won a victory in B.C. Supreme Court.

In a written decision, Justice T. Mark McEwan ruled that the new law that expands the police power to suspend a driver’s licence on the spot for suspected drinking was unfairly applied to Kristen Debra-Lee Spencer after she was pulled over by a Langley RCMP officer on Oct. 31, 2010 in the 24100 block of Fraser Highway.

Spencer’s driving licence was seized and she was issued a 90-day suspension by Langley RCMP Const. Veronica Steiger for refusing to blow into a breath alcohol testing device.

Spencer filed a challenge of the suspension with the Superintendent of Motor Vehicles, saying she never refused to blow, never told the officer she’d been drinking and could prove that she wasn’t consuming alcohol that evening.

Her appeal was dismissed by an unnamed adjudicator who issued a written ruling Justice McEwan said was “..fundamentally at odds with basic concepts of fairness and impartiality.”

The adjudicator simply rejected Spencer’s evidence, including a doctor’s letter that she still suffers the after effects from a serious head injury that can make  her appear confused when she is under stress.

The adjudicator simply accepted officer Steiger’s claims as fact, the judge said, without subjecting them to the same level of scrutiny applied to Spencer.

In the judgment, the adjudicator wrote “there is no reason for [Const.] Steiger to provide inaccurate evidence on this point whereas you have a vested interest in the outcome of this review.”

“That is a flat statement of bias,” Justice McEwan said.

The judge ordered the case re-heard by a different adjudicator who will not grant the police what McEwan described as a “credibility advantage” over an ordinary citizen.

The judge said the case raises serious questions about the fairness of the process, noting a person challenging a speeding ticket has a right to a hearing before a trained justice of the peace, while someone charged with the more serious offence of impaired driving does not.

“The compelling social objective of removing drinking drivers from the road cannot justify a process that is incapable of reliably differentiating between those who have and those who have not offended,” the judge said.

Spencer has also sued the Langley Mountie and the provincial Solicitor General, saying Const. Steiger didn’t explain why she was being pulled over, simply produced the device and ordered her to blow.

In her statement of claim, Spencer says an “aggressive” Steiger did not tell her failing to immediately blow would be considered a refusal.

When Spencer asked for an explanation, she said she was then told about the rule.

When Spencer then offered to take the breath test, she says Steiger refused, telling her “that option is off the table.”

The statement of claim, filed in Surrey Provincial Court, contains unproven allegations.

The lawsuit seeks compensation for injuries allegedly suffered when Steiger cuffed Spencer and put her in the police cruiser, including a fractured bone in one hand, bruising, shoulder and neck injuries, and a broken tooth as well as “emotional and mental trauma.”

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