Ms. Cromie was issued a 24-hour driving prohibition after providing a breath sample to a police officer. On the same day, Ms. Cromie was served with a notice of driving prohibition pursuant to section 94.1 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318. The adjudicator confirmed the driving prohibition against Ms. Cromie and Ms. Cromie appealed to the Supreme Court, arguing that she had a right to cross-examine the arresting officer in front of the adjudicator. Ms. Cromie’s application for judicial review was dismissed.

Administrative law – Judicial review application – Breach of procedural fairness – Motor vehicles – Suspension of driver’s licence – Adjudication – Right to cross-examine arresting officer

Cromie v. British Columbia (Superintendent of Motor Vehicles), [2002] B.C.J. No. 2552, British Columbia Supreme Court, October 4, 2002, Melnick J.

On April 6, 2002, Ms. Cromie was pulled over by an officer who noted signs of impairment and requested a breath sample. Ms. Cromie’s breath sample indicated that she was legally impaired. The constable issued a 24-hour driving prohibition to Ms. Cromie and served her with a notice of the driving prohibition pursuant to the Motor Vehicle Act, R.S.B.C. 1996, c. 318. One of the requirements of the Motor Vehicle Act was for the officer to provide the Superintendent with a copy of the accused’s license. The arresting officer did not provide a copy of the accused’s license, but did provide the Superintendent with a copy of the accused’s criminal record which contained an offence unrelated to driving. The Superintendent provided the criminal record to the adjudicator who subsequently confirmed the driving prohibition. Ms Cromie applied to the Supreme Court for judicial review, arguing that natural justice required that she be provided with an opportunity to cross-examine the arresting officer and that the principles of natural justice were violated by the provision of an irrelevant criminal record to the decision maker. In dismissing the case, the court noted that the officer’s failure to comply with section 94.3 of the Motor Vehicle Act had no bearing on the scope of issues under review and that the failure to provide the driver’s licence was of no consequence. The court further noted that there was no prohibition of providing a criminal record to the Superintendent and that the Superintendent did not mention the criminal record in his reasons for judgment. It did not appear to the court that the Superintendent had based his decision to suspend on irrelevant information. The court then turned its attention to Ms. Cromie’s argument that the review process was flawed because the police officer who issued the driving prohibition to Ms. Cromie was not cross-examined. The court noted that the B.C. Court of Appeal in Pointon v. Superintendent of Motor Vehicles, [2002] B.C.J. No. 2140, stated that

In my opinion, the Legislature has set out a process suitable for weighing evidence and assessing credibility through an oral hearing. I would not interpret the legislation as excluding the right to cross-examine where it is requested and where a basis has been laid to support that right.

The court concluded that they were bound by the decision in Pointon; however, noted that Ms. Cromie had not made a request to the Adjudicator for leave to cross-examine the reporting officer and, therefore, was not denied the right to cross-examine the reporting officer. The court held that Ms. Cromie not having cross-examined the reporting officer did not adversely impact on the procedural fairness of the review process and there was no denial of natural justice. The application for judicial review was dismissed.

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