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Court throws out driving suspension of naked drunk man

Tom England/iStockphoto

A British Columbia man found inebriated and naked in the driver's seat of his van has had his roadside suspension thrown out by a judge who said the appeals system unfairly favours the police officers.

The decision is the latest in a string of Supreme Court judgments critical of B.C.'s drunk-driving laws, which came into force in 2010. The laws allow police officers to issue immediate 90-day roadside prohibitions based on blood-alcohol concentrations registered by a breath sample.

Once the prohibition is issued, drivers have a week to contest it and are given a 30-minute hearing in front of an adjudicator who works for the Department of Motor Vehicles.

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"Many of these cases … are, in my view, examples of [adjudicators] attempting to rationalize desired results," wrote Justice Mark McEwan in the ruling released this week.

"The temptation to simply choose to prefer some evidence … ought not to be encouraged on judicial review."

Justice McEwan found the system "both methodologically and substantively unsound."

Lyle Kenyon took his case in front of an adjudicator after he was issued the 90-day roadside licence prohibition in November, 2012. He had been found without clothes in his van by police outside of 100 Mile House. When he was asked to provide a breath sample, Mr. Kenyon blew over the legal blood alcohol limit and had his licence revoked.

But Mr. Kenyon argued his van was parked and he was not driving. He said he left a bar with a woman he'd met that night and was too drunk to drive. He gave the woman the keys to his van, and, after they had become intimate and he'd removed his clothes, the woman took his keys and left the van for a nearby house, leaving Mr. Kenyon to wait.

The adjudicator sided with the arresting officer, even though the officer didn't find Mr. Kenyon's car keys in the vehicle.

The officer told the adjudicator he'd stopped Mr. Kenyon after seeing the van "slowly pulling onto the road."

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"Obviously, I'm pleased," said Scott Wright, Mr. Kenyon's lawyer in the case. "I think it represents some thorough analysis by Justice McEwan of the limitations that the review process inherently has.

"It seems to be a process where the analysis works backward. So: 'We're going to believe the police, but now we have to find a way to do it.' "

Justice McEwan, who took a year to write his ruling, was critical of the appeal procedure, which allows just 30 minutes for drivers to present their cases and no cross-examination.

Paul Doroshenko, a criminal defence lawyer who has been openly critical of B.C.'s impaired driving laws, said the decision underlines the problems with the adjudication process.

"They reverse-engineer the facts by cherry-picking what they want to find, and then find a way to uphold it," he said of the appeals process. "And it encourages the police to lie, because they know they'll never be cross-examined."

"These people are the easiest target. They're never going to stand in front of the legislature with placards that say 'drunk drivers have rights too.' "

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The judgment follows a September Supreme Court decision that ruled relying on roadside screening devices isn't enough to justify an immediate driving prohibition.

The B.C. government has touted statistics that show drunk driving fatalities were cut in half after the tougher 2010 laws took effect, but the government was forced to amend its legislation in May, 2012, after the B.C. Supreme Court ruled that the review process violated the Charter of Rights and Freedoms.

Mr. Doroshenko said in an interview Thursday that Mr. Kenyon's case, which occurred after the law changed, shows the amended legislation has done little to address the fairness of the appeal process.

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