Is affidavit evidence admissible in a motor vehicle prohibition application?

British Columbia, Canada

The following excerpt is from Basi v. The Saanich Police Department, 2014 BCSC 593 (CanLII):

I find support for my rulings on the admissibility of affidavit evidence, in the decision of Mr. Justice Punnett in Sandher v. Lehbauer 2012 BCSC 755. In that case, a police officer had issued a 24-hour driving prohibition to the petitioner, pursuant to s. 215(3) of the Motor Vehicle Act. The petitioner applied for judicial review. On an interlocutory application, Punnett J. held that the police officer could not give additional evidence as to his observations of the petitioner or his experience in assessing the effects of marihuana usage (see paras. 7, 36, 40 and 41).

Punnett J. stated that affidavit evidence going beyond the contents of the police officer’s handwritten notes and his subsequent narrative summary, should only be admitted if it is relevant to a ground of review which is recognized by law (and which is being advanced by the petitioner), and if “there is little or no risk of recreating the evidence before the tribunal” (see para. 38). Punnett J.’s reasoning was adopted and applied by Madam Justice Fenlon in Wong v. British Columbia (Superintendent of Motor Vehicles) 2013 BCSC 2091, at paras. 32-36. I too accept that rule as to admissibility.

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