In IRP (Immediate Roadside Prohibition) cases the officer is required to promptly forward to the Superintendent of Motor Vehicles a sworn or solemnly affirmed report in the form established by the Superintendent.
In Kuzmanovic v. The Superintendent of Motor Vehicles, 2021 BCCA 83, the B.C. Court of Appeal addressed the issue of whether a peace officer can fail to properly swear or affirm a report and then correct the issue after the fact and before the review hearing.
At paras. 23-27 the Court of Appeal set out the relevant circumstances as follows:
[23] The Report included a preamble that stated, “I, Cst. Gallagher, swear or sol[e]mnly affirm that the contents of this report are true.” The Report included a jurat to be executed by the investigating peace officer and a commissioner for taking affidavits for British Columbia. The officer signed the jurat, but a commissioner did not.
[24] On March 9, 2019, before Mr. Kuzmanovic applied for a review, the Superintendent faxed an urgent request to the New Westminster Police Department advising the jurat on the Report was incomplete.
[25] In response, the officer forwarded a “Report to Superintendent – Supplemental to File”, solemnly affirmed by the officer on March 13, 2019 (the “Supplemental Report”).
[26] The Supplemental Report said:
IRP PACKAGE DID NOT HAVE A SIGNATURE OF A COMMISSIONER, PRIME NARRATIVE TEMPLATE DID NOT INDICATE I SHOWED THE DRIVER THE 2ND TEST RESULTS HOWEVER I DID SHOW HIM. VI CHECK BOX WAS NOT TICKED DISPLAYING VEHICLE WAS IMPOUNDED WHEN IN FACT IT WAS.
The Supplemental Report provided that the “IRP/VI PACKAGE” was attached. It also stated the original document was attached and the Supplemental Report “consists of 15 pages including this page”. The officer solemnly affirmed the contents of the Supplemental Report and the enclosures, which included the same package of documents he had faxed to the Superintendent on March 9, 2019.
[27] The officer’s Occurrence Report provided the information summarized above as to the officer’s dealings with Mr. Kuzmanovic, but with the added information that the first ASD test at 2349 hours showed the ASD temperature was “in range”, and the result was a “warn”. The officer conducted the second ASD test at 2354 hours, the ASD temperature was “in range”, and the result was a “warn”.
Mr. Kuzmanovic’s counsel argued that the adjudicator’s finding that the Supplemental Report incorporated by reference the Report was unreasonable, among other things. In response, the Court of Appeal held that Supplemental Reports are not per se improper with the upshot being that if a Supplemental Report is properly sworn it can incorporate a Report that was not properly sworn thereby satisfying the requirements of s. 215.47(d) of the Motor Vehicle Act.
The key takeaway from this Decision is that one must scrutinize the report that is submitted to the Superintendent and confirm that it has been properly sworn or affirmed.
