Can a court review a decision by a police officer under section 90.3 of the Criminal Code when the officer applied the wrong test?
British Columbia, Canada
The following excerpt is from Samer v. Martin, 2010 BCSC 1701 (CanLII):
The petitioner says the officer applied the wrong test under s. 90.3 of the Act. Since the issue involves a consideration of whether the officer misapplied the law, it is a decision that is subject to review for correctness. In Dunsmuir v. New Brunswick 2008 SCC 9, the majority stated at para. 60: ...courts must also continue to substitute their own view of the correct answer where the question at issue is one of general law “that is both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise” [citations omitted].
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