ON APPEAL FROM THE COURT OF APPEAL OF BRITISH COLUMBIA

103 Pages·2015·6.74 MB·English

File No. 35864
IN THE SUPREME COURT OF CANADA
(ON APPEAL FROM THE COURT OF APPEAL OF BRITISH COLUMBIA)
BETWEEN:
SUPERINTENDENT OF MOTOR VEHICLES and
THE ATTORNEY GENERAL OF BRITISH COLUMBIA
APPELLANTS
(Respondents)
AND:
JAMIE ALLEN CHISHOLM, SCOTT ROBERTS,
CAROL MARION BEAM and RICHARD JAMES GOODWIN
RESPONDENTS
(Appellants)
AND:
ATTORNEY GENERAL OF MANITOBA, ATTORNEY GENERAL OF CANADA,
ATTORNEY GENERAL OF ALBERTA, ATTORNEY GENERAL OF
SASKATCHEWAN, ATTORNEY GENERAL OF ONTARIO, and
ATTORNEY GENERAL OF QUEBEC
INTERVENERS
(Pursuant to Constitutional Question)
FACTUM OF THE APPELLANTS
(Section 8 of the Charter)
(Pursuant to Rule 42 of the Rules oft he Supreme Court afCanada)
Counsel for the Appellants, Agent for the Appellants,
Superintendent of Motor Vehicles and the Superintendent of Motor Vehicles and the
Attorney General of British Columbia Attorney General of British Columbia
Nathaniel Carnegie and Tyna Mason Brian A. Crane, Q.C.
Ministry of Justice, Legal Services Branch Gowling Lafleur Henderson LLP
1001 Douglas Street, 6th Floor 160 Elgin Street, Suite 2600
PO Box 9280, Stn Prov Govt Ottawa, ON KIP lC3
Victoria, BC V8W 917 T: [phone]
T: [phone] F: [phone]
F: [phone] E: [email protected]
E: [email protected]
Counsel for the Respondents, Agent for the Respondents,
Jamie Allen Chisholm, Scott Roberts and Jamie Allen Chisholm, Scott Roberts and
Carol Marion Beam Carol Marion Beam
Jeremy G. Carr Jeffrey Beedel
Carr, Buchan & Company Gowling Lafleur Henderson LLP
Barristers & Solicitors 160 Elgin Street, Suite 2600
520 Comerford Street Ottawa, ON KIP IC3
Victoria, BC V9A 6K8 T: [phone]
T: [phone] F: [phone]
F: [phone] E: [email protected]
E: [email protected]
Counsel for the Respondent, Agent for the Respondent,
Richard James Goodwin Richard James Goodwin
Howard A. Mickelson and Shea H. Coulson Marie-France Major
Gudmundseth Mickelson LLP Supreme Advocacy LLP
2525 - 1075 West Georgia Street 100 340 Gilmour Street
Vancouver, BC V6E 4H3 Ottawa, ON K2P OR3
T: [phone] T: [phone], ext. 102
F: [phone] F: [phone]
E: [email protected] E: [email protected]
Counsel for the Intervener, Agent for the Intervener,
Attorney General of Manitoba Attorney General of Manitoba
Heather Leonoff, Q.C. D. Lynne Watt
Attorney General of Manitoba Gowling Lafleur Henderson LLP
1205 - 405 Broadway 160 Elgin Street, Suite 2600
Winnipeg, MB R3C 3L6 Ottawa, ON KIP lC3
T: [phone] T: [phone]
F: [phone] F: [phone]
E: [email protected] E: [email protected]
Counsel for the Intervener,
Attorney General of Canada
Robert J. Frater
Attorney General of Canada
50 O'Connor Street, Suite 500, Room 556
Ottawa, ON KIP 6L2
T: [phone]
F: [phone]
E: [email protected]
Counsel for the Intervener, Agent for the Intervener,
Attorney General of Alberta Attorney General of Alberta
Roderick Wiltshire D. Lynne Watt
Attorney General of Alberta Gowling Lafleur Henderson LLP
9833 - 109 Street 160 Elgin Street, Suite 2600
Bowker Building, 4th Floor Ottawa, ON KIP lC3
Edmonton, AB T5K 2E8 T: [phone]
T: [phone] F: [phone]
F: [phone] E: [email protected]
E: [email protected]
Counsel for the Intervener, Agent for the Intervener,
Attorney General for Saskatchewan
Attorney General for Saskatchewan
D. Lynne Watt
Graeme G. Mitchell, Q.C.
Gowling Lafleur Henderson LLP
Attorney General for Saskatchewan
160 Elgin Street, Suite 2600
820-1874 Scarth Street
Ottawa, ON KIP lC3
Regina, Saskatchewan
T: [phone]
S4P 4B3
F: [phone]
T: [phone]
E: lynne. [email protected]
F: [phone]
E: [email protected]
Counsel for the Intervener, Agent for the Intervener,
Attorney General of Ontario Attorney General of Ontario
Zachary Green Robert E. Houston, Q.C.
Attorney General of Ontario Burke-Robertson LLP
720 Bay Street, 4th Floor 441 MacLaren Street, Suite 200
Toronto, ON M5G 2Kl Ottawa, ON K2P 2H3
T: [phone] T: [phone]
F: [phone] F: [phone]
E: [email protected] E: [email protected]
Counsel for the Intervener, Counsel for the Intervener,
Attorney General of Quebec Attorney General of Quebec
Brigitte Bussieres, Alain Gingras and Pierre Landry
Gilles Laporte Noel & Associes
Procurer general du Quebec 111, rue Champlain
1200, route de l'Eglise, 2etage Gatineau, QC J8X 3Rl
Quebec, QC G 1V 4Ml T: [phone]
T: [phone] F: [phone]
F: [phone] E: [email protected]
E: [email protected]
TABLE OF CONTENTS
PART PAGE
PART I: OVERVIEW OF POSITION AND STATEMENT OF FACTS .......... 1
1) Overview of Position ............................................................................ 1
2) Statement of Facts ................................................................................ 3
A) The Ongoing Scourge of Drinking and Driving in B.c ................. 3
B) The Limits of the Criminal Process in Preventing Drinking
and Driving .................................................................................... 5
C) The Effectiveness of Administrative Driving Prohibitions
in Reducing Alcohol-Related Collisions ....................................... 6
D) The Effectiveness of Other Administrative Sanctions in
Reducing Alcohol-Related Collisions ............................................ 7
E) The Importance of Enforcement in Reducing Alcohol-Related
Collisions ....................................................................................... 7
i) Public Awareness of the IRP Scheme ...................................... 8
ii) The IRP Scheme Results in Immediate Decrease in
Number of Deaths on B.C. Roads ............................................ 8
3) Driving Prohibitions and Administrative Sanctions under
the MVA .............................................................................................. 10
A) Overview ...................................................................................... 10
B) 24 Hour Driving Prohibitions ...................................................... 10
C) The Administrative Driving Prohibition Scheme ........................ 11
D) Other Driving Prohibitions in the MVA ....................................... 13
E) Other Administrative Driving-Related Programs ........................ 13
4) The Immediate Roadside Prohibition Scheme ................................... 14
A) Overview ...................................................................................... 14
B) Elements of the IRP Scheme ........................................................ 15
C) Police Practices in the Use of ASDs in B.C ................................. 17
5) Procedural History ............................................................................. 18
6) The Decisions of the Lower Courts on s. 8 of the Charter ................ 20
7) Amendments to the IRP Scheme ........................................................ 23
11
PART II: QUESTIONS IN ISSUE. ........................................................................ 24
PART III: ARGUMENT .......................................................................................... 24
1) The IRP Scheme Does Not Authorize a Seizure and Section 8
does not Apply ................................................................................... 24
A) The Focus of Section 8 ................................................................. 24
B) The IRP Scheme does not Authorize Initial Seizure of a
Driver's Breath ............................................................................. 25
C) The IRP Scheme Permits a Driver to Request a Second
ASD Sample but Section 8 is not Engaged because the
Driver Must Consent .................................................................... 29
2) The IRP Scheme is Reasonable .......................................................... 29
A) Benefits to Society and Procedural Protections for Drivers
Render the IRP Scheme Reasonable ............................................ 29
B) Petition Judge Erred in Applying Reasonableness Standard
Applicable in Criminal Context ................................................... 32
3) The IRP Scheme Authorizes Seizures to be Carried Out in a
Reasonable Fashion ............................................................................ 33
4) Section 8 is not the Proper Basis for Assessing Procedural
Fairness of the IRP Scheme .............................................................. 33
5) Section 7 is the Proper Basis for Reviewing Adequacy of Procedural
Safeguards and does not Apply to Driving Prohibitions .................... 34
A) Section 7 Provides Broad Protection for Procedural Fairness ..... 34
B) Section 7 does not Apply to Driving Prohibitions ....................... 35
C) Since Driving Prohibitions Comply with Section 7 they
do not Violate Section 8 ............................................................... 37
6) Any Infringement is Justified as a Reasonable Limit Under
Section 1 ............................................................................................. 38
PART IV: SUBMISSIONS AS TO COSTS ............................................................ 40
PART V: ORDERS SOUGHT ............................................................................... 40
PART VI: TABLE OF AUTHORITIES ................................................................. 41
111
PART VII: LEGISLATION ...................................................................................... 46
Motor Vehicle Act, R.S.B.C., 1996, c. 318, ss. 215. 41 - 215.51,
25.1,93,94.1 - 94.6,97.2,98 - 99,250 - 254 and 256 - 261
[as in force October 27, 2010] .................................................................................. 46
Motor Vehicle Act, R.S.B.C., 1996, c. 318, ss. 215.41 215.51
[currently in force] .................................................................................................... 75
Canadian Charter ofR ights and Freedoms, Part 1 of the Constitution Act, 1982,
ss. 1 and 7-14, being Schedule B to the Canada Act 1982 (UK), c. 11 .................... 85
Criminal Code, R.S.C., 1985, c. 46, ss. 253 254
[as in force October 2,2009 to January 7, 2010] ..................................................... 87
Criminal Code, R.S.C., 1985, c. 46, ss. 253 - 254
[currently in force] .................................................................................................... 91
APPENDIX "A": Order Stating Constitutional Question ............................................ 95
1
PART I: OVERVIEW OF POSITION AND STATEMENT OF FACTS
1) Overview of Position
1. Drinking and driving remains one of the most pervasive but preventable social problems
in Canada. Prior to British Columbia's introduction of ss. 215.41 to 215.51 of the Motor Vehicle
Act (the "Immediate Roadside Prohibition Scheme" or the "IRP Scheme,,)l at issue in this appeal,
the number of fatalities, injuries and collisions had been increasing in B.c. throughout the first
decade of the 21 st century.
2. In 2007 alone, there were approximately 170 deaths and nearly 3,000 injuries in a1cohol-
related collisions in B.c., many of which involved life-altering spinal cord or head injuries.
Young people were disproportionately represented in these grim statistics. These numbers also
reflected a high percentage of recidivists involved in alcohol-related fatalities. For whatever
reason, there were drivers whose behaviour was not responsive to the possibility of criminal
prosecution or to the imposition of various administrative prohibitions then available under the
Motor Vehicle Act, R.S.B.C., 1996, c. 318 (the "MVA").
3. The government of British Columbia thought that more could be done to eradicate this
ongoing scourge in exercising its constitutional authority to regulate the roadways in the interest
of public safety. Building on licence suspension provisions already contained in the MVA
provisions in existence across Canada that appellate courts had consistently upheld as
constitutional the Province enacted the IRP Scheme. The IRP Scheme is an administrative
scheme designed to combat drinking and driving by immediately prohibiting drinking drivers
from driving while providing a summary avenue of redress for those drivers who wish to
challenge their prohibition.
4. Under the IRP Scheme, if a driver provides a breath sample on an approved screening
device ("ASD") that indicates a "fail", or refuses to provide a sample, a police officer must seize
the driver's licence, serve a notice of prohibition prohibiting him or her from driving for 90 days
and impound the vehicle. Drivers are assessed a monetary penalty and could face further
1 Motor Vehicle Act, R.S.B.C. 1996, c. 318, ss. 215.41-215.51. In the lower courts the IRP Scheme was referred to as
the Automatic Roadside Prohibition Scheme or the ARP Scheme. The Attorney General ofB.C. prefers the
description Immediate Roadside Prohibition Scheme.
2
consequences, including the requirement to participate in a remedial program or to install an
Ignition Interlock device on their vehicle.2 When an officer serves an IRP at the roadside, he or
she may complete the investigation at that point in time. The driver is not required attend the
police station to provide breath samples on an approved instrument and in practice does not face
criminal charges or the possibility of a criminal conviction and a criminal record.
5. The results of the IRP Scheme have been dramatic. Since 2010, there has been a 52%
reduction in alcohol-related fatalities on B.C. 's roadways.3 At least 175 lives have been saved.4
6. Despite these impressive results, the B.C. courts ruled that the IRP Scheme violated s. 8
of the Charter ofR ights and Freedoms5 (the "Charter"). This Court has stated a constitutional
question regarding whether ss. 215.41 to 215.51 of the MVA (as it was then in force) violates s. 8
of the Charter.
7. The IRP Scheme does not violate s. 8. First, the IRP Scheme does not authorize the initial
seizure of breath from a driver by way of an ASD demand. This seizure is authorized under the
authority of s. 254(2) of the Criminal Code6 (the "Code"). The fact that the MVA refers to a
search authorized under federal legislation does not transform the search into one authorized by
provincial law. The Province has merely attached additional consequences to the results of a
search authorized under the Code and these consequences do not engage s. 8.
8. The IRP Scheme does authorize a driver to request a second ASD sample where he or she
has already provided a sample indicating a "warn" or "fail".7 Assuming this aspect of the IRP
Scheme authorizes a seizure, it is only at the driver's request. This requirement, coupled with a
substantially diminished reasonable expectation of privacy on the part of a driver who has already
These additional consequences are at the discretion of the Superintendent. An Ignition Interlock device prevents a
2
vehicle from being operated unless the driver provides a breath sample below a prescribed limit for alcohol, which is
often zero.
3 Brubacher et aI, "Reduction in Fatalities, Ambulance Calls, and Hospital Admissions for Road Trauma After
Implementation of New Traffic Laws", American Journal of Public Health, October 2014, Vol. 104, No. 10 at pp.
e93-94. Figure of 175 lives is based on estimated saving of 44 lives per year over four years.
4 Macdonald et aI, "The impact of alcohol-related collisions of the partial decriminalization of impaired driving in
British Columbia, Canada", Accident Analysis and Prevention 59 (2013) 200-205 at p. 203.
5 Canadian Charter ofR ights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada
Act 1982 (UK), c. 1 I.
6 Criminal Code, R.S.C., 1985, c. 46 (the "Code"), s. 254(2).
7 A "fail" indicates a blood-alcohol concentration of 80 mg % and a "warn" indicates a BAC of 50 mg %.
3
provided a sample indicating a prescribed blood-alcohol concentration ("BAC"), means that this
aspect of the IRP Scheme does not raise a concern under s. 8. The IRP Scheme does not
authorize any other search or seizure and therefore s. 8 is not triggered.
9. In any case, the IRP Scheme is reasonable within the meaning of s. 8. The IRP Scheme
has the important goal of reducing the carnage caused by drinking and driving through increasing
a drinking driver's actual and perceived risk of detection and ensuring there are immediate
consequences for drivers who choose to drink and drive. ASD demands are an essential tool in
ensuring that the goals of the IRP Scheme are met. Measuring drivers' BAC by way of an ASD
demand at the roadside is the least intrusive means of accomplishing the IRP Scheme's
objectives. Alternatives like requiring drivers to attend the police station to provide a sample on
an approved instrument would be more intrusive for the driver. In taking up greater police
resources, this alternative would also undermine the goal of enhancing the perceived risk of
detection through heightened traffic enforcement.
10. From a procedural perspective, drivers are entitled to challenge a 90 day IRP before a
delegate of the Superintendent of Motor Vehicles (the "Superintendent") at an oral hearing and to
lead evidence. Drivers receive materials explaining the officer's basis for serving the IRP.
Adjudicators must provide written reasons and drivers are entitled to seek judicial review of a
decision confirming an IRP. These aspects of the IRP Scheme render it reasonable within the
meaning of s. 8.
2) Statement of Facts
A) The Ongoing Scourge ofD rinking and Driving in B.C.
11. In 2009, impaired driving was the number one criminal cause of death in Canada.8 Based
on police reports provided to the Insurance Corporation of British Columbia ("ICBC"), in 2007 at
least 128 people were killed and 2,869 people were injured in alcohol-related collisions. These
numbers likely under-represent the true scope of the problem.9 Figures derived from B.C.
8 Affidavit #1 of Stephen Martin, filed March 16,2011, BCSC No. 105189 ("Martin Affidavit"), Exhibit "M", p. 5,
Joint Record, p. 731.
9 See Brubacher et a!., "Police Documentation of Alcohol Involvement in Hospitalized Injured Drivers", Traffic
Injury Prevention (20l3) 14,453-460 at pp. 458-459.
4
coroners' reports for 2007 concluded that 170 people lost their lives in alcohol-related
1o
collisions. Young people are disproportionately involved in alcohol-related collisions. I I
Drinking and driving also remains a leading cause of spinal cord and head injuries in Canada.
12
12. Quite apart from the awful human toll, the financial cost to society of drinking and
driving in Canada is enormous. There was expert evidence in the lower courts estimating the
costs ofthese collisions in 2006 as ranging from 2.2 billion to nearly 12.8 billion and concluding
that "( d)rinking-driving collisions account for one ofthe largest sources of preventable alcohol
related costs to Canadian society".
13
13. In 2010,3.1 million people had driver licences in B.C. Nearly one-quarter of British
Columbians have admitted to some alcohol consumption before driving. More than 1 in 20
British Columbians admit to having driven while likely over the limit. 14 According to the Traffic
Injury Research Foundation, more than 1 in 4 British Columbians know of a family member or
friend who has been a victim of drinking and driving. More than 1 in 5 British Columbians know
of a friend or family member that was drinking and driving and caused an accident. Not
surprisingly, British Columbians are more concerned about drinking and driving than any other
social issue, with nearly three-quarters indicating they are very or extremely concerned about it.IS
14. Between 2002 and 2009, the number of criminal charges in B.C. for alcohol-related
driving offences increased, going from 5,646 charges in 2002 to 8,056 in 2009.16 This trend is
also reflected in an increase in administrative sanctions. Between 2004 and 2009, the number of
administrative driving prohibitions increased by 44%.17
15. In the 2009 House of Commons Committee report, "Ending Alcohol-Impaired Driving: A
Common Approach", the Canadian Police Association is quoted as stating that "the problem of
impaired driving is worsening in Canada and we are losing ground in our efforts to eliminate the
10 Affidavit # 1 of Robert E. Mann, filed March 16, 2011, BCSC No. 105189 ("Mann Affidavit") attaching "Report
on Drinking and Effective Legal Interventions" ("Mann Report"), p. 4, Joint Record, p. 1220.
II Mann Report, pp. 5-6.
12 Mann Report, p. 4.
13 Mann Report, p. 4 and 6.
14 Martin Affidavit, Exhibit "B", p. 18, Joint Record, p. 593.
15 Martin Affidavit, Exhibit "B", p. 19, Joint Record, p. 593.
16 Martin Affidavit, para. 69, Exhibit "J" (only one page), Joint Record, p. 713.
17 Martin Affidavit, para. 69, Exhibit "I". (only one page), Joint Record, p. 711.