S.C.C. No.: 35864 IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA)
BETWEEN: RICHARD JAMES GOODWIN APPELLANT
- and -
BRITISH COLUMBIA (SUPERINTENDENT OF MOTOR VEHICLES) and ATTORNEY GENERAL OF BRITISH COLUMBIA
RESPONDENTS - and -
ATTORNEY GENERAL OF CANADA, ATTORNEY GENERAL OF ONTARIO, ATTORNEY GENERAL OF MANITOBA, ATTORNEY GENERAL OF SASKATCHEWAN, ATTORNEY GENERAL OF ALBERTA and ATTORNEY GENERAL OF QUEBEC
INTERVENERS
FACTUM OF APPELLANT (RICHARD JAMES GOODWIN, APPELLANT) (Pursuant to Rule 42 of the Rules of the Supreme Court of Canada)
GUDMUNDSETH MICKELSON LLP SUPREME ADVOCACY LLP 2525 - 1075 West Georgia Street 340 Gilmour Street, Suite 100 Vancouver, BC V6E 3C9 Ottawa, ON K2P 0R3
Howard A. Mickelson, Q.C. Marie-France Major Shea H. Coulson Tel.: (613) 695-8855 Tel.: (604) 685-6272 Fax: (613) 695-8580 Fax: (604) 685-8434 Email: [email protected] Email: [email protected]
Counsel for the Appellant, Richard James Ottawa Agents for Counsel for the Goodwin Appellant, Richard James Goodwin
S.C.C. No.: 35864 IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA)
BETWEEN: RICHARD JAMES GOODWIN APPELLANT
- and -
BRITISH COLUMBIA (SUPERINTENDENT OF MOTOR VEHICLES) and ATTORNEY GENERAL OF BRITISH COLUMBIA
RESPONDENTS
AND BETWEEN:
BRITISH COLUMBIA (SUPERINTENDENT OF MOTOR VEHICLES) and ATTORNEY GENERAL OF BRITISH COLUMBIA APPELLANTS
- and -
JAMIE ALLEN CHISHOLM
RESPONDENT
AND BETWEEN:
BRITISH COLUMBIA (SUPERINTENDENT OF MOTOR VEHICLES) and ATTORNEY GENERAL OF BRITISH COLUMBIA APPELLANTS
- and -
SCOTT ROBERTS
RESPONDENT
AND BETWEEN:
BRITISH COLUMBIA (SUPERINTENDENT OF MOTOR VEHICLES) and ATTORNEY GENERAL OF BRITISH COLUMBIA APPELLANTS
- and -
CAROL MARION BEAM
RESPONDENT AND BETWEEN:
BRITISH COLUMBIA (SUPERINTENDENT OF MOTOR VEHICLES) and ATTORNEY GENERAL OF BRITISH COLUMBIA APPELLANTS
- and -
RICHARD JAMES GOODWIN
RESPONDENT
- and -
ATTORNEY GENERAL OF CANADA, ATTORNEY GENERAL OF ONTARIO, ATTORNEY GENERAL OF MANITOBA, ATTORNEY GENERAL OF SASKATCHEWAN, ATTORNEY GENERAL OF ALBERTA and ATTORNEY GENERAL OF QUEBEC
INTERVENERS
ATTORNEY GENERAL OF BRITISH GOWLING LAFLEUR HENDERSON LLP COLUMBIA 2600 - 160 Elgin St 1001 Douglas Street, 6th floor Ottawa, ON K1P 1C3 P.O. Box 9280 Stn Prov Govt Victoria, BC V8W 9J7 Brian A. Crane, Q.C. Tel.: (613) 233-1781 Tyna Mason Fax (613) 563-9869 Tel.: (250) 356-2747 Email: [email protected] Fax: (250) 356-9154
Counsel for the Respondents/Appellants, Ottawa Agent for Counsel for the Attorney General of British Columbia and Respondents/Appellants, Attorney General British Columbia (Superintendent of of British Columbia and British Columbia Motor Vehicles) (Superintendent of Motor Vehicles)
CARR BUCHAN & COMPANY SUPREME ADVOCACY LLP 520 Comerford Street 340 Gilmour Street, Suite 100 Victoria, BC V9A 6K8 Ottawa, ON K2P 0R3
Jeremy Carr Marie-France Major Tel.: (250) 388-7571 Tel.: (613) 695-8855 Fax: (250) 388-7327 Fax: (613) 695-8580 Email: [email protected] GUDMUNDSETH MICKELSON LLP 2525 - 1075 West Georgia Street Ottawa Agent for Counsel for the Vancouver, BC V6E 3C9 Respondents, Jamie Allen Chisholm, Scott Robert and Carol Marion Beam Shea H. Coulson Tel.: (604) 685-6272 Fax: (604) 685-8434 Email: [email protected]
Counsel for the Respondents, Jamie Allen Chisholm, Scott Robert and Carol Marion Beam
ATTORNEY GENERAL OF CANADA Department of Justice Canada 50 0’Connor Street, Suite 500, Room 556 Ottawa, ON K2P 6L2
Robert J. Frater Tel.: (613) 670-6289 Fax: (613) 954-1920 Email: [email protected]
Counsel for the Intervener, Attorney General of Canada
ATTORNEY GENERAL OF ONTARIO BURKE-ROBERTSON 720 Bay Street, 4th Floor 441 MacLaren Street, Suite 200 Toronto, ON M5G 2K1 Ottawa, ON K2P 2H3
Zachary Green Robert E. Houston, Q.C. Tel.: (416) 326-4460 Tel.: (613) 236-9665 Fax: (416) 326-4015 Fax: (613) 235-4430 Email: [email protected] Email: [email protected]
Counsel for the Intervener, Attorney Ottawa Agent for Counsel for the General of Ontario Intervener, Attorney General of Ontario
ATTORNEY GENERAL OF MANITOBA GOWLING LAFLEUR HENDERSON LLP 1205 - 405 Broadway 2600 - 160 Elgin St Winnipeg, MB R3C 3L6 Ottawa, ON K1P 1C3
Heather Leonoff, Q.C. D. Lynne Watt Tel.: (204) 945-0717 Tel.: (613) 786-8695 Fax: (204) 945-0053 Fax (613) 563-9869 Email: [email protected] Email: [email protected]
Counsel for the Intervener, Attorney Ottawa Agent for Counsel for the General of Manitoba Intervener, Attorney General of Manitoba
GOWLING LAFLEUR HENDERSON LLP 2600 - 160 Elgin St Ottawa, ON K1P 1C3
D. Lynne Watt Tel.: (613) 786-8695 Fax (613) 563-9869 Email: [email protected]
Counsel for the Intervener, Attorney General of Saskatchewan
ATTORNEY GENERAL OF ALBERTA GOWLING LAFLEUR HENDERSON LLP 9833 - 109 Street 2600 - 160 Elgin St Bowker Building, 4th Floor Ottawa, ON K1P 1C3 Edmonton, AB T5K 2E8
Roderick Wiltshire D. Lynne Watt Tel.: (780) 422-7145 Tel.: (613) 786-8695 Fax: (780) 425-0307 Fax (613) 563-9869 Email: [email protected] Email: [email protected]
Counsel for the Intervener, Attorney Ottawa Agent for Counsel for the General of Alberta Intervener, Attorney General of Alberta
PROCUREUR GÉNÉRAL DU QUÉBEC NOËL & ASSOCIÉS 1200, route de l'Église, 2e étage 111, rue Champlain Québec, QC G1V 4M1 Gatineau, Quebec J8X 3R1
Brigitte Bussières Pierre Landry Alain Gingras Tel.: (819) 771-7393 Gilles Laporte Fax: (819) 771-5397 Tel.: (418) 643-1477 Email: [email protected] Fax: (418) 644-7030 Email: [email protected] Ottawa Agent for Counsel for the Intervener, Attorney General of Quebec Counsel for the Intervener, Attorney General of Quebec
TABLE OF CONTENTS PAGE
PART I – OVERVIEW AND STATEMENT OF FACTS ...... 1 I. Overview ...... 1 II. Statement of Facts ...... 1 A. The ARP Regime Was Enacted to Suppress Crime and Promote Public Order and Welfare by Replacing the Criminal Code ...... 1 B. The ARP Regime Empowers Police to Investigate and Penalize Drivers at the Side of the Road Without Accountability ...... 6 C. The ASD is Unreliable ...... 9 D. Adjudicative Facts ...... 10 III. Judicial History ...... 11 A. The Chambers Decision ...... 11 B. The Decision on Appeal...... 12 PART II – STATEMENT OF ISSUES ...... 12 PART III – STATEMENT OF ARGUMENT...... 12 II. The ARP Regime is Ultra Vires the province of British Columbia ...... 14 A. Provinces Have No Jurisdiction To Supplement or Replace the Criminal Law ...... 14 B. Practical Reality over Artificial Form: The ARP Regime Replaces the Criminal Law 19 C. The ARP Regime is Distinguishable From Predecessor Regimes ...... 27 D. The Punitive Purpose of the ARP Regime is to Remove Procedural Rights ...... 28 III. The ARP Regime infringes s. 11(d) of the Charter and is not saved by s. 1 ...... 29 A. An Overly Legalistic Approach to S. 11 ...... 30 B. Refining the Test for an “Offence” under S.11: A Purposive Interpretation ...... 32 C. The ARP Regime Violates s. 11(d)...... 35 D. The ARP Regime Is Not Saved by S. 1 ...... 36 PART IV – SUBMISSION ON COSTS ...... 37 PART V – ORDERS SOUGHT ...... 37 PART VI – TABLE OF AUTHORITIES ...... 38 PART VII – STATUTORY PROVISION ...... 41 Appendix – Constitutional Question ...... 42
1
PART I – OVERVIEW AND STATEMENT OF FACTS I. Overview 1. This is the first constitutional challenge to a new frontier of provincial legislation designed to use the civil and administrative law to replace the Criminal Code so as to remove the provincial administrative costs associated with Charter rights and thereby create more “effective” punishment. British Columbia admits that this case is a test of its desire to move forward with these “hybrid” regimes. It argues that it has near total discretion to enact these sorts of laws under its s. 92(13) jurisdiction. It claims the new automatic roadside prohibition regime is a valid exercise of its powers to regulate the roads and license drivers. It emphasizes that its regime is more effective, more efficient, and tougher than the criminal law. It puts little import on the fact this new regime drastically abrogates British Columbians’ Charter rights by replacing the criminal law with a rights-deficient provincial scheme. The risks to such an approach are numerous: a reduction of democratic accountability, a reduction in liberty, and a prioritization of efficiency over rights. The appellant submits there are two possible solutions to this problem: (1) keep the power to enact criminal law firmly in the hands of the federal government to ensure democratic accountability with respect to changes to the criminal law; or (2) ensure that s. 11 rights apply to these provincial hybrid criminal/administrative regimes so that provinces can only suppress crime and target individuals for criminal-like sanctions if those individuals are provided the basic, essential procedural rights required for all offences. If neither solution applies, provincial power will be greatly enhanced far beyond what is intended by the Constitution and Canadians will face a real, practical reduction of their Charter rights.
II. Statement of Facts
A. The ARP Regime Was Enacted to Suppress Crime and Promote Public Order and Welfare by Replacing the Criminal Code
2. The British Columbia Legislature enacted sections 215.41 – 215.51 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318 (the “ARP Regime”) on September 20, 2010 to create what the B.C. government describes as “Canada’s most immediate and severe impaired driving penalties”1 in response to a perceived ineffective and inefficient criminal justice system. For the B.C. Legislature, criminal proceedings are ineffective at deterring and punishing impaired driving
1 Sivia v. British Columbia (Superintendent of Motor Vehicles), 2011 BCSC 1639 (“Chambers Reasons”) at para. 98 (Joint Record, Vol. 1, pp. 30-31); Lapointe #3, Ex. A, p. 2 (Joint Record, Vol. VIII, p. 1553) 2
because they are costly and time consuming, punishment is not immediate, the state must prove its case, and police actions are scrutinized by an independent adjudicator. The ARP Regime remedies this perceived ‘mischief’ by targeting for removal the procedural rights guaranteed by the Charter. The message is that those accused of impaired driving should not have rights: the immediacy of the police-imposed sanctions and the Charter-free review process is part of the regime’s punitive purpose.
3. In the second reading of the bill introducing the ARP Regime, solicitor general Mike de Jong discussed the impetus for enacting the amendments:
Most people, though they understand and deplore the carnage that accrues as a result of drinking and driving, probably do not think of it in these terms, and that is that impaired driving remains the number one criminal cause of death in Canada. I will emphasize that. It is the number one criminal cause of death. Hundreds of Canadians are killed every year, and thousands are injured, in accidents that I think we could say would be preventable had one or more of the drivers not been consuming alcohol or drugs.
In B.C. upwards of 130-plus individuals and their families last year were impacted in the most terrible of ways by impaired driving. I suppose most disturbing of all is the fact that after a period where society did recognize the horror and react by altering behavior in a fairly significant way, the trend lines of late have begun to move in the wrong direction. Those accidents and those deaths are going up. There are comprehensive surveys that examine these sorts of things, and they indicate that the number of alcohol-related accidents and deaths is on the increase.
This approach laid out in this legislation will be the toughest in Canada. I’m not sure that is necessarily the only way it should be characterized, but I suppose that is a simple and straightforward means of communicating to people who persist in this behavior that they are going to feel significant and severe sanction. They will complement the Criminal Code provisions that remain in effect, and that is another point worth emphasizing when we talk about these provisions dealing with drinking and driving.
The Criminal Code provisions exist. They will continue to exist. Whilst police will have additional tools – I think fair to say more immediate, more efficient tools – to deal with impaired driving, with swift and severe penalties available at the roadside, the prospect of facing Criminal Code-related procedures and sanctions does not disappear. In many instances, it will still be the preferred route by which sanctions are brought to bear against drivers.2
2 Lapointe #2, Ex. I, p. 30 (Joint Record, Vol. VIII, p. 1467) 3
[Emphasis added.]
4. The key underlined passages from this excerpt indicate the Province is targeting impaired driving as a criminal offence and seeking to send a message to individuals who drive while impaired that the Province will impose significant and severe sanctions on them for their wrongful, criminal behaviour. As the Honourable solicitor general’s comments bear out, the ARP Regime is not just designed to target specific drivers for the purposes of licensing but is designed for a broad public purpose to suppress criminal behaviour and more efficiently and effectively brand the offence of impaired driving with moral stigma. The Honourable solicitor general also compares the ARP Regime to the Criminal Code, stating the former is more immediate and efficient. The comparison is apt because, like the Criminal Code, the ARP Regime is also targeting a public wrong for a broad public purpose: suppressing, deterring and punishing criminal behaviour. The remaining comments are misleading and do not go to the purpose of the legislation. It is not disputed that the Provincial Legislature cannot repeal the Criminal Code, and so there is nothing surprising about The Honourable Mr. de Jong’s remarks that the Criminal Code will remain in force. These comments cannot and should not insulate the ARP Regime from judicial scrutiny, particularly where, as here, other background evidence about purpose as well as the legal and practical effects tell a different and more poignant story about the true purpose of the ARP Regime.
5. The ARP Regime’s purpose to replace other administrative sanctions and the Criminal Code with a more immediate, severe regime was expanded upon by the honourable member of the opposition Mike Farnworth, who emphasized both the immediacy of the ARP Regime and the expediency it affords by avoiding a criminal trial:
Right now, if you get the 24-hour roadside suspension, it’s very easy. you get home. in essence, in many cases, and I’ve heard comments…. It’s almost viewed like a pass, and that’s not what it’s intended to be … Well, it’s not fine, and that’s what this legislation recognizes. There’s a much greater inconvenience to you, the individual who has blown over .05, than just, you know: “My car’s parked for 24 hours.” Now all of a sudden you’re having to look at how that impacts for three days or a week.
… 4
the message there is that you’re not going to be able to sort of put it off through a court system and a justice system and play out over six months, nine months, a year 18 months – however long it takes to deal with something. Rather, there’s a consequence that happens right then and there.3
[Emphasis added.]
6. The British Columbia government’s April 27, 2010 press release and accompanying backgrounder “emphasizes the immediacy and severity of the penalties”4 and indicates the Province’s intention that drivers not be criminally charged for impaired driving unless there are aggravating circumstances:
B.C. INTRODUCES CANADA’S TOUGHEST IMPAIRED DRIVING LAWS VICTORIA – The Province is introducing Canada’s most immediate and severe impaired driving penalties to save lives, curb repeat offenders, and give police more enforcement tools, Solicitor General Michael de Jong, Q.C., announced today.
…
The new, roadside-issued, 90-day bans mean officers will no longer need to take drivers to the station for a full breath analysis in order to impose a driving ban longer than 24 hours.
…
B.C.’S IMPAIRED DRIVING LAW TO CHANGE
Focusing charges on impaired drivers with a previous conviction or ban for impaired driving, or who cause serious harm or death, will also support more effective enforcement. It takes more than four days of a police officer’s time, on average, to gather evidence, prepare reports for Crown counsel and appear in court to support an impaired driving charge.5
[Emphasis added.]
7. This Provincial goal of replacing the Criminal Code with the ARP Regime for impaired driving offences that do not cause serious harm or death is borne out by the legal and practical effects of the ARP Regime. The Court of Appeal admitted new evidence indicating Reports to Crown Counsel (“RCCs”) for impaired driving related offences without aggravating factors
3 Lapointe #2, Ex. I, p. 36 (Joint Record, Vol. VIII, p. 1473) 4 Chambers Reasons at para. 99 (Joint Record, Vol. 1, p. 31) 5 Chambers Reasons paras 98-99 (Joint Record, Vol. I, pp. 30-31); Lapointe #3, Ex. A, pp. 2, 5 (Joint Record, Vol. VIII, pp. 1553, 1556) 5
declined from 10,002 in 2009 to 2,043 in 2011, the first full year during which the ARP Regime was in force. The average number of RCCs from 2002-2010 was about 8,000 annually. As a percentage of the total number of RCCs received by Crown counsel, those for impaired driving declined from 12.1% of the total in 2009 to 2.6% of the total in 2011. The statistics further indicate that the number of ARP’s issued in 2011 was approximately 22,000 – up from the approximately 6,000 total number of administrative driving sanctions in 2010.6 The evidence suggests this was very likely the result of two factors: 1. Police no longer viewed criminal charges as necessary and 2. Crown Counsel no longer viewed criminal charges as necessary. In other words the ARP Regime’s legal design is so potent that both the RCMP and Crown Counsel no longer enforce the Criminal Code because the ARP Regime sufficiently addresses the broad public, criminal wrong of impaired driving in the majority of cases.
8. With respect to police enforcing the ARP Regime instead of the Criminal Code, the Chambers Judge accepted the evidence of Gary Mortiz, an RCMP officer who was a study material expert for the ARP Regime. Mr. Moritz trained other officers how to implement RCMP policy and procedure with respect to drinking and driving. The RCMP, acting as a provincial police force pursuant to s. 14 of the Police Act, R.S.B.C. 1996, c. 367, implemented a policy not to pursue criminal charges against first time offenders with an ASD reading of “fail” and instead use the ARP Regime. The RCMP Instructed its officers not to use their discretion to criminally investigate or charge first time “fail” offenders but rather directed its officers to issue an immediate roadside prohibition under the ARP Regime. Under the ARP Regime, no one from Mr. Mortiz’ office, including himself, had ever referred any “fail” reading cases on for criminal prosecution. In contrast, prior to the ARP Regime coming into force, if a driver blew into an ASD and the device registered a “fail”, the RCMP procedure was to return the driver to a police station where a breathalyser test on an approved instrument would be administered and criminal charges considered.7
9. The ARP Regime has reduced the time it takes to process drivers to 45 minutes, as compared to the approximately two to two and a half hours for Criminal Code offences. In
6 J. Thompson #1, Ex. D, p.1 (Joint Record, Vol. II, pp. 375-376) 7 Chambers Reasons at paras. 100-101 (Joint Record, Vol. I, p. 31); Lapointe #2, Ex. K, pp. 73-74, 76-78, 82 (Joint Record, Vol. VIII, pp. 1510-1511, 1513-1515, 1519) 6
addition, peace officers do not need to attend court hearings or any other type of hearing, further saving time.8
10. With respect to Crown Counsel preferring the ARP Regime over the Criminal Code, the Chambers Judge also accepted as evidence the Crown Counsel Policy Manual dated May 20, 2011. It states that the consequences of the ARP Regime “are relevant to charge assessment on a Report to Crown Counsel recommending a charge for a Criminal Code impaired driving offence.” The manual further states: “prosecution for a Criminal Code impaired driving offence under section 253(1)(a) impaired driving, 253(1)(b) driver over .08 or 254(5) failing or refusing to comply with a demand under section 254 (which do not include offences of causing, or resulting in, bodily harm or death) will not generally be in the public interest where the accused has been the subject of a 90 day IRP and related consequences, unless there are aggravating factors.”9
11. The attitude of the RCMP and Crown counsel reflects the government’s statement of intention in its press release cited above that charges will be focused only on offences involving serious bodily harm or death.
12. Other than the distinctions in process and rights, the ARP regime serves the same function and purpose as the Criminal Code. It suppresses and deters crime, it promotes public order and welfare, and it punishes and stigmatizes drivers accused of driving while impaired. It does all of this while using the guise of provincial licensing to target for removal the Charter rights guaranteed in the criminal process.
B. The ARP Regime Empowers Police to Investigate and Penalize Drivers at the Side of the Road Without Accountability
13. The legal structure of the ARP Regime emphasizes granting unparalleled immediate penalty powers to the police and insulating the exercise of those powers from any effective review. The result is a draconian regime that relies almost entirely on police discretion and asks Canadians to ‘trust in the police’ without any real independent oversight of police action.
8 Lapointe #2, Ex. K, p. 83 (Joint Record, Vol. VIII, p. 1520) 9 Chambers Reasons at para. 102 (Joint Record, Vol. I, pp. 31-32) 7
14. Penalties are immediate, severe and stigmatizing and the state requires little evidence to prove its case: a reading on an unreliable approved screening device10 (“ASD”) that cannot effectively be challenged on review.11 The ARP Regime is administered roadside by police using an ASD into which a driver is required to blow if, pursuant to s. 254(2) of the Criminal Code, a peace officer makes a breath demand after having reasonable grounds to suspect that the driver has alcohol in his/her body. The ASD will then display one of three readings – a numerical reading below .05, a “warn”, or a “fail”. The reading on the ASD determines the penalty the driver receives. If a driver blows a “warn” or a “fail” or refuses to comply with a demand made under the Criminal Code, then the peace officer must issue a mandatory driving prohibition. A driver may request a second analysis using a different ASD.12
15. Prohibitions are issued roadside and the investigating peace officer is not required to take the driver back to a police station for any further breath samples or tests.13 The ASD provides no permanent record of what it measured or what it displayed when it was used.14
16. In contrast, a breath sample taken with a roadside screening device under s. 254(2) of the Criminal Code cannot provide evidence for a subsequent criminal charge. Rather, the breath demand can only provide reasonable and probable grounds for a further analysis under s. 254(3), conducted using a Breathalyzer at the police station. A criminal investigation under s. 254(3) consumes considerably more police time than an investigation under the ARP Regime.15
17. The penalties under the ARP Regime are severe. A “warn” reading leads to a 3 day suspension for a first prohibition, 7 days for a second, and 30 days for any subsequent prohibition. The various “warn” prohibitions also carry financial consequences ranging from several hundred to several thousand dollars and may require, at the discretion of the Superintendent of Motor Vehicles, remedial programs and the use of an ignition interlock device.
10 Chambers Reasons at paras. 245, 286-292 (Joint Record, Vol. I, pp. 67, 78-79) 11 The original ARP Regime did not include provisions permitting challenge to the ASD’s reliability. This has been changed with the amended legislation that is not being challenged in this appeal. However, the amended legislation does not provide drivers with the procedural rights guaranteed by s. 11, such as the right to cross-examine, making it extremely difficult for drivers to effectively challenge the reliability of the ASD device (which does not create a permanent record of its reading). 12 Chambers Reasons at paras. 19-21 (Joint Record, Vol. I, pp. 10-11); MVA, ss. 215.41 – 215.42 13 MVA, s. 215.41 14 Chambers Reasons at para. 35 (Joint Record, Vol. I, p. 14) 15 Chambers Reasons at para. 22 (Joint Record, Vol. I, p. 11); Lapointe #2, Ex. K, p. 83 (Joint Record, Vol. VIII, p. 1520) 8
30 day prohibitions also require vehicle impoundment and mandatory attendance at a remedial program, while a peace officer has discretion whether to impound for 3 and 7 day prohibitions. A “fail” reading leads to a 90 day driving prohibition, mandatory vehicle impoundment, a fine, and remedial programs including an ignition interlock device for an estimated total cost of $4,060. Refusals draw automatic 90 day driving prohibitions and mandatory vehicle impoundment. An ignition interlock device is a mechanism installed in a motor vehicle that prevents the vehicle from being started until the driver blows into the device and the device registers a blood alcohol level below the programmed level.16
18. The ARP Regime does not have the standard features of an administrative regime: notice and an opportunity to be heard. The penalties are issued and effective immediately at the roadside by police, with no notice and no opportunity to be heard at that time. Penalties are automatic based upon the reading displayed on an ASD. The police are not required to prove any elements of a wrongful act when issuing an automatic driving prohibition to a driver. The onus is on the driver to apply for a review of the ARP and to prove that he or she was not the driver or the ASD did not display a “warn” or a “fail”. The ARP Regime places the onus on a driver who allegedly refused to blow to prove that he or she had a “reasonable excuse” for the refusal. By the time the review is heard the penalty will already be wholly or partly served.17 These factors remain true under the amended ARP Regime, with the exception that in the amended regime the reviewing adjudicator must consider whether, as a result of registering a “warn” or “fail” on an ASD, a driver’s blood alcohol was not less than 0.05 and 0.08, respectively.18
19. As acknowledged by the Honourable solicitor general in the committee stage of the legislative debates, suspensions of 7 days or less are completely unreviewable (meaning that the same portion of longer suspensions is also unreviewable):
B. Ralston: I had a question just about the interaction of a couple of sections. In 215.43(3) a notice of prohibition under this section “takes effect immediately on service of the notice of driving prohibition under section 215.41.” As the Attorney General may be aware, under the current provisions for the 90-day prohibition, the prohibition doesn’t come into effect for 21 days, and there’s a seven-day period in which one can file for an application for review.
16 Chambers Reasons at paras. 23-31 (Joint Record, Vol. I, pp. 11-14); MVA, ss. 25.1, 92, 93, 215.43 – 215.46 17 Chambers Reasons at paras. 32-35 (Joint Record, Vol. I, p. 14); MVA, ss. 215.41, 215.49 – 215.50 18 Motor Vehicle Amendment Act, 2012, Bill 46 – 2012, ss. 215.5(1)(a)(iii) and 215.5(1)(b)(iii) (Authorities, Tab 24) 9
So in the case of a three-day prohibition, other than, I think, the possibility that on the evidence that’s shown at the review…. The person asked for a second sample, and that was denied, and then the prohibition may be overturned retroactively.
It seems to me that as a practical matter, a person who gets a notice of prohibition for three days or for seven days will be obliged to serve that prohibition, although they may be seeking review. Is that correct or not?
Hon. M. de Jong: I think that’s a fair, practical analysis of what will happen.19
[Emphasis added.]
20. The Honourable Mr. de Jong acknowledged that under the ARP Regime, police-issued penalties are unreviewable in the context of first and second time “warn” offenders and portions of a longer “warn”, “fail” or “refusal” sanction.
21. The president of the Vancouver Police Union, Tom Stamatakis, publically decried the legislature’s empowerment of police to issue immediately effective penalties at the roadside:
“Even if you support the change of regulations, I don’t think any of us support the fact that we’ve now become the judge and the jury. Our job is to enforce the law and another part of our criminal justice system should be dealing with the guilt or innocence thing and imposing what the penalties should be.”20
[Emphasis added.]
22. This concern is greatly exacerbated when police-issued penalties cannot be reviewed before they are served.
C. The ASD is Unreliable
23. An additional significant concern with such a rights-deficient regime is the unreliability of the sole evidentiary basis for penalties.
24. The Chambers Judge found that “in some circumstances there can be serious issues concerning whether an ASD accurately reflects blood-alcohol readings. The evidence shows that this problem does not exist, at least to the same extent, when an approved instrument (breathalyser) is used at the police station.” The Province did not challenge this finding on
19 Lapointe #4, Ex. B, p. 12 (Joint Record, Vol. VIII, p. 1570) 20 Wikman #2 Ex. I, p. 95 (Joint Record, Vol. II, p. 511) 10
appeal. Wayne Jeffrey, an expert toxicologist, raised the following concerns with the reliability of the ASD, which evidence was accepted by the Chambers Judge:
(a) An ASD has fewer procedural safeguards compared to an approved instrument (“AI”);
(b) An ASD does not provide a reading of the driver’s actual blood alcohol, unlike the AI;
(c) An ASD has no mechanism to warn of residual mouth alcohol, unlike an AI;
(d) An ASD must be used at a temperature between 10 and 40 degrees Celsius;
(e) An ASD may fail to function if the force or volume of a breath sample does not come within its operating parameters;
(f) An ASD is only calibrated every 31 days as opposed to the AI, which is calibrated before each test; and
(g) A peace officer is only required to administer a second ASD if the driver requests one whereas AI procedures require two tests in each case to ensure accuracy.21
25. ASD evidence is not admissible in a criminal proceeding because a driver has no opportunity to contact counsel when the ASD is being administered.22
D. Adjudicative Facts
26. A peace officer issued a penalty under the ARP Regime to Mr. Goodwin on January 9, 2011 for refusing to provide a breath sample. The driving prohibition and impoundment were in effect immediately from that date. Mr. Goodwin applied to the Superintendent of Motor Vehicles for a review of his driving prohibition. The adjudicator on the review issued a decision dismissing Mr. Goodwin’s application on January 28, 2011.23 As such, even if the adjudicator decided in Mr. Goodwin’s favour, he would have been subject to a 19 day driving prohibition and vehicle impoundment issued by police without notice and without an opportunity to be heard.
21 Chambers Reasons at paras. 245, 286-292 (Joint Record, Vol. I, p. 67, 78-79); Jeffrey #1 at paras. 4-9 (Joint Record, Vol. VIII, pp. 1533-1534) 22 Chambers Reasons at para. 245 (Joint Record, Vol. I, p. 67) 23 Sivia v. British Columbia (Superintendent of Motor Vehicles), 2014 BCCA 79 (“Appeal Reasons”) at paras. 55-57 (Joint Record, Vol. I, pp. 182-183) 11
27. Mr. Goodwin filed a petition for judicial review of the adjudicator’s decision alleging administrative grounds of error and challenging the ARP Regime on constitutional grounds. Mr. Justice Dley of the British Columbia Supreme Court dismissed Mr. Goodwin’s petition on administrative law grounds holding that the adjudicator’s decision was reasonable. He also dismissed the constitutional issues for the reasons given by the Chambers Judge in Sivia v. British Columbia (Superintendent of Motor Vehicles)24 (“Sivia #1”).25
28. Mr. Goodwin appealed Justice Dley’s order to the British Columbia Court of Appeal, where his appeal was heard alongside those of several other petitioners from the Sivia #1 case. The record for the appeal was consolidated for all appellants and Mr. Goodwin relied on the record established in Sivia #1 for his constitutional arguments.26
III. Judicial History
A. The Chambers Decision
29. The Chambers Judge dismissed the various petitioners’ applications for a declaration that the ARP Regime is ultra vires the province and in violation of ss. 10 and 11(d) of the Charter. The Chambers Judge declared that the ARP Regime is unconstitutional as an infringement of s. 8 of the Charter, which matter is the subject of British Columbia’s cross-appeal.
30. The Chambers Judge also held the ARP Regime “is closer to the criminal law than any of its predecessors”.27 However, with respect to the division of powers, the Chambers Judge concluded that the ARP Regime was in relation to “the licensing of drivers, the enhancement of highway traffic safety, and the deterrence of persons from driving on highways when their ability is impaired by alcohol” and fell under the s. 92(13) provincial head of power.28
31. With respect to s. 11(d), the Chambers Judge held that the ARP Regime did not create an offence because it was a matter relating solely to licensing and did not create a process that had the appearance of a criminal process.29 The Chambers Judge also found that the ARP Regime did
24 2011 BCSC 1639 25 Appeal Reasons at para. 58 (Joint Record, Vol. I, p. 183) 26 Appeal Reasons at paras. 24-25 (Joint Record, Vol. I, pp. 175-176) 27 Chambers Reasons at paras. 13, 128 (Joint Record, Vol. I, pp. 9, 38) 28 Chambers Reasons at para. 120 (Joint Record, Vol. I, p. 36) 29 Chambers Reasons at paras. 143-159 (Joint Record, Vol. I, pp. 41-45) 12
not create true penal consequences because the “liberty of the driver is not at stake” and because the “magnitude of the penalty and other financial consequences are not sufficient in the circumstances”.30
B. The Decision on Appeal
32. The Court of Appeal upheld the Chambers Judge’s decision with respect to division of powers, s. 8, and s. 11(d) for substantially the same reasons.31 The appellants did not ask the Court of Appeal to consider s. 10 of the Charter.
PART II – STATEMENT OF ISSUES
33. The Constitutional Questions Stated by the Chief Justice are: 1. Are ss. 215.41 to 215.51 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318, as enacted on September 20, 2010 ultra vires the province of British Columbia as being exclusively within the federal government’s criminal law power under s. 91(27) of the Constitution Act, 1867? 2. Do ss. 215.41 to 215.51 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318, as enacted on September 20, 2010 infringe s. 11(d) of the Canadian Charter of Rights and Freedoms? 3. If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms?
34. The Appellant submits the answers to question 1 and 2 are “yes”, and the answer to question 3 is “no”.
PART III – STATEMENT OF ARGUMENT
35. The basic theme of this appeal is that analysis of the ARP Regime’s constitutionality must be purposive and not legalistic. This requires special attention be given to the practical impact of the ARP Regime on both the criminal law and on s. 11 Charter rights. The ARP Regime is part of a sea change in social and legislative context that represents the forefront of a new frontier in attempts by provinces to use civil and administrative law to regulate criminal behaviour. Given the increasing use of civil law, a realm traditionally within the jurisdiction of the provinces, to govern criminal behaviour, a realm traditionally within the jurisdiction of the
30 Chambers Reasons at paras. 183-184 (Joint Record, Vol. I, p. 52) 31 Appeal Reasons at paras. 80-107 and 129-148 (Joint Record, Vol. I, pp. 192-202, 209-214) 13
federal government, this sea change requires courts to look carefully at the legal and practical effects where, as here, the appearance of the legislation covers hybrid ground. The old tests developed to distinguish criminal from civil regimes and to determine whether a law creates an offence for the purposes of s. 11 of the Charter need to be rethought lest provinces be empowered by the status quo to change the face of Canadians’ rights with minimal court scrutiny. As discussed by Joseph Arvay, Q.C. in “Stare Decisis and Constitutional Supremacy: Will Our Charter Past Become an Obstacle to Our Charter Future?”, stare decisis must not be used to bypass or ignore transformative changes in the legislative and social context that demand old approaches be revisited and revised to address new contexts and situations.32 Mr. Arvay’s point invokes the spirit of Ronald Dworkin, who argued that the marginal value of certainty is at its lowest in difficult constitutional cases, thus reducing its power in interpretive argument.33 This is such a case.
36. The B.C. Supreme Court and Court of Appeal gave little credence to the practical effects of this legislation, committing an error of law. Instead, both courts dismissed the practical effects as the product of unintended choice by the various machinery of criminal law enforcement rather than an impact by design of the Legislature. These mistakes also led the two courts to focus on the overt appearance that the ARP Regime related to licensing of drivers despite the fact that the Province made repeated declarations that its core intention in enacting the ARP Regime was to create the “toughest regime in Canada” to suppress and punish “criminal” behaviour in a public sphere of activity by more efficiently, effectively, and severely sanctioning individuals for the offence of impaired driving. By mischaracterizing this hybrid regime as a licensing matter and failing to recognize that by the Province’s own admission its purpose was to suppress crime, the lower courts fell into significant error in the section 11 analysis where the distinction between licensing matters which are primarily intended to maintain discipline within a limited private sphere of activity and matters of a public nature intended to promote public order and welfare within a public sphere of activity plays a crucial role in determining whether legislation creates an offence.
32 Joseph Arvay, “Stare Decisis and Constitutional Supremacy: Will Our Charter Past Become an Obstacle to Our Charter Future?”, Supreme Court Law Review, volume 58 (Authorities, Tab 29) 33 Ronald Dworkin, Law’s Empire (Cambridge, Mass: Belknap Press, 1988), p. 367 (Authorities, Tab 27) 14
37. Today, when reviewing colourable legislation, courts cannot expect explicit statements from the government as to intended effects when those effects put the legislation in question. Discussions in Hansard are carefully crafted to protect the legislation from constitutional scrutiny. Even so, the government’s statements, when combined with a careful, detailed look at the practical and legal effects of the ARP Regime, demonstrate that the true purpose of the legislation was to create Canada’s toughest laws against impaired driving that would serve as a replacement for the Criminal Code in most cases while increasing efficiency and severity by removing procedural and Charter protections for drivers. The result is a formidable regime that takes less time and costs the government and its various law enforcement agencies a lot less money. The consequence is the removal of Canadians’ Charter rights.
II. The ARP Regime is Ultra Vires the province of British Columbia
A. Provinces Have No Jurisdiction To Supplement or Replace the Criminal Law
38. If a province believes the Criminal Code is ineffective and inefficient at deterring offences and punishing offenders can it enact a replacement regime under its s. 92(13) jurisdiction?
39. This Court’s answer in R. v. Morgentaler34 was an emphatic “no”:
The guiding principle is that the provinces may not invade the criminal field by attempting to stiffen, supplement or replace the criminal law (Reference re Freedom of Informed Choice (Abortions) Act (1985), 44 Sask. R. 104 (C.A.)) or to fill perceived defects or gaps therin (Scowby v. Glendinning, supra, at p. 238).35
40. Similar concerns were expressed in Westendorp v. The Queen, where this Court struck down a municipal by-law creating summary offences against individuals on the street for the purpose of prostitution:
What appears to me to emerge from Kerans J.A.'s consideration of the by‑law is to establish a concurrency of legislative power, going beyond any double aspect principle and leaving it open to a province or to a municipality authorized by a province to usurp exclusive federal legislative power. If a province or municipality may translate a direct attack on prostitution into street control through reliance on public nuisance, it may do the same with respect to trafficking
34 [1993] 3 S.C.R. 463 (Authorities, Tab 10) 35 R. v. Morgentaler, [1993] 3 S.C.R. 463 at 498 (Authorities, Tab 10) 15
in drugs. And, may it not, on the same view, seek to punish assaults that take place on city streets as an aspect of street control!36
41. The question today is whether this Court’s co-operative federalism jurisprudence and double aspect doctrines have now altered this position. The most apposite case is Chatterjee v. Ontario (Attorney General)37 where this Court upheld Ontario’s Civil Remedies Act as a valid exercise of provincial jurisdiction on the bases that it was a valid attempt by the province to deter criminality using a general in rem forfeiture regime and that it did not interfere with the Criminal Code. However, even in Chatterjee this Court warned that while the Constitution “permits a province to enact measures to deter criminality and deal with its financial consequences” it can only do so if these measures are “taken in relation to a head of provincial competence and do not compromise the proper functioning of the Criminal Code” [emphasis added].38 This is an affirmation of the Morgentaler principle since any provincial law that supplemented or replaced the Criminal Code would compromise its proper functioning.
42. Moreover, in Chatterjee Ontario enacted a regime that operated parallel to the Criminal Code, but that did not replace it. As such, it did not engage the Morgentaler concern with supplementing and replacing the criminal law (affirmed in Chatterjee). Here, the ARP Regime is not parallel to the Criminal Code, but replaces it.
43. As Professor Dennis Baker explains in his recent article “The Temptation of Provincial Criminal Law”, granting the provinces jurisdiction to supplement or replace the criminal law comes with a significant cost:
We should also worry about provincial and municipal laws that impose supplementary penalties not only on those who have been convicted of a Criminal Code offence, but also on those who might be guilty of the offence. … The problem of penalizing possibly innocent individuals is compounded because conviction and punishment under provincial offences is not subject to the well-known procedural stricture of acknowledged criminal law, including the right to counsel and the right to be presumed innocent until proven guilty beyond a reasonable doubt. …
36 Westendorp v. The Queen, [1983] 1 S.C.R. 43 (“Westendorp”) at para. 21 (Authorities, Tab 16) 37 [2009] 1 S.C.R. 624 (Authorities, Tab 3) 38 Chatterjee v. Ontario (Attorney General), [2009] 1 S.C.R. 624, 2009 SCC 19 (“Chatterjee”) at para. 40 (Authorities, Tab 3) 16
While the alternative charges and penalties provided by these laws have some attractions – for example, they offer a seemingly proportionate response to relatively minor infractions – they raise significant questions about the federal division of criminal justice powers and may erode civil liberties in favour of administrative expediency.
…
The current state of the law suggests that, by portraying their laws as something less than “truly criminal,” provinces may be able to avoid the most robust forms of Charter protection. … the shift in focus from federal criminal law (where rights, due process and liberty are usually at the forefront of the debates) to provincial offences may elevate justifications related to administrative expediency. In an oft-cited article critical of the Supreme Court’s expansive interpretation of federal powers (including the criminal law power) Jean Leclair argues “[t]he dominant understanding” of federalism by Canadian courts privileges “efficiency” at the expense of other values (2003: 412). “Put bluntly,” Leclair writes, “it is a simple inquiry into which level of government can best get the job done.” (2003: 412). Applied to criminal law, one might wonder what exactly is the “job” and who is served by “efficiency”? One troubling answer is that efficiency serves primarily the convenience of criminal justice administrators. … Criminal justice concurrency can exacerbate the “pathologies of criminal law” that criminal law professor William Stuntz warns against: forum shopping by law enforcement actors, reduced protections for civil liberties and ever-broader criminal liability. … Another difficulty with provincial criminal laws is their potential to circumvent the traditional criminal law restraints on investigations. … The actual punishments imposed by provincial criminal laws also raise difficulties. Because such laws must formally deny that they are true criminal laws, they tend to rely on fines and property seizure rather than imprisonment … This does not always make them less punitive than their Criminal Code counterparts, however. Even modest fines can quickly escalate and the failure to pay them can lead to serious legal consequences. … 17
Finally, to the extent that provinces can “supplement or replace the criminal law … or … fill in perceived defects or gaps therein,” they may be able to criminalize what the federal government has chosen not to criminalize.39
44. It is for these reasons that this Court in Chatterjee demanded careful scrutiny of provincial laws that may supplement or replace the criminal law:
It is apparent that provincial objectives can become so entangled in the enforcement of criminal law as to be declared ultra vires. In Starr v. Houlden, 1990 CanLII 112 (SCC), [1990] 1 S.C.R. 1366 (the Patti Starr Inquiry), for example, it was held that provincial terms of reference for a judicial inquiry into a provincial fundraising scandal were ultra vires as constituting a substitute police investigation and preliminary inquiry in which the targets were made compellable witnesses. See also Scowby v. Glendinning, 1986 CanLII 30 (SCC), [1986] 2 S.C.R. 226. The appellant’s contention that the CRA is an invalid attempt to increase the penalty for federal offences therefore requires careful scrutiny.40
[Emphasis added.]
45. This demand for careful scrutiny bears particular importance given the architecture of the Constitution, which creates a fine balance between s. 91(27) and provincial jurisdiction under s. 92(14), insofar as Parliament is granted exclusive authority to enact the criminal law whereas the provinces are granted exclusive authority to administer the criminal law. The Constitution explicitly rejects the notion of local criminal law: “The argument accepted by the United States and Australia that criminal law should reflect local conditions and sentiments was rejected by the fathers of confederation in favour of a national body of law.”41 As noted by Professor Baker,
criminal justice is the only subject matter in ss. 91 and 92 that is divided according to function in this way. … Given this unique functionalism, the doctrines of federalism that apply to all other powers must be applied with caution to the criminal justice context. In particular, double-aspect jurisprudence, which allows the different orders of government to overlap in enacting very similar laws seems particularly ill suited to a functional division (in which one order administers what the other enacts). The logic of the functional division, and the particular balance of powers it establishes, is undermined not only if Ottawa enacts substantively provincial legislation using the form of criminal prohibition under s. 91(27) but also – and centrally for the purposes of this paper – if provinces enact “criminal law through the back door.” This logic strongly
39 Dennis Baker, “The Temptation of Criminal Law”, Canadian Public Administration, Volume 57, No. 2 (June 2014) (“Temptation”) at pp. 276, 285-288 (Authorities, Tab 26) 40 Chatterjee at para. 15 (Authorities, Tab 3) 41 Peter Hogg, Constitutional Law of Canada, (Toronto: Thomson Carswell, 2007) 5th Ed. at p. 18-2 (Authorities, Tab 28) 18
supports Justice Sopinka’s 1993 [Morgentaler] insistence that the provincial offences and punishments enacted under section 92(15) cannot “supplement or replace the criminal law … or … fill perceived defects or gaps therein.” … the “modern tide” of “collaborative” federalism jurisprudence in the criminal justice realm risks inducing a multi-level reduction of liberty while simultaneously muddying the lines of accountability.42
46. Because the provinces pay the costs of administering criminal justice and the lion’s share of policing in Canada, they will always face pressure to reduce those costs. If a province can reduce those costs by creating a hybrid regime that has the practical effect of making Criminal Code provisions fall into disuse at the same time as it eliminates Charter and criminal procedural protections, then it will be incentivized to do so. If provinces are given jurisdiction to enact laws that supplement or replace the criminal law, then they will face a significant conflict between the pressure to reduce costs and the responsibility to protect rights. Simultaneously, if provincial regimes that supplement or replace the criminal law are not viewed as criminal law, then provinces have an easy “out” to ignore or minimize the government’s responsibility to protect Canadian’s rights. This dynamic is dangerous and undermines the protections built into the architecture of the Constitution.
47. The risk to the architecture of the Constitution if provinces are given jurisdiction to create substitutes or replacements for the criminal law manifests both as a loss of civil liberties and as an attack on the principle of legality. Legality requires Parliament to squarely confront any choice to alter the criminal law and reduce rights, be clear about what it is doing, and accept the political costs.43 Fundamental rights should not be overridden through ambiguous legislative schemes because there is too great a risk that the full implications may have passed unnoticed in the democratic process. As noted by Professor Baker, “If Canadian lawmakers are overburdened by Charter considerations and police are hampered by excessive due process, this problem should be confronted directly and with due regard for constitutional values. If this is a direction Canadians wish to take their criminal justice system then so be it, but to do so largely as a
42 Temptation at pp. 285, 291 (Authorities, Tab 26) 43 R. v. Secretary of State for the Home Department, ex p. Simms, [2000] 2 A.C. 115 (H.L.) at 131 (Authorities, Tab 14); La Souveraine, Compagnie d'assurance générale v. Autorité des marchés financiers, [2013] 3 S.C.R. 756 at para. 69 (Authorities, Tab 7) 19
jurisprudential artifact of federalism provides little accountability and no assurance of deliberation.”44 The provinces cannot be permitted to enact criminal law by subterfuge.
B. Practical Reality over Artificial Form: The ARP Regime Replaces the Criminal Law
48. The essential test in a division of powers case is laid out clearly in Morgentaler (and affirmed in Chatterjee45).
Classification of a law for purposes of federalism involves first identifying the “matter” of the law and then assigning it to one of the “classes of subjects” in respect to which the federal and provincial governments have legislative authority under ss. 91 and 92 of the Constitution Act, 1867. … Courts apply considerations of policy along with legal principle; the task requires “a nice balance of legal skill, respect for established rules, and plain common sense. It is not and never can be an exact science” … Evidence of the “effect” of legislation can be relevant in two ways: to establish “legal effect” and to establish “practical effect”. The analysis of pith and substance necessarily starts with looking at the legislation itself, in order to determine its legal effect. … The analysis of pith and substance is not, however, restricted to the four corners of the legislation … Thus the court “will look beyond the direct legal effects to inquire into the social or economic purposes which the statute was enacted to achieve”, its background and the circumstances surrounding its enactment … and, in appropriate cases, will consider evidence of the second form of “effect”, the actual or predicted practical effect of the legislation in operation. … a statement of purpose is at most “a fact to be taken into account, the weight to be given to it depending on all the circumstances”. … In any event, the colourability doctrine really just restates the basic rule, applicable in this case as much as any other, that form alone is not controlling in the determination of constitutional character, and that the court will examine the substance of the legislation to determine what the legislature is really doing. [t]he legislative bodies cannot, by statutory recitals, settle the classification of their own statutes for purpose of the distribution of powers. … Selection of the aspect that matters is the exclusive prerogative of the court, and the so-called doctrine of colourability is simply an instance of this rule. … Under either the basic approach to pith and substance or the “colourability doctrine”, therefore, we need to look beyond the four corners of the legislation to see what it is really about. 46
44 Temptation at p. 291 (Authorities, Tab 26) 45 Chatterjee at paras. 16, 19 (Authorities, Tab 3) 46 Morgentaler at pp. 481-483, 496-497 (Authorities, Tab 10) 20
[Emphasis added.]
49. The ARP Regime targets the following ‘mischief’: (a) The criminal behaviour of impaired driving as a public wrong;
(b) The cost and resource burden created by the procedural and Charter protections of the Criminal Code; and
(c) The lack of immediacy for penalties issued pursuant to the Criminal Code as a function of the application of Charter rights.
50. The ARP Regime’s true purpose only becomes evident when examining its practical and legal effects, which cast essential light on the comments in the legislative debate and the government press releases.
51. While the Province has carefully couched the explicit objective of the legislation as regulation of driving, considerable evidence exists that demonstrates the regime’s true purpose lies elsewhere. With respect to statements of purpose, the Honourable solicitor general made it clear that the Legislature views impaired driving as a “criminal” act causing broad-based public harm. The penalties under the Criminal Code were not severe enough to deliver the message that impaired driving is a serious offence and so British Columbia decided to implement “Canada’s toughest impaired driving laws”.
52. The “toughest” impaired driving laws in Canada are tough because they are immediately issued at the side of the road, with little to no opportunity to challenge and because they eliminate the rights a driver receives under the criminal law and the Charter. The government press release and backgrounder focus on the efficiency of the ARP Regime and the cost savings to police by eliminating the need for criminal investigations.47 MLA’s also made statements in the Provincial Legislature that the regime avoids the length of criminal court proceedings.48
53. The legal effect of the legislation is a) an automatic and severe penalty upon a road-side refusal or an ASD reading of “fail” or “warn” that b) presumes the guilt of the driver who is c) given only seven days to challenge a penalty in a limited administrative process where d)
47 See para. 6 of this factum. 48 See para. 3 of this factum. 21
Charter rights are barred from consideration.49 The prohibition results from a hybrid Criminal Code/Motor Vehicle Act investigation.
54. When reviewing the legal effects of the ARP Regime it is instructive to compare it to a typical administrative regime. Doing so reveals the ARP Regime does not have the features of a traditional administrative regime: notice50 and an opportunity to be heard before one must commence serving the penalty. Further, there is no precedent of an administrative regime designed to take the place of a Criminal Code process (the practical fact this is happening is not in dispute) that explicitly removes the ss. 8 and 11 Charter rights by presuming contravention, providing no notice to drivers, issuing immediate and automatic penalties, and providing an opportunity to be heard by a non-neutral delegate of the Superintendent of Motor Vehicles only after the penalties are wholly or partially served. Why remove these rights unless doing so was the objective of the law? Thus does the legal structure created by the Province and its stated purposes in enacting the legislation evidence an intention to substitute the ARP Regime for the criminal investigation and punishment of impaired drivers when a driver blows a “fail” and no other aggravating circumstances exist. The provincial replacement regime serves the purpose of suppressing and deterring crime in general and deterring and punishing drivers in particular for the public criminal wrong of impaired driving.
55. Evidence of practical effects includes police and Crown Counsel policy not to charge or prosecute first time offenders in the absence of serious accidents causing bodily harm; testimony that no drivers issued ARP Regime penalties were charged criminally; and the new evidence admitted by the Court of Appeal demonstrating that Reports to Crown Counsel for simple impaired driving offences (i.e. those without aggravating factors) declined from 10,000 per year to 2,000 per year following the enactment of the ARP Regime. The Chambers Judge found as a fact that most first time impaired driving offences are no longer being prosecuted under the
49 Williams v. British Columbia (Superintendent of Motor Vehicles), 2012 BCSC 1976 at paras. 13-23 (Authorities, Tab 20); Hazelhurst v. British Columbia (Superintendent of Motor Vehicles), 2014 BCSC 72 at para. 28 (Authorities, Tab 4); Kang v. British Columbia (Superintendent of Motor Vehicles), 2014 BCSC 71 at para. 44 (Authorities, Tab 6) 50 e.g. the 21 day notice under the old provincial automatic driving prohibition regime 22
Criminal Code in British Columbia.51 The new evidence admitted by the Court of Appeal underscored this finding.
56. Despite this evidence, both the B.C. Supreme Court and Court of Appeal failed to appreciate its significance and thereby failed to properly understand the “matter” of the legislation.
57. Though finding as a fact that first time offenders were no longer being criminally prosecuted and that the regime was “closer to the line between federal and provincial jurisdiction than any of its legislative predecessors”,52 the B.C. Supreme Court inappropriately dismissed the practical effects of the legislation as incidental: [110] … how the police choose to enforce an interlocking scheme of federal and provincial statutes does not determine the constitutional validity of the statutes enforced, and this is so even if the outcome of a preference for enforcement of one Act over another is anticipated by a particular level of government when enacting legislation. However, the fact that the police and the prosecution tend to enforce the provincial law in some circumstances rather than resorting to the criminal law, is a consideration in determining the purpose and actual effect of the impugned law. This is but one factor to consider in determining the pith and substance of the legislation. […]
[123] The decision to rely on provincial suspensions rather than prosecuting under the Criminal Code does not, in my view, alter the dominant purpose of the legislation, which in this case is a proper provincial purpose. As the Province noted, if the police decide to concentrate on using one tool of the law in certain situations and another tool of the law in other situations, that is a choice open to them in performing their common law duty. Although this is a factor to consider in the characterization analysis, it is not determinative of whether the law is within the provincial jurisdiction.
[124] The provincial power to legislate with respect to the licensing of drivers and safety on highways is clear. I recognize that provincial legislation touching on the regulation of drinking and driving may have incidental effects in the federal sphere but in the case at bar, the pith and substance of the legislation is within the Province’s legislative competence. 53
58. On appeal, the B.C. Court of Appeal affirmed this logic: [88] It seems to me that the best the appellants can make of this evidence is that in certain circumstances the Crown prefers not to charge under the Criminal Code, but
51 Chambers Reasons, paras. 100-101 52 Chambers Reasons at paras. 101, 128 53 Chambers Reasons, paras. 110, 123-124 (Joint Record, Vol. I, pp. 34, 37) 23
to be content with the imposition of the provincial administrative consequences of drinking and driving. None of this supports the contention that the ARP was designed to displace the Criminal Code.54
59. This resulted because the Court of Appeal ignored the practical effects of the legislation and misconstrued this Court’s statement of the law on pith and substance as focusing only on the stated purpose and legal effects of the law: [97] The Supreme Court of Canada in CWB provided a useful framework for analysis. To determine the pith and substance, two aspects of the law must be examined: the purpose of the enabling body and the legal effect of the law. As Binnie and LeBel JJ. said in their majority reasons at para. 27:
…To assess the purpose, the courts may consider both intrinsic evidence, such as the legislation’s preamble or purpose clauses, and extrinsic evidence, such as Hansard or minutes of parliamentary debates. In so doing, they must nevertheless seek to ascertain the true purpose of the legislation, as opposed to its mere stated or apparent purpose (Attorney-General for Ontario v. Reciprocal Insurers, [1924] A.C. 328 (P.C.), at p. 337). Equally, the courts may take into account the effects of the legislation. For example, in Attorney- General for Alberta v. Attorney-General for Canada, [1939] A.C. 117 (“Alberta Banks”), the Privy Council held a provincial statute levying a tax on banks to be invalid on the basis that its effects on banks were so great that its true purpose could not be (as the province argued) the raising of money by levying a tax (in which case it would have been intra vires), but was rather the regulation of banking (which rendered it ultra vires, and thus invalid). [Emphasis added.]55 [Emphasis in original.]
60. Canadian Western Bank v. Alberta56 cannot be read as restricting the pith and substance analysis to a formalistic analysis focusing on stated purpose and a limited interpretation of the law’s legal effect. This would prevent courts from considering whether legislation is colourable, a fundamental manifestation of the pith and substance doctrine. As such, the Court of Appeal misapplied the pith and substance test to focus on only the stated purpose of the enabling body and the legal effects of the law (and only in their most obvious form). Instead, the correct approach is that articulated by this court in Morgentaler, as cited above, which requires courts to consider, in appropriate cases, “evidence of the second form of “effect”, the actual or predicted
54 Appeal Reasons at para. 88 (Joint Record, Vol. I, p. 195) 55 Appeal Reasons, para. 97 (Joint Record, Vol. I, pp. 197-198) 56 [2007] 2 S.C.R. 3 (Authorities, Tab 2) 24
practical effect of the legislation in operation.”57 This approach was affirmed in Chatterjee, as cited above.58
61. The Court of Appeal’s errors also include failing to consider the important new evidence admitted at the Court of Appeal hearing, and undisputed by the Province, which demonstrated that the number of Reports to Crown Counsel from police for impaired driving offences declined from 10,000 per year to 2,000 per year after the ARP Regime came into force while at the same time the number of administrative penalties increased from approximately 6,000 to 22,000.59 This evidence effectively demonstrated the immense practical effect of the legislation to divert the majority of drivers out of the criminal sphere, and yet was dismissed with almost no analysis.60
62. These errors led both courts to miss the real objective of the ARP Regime – to replace the criminal law. This objective is clearly revealed when the solicitor general’s introduction of the bill in the Legislature is placed alongside the legal and practical effects of the law. The Province views impaired driving as “the number one criminal cause of death”.61 The Criminal Code was not sufficient at delivering a serious enough message to drivers to stop this criminal behaviour. Something more was needed. That something “more” was a regime that is more severe than the Criminal Code because it is more immediate and does not protect drivers’ rights. It is something drivers should fear being caught up in because now they can no longer put the matter off in a lengthy criminal proceeding. This goal was realized as evidenced by the police and Crown counsel no longer pursuing criminal charges. In this context it is undeniable that the objective of the ARP Regime was far broader than the more narrow characterization adopted by the lower courts, which classified the ARP Regime as limited to “the licensing of drivers, the enhancement of highway traffic safety, and the deterrence of persons from driving on highways when their ability is impaired by alcohol” 62 or to “to regulate the highways and to enhance public safety”.63
57 Morgentaler at paras. 24, 26 (Authorities, Tab 10) 58 Chatterjee at para. 19 (Authorities, Tab 3) 59 J. Thompson #1, Ex. D, p.1 (Joint Record, Vol. II, pp. 375-376) 60 Appeal Reasons at para. 105 (Joint Record, Vol. I, p.202) 61 Lapointe #2, Ex. I, p. 30 (Joint Record, Vol. VIII, p. 1467) 62 Chambers Reasons at para. 120 (Joint Record, Vol. I, p. 36) 63 Appeal Reasons at para. 103 (Joint Record, Vol. I, p. 202) 25
63. The courts below both committed the same error: they artificially distinguished “regulation of driving” from “suppression of crime” and from the manner in which these goals were being achieved. For example, as discussed above, the legislation in Chatterjee was not constitutional only because it related to the suppression of crime. Rather, it was constitutional because it sought to suppress crime by the forfeiture of property in a regime that operated parallel to and distinct from the criminal law. Here, the ARP Regime is targeting the suppression of crime by creating a substitute criminal law regime that replaces the existing system with a more immediate, rights-deficient regime. This combined nature of the purpose of the legislation brings it outside of provincial jurisdiction. If the Province wants to suppress the crime of impaired driving, Chatterjee suggests it can do so, but only if it does not compromise the functioning of the Criminal Code, meaning only insofar as it institutes a parallel rather than replacement regime. The practical effects of this legislation, when viewed alongside the legal effects and the various comments as to purpose, leave little doubt that this law was not intended to operate parallel to the Code.
64. Notably, the Chambers Judge relied on Chatterjee for his characterization of the ARP Regime – citing Justice Binnie’s comments that “Each level of government bears a portion of the costs of criminality and each level of government therefore has an interest in its suppression” – but failed to acknowledge that the “matter” of the law in Chatterjee was suppression of crime through in rem property forfeiture, not the direct regulation of conduct through the issuance of penalties against individuals. In other words, the Chambers Judge’s logic suggests that he supported his pith and substance determination by relying on the fact the ARP Regime was designed to suppress crime. Yet, he classified the ARP Regime as dealing with “licensing” and the “enhancement of traffic safety”, failing to acknowledge that crime suppression, in itself, takes the ARP Regime beyond the realm of mere licensing. Moreover, several additional factors that did not exist in Chatterjee take the ARP Regime beyond provincial jurisdiction, particularly the fact that the legal and practical effects of the ARP Regime demonstrate it is not parallel to the criminal law, but rather replaces it.
65. Justice Ryan’s analysis at paragraph 105 of the Court of Appeal’s reasons also fell into error. Justice Ryan stated: “when placed in context, the success or failure of the ARP to reduce impaired driving charges cannot affect the question of the constitutional validity of the 26
legislation” (emphasis added). However, the significance of the evidence of practical effects is not to prove the regime is successful, but rather to indicate the vast majority of impaired driving cases are being diverted out of the criminal law and into the hybrid ARP Regime. In other words, if the practical effects are a measure of success, then they are a measure of the success of an ultra vires policy to replace the Criminal Code with a provincial regime. It is not permissible for the Province to attempt to “reduce impaired driving charges” by replacing the Code with its own regime.
66. The implications of finding legislation like the ARP Regime to be intra vires provincial jurisdiction are significant. Are the provinces permitted to institute a regulatory administrative regime for ticketing marihuana and other drug use, in practical effect eliminating such offences from the criminal law? Can provinces do the same for minor assaults, petty theft, vandalism and other summary offences? These concerns raise the spectre of the Westendorp decision. In its leave materials British Columbia has already acknowledged it wishes to implement this regime for other matters, including distracted driving and other traffic infractions. How far will this extend? This concern again engages the principle of legality. Can provinces be permitted to effectively create local criminal law for matters it deems itself more effective and efficient at sanctioning via rights-free processes without any debate in federal Parliament?
67. This sort of reasoning is completely distinct from valid provincial areas of jurisdiction such as health. In Schneider v. The Queen64 this Court upheld provincial laws that impacted the federal criminal law on the basis of the provinces’ health jurisdiction. But in Schneider, the evidence was clear that the legislation had a considerable health focus and impact. There is no similar context here. The Province explicitly views impaired driving as a severe criminal offence. It does not like the Criminal Code and its attendant rights, and so it made its own penalizing regime. The fact it can couch the regime in licensing is a mere convenience as there is nothing private or domestic about this legislation, the activity it targets, or the impact of this activity on the public.
68. The ARP Regime targets the Criminal Code and Charter rights for removal. This is its purpose, not its incidental effect or an operational conflict. The analysis by both the B.C. Supreme Court and Court of Appeal emphasized the obvious, overt statements of the Province
64 [1982] 2 S.C.R. 112 (Authorities, Tab 19) 27
about purpose over the real impact of the law. Both courts failed to address the fact that a piece of legislation may be designed to create significant incentives for the police and Crown to prefer using a provincial law to the exclusion of a federal one. Just because the incentives are in the guise of licensing and not explicitly stated by the Province does not render the ARP Regime intra vires. This case demonstrates the issue of casting something totally new as merely an extension of the long history of cases upholding provincial licensing regimes. Unlike former legislation, the ARP Regime represents a fundamental shift towards hybrid civil/criminal laws unlike anything that has come before.
C. The ARP Regime is Distinguishable From Predecessor Regimes
69. Both the B.C. Supreme Court and Court of Appeal relied on prior case law upholding provincial driving legislation, including Prince Edward Island v. Egan65 (“Egan”); Ross v. Registrar of Motor Vehicles66 (“Ross”), and Buhlers v. British Columbia (Superintendent of Motor Vehicles)67 (“Buhlers”), for the principle that when the essential character of the legislation has to do with licensing and road safety and is aimed at deterring impaired driving, it is intra vires the province. However, in none of Egan, Ross or Buhlers was it the intention of the legislature in question to impact the application and enforcement of the Criminal Code. Rather, the intention in each of those regimes was to create a parallel scheme of licensing.
70. Egan concerned whether provincial sanctions suspending a driver’s license upon conviction under the Criminal Code for driving under the influence were ultra vires the province. In holding that such sanctions were intra vires, Justice Duff noted that “so long as the purpose of the provincial legislation and its immediate effect are exclusively to prescribe the conditions under which licenses are granted, forfeited, or suspended, I do not think speaking generally, it is necessarily impeachable as repugnant to [the Criminal Code]” [emphasis added]. Justice Rinfret held that the provincial legislation was valid because “It does not create an offence; it does not add to or vary the punishment already declared by the Criminal Code; it does not change or vary the procedure to be followed in the enforcement of any provision of the Criminal Code.” [Emphasis added.]68 There was no question that the provincial legislation was
65 [1941] S.C.R. 396 (Authorities, Tab 9) 66 [1975] 1 S.C.R. 5 (Authorities, Tab 18) 67 1999 BCCA 114 (Authorities, Tab 1) 68 Egan at 403, 415-416 (Authorities, Tab 9) 28
not supplanting the Criminal Code since a criminal conviction was required before a license was suspended. This is clearly distinct from the ARP Regime.
71. Ross concerned whether a provincial regime that imposed automatic license suspensions for criminal convictions for driving under the influence that were of a greater length than the driving provisions imposed by the Code was ultra vires. Ross stands merely for the principle that civil consequences for a criminal act are not automatically to be considered as punishment so as to bring the matter within the exclusive jurisdiction of Parliament. The legislation in Ross did not impose monetary penalties. The ARP Regime does not impose civil consequences for a criminal conviction, but creates a replacement regime.
72. Buhlers concerned whether the ARP Regime’s predecessor automatic driving prohibition regime was ultra vires the province. The court held that the legislation was aimed at increasing the safety of highway driving in order to reduce the number of highway accidents which frequently involve fatalities, injuries and property damage. However, the ADP legislation at issue in Buhlers did not authorize police to issue immediate penalties, required the use of a breathalyser device, and operated parallel to the Code and did not replace it. The ADP could only be issued following the failure of a Breathalyzer test at the police station after the reading of Charter rights at the roadside. Drivers were also given 21 days to challenge the sanction before it came into effect.
73. Unlike any of Ross, Egan, or Buhlers the ARP Regime is not simply seeking to implement penalties that are as serious as those in the Criminal Code (or more serious, as in Ross), but rather creates both the penalties and the means to investigate who should be penalized. It explicitly and by practical effect removes the more onerous and more protective processes associated with criminal investigations and prosecutions. It also offends Rinfret J.’s caution in Egan that provincial legislation cannot “vary the procedure” of the criminal law.
D. The Punitive Purpose of the ARP Regime is to Remove Procedural Rights
74. Neither the B.C. Supreme Court or Court of Appeal considered the removal of Charter rights and criminal law procedural protections as part of the severity of the sanctions imposed by the ARP Regime. Failing to recognize this fact distracted both courts from the true nature of the regime. 29
75. The ARP Regime is the toughest in Canada because it introduces to drivers the daunting prospect that they will be sanctioned by a police officer at the side of the road immediately and without due process. As the government acknowledged in Hansard and in its press releases introducing the legislation, the immediacy of the ARP Regime’s penalties is part of their punitive purpose. However, this immediacy is only possible because the Province has designed the regime to avoid the procedural and Charter protections required under the criminal law, presuming guilt and forcing a driver to prove his or her innocence before a non-independent adjudicator appointed by the very body sanctioning him or her.
76. As explicitly acknowledged by the Province in its various statements of purpose, immediacy acts as a deterrent. Given that immediacy requires the removal of Charter rights, it is not just immediacy but also the removal of procedural and Charter protections that increases the severity of the sanction. Thus, the ARP Regime not only saves costs, but also increases severity at the same time and for the same reason. Permitting this approach dramatically increases provincial powers regulating criminal behaviour and should not be countenanced. The implication is that the Province will continue to target areas of wrongful criminal behaviour that often do not result in imprisonment and impose severe administrative regimes without Charter rights as a replacement for the Criminal Code or a typical offence proceeding.
77. By stating that criminally charging first time offenders does not serve the public interest if those offenders have received an ARP, Crown Counsel’s own policy implicitly acknowledges that ARP Regime penalties serve the purpose of criminal penalties – that is, punishment as well as deterrence. This includes the monetary fines, remedial programs, license suspensions and the removal of Charter rights and procedural protections. Pretending this reality does not exist or has little meaning for Canadians elevates form over substance in the pith and substance analysis.
78. In conclusion, the ARP Regime is ultra vires the Province of British Columbia.
III. The ARP Regime infringes s. 11(d) of the Charter and is not saved by s. 1
79. If the ARP Regime is criminal law, then it is clear that s. 11 would apply. In the event that this Court finds the ARP Regime is intra vires the Province, given the actual legal and practical effects of this legislation, it should provide Canadians with the protections of the Charter. It is only by granting s. 11 protections to Canadians faced with sanction under this 30
regime that the Court can properly balance efficiency and rights and ensure the Province is reasonably restrained in attempting to save money when administering the justice system under s. 92(14) by circumventing the protections of the Criminal Code.
80. Even if the ARP Regime is intra vires there is no dispute that it targets criminal behaviour and seeks to suppress crime. It cannot be cast as a simple licensing matter. By the Province’s own admission, impaired driving is a scourge on society in general and has an enormous public cost. Legislation seeking to target this behaviour with the toughest sanctions in Canada should be held to a standard that Canadians would expect: it should be subject to Charter scrutiny.
A. An Overly Legalistic Approach to S. 11
81. Both the B.C. Supreme Court and Court of Appeal applied the “by its nature” test as formulated in Martineau v. M.N.R.69 (“Martineau”), and looked only at the formal indicia of criminal proceedings and an extremely narrow interpretation of the ARP Regime’s objective to determine whether the proceeding was by its nature an offence. Both courts’ analyses were legalistic. The result is that the Province is now permitted to legislate away s. 11 rights by removing the formal appearance of criminal-like proceedings.
82. As stated by this Court in Martineau, the “by its nature” test to determine whether a person has been charged with an “offence” is to review the proceeding in light of three criteria: (1) the objectives of the legislation, (2) the purpose of the sanction, and (3) the process leading to the imposition of the sanction.70
83. In this case the lower courts particularly relied on the following passage from Martineau in which the court considered the third branch of the above test in determining whether ascertained forfeiture constituted an offence:
This process thus has little in common with penal proceedings. No one is charged in the context of an ascertained forfeiture. No information is laid against anyone. No one is arrested. No one is summoned to appear before a court of criminal jurisdiction. No criminal record will result from the proceedings. At worst, once the administrative proceeding is complete and all appeals are exhausted, if the
69 [2004] 3 S.C.R. 737 (Authorities, Tab 8) 70 Martineau at para. 24 (Authorities, Tab 8) 31
notice of ascertained forfeiture is upheld and the person liable to pay still refuses to do so, he or she risks being forced to pay by way of a civil action.71
84. Despite the three part test in Martineau, both the B.C. Supreme Court and Court of Appeal over-emphasized a legalistic analysis, focusing on a formal application of the third branch of the test. The B.C. Supreme Court held that the review proceedings in the ARP Regime were not criminal by nature because there is no summons issued to the driver, the proceedings are not by their nature a prosecution, the prohibition is made at the roadside, the driver is not compelled to answer, and the ARP Regime does not give rise to a criminal record.72 The court focused on the administrative review procedure only and did not consider the entire process created by the regime from roadside stop to sanction and review, and the fact this process has practically replaced the Criminal Code for most impaired driving offences.
85. The Court of Appeal affirmed this approach and highlighted that the Martineau test was focused on appearance rather than substance:
[136] Finally the Chambers judge examined the process leading to the sanctions. He noted that it did not take the form of a prosecution. The appellants argue that according to the trial judge’s logic, the provincial legislature could avoid the application of s. 11 by simply removing the procedural elements and safeguards that make a proceeding appear criminal. However, the fact that the proceedings do not take the form of a prosecution is one of the elements that must be examined. It will be remembered that in Martineau the court asked whether it looked like a criminal or quasi-criminal proceeding. The fact that no one was charged with an offence and that no criminal record resulted from the proceeding were important markers. I am satisfied that the last criteria in Martineau was examined properly in this case.
[Emphasis in original.]
86. A worrisome outcome of this reasoning is that the Province is permitted to remove procedural protections in order to avoid the impact of s. 11(d). Because, as discussed by the B.C. Supreme Court and in Wigglesworth, the Province allows for a trial in the case of running a yellow light, the proceedings are “criminal by nature”.73 However, if the Province does not provide for or expressly excludes a trial or similar process, then by definition the matter is not an “offence” under s. 11 unless it creates “true penal consequences”, which this Court in
71 Martineau at para. 45 (Authorities, Tab 8) 72 Chambers Reasons at paras. 153-154 (Joint Record, Vol. I, pp. 215-216) 73 Chambers Reasons at paras. 144-145, 164-165 (Joint Record, Vol. I, pp. 41, 46); Wigglesworth at para. 31 32
Wigglesworth acknowledged as extremely rare.74 This is a highly legalistic application of the Martineau test that distorts the purpose of the analysis and the right.
87. Moreover, both courts below chose to classify the objective of the legislation extremely narrowly for the purposes of the s. 11 analysis. The Chambers Judge said only that “the primary function of the legislation is to provide for the suspension of a person’s driver’s license” and therefore the proceeding had to do with “fitness to maintain a license”.75 With respect, this completely ignores the government’s own statements of purpose in the legislative debates and the press releases, which make it clear the ARP Regime was targeting impaired driving as a criminal offence that creates broad-based public harm. The Court of Appeal agreed with the Chambers Judge’s reasoning.76
B. Refining the Test for an “Offence” under S.11: A Purposive Interpretation
88. Instead of the legalistic approach taken by the courts below, the s. 11 test should be purposive and adhere to the spirit of this Court’s words in Wigglesworth: “if a particular matter is of a public nature intended to promote public order and welfare within a public sphere of activity, then that matter is the kind of matter which falls within s. 11”77 The s. 11 right exists in order to “provide procedural safeguards relating to the criminal law process”.78 If a provincial law in practice removes these safeguards, the very purpose of s. 11 is engaged.
89. Both Courts relied heavily on the following passage from Wigglesworth as a basis to find the ARP Regime did not create an offence because it is mere “licensing”:
In my view, if a particular matter is of a public nature, intended to promote public order and welfare within a public sphere of activity, then that matter is the kind of matter which falls within s. 11. It falls within the section because of the kind of matter it is. This is to be distinguished from private, domestic or disciplinary matters which are regulatory, protective or corrective and which are primarily intended to maintain discipline, professional integrity and professional standards or to regulate conduct within a limited private sphere of activity see, for example, Re Law Society of Manitoba and Savino, supra, at p. 292, Re Malartic Hygrade Gold Mines (Canada) Ltd. and Ontario Securities Commission (1986), 1986 CanLII 2653 (ON SC), 54 O.R. (2d) 544 (H.C.), at p.
74 Wigglesworth at para. 33 (Authorities, Tab 17) 75 Chambers Reasons at para. 155 (Joint Record, Vol. I, p. 44) 76 Appeal Reasons at paras. 129-139 (Joint Record, Vol. I, pp. 209-211) 77 Wigglesworth at para. 32 (Authorities, Tab 17) 78 Wigglesworth at para. 26 (Authorities, Tab 17) 33
549, and Re Barry and Alberta Securities Commission, supra, at p. 736, per Stevenson J.A. There is also a fundamental distinction between proceedings undertaken to promote public order and welfare within a public sphere of activity and proceedings undertaken to determine fitness to obtain or maintain a licence. Where disqualifications are imposed as part of a scheme for regulating an activity in order to protect the public, disqualification proceedings are not the sort of "offence" proceedings to which s. 11 is applicable. Proceedings of an administrative nature instituted for the protection of the public in accordance with the policy of a statute are also not the sort of "offence" proceedings to which s. 11 is applicable. But all prosecutions for criminal offences under the Criminal Code and for quasi-criminal offences under provincial legislation are automatically subject to s. 11. They are the very kind of offences to which s. 11 was intended to apply." Para. 23
[Emphasis added.]
90. The underlined sentences of this important passage hold the key for the appropriate test to determine whether a law creates an offence. They should be given predominance over the latter passages and any overly formalistic interpretation of Martineau.
91. In the context of the new social and legislative reality of hybrid provincial criminal/administrative regimes, the form of proceedings should not be given undue weight. Rather, the analysis should be purposive and holistic, focusing on whether the legal and practical effects of the law really reflect only an internal disciplinary matter designed to maintain discipline or rather reflect the larger community interest in the suppression of crime and promotion of public order and welfare. This must not be a formalistic analysis and it should not focus on the appearance of the proceedings. Such a focus is no longer appropriate in the context of new criminal/administrative regimes, which render the third Martineau criterion particularly ineffective.
92. Moreover, if the province is to be permitted to enact administrative and civil regimes that supplant the Criminal Code, then s. 11 should be flexible enough to apply to regimes that serve these dual or hybrid purposes. Just because a law has an aspect that relates to licensing should not insulate it from s. 11 if it also has an aspect that relates to the suppression of crime and the promotion of public order and welfare. It is the substance of the impugned law and its practical, real world effects that drives the s. 11 analysis, not a formal analysis that is easily manipulated by legislatures. 34
93. This case demonstrates that s. 11 requires a refined analysis of legislative purpose. Both of the courts below wrongly conflated the division of powers analysis with the “objective of the legislation” analysis in s. 11, failing to note that the threshold objective that engages s. 11 is distinct from the threshold that creates criminal law in a division of powers analysis. Put another way, the “proceedings to determine fitness to maintain a license” aspect of the Wigglesworth test is much narrower than the provinces’ jurisdiction under s. 92(13) and, as such, just because a law is intra vires under s. 92(13) does not insulate it from s. 11. This is acknowledged in Wigglesworth where the Court accepts that by not preceding “offence” with “criminal” the drafters of the Charter intended s. 11 to apply to both federal and provincial matters.79
94. This more nuanced analysis means that even if the Province has jurisdiction to enact laws to suppress crime, if the dominant purpose of the law is to do so, then s. 11 rights must apply because the law is targeting a criminal wrong for the purposes of promoting public order and welfare. That the ARP Regime serves this broader public purpose is explicitly acknowledged by the Province in the various statements in the legislative debates and press releases discussed above. If the ARP Regime is intra vires, it is so under the Province’s s. 92(13) jurisdiction to suppress and deter crime, the same basis upon which the legislation at issue in Chatterjee was upheld. It is this ‘suppression’ purpose that engages s. 11 rights in hybrid regimes like the one now before the Court.
95. Instead of giving this distinction between licensing and suppression of crime any meaning or effect, both of the lower courts simply chose to classify the ARP Regime as “licensing” for the purposes of the s. 11 analysis. They did this despite having already, in the division of powers analysis, also clearly classified the legislation as relating to the suppression and deterrence of crime. They fell into error because they remained overly focused on a formalistic approach they interpreted Martineau to require.
96. S. 11 protections are essential in this case. The s. 11(d) presumption of innocence would provide balance between efficiency and rights by ensuring fair, independent hearings before an impartial adjudicator, and requiring a greater standard of proof before sanctions for impaired
79 Wigglesworth at paras. 16, 18 (Authorities, Tab 17) 35
driving are imposed. This is a vital protection for Canadians against police-imposed penalties which have immediate effect.
C. The ARP Regime Violates s. 11(d)
97. If the ARP Regime is properly construed as creating an offence, then there is little question that the ARP Regime offends the presumption of innocence in s. 11(d). This Court described the s. 11(d) protections in R. v. Osolin80 at para. 211:
… an accused is not to be convicted when there exists a reasonable doubt as to his guilt. Any law which places a persuasive burden on the accused to prove either the existence or non-existence of a fact essential to guilt will infringe the right guaranteed by s. 11(d).
98. The Crown is obliged to prove the actus reus of regulatory and criminal offences beyond a reasonable doubt and an individual must be presumed innocent until they are proven guilty in a fair hearing. The right to a fair hearing includes the right to present a full answer and defence and this right includes the right to cross-examine.81
99. The ARP Regime imposes significant penalties while presuming guilt. Penalties are automatic, immediate and unchallengeable at the road-side. In the case of “warn” sanctions of 7 days or less, as acknowledged by the Honourable solicitor general, it is not possible to challenge these sanctions at all. Police are empowered to be a law unto themselves at the side of the road vis-à-vis any sanction or portion of the sanction under 7 days. It can hardly be said that the police are impartial adjudicators. Upon review, there is no way for a driver to cross-examine a peace officer or any representative of the state with respect to the ASD reading. Given the fact that ASD readings are not recorded by the device, this makes it nearly impossible to effectively challenge the device’s reliability or whether it was properly calibrated. The review procedure places the persuasive burden on the driver to disprove that he/she engaged the triggers for sanctions under the regime: that the individual was not in fact the driver, that the driver had a reasonable excuse to refuse, or that the ASD did not read “warn” or “fail”. The ARP Regime violates nearly every aspect of the rights protected by s. 11(d).
80 [1993] 4 S.C.R. 595 (Authorities, Tab 12) 81 R. v. Seaboyer, [1991] 2 C.R. 577 at para. 34 (Authorities, Tab 13); R. v. Osolin, [1993] 4 S.C.R. 595 at para. 157 (Authorities, Tab 12); R. v. Tri-M, [1998] B.C.J. No. 2702 (S.C.) (Authorities, Tab 15) 36
D. The ARP Regime Is Not Saved by S. 1
100. In order to justify a violation of the Charter under s. 1, the province must prove that the ARP Regime serves an important purpose and that the means used to effect this purpose are proportionate. In order for a law to be proportionate:
the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair, or based on irrational considerations. In short, they must be rationally connected to the objective. Second the means, even if rationally connected to the objective in the first sense, should impair “as little as possible” the right or freedom in question … Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of “sufficient importance”82
101. With respect to s. 11(d), the ARP Regime effectively creates a reverse onus offence. The police are the arbiters of the prohibition, which is issued automatically and immediately on the basis of a reading on the ASD. Upon review, there is a presumption that the reading on the ASD observed by the police is correct. To rebut this presumption, the driver is required to prove either that he/she was not a driver, that the ASD did not read a “fail” or a “warn”, or that he/she had a reasonable excuse to refuse. The only relevant admissible evidence is the peace officer’s observation of the reading on the ASD. Given the inability to cross-examine, this observation is entirely unchallengeable. As such, there is no proportionality between the deleterious and salutary effects because there is simply no way for a driver to effectively challenge the evidence upon which the ARP Regime penalties are based.
102. The Province emphatically promotes the ARP Regime as saving lives. However, it fails to acknowledge that it is possible to draft tough, effective legislation to combat impaired driving that respects Charter rights and does not usurp the protections of the criminal law. The reality is that the Province can achieve its goal of reducing the harm and death caused by impaired driving while also respecting the fundamental rights of its citizens. What it prefers to do is cut corners and erode rights to effect a financial and efficiency imperative.
103. In this case, the practical reality is that most first time impaired driving offenders that did not cause serious bodily harm or death would not have faced imprisonment under the Criminal
82 R. v. Oakes, [1986] 1 S.C.R. 103 at 139 (Authorities, Tab 11) 37
Code, but nonetheless would have received Charter protection. Now first time offenders are not charged by police or prosecuted by Crown – instead being diverted into the much cheaper Charter-free ARP sanctioning process – because both police and Crown understand the penalties (and lack of Charter rights) to be equivalently deterrent and punitive as the practical outcome of a Criminal Code prosecution. This approach to Charter rights is inappropriate and should not be permitted.
PART IV – SUBMISSION ON COSTS
104. The appellant seeks costs below and the costs of this appeal in any event of the cause on the basis that there is public interest in having this constitutional challenge litigated and private citizens should not bear the costs of complex Charter litigation.83
PART V – ORDERS SOUGHT
105. The appellant respectfully asks this Court to:
(a) Declare sections 215.41 to 215.51 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318 as enacted on September 20, 2010, to be ultra vires the province of British Columbia;
(b) Declare sections 215.41 to 215.51 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318 as enacted on September 20, 2010 to be an infringement of s. 11(d) of the Charter that is not saved by s. 1; and
(c) Award the costs of these proceedings and those below to the appellant.
ALL OF WHICH IS RESPECTFULLY SUBMITTED:
Dated: March 10, 2015 Howard A. Mickelson, Q.C. Shea H. Coulson Counsel for the Appellant
83 Horsefield v. Registrar of Motor Vehicles (1999), 44 O.R. (3d) 73 (C.A.) at 94 (Authorities, Tab 5), which awarded costs to a driver who challenged the constitutionality of an Ontario impaired driving regime on the basis that his license suspensions had long expired by the time the appeal was decided and his case was not frivolous. 38
PART VI – TABLE OF AUTHORITIES
PARA.
Case Law
1. Buhlers v. British Columbia (Superintendent of Motor Vehicles), 65 B.C.L.R. 69, 72-73 (3d) 119, 1999 BCCA 114,
2. Canadian Western Bank v. Alberta, [2007] 2 S.C.R. 3, 2007 SCC 22 60
3. Chatterjee v. Ontario (Attorney General), [2009] 1 S.C.R. 624, 2009 SCC 19 41-42, 44, 48, 60, 63- 64, 94
4. Hazelhurst v. British Columbia (Superintendent of Motor Vehicles); [2014] 53 B.C.J. No. 48, 2014 BCSC 72
5. Horsefield v. Registrar of Motor Vehicles (1999), 44 O.R. (3d) 73 (C.A.) 104
6. Kang v. British Columbia (Superintendent of Motor Vehicles), [2014] B.C.J. 53 No. 47, 2014 BCSC 71
7. La Souveraine, Compagnie d’assurance générale v. Autorité des marchés 47 financiers, [2013] 3 S.C.R. 756, 2013 SCC 63
8. Martineau v. Canada (Minister of National Revenue- M.N.R.), [2004] 3 S.C.R. 81-86, 90- 737, 2004 SCC 81 91, 95
9. Prince Edward island (Secretary) v. Egan, [1941] S.C.R. 396 69-70, 73
10. R. v. Morgentaler, [1993] 3 S.C.R. 463 39, 41-42, 45, 48, 60
11. R. v. Oakes, [1986] 1 S.C.R. 103 100
12. R. v. Osolin, [1993] 4 S.C.R. 595 97-98
13. R. v. Seaboyer, [1991] 2 C.R. 577 98
14. R. v. Secretary of State for the Home Department, ex p. Simms, [2000] 2 A.C. 47 115 (H.L.)
15. R. v. Tri-M Systems Inc., [1998] B.C.J. No. 2702, 58 C.R.R. (2d) 136 (S.C.) 98
16. R. v. Westendorp, [1983] 1 S.C.R. 43 40, 66 39
PARA.
17. R. v. Wigglesworth, [1987] 2 S.C.R. 541 86, 88-89, 93
18. Ross v. Registrar of Motor Vehicles, [1975] 1 S.C.R. 5 69, 71, 73
19. Schneider v. British Columbia, [1982] 2 S.C.R. 112 67
20. Williams v. British Columbia (Superintendent of Motor Vehicles), [2012] 53 B.C.J. No. 2764; 2012 BCSC 1976
Statutes and Legislation
21. Canadian Charter of Rights & Freedoms; Charte Canadienne Des Droits et 1-2, 12, Libertés, SOR/85-781, ss. 1, 8, 10, 11(d) 29, 32-33, 35, 37, 46- 47, 49, 52- 54, 68, 72, 74-77, 79- 80, 93, 100, 102, 104-105
22. Criminal Code of Canada, R.S.C. 1985, c. C-46; Code Criminel, L.R.C. 1, 3-5, 7- (1985), ch. C-46, ss. 253, 254, 255(1)(a), 258 10, 12, 14, 16, 37-38, 41-42, 46, 49, 51, 53- 55, 62-63, 65, 67-73, 76, 79, 84, 92, 103
23. Motor Vehicle Act, R.S.B.C. 1996, c. 318, ss. 215.41-215.51 2, 33, 53, 105
24. Motor Vehicle Amendment Act, 2012, Bill 46 – 2012 18
25. Motor Vehicle Act Regulations, B.C. Reg. 26/58, Division 43, s.43.09
Secondary Authorities
26. Dennis Baker, “The Temptation of Criminal Law”, Canadian Public 43, 45, 47 Administration, Volume 57, No. 2 (June 2012) at pp. 276, 285 – 288, 291
27. Ronald Dworkin, Law’s Empire, (Cambridge, Mass: Belknap Press, 1988), p. 35 40
PARA.
367
28. Peter Hogg, Constitutional Law of Canada, (Toronto: Thomson Carswell 45 2007) 5th ed. p. 18-2
29. Joseph Arvay – “Stare Decisis and Constitutional Supremacy: Will Our 35 Charter Past Become an Obstacle to our Charter Future?”, Supreme Court Law Review, volume 58
41
PART VII – STATUTORY PROVISION
Canadian Charter of Rights & Freedoms; Charte Canadienne Des Droits et Libertés, SOR/85- 781, ss. 1, 8, 10, 11(d)
Criminal Code of Canada, R.S.C. 1985, c. C-46; Code Criminel, L.R.C. (1985), ch. C-46, ss. 253, 254, 255(1)(a), 258
Motor Vehicle Act, R.S.B.C. 1996, c. 318, ss. 215.41-215.51
Motor Vehicle Amendment Act, 2012, Bill 46 – 2012
Motor Vehicle Act Regulations, B.C. Reg. 26/58, Division 43, s.43.09
See Book of Authorities
42
APPENDIX – CONSTITUTIONAL QUESTION