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IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL OF BRITISH COLUMBIA)

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IN THE SUPREME COURT OF CANADA

(ON APPEAL FROM THE COURT OF APPEAL OF BRITISH COLUMBIA)

BETWEEN:

SUPERINTENDENT OF MOTOR VEHICLES and THE ATTORNEY GENERAL OF BRITISH COLUMBIA

AND:

APPELLANTS (Respondents) JAMIE ALLEN CHISHOLM, SCOTT ROBERTS,

CAROL MARION BEAM and RICHARD JAMES GOODWIN

AND:

RESPONDENTS (Appellants)

ATTORNEY GENERAL OF MANITOBA, ATTORNEY GENERAL OF CANADA, ATTORNEY GENERAL OF ALBERTA, ATTORNEY GENERAL OF

SASKATCHEWAN, ATTORNEY GENERAL OF ONTARIO, and ATTORNEY GENERAL OF QUEBEC

INTERVENERS (Pursuant to Constitutional Question)

FACTUM OF THE APPELLANTS (Section 8 of the Charter)

(Pursuant to Rule 42 of the Rules of the Supreme Court afCanada)

Counsel for the Appellants,

Superintendent of Motor Vehicles and the Attorney General of British Columbia Nathaniel Carnegie and Tyna Mason Ministry of Justice, Legal Services Branch 1001 Douglas Street, 6th Floor

PO Box 9280, Stn Prov Govt Victoria, BC V8W 917 T: (250) 952-7380 F: (250) 356-9154

E: nathaniel.carnegie@gov.bc.ca

Agent for the Appellants,

Superintendent of Motor Vehicles and the Attorney General of British Columbia Brian A. Crane, Q.C.

Gowling Lafleur Henderson LLP 160 Elgin Street, Suite 2600 Ottawa, ON KIP lC3 T: (613) 233-1781 F: (613) 563-9869

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Carol Marion Beam Jeremy G. Carr

Carr, Buchan & Company Barristers & Solicitors 520 Comerford Street Victoria, BC V9A 6K8 T: (250) 388-7571 F: (250) 388-7327

E: jcarr@esquimaltlaw.com Counsel for the Respondent, Richard James Goodwin

Howard A. Mickelson and Shea H. Coulson Gudmundseth Mickelson LLP

2525 - 1075 West Georgia Street Vancouver, BC V6E 4H3

T: (604) 685-6272 F: (604) 685-8434 E: ham@lawgm.com Counsel for the Intervener, Attorney General of Manitoba Heather Leonoff, Q.C.

Attorney General of Manitoba 1205 - 405 Broadway

Winnipeg, MB R3C 3L6 T: (204) 945-0717 F: (204) 945-0053

E: heather.leonoft@gov.mb.ca Counsel for the Intervener, Attorney General of Canada Robert J. Frater

Attorney General of Canada

50 O'Connor Street, Suite 500, Room 556 Ottawa, ON KIP 6L2

T: (613) 670-6289 F: (613) 954-1920

E: robert.frater@justice.gc.ca

Carol Marion Beam Jeffrey Beedel

Gowling Lafleur Henderson LLP 160 Elgin Street, Suite 2600 Ottawa, ON KIP IC3 T: (613) 786-0171 F: (613) 563-9869

E: jeff.beedell@gowlings.com

Agent for the Respondent, Richard James Goodwin Marie-France Major Supreme Advocacy LLP 100 340 Gilmour Street Ottawa, ON K2P OR3 T: (613) 695-8855, ext. 102 F: (613) 695-8580 E: mfmajor@supremeadvocacy.ca Agent for the Intervener,

Attorney General of Manitoba D. Lynne Watt

Gowling Lafleur Henderson LLP 160 Elgin Street, Suite 2600 Ottawa, ON KIP lC3 T: (613) 786-8695 F: (613) 788-3509

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Roderick Wiltshire

Attorney General of Alberta 9833 - 109 Street

Bowker Building, 4th Floor Edmonton, AB T5K 2E8 T: (780) 422-7145

F: (780) 425-0307

E: roderick.wiltshire@gov.ab.ca Counsel for the Intervener,

Attorney General for Saskatchewan Graeme G. Mitchell, Q.C.

Attorney General for Saskatchewan 820-1874 Scarth Street Regina, Saskatchewan S4P 4B3 T: (306) 787-8385 F: (306) 787-9111 E: graeme.mitchell@gov.sk.ca Counsel for the Intervener, Attorney General of Ontario Zachary Green

Attorney General of Ontario 720 Bay Street, 4th Floor Toronto, ON M5G 2Kl T: (416) 326-4460 F: (416) 326-4015

E: zachary.green@ontario.ca Counsel for the Intervener, Attorney General of Quebec

Brigitte Bussieres, Alain Gingras and Gilles Laporte

Procurer general du Quebec 1200, route de l'Eglise, 2etage Quebec, QC G 1 V 4Ml T: (418) 643-1477 F: (418) 644-7030

E: bbussieres@justice.gouv.gc.ca

D. Lynne Watt

Gowling Lafleur Henderson LLP 160 Elgin Street, Suite 2600 Ottawa, ON KIP lC3 T: (613) 786-8695 F: (613) 788-3509

E: lynne.watt@gowlings.com

Agent for the Intervener,

Attorney General for Saskatchewan D. Lynne Watt

Gowling Lafleur Henderson LLP 160 Elgin Street, Suite 2600 Ottawa, ON KIP lC3 T: (613) 786-8695 F: (613) 788-3509

E: lynne. watt@gowlings.com

Agent for the Intervener, Attorney General of Ontario Robert E. Houston, Q.C. Burke-Robertson LLP

441 MacLaren Street, Suite 200 Ottawa, ON K2P 2H3

T: (613) 236-9665 F: (613) 235-4430

E: rhouston@burkerobertson.com Counsel for the Intervener,

Attorney General of Quebec Pierre Landry

Noel & Associes 111, rue Champlain Gatineau, QC J8X 3Rl T: (819) 771-7393 F: (819) 771-5397

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PART PAGE

PART I: OVERVIEW OF POSITION AND STATEMENT OF FACTS ... 1

1) Overview of Position ... 1

2) Statement of Facts ... 3

A) The Ongoing Scourge of Drinking and Driving in B.c ... 3

B) The Limits of the Criminal Process in Preventing Drinking and Driving ... 5

C) The Effectiveness of Administrative Driving Prohibitions in Reducing Alcohol-Related Collisions ... 6

D) The Effectiveness of Other Administrative Sanctions in Reducing Alcohol-Related Collisions ... 7

E) The Importance of Enforcement in Reducing Alcohol-Related Collisions ... 7

i) Public Awareness of the IRP Scheme ... 8

ii) The IRP Scheme Results in Immediate Decrease in Number of Deaths on B.C. Roads ... 8

3) Driving Prohibitions and Administrative Sanctions under the MVA ... ... 10

A) Overview ... 10

B) 24 Hour Driving Prohibitions ... 10

C) The Administrative Driving Prohibition Scheme ... 11

D) Other Driving Prohibitions in the MVA ... 13

E) Other Administrative Driving-Related Programs ... 13

4) The Immediate Roadside Prohibition Scheme ... 14

A) Overview ... 14

B) Elements of the IRP Scheme ... 15

C) Police Practices in the Use of ASDs in B.C ... 17

5) Procedural History ... 18

6) The Decisions of the Lower Courts on s. 8 of the Charter ... 20

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PART II: QUESTIONS IN ISSUE. ... 24

PART III: ARGUMENT ... 24

1) The IRP Scheme Does Not Authorize a Seizure and Section 8 does not Apply ... 24

A) The Focus of Section 8 ... 24

B) The IRP Scheme does not Authorize Initial Seizure of a Driver's Breath ... 25

C) The IRP Scheme Permits a Driver to Request a Second ASD Sample but Section 8 is not Engaged because the Driver Must Consent ... 29

2) The IRP Scheme is Reasonable ... 29

A) Benefits to Society and Procedural Protections for Drivers Render the IRP Scheme Reasonable ... 29

B) Petition Judge Erred in Applying Reasonableness Standard Applicable in Criminal Context ... 32

3) The IRP Scheme Authorizes Seizures to be Carried Out in a Reasonable Fashion ... 33

4) Section 8 is not the Proper Basis for Assessing Procedural Fairness of the IRP Scheme ... 33

5) Section 7 is the Proper Basis for Reviewing Adequacy of Procedural Safeguards and does not Apply to Driving Prohibitions ... 34

A) Section 7 Provides Broad Protection for Procedural Fairness ... 34

B) Section 7 does not Apply to Driving Prohibitions ... 35

C) Since Driving Prohibitions Comply with Section 7 they do not Violate Section 8 ... 37

6) Any Infringement is Justified as a Reasonable Limit Under Section 1 ... 38

PART IV: SUBMISSIONS AS TO COSTS ... 40

PART V: ORDERS SOUGHT ... 40

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PART VII: LEGISLATION ... 46

Motor Vehicle Act, R.S.B.C., 1996, c. 318, ss. 215. 41 - 215.51,

25.1,93,94.1 - 94.6,97.2,98 - 99,250 - 254 and 256 - 261

[as in force October 27, 2010] ... 46

Motor Vehicle Act, R.S.B.C., 1996, c. 318, ss. 215.41 215.51

[currently in force] ... 75

Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982,

ss. 1 and 7-14, being Schedule B to the Canada Act 1982 (UK), c. 11 ... 85 Criminal Code, R.S.C., 1985, c. 46, ss. 253 254

[as in force October 2,2009 to January 7, 2010] ... 87

Criminal Code, R.S.C., 1985, c. 46, ss. 253 - 254

[currently in force] ... 91 APPENDIX "A": Order Stating Constitutional Question ... 95

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PART I: OVERVIEW OF POSITION AND STATEMENT OF FACTS 1) Overview of Position

1. Drinking and driving remains one of the most pervasive but preventable social problems in Canada. Prior to British Columbia's introduction of ss. 215.41 to 215.51 of the Motor Vehicle

Act (the "Immediate Roadside Prohibition Scheme" or the "IRP Scheme,,)l at issue in this appeal,

the number of fatalities, injuries and collisions had been increasing in B.c. throughout the first decade of the 21 st century.

2. In 2007 alone, there were approximately 170 deaths and nearly 3,000 injuries in a1cohol-related collisions in B.c., many of which involved life-altering spinal cord or head injuries. Young people were disproportionately represented in these grim statistics. These numbers also reflected a high percentage of recidivists involved in alcohol-related fatalities. For whatever reason, there were drivers whose behaviour was not responsive to the possibility of criminal prosecution or to the imposition of various administrative prohibitions then available under the

Motor Vehicle Act, R.S.B.C., 1996, c. 318 (the "MVA").

3. The government of British Columbia thought that more could be done to eradicate this ongoing scourge in exercising its constitutional authority to regulate the roadways in the interest of public safety. Building on licence suspension provisions already contained in the MVA provisions in existence across Canada that appellate courts had consistently upheld as

constitutional the Province enacted the IRP Scheme. The IRP Scheme is an administrative scheme designed to combat drinking and driving by immediately prohibiting drinking drivers from driving while providing a summary avenue of redress for those drivers who wish to challenge their prohibition.

4. Under the IRP Scheme, if a driver provides a breath sample on an approved screening device ("ASD") that indicates a "fail", or refuses to provide a sample, a police officer must seize the driver's licence, serve a notice of prohibition prohibiting him or her from driving for 90 days and impound the vehicle. Drivers are assessed a monetary penalty and could face further

1 Motor Vehicle Act, R.S.B.C. 1996, c. 318, ss. 215.41-215.51. In the lower courts the IRP Scheme was referred to as

the Automatic Roadside Prohibition Scheme or the ARP Scheme. The Attorney General ofB.C. prefers the description Immediate Roadside Prohibition Scheme.

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consequences, including the requirement to participate in a remedial program or to install an Ignition Interlock device on their vehicle.2 When an officer serves an IRP at the roadside, he or she may complete the investigation at that point in time. The driver is not required attend the police station to provide breath samples on an approved instrument and in practice does not face criminal charges or the possibility of a criminal conviction and a criminal record.

5. The results of the IRP Scheme have been dramatic. Since 2010, there has been a 52% reduction in alcohol-related fatalities on B.C. 's roadways.3 At least 175 lives have been saved.4

6. Despite these impressive results, the B.C. courts ruled that the IRP Scheme violated s. 8 of the Charter of Rights and Freedoms5 (the "Charter"). This Court has stated a constitutional question regarding whether ss. 215.41 to 215.51 of the MVA (as it was then in force) violates s. 8 of the Charter.

7. The IRP Scheme does not violate s. 8. First, the IRP Scheme does not authorize the initial seizure of breath from a driver by way of an ASD demand. This seizure is authorized under the authority of s. 254(2) of the Criminal Code6 (the "Code"). The fact that the MVA refers to a search authorized under federal legislation does not transform the search into one authorized by provincial law. The Province has merely attached additional consequences to the results of a search authorized under the Code and these consequences do not engage s. 8.

8. The IRP Scheme does authorize a driver to request a second ASD sample where he or she has already provided a sample indicating a "warn" or "fail".7 Assuming this aspect of the IRP Scheme authorizes a seizure, it is only at the driver's request. This requirement, coupled with a substantially diminished reasonable expectation of privacy on the part of a driver who has already

2 These additional consequences are at the discretion of the Superintendent. An Ignition Interlock device prevents a vehicle from being operated unless the driver provides a breath sample below a prescribed limit for alcohol, which is often zero.

3 Brubacher et aI, "Reduction in Fatalities, Ambulance Calls, and Hospital Admissions for Road Trauma After

Implementation of New Traffic Laws", American Journal of Public Health, October 2014, Vol. 104, No. 10 at pp. e93-94. Figure of 175 lives is based on estimated saving of 44 lives per year over four years.

4 Macdonald et aI, "The impact of alcohol-related collisions of the partial decriminalization of impaired driving in

British Columbia, Canada", Accident Analysis and Prevention 59 (2013) 200-205 at p. 203.

5 Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), c. 1 I.

6 Criminal Code, R.S.C., 1985, c. 46 (the "Code"), s. 254(2).

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provided a sample indicating a prescribed blood-alcohol concentration ("BAC"), means that this aspect of the IRP Scheme does not raise a concern under s. 8. The IRP Scheme does not

authorize any other search or seizure and therefore s. 8 is not triggered.

9. In any case, the IRP Scheme is reasonable within the meaning of s. 8. The IRP Scheme has the important goal of reducing the carnage caused by drinking and driving through increasing a drinking driver's actual and perceived risk of detection and ensuring there are immediate

consequences for drivers who choose to drink and drive. ASD demands are an essential tool in ensuring that the goals of the IRP Scheme are met. Measuring drivers' BAC by way of an ASD demand at the roadside is the least intrusive means of accomplishing the IRP Scheme's

objectives. Alternatives like requiring drivers to attend the police station to provide a sample on an approved instrument would be more intrusive for the driver. In taking up greater police resources, this alternative would also undermine the goal of enhancing the perceived risk of detection through heightened traffic enforcement.

10. From a procedural perspective, drivers are entitled to challenge a 90 day IRP before a delegate of the Superintendent of Motor Vehicles (the "Superintendent") at an oral hearing and to lead evidence. Drivers receive materials explaining the officer's basis for serving the IRP.

Adjudicators must provide written reasons and drivers are entitled to seek judicial review of a decision confirming an IRP. These aspects of the IRP Scheme render it reasonable within the meaning of s. 8.

2) Statement of Facts

A) The Ongoing Scourge of Drinking and Driving in B.C.

11. In 2009, impaired driving was the number one criminal cause of death in Canada.8 Based on police reports provided to the Insurance Corporation of British Columbia ("ICBC"), in 2007 at least 128 people were killed and 2,869 people were injured in alcohol-related collisions. These numbers likely under-represent the true scope of the problem.9 Figures derived from B.C.

8 Affidavit #1 of Stephen Martin, filed March 16,2011, BCSC No. 105189 ("Martin Affidavit"), Exhibit "M", p. 5,

Joint Record, p. 731.

9 See Brubacher et a!., "Police Documentation of Alcohol Involvement in Hospitalized Injured Drivers", Traffic

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coroners' reports for 2007 concluded that 170 people lost their lives in alcohol-related collisions.1o Young people are disproportionately involved in alcohol-related collisions. I I

Drinking and driving also remains a leading cause of spinal cord and head injuries in Canada. 12 12. Quite apart from the awful human toll, the financial cost to society of drinking and driving in Canada is enormous. There was expert evidence in the lower courts estimating the costs ofthese collisions in 2006 as ranging from 2.2 billion to nearly 12.8 billion and concluding that "( d)rinking-driving collisions account for one ofthe largest sources of preventable alcohol-related costs to Canadian society". 13

13. In 2010,3.1 million people had driver licences in B.C. Nearly one-quarter of British Columbians have admitted to some alcohol consumption before driving. More than 1 in 20 British Columbians admit to having driven while likely over the limit. 14 According to the Traffic

Injury Research Foundation, more than 1 in 4 British Columbians know of a family member or friend who has been a victim of drinking and driving. More than 1 in 5 British Columbians know of a friend or family member that was drinking and driving and caused an accident. Not

surprisingly, British Columbians are more concerned about drinking and driving than any other social issue, with nearly three-quarters indicating they are very or extremely concerned about it.IS 14. Between 2002 and 2009, the number of criminal charges in B.C. for alcohol-related driving offences increased, going from 5,646 charges in 2002 to 8,056 in 2009.16 This trend is also reflected in an increase in administrative sanctions. Between 2004 and 2009, the number of administrative driving prohibitions increased by 44%.17

15. In the 2009 House of Commons Committee report, "Ending Alcohol-Impaired Driving: A Common Approach", the Canadian Police Association is quoted as stating that "the problem of impaired driving is worsening in Canada and we are losing ground in our efforts to eliminate the 10 Affidavit # 1 of Robert E. Mann, filed March 16, 2011, BCSC No. 105189 ("Mann Affidavit") attaching "Report on Drinking and Effective Legal Interventions" ("Mann Report"), p. 4, Joint Record, p. 1220.

II Mann Report, pp. 5-6.

12 Mann Report, p. 4. 13 Mann Report, p. 4 and 6.

14 Martin Affidavit, Exhibit "B", p. 18, Joint Record, p. 593. 15 Martin Affidavit, Exhibit "B", p. 19, Joint Record, p. 593.

16 Martin Affidavit, para. 69, Exhibit "J" (only one page), Joint Record, p. 713. 17 Martin Affidavit, para. 69, Exhibit "I". (only one page), Joint Record, p. 711.

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problem". 18

16. Disturbingly, this increased prevalence of drinking and driving also reflects a significant degree of recidivism. At least 1 in 5 of the individuals charged between 2002 and 2009 were repeat offenders. 19 More than 1 in 1 0 persons who had received administrative driving

prohibitions (discussed further below) had received one within the previous five years.20 Prior to the introduction of the IRP Scheme, there were drivers who persisted in drinking and driving despite having already received administrative penalties and/or criminal charges for this conduct.

B) The Limits of the Criminal Process in Preventing Drinking and Driving

17. Criminal prohibitions for impaired driving have existed in Canada for many decades. The criminal offence of driving with a blood-alcohol concentration in excess of .08 mg % has been in force since 1969.21

18. Despite nearly 50 years in which driving with a prescribed blood-alcohol concentration has been a criminal offence, the effectiveness of criminal prohibitions in deterring this conduct is open to question. The House of Commons Standing Committee on Justice and Human Rights (the "Parliamentary Committee") suggested that "the specific deterrent effect of impaired driving laws is eroded" by the fact that an accused is able to continue to drive for a significant period following arrest and prior to conviction.22 The Parliamentary Committee also contrasted the two to three hours of police time required to process an impaired driving arrest with the immediacy of provincial administrative sanctions, which permit the expeditious removal of the drinking driver from the roadway:

Short-term suspensions are not necessarily a severe sanction, but they are applied swiftly and with certainty at the time of the offence factors deemed essential to effective deterrence. They also eliminate the potential danger of having a drinking driver on the road. Criminal sanctions may be more severe but they are often so far removed from the behaviour so as to weaken their impact.23

18 Martin Affidavit, para. 73, Exhibit "M", p. 5, Joint Record, p. 73l. 19 Martin Affidavit, para. 68, Exhibit "J" (one page), Joint Record, p. 713.

20 Martin Affidavit, para. 70, Exhibit "K" (see doc referring to Admin Driving Prohibitions), Joint Record, p. 715. 21 Martin Affidavit, Exhibit "M", p. 8, Joint Record, p. 731.

22 Martin Affidavit, Exhibit "M", p. 10, Joint Record, p. 731. 23 Martin Affidavit, Exhibit "M", p. 11, Joint Record, p. 731.

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C) The Effectiveness of Administrative Driving Prohibitions in Reducing Alcohol-Related Collisions

19. There is a significant body of evidence that suggests administrative sanctions are effective in reducing alcohol-related collisions. A driving prohibition has an important specific deterrent effect in that it takes a drinking driver off the road, and thus reduces the possibility that that persons will drink and drive, and be involved in a collision, during the period in which it is in effect. Prohibitions also have an important general deterrent effect insofar as some people will be deterred from drinking and driving by the knowledge that they may lose their licence.24 A study of licence suspensions in the context of the original "drive over .08" offence concluded that the passage of the law was associated with an 18% reduction in fatally injured drivers in Ontario.25 One expert, Dr. Mann, opined that factors like the nature of the sanction introduced, the degree to which the law is enforced, and the public's awareness of the law contributes to the scale of the impact.26

20. In 1996, Ontario introduced an administrative licence suspension whereby an individual who provided a breath sample that indicated a BAC over .08 (or who refused to provide a sample) had his or her licence suspended for 90 days from the date of the charges. A similar provision is contained in the MVA (s. 94.1, discussed below) and every Canadian province has an equivalent form of administrative suspension?7 The introduction of this law in Ontario resulted in a 17.3% reduction in the number of fatalities involving a driver over .08 mg % the following year. A further study concluded that total driver fatalities declined by 14.5% in the two years following the introduction of the law.28

21. Dr. Mann's Report concluded that "the evidence from both Canada and the United States is consistent in showing that administrative suspensions have strong and important specific and general deterrent effects in reducing drinking driving recidivism, collisions, injuries and

fatalities".29 Studies dating from the 1980s have reached the same conclusion.30

24 Mann Report, p. 1, Joint Record, p. 1220.

25 Mann Report, p. 2, Joint Record, p. 1220.

26 Mann Report, p. 2, Joint Record, p. 1220.

27 Mann Report, p. 8, Joint Record, p. 1220.

28 Mann Report, p. 9, Joint Record, p. 1220.

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D) The Effectiveness of Other Administrative Sanctions in Reducing Alcohol-Related Collisions

22. Laws authorizing the impoundment of vehicles also appear to result in a significant reduction in fatal and night time injury collision rates?l

23. Mandatory participation in remedial programs also reduces alcohol-related collisions, particularly when combined with a licence suspension.32 The same is true for the mandatory use of Ignition Interlock devices which, when installed, prevent a vehicle from starting without the driver providing a breath sample above a prescribed BAC level. The Parliamentary Committee cited that research concluding that ignition interlocks can reduce recidivism by 50 to 90%.33

E) The Importance of Enforcement in Reducing Alcohol-Related Collisions

24. As noted, enforcement and public awareness are important factors in the degree to which administrative sanctions in this context are effective. It is therefore disconcerting to note, as indicated in the Parliamentary Committee report, that only a small fraction of impaired drivers are ever apprehended: the estimated likelihood of apprehension is, at best, 1 in 500 and at worst, 1 in 2000?4 It is not surprising that the Parliamentary Committee concluded that "what is needed is to increase the perception of apprehension".35 This sentiment is shared by the public in B.C. A report entitled "The Road Safety Monitor 2010" prepared by the Traffic Injury Research Foundation indicates that more than two-thirds of British Columbians (68.6%) agreed that there should be more visible police enforcement targeting impaired drivers.36 An EKOS survey ("EKOS Survey") prepared for Transport Canada and MADD in 2007 noted that "participants would often express the view that much greater attention and resources needed to be devoted to enforcing impaired driving laws". 3 7

30 Jonah and Wilson, "Improving the Effectiveness of Drinking-Driving Enforcement Through Increased Efficiency"

Accident Analysis & Prevention, Vol. 15, No.6, pp. 463-481 (1983).

31 Mann Report, pp. 2-3, Joint Record, p. 1220. 32 Mann Report, pp. 25-26, Joint Record, p. 1220.

33 Martin Affidavit, Exhibit "M", p. 17, Joint Record, p. 731. 34 Martin Affidavit, Exhibit "M", p. 14, Joint Record, p. 73l. 35 Martin Affidavit, Exhibit "M", p. 11, Joint Record, p. 731. 36 Martin Affidavit, Exhibit "B", p. 20, Joint Record, p. 593. 37 Martin Affidavit, Exhibit "L", p. v, Joint Record, p. 718.

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25. The EKOS Survey concluded that Canadians see drinking and driving as a serious, ongoing societal problem with wide-ranging negative impacts, but, unlike other public priorities, one in which a drastic reduction, if not complete elimination, is possible. Canadians see drinking and driving as a preventable social ill. 38

i) Public Awareness of the IRP Scheme

26. The day that Bill 14 (2010) amending the MVA to create the IRP Scheme was introduced in the legislature, the B.C. Ministry of Public Safety and the Solicitor General began a

comprehensive public education initiative. The Province's stated goal in enacting the IRP Scheme was to reduce alcohol-related traffic fatalities by 35% by the end of2013.39 This initiative included major media events, advertising in liquor stores throughout the Province, the display of messages about the program on all electronic highway signs in the Province and the development of promotional material in co~unction with ICBC and the British Columbia Automobile Association. Media coverage surrounding the introduction of the program in September 2010 was extensive.4o

ii) The IRP Scheme Results in Immediate Decrease in Number of Deaths on

B.c.

Roads 27. At the time of the initial petition, the IRP Scheme had only been in operation for a brief period and the data was still preliminary. However, police data indicated a 51 % reduction in alcohol-related motor vehicle fatalities, and a 54% reduction in serious alcohol-related motor vehicle injuries, between October 2010 and February 2011 as compared with the historical five-year average. This amounted to 23 lives saved and 562 fewer serious injuries in that period.41 28. Recent studies confirm a dramatic reduction in alcohol-related collisions in B.C. since the introduction of the IRP Scheme. In the first two years of the program, one study estimated an approximate 40% reduction in related fatal collisions and a 23.4% reduction in

alcohol-38 Martin Affidavit, Exhibit "L", p. vi, Joint Record, p. 718. 39 Martin Affidavit, para. 155, Joint Record, p. 589.

40 Martin Affidavit, paras. 142-150, Joint Record, pp. 586-587.

41 Affidavit of Stephen Martin sworn April26, 2011 at paras. 3-6, p. 1582 of the Joint Record, and Exhibits "B",

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related injury collisions.42 This translates into 44 lives a year or approximately 175 lives saved in the first four years the IRP Scheme has been in operation.43 The study concluded that the

reduction in alcohol-related collisions causing fatalities and injuries suggested that a "real change in drinking driver behaviour occurred" and that "the goals of improved road safety by the

provincial government were achieved".44 The IRP Scheme has accomplished a substantial reduction in the prevalence of drinking and driving in B.C.

29. A second study estimated an even greater reduction of 52% in alcohol-related fatal motor vehicle collisions over the first two years of the program.45 These results significantly exceed the Province's target of reducing alcohol-related traffic fatalities by 35%.

30. One of the most important features of the IRP Scheme is that it substantially reduces a police officer's time spent dealing with a driver who has been stopped driving with a prescribed BAC. One study estimated an officer's average processing time in a criminal investigation of an individual suspected of drinking and driving is two hours and 48 minutes, with another four hours of court time if the matter proceeds to trial.46 By contrast, an officer is able to complete his or her investigation, and take the steps to serve an IRP, at the roadside. This enables officers who encounter drivers who have been drinking to return to road enforcement more quickly, instead of escorting a driver back to a police detachment to provide breath samples on a non-portable breath instmment. 4 7

31. Another key feature of the IRP Scheme is the immediacy in which consequences are imposed on a drinking driver. Unlike the ADP, which permits a driver to continue driving for 21

days before the prohibition takes effect, the IRP results in an immediate prohibition. This aspect

42 Macdonald et aI, "The impact of alcohol-related collisions of the partial decriminalization of impaired driving in

British Columbia, Canada", Accident Analysis and Prevention 59 (2013) 200-205, p. 203.

43 Ibid.

44 Ibid at pp. 203 and 204.

45 Brubacher et aI, "Reduction in Fatalities, Ambulance Calls, and Hospital Admissions for Road Trauma After

Implementation of New Traffic Laws", American Journal of Public Health, October 2014, Vol. 104, No. 10, pp. e93-e94.

46 Macdonald et aI, "The impact of alcohol-related collisions of the partial decriminalization of impaired driving in

British Columbia, Canada", Accident Analysis and Prevention 59 (2013) 200-205, p. 201; See also Martin Affidavit, Exhibit "M", p. 11.

47 Macdonald et aI, "The impact of alcohol-related collisions of the partial decriminalization of impaired driving in

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of the IRP Scheme has been crucial in its effectiveness, as noted in the aforementioned studies.48 The immediacy of a sanction, coupled with its increased likelihood, acts as a greater deterrent than harsher sanctions that are applied in a less timely fashion.

3) Driving Prohibitions and Administrative Sanctions under the MVA A) Overview

32. The IRP Scheme challenged in this case is modelled in significant measure on the 24 hour prohibition (s. 215) and the administrative driving prohibition (s. 94.1) already contained in the

MVA. Like the 24 hour prohibition, the IRP Scheme authorizes a driving prohibition at the

roadside on the basis of a result from an ASD. Like the administrative driving prohibition, the IRP Scheme authorizes a 90 day prohibition where there are reasonable grounds to believe a driver's BAC exceeds .08 mg %. Other similarities, and the specific procedural safeguards that form part of the IRP Scheme, are discussed below.

B) 24 Hour Driving Prohibitions

33. The first administrative sanction for alcohol-related driving in B.C. was the 24 hour driving suspension enacted in 1966. The suspension was triggered when a police officer "has reason to suspect that the driver of a motor-vehicle has consumed alcohol" and remained

suspended until the driver agreed to voluntarily undergo a test that indicated a BAC less than the prescribed limit (80 mg %).49 In 1982, the provisions establishing the 24 hour prohibition were amended. Instead of a suspension, police could prohibit a driver from driving outright (since the ability of police to suspend a driver's licence did not extend to out-of-province drivers).50 Then s. 214 of the MVA also provided that:

A peace officer may, at any given time or place on a highway or industrial road when he has reason to suspect that the driver has consumed alcohol, request the driver to drive the motor vehicle, under the direction of the peace officer, to the nearest place off the

48 Brubacher et aI, "Reduction in Fatalities, Ambulance Calls, and Hospital Admissions for Road Trauma After

Implementation of New Traffic Laws", American Journal of Public Health, October 2014, Vol. 104, No. 10, p.e89.

49 Motor-Vehicle (Amendment) Act, Ch. 30, 14-15 Eliz II, s. 203. 50 Martin Affidavit, para. 42, Joint Record, p. 568.

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travelled portion of the highway or industrial road and there to surrender his licence.51 34. Section 214 of the MV A echoed the threshold for conducting roadside screening in

s. 234.1 of the Code (then in force), namely, a reasonable suspicion of alcohol consumption, and contemplated an officer using an ASD in determining whether to suspend a driver's licence.52 35. Section 215 of the A1VA now provides for a 24 hour prohibition for alcohol-related

driving and was in force at the time the IRP Scheme was introduced. 53 Under the present 24 hour prohibition scheme, a driver may only provide one breath sample on an ASD: s. 215(6).

36. Where a 24 hour prohibition is served, an officer has the discretion to order the driver's vehicle impounded for 24 hours to prevent the latter from driving: s. 215.4.

37. A driver who is served a 24 hour driving prohibition for alcohol may have the prohibition reviewed by the Superintendent (or his delegate) in accordance with s. 215.l of the MVA. The

driver may provide any written statement or evidence in support of revoking the prohibition: s.215.1(4). The driver is not entitled to an oral hearing: s. 215.1(5). The Superintendent must revoke the prohibition in two circumstances: where the driver had the right to request a sample but the officer failed to provide that opportunity, or the person to whom the prohibition was served was not a driver: s. 215(3)(a) and (b).

C) The Administrative Driving Prohibition Scheme

38. Administrative driving prohibitions ("ADPs") were introduced in B.C. in 1997. The authority to impose an ADP is found in ss. 94.1 to 94.6 of the MVA (the "ADP Scheme")' 54 As noted, every Canadian province has a version of the ADP Scheme.55

39. Section 94.l(1) of the MVA provides that an officer must issue a 90 day driving

51 Martin Affidavit, paras. 41-43, Joint Record p. 568, Exhibit "G", pp. 165-166, Joint Record, p. 706.

52 Martin Affidavit, Exhibit "G", pp. 165-166, Joint Record, p. 706; Also see R. v. Thomsen, [1988] 1 S.C.R.640 ("Thomsen") at p. 646.

53 Martin Affidavit, paras. 44-49, Joint Record, pp. 569-570. 54 Martin Affidavit, para. 54, Joint Record, p. 570.

55 Mann Report, p. 7, Joint Record, p. 1220; Traffic Safety Act, R.S.A. 2000, c. T-6, ss. 88,88.1; The Traffic Safety Act, S.S. 2004, c. T-18.1, ss. 146.l and 148; Highway Traffic Act, C.C.S.M., c. H60, s. 263.1; Highway Traffic Act,

R.S.O. 1990, c. H.8, ss. 48 and 48.3; Highway Safety Code, R.S.Q., c. C-24.2, s. 202.4; Motor Vehicle Act, S.N.B., c. M-17, s. 310.04; Motor Vehicle Act, R.S.N.S. 1989, c. 293, ss. 279A; Highway Traffic Act, R.S.P.E.I., 1988, c. H-5,

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prohibition to a driver if the officer has reasonable and probable grounds to believe:

(a) by reason of an analysis of the breath or blood of a person, that a person operated a motor vehicle or had care or control of a motor vehicle having consumed alcohol in such a quantity that the concentration of alcohol in the person's blood exceeded 80 milligrams of alcohol in 100 millilitres of blood at any time within 3 hours after operating or having care or control of the motor vehicle, or

(b) the person failed or refused, without reasonable excuse, to comply with a demand made on the person to supply a sample of his or her breath or blood under section 254 of the Criminal Code in respect of the operation or care or control of a motor vehicle ...

40. The language of s. 94.1 ofthe MVA closely echoes the wording of s. 253 of the Code (which sets out the offence of operating a motor vehicle, or having care and control of a motor vehicle, "having consumed alcohol in such a quantity that the concentration of alcohol in the person's blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood") and s. 254 of the Code (which confers authority to issue demands for samples of breath or blood where the officer has reasonable and probable grounds to believe the driver committed an offence under s. 253 within the previous three hours). 56

41. Unlike the 24 hour prohibition, the ADP can only be served once a driver has provided a sample on an approved instrument indicating a BAC over 80 mg % (or has refused to provide a sample).57 This can only take place at the police station, since approved instruments are not portable. The provision of a sample indicating a BAC over 80 mg % is also the basis for laying charges under s. 254 of the Code (though the latter requires a person to have provided a second sample that also indicates a BAC over 80 mg %). An ADP may therefore coexist with the laying of criminal charges, as is reflected in s. 94.3( e) of the MVA, which requires the officer to forward to the Superintendent a copy of any Certificate of Analysis served on a driver further to s. 258 of the Code.

42. As noted, the ADP acts as a temporary driver's licence for a 21 day period from the date it was served, following which a 90 day suspension is triggered: s. 94.2(1) of the MVA. 58

56 Code, SS. 253-254.

57 Martin Affidavit, para. 56, Joint Record, p. 571. 58 Martin Affidavit, para. 57, Joint Record, p. 571.

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43. A driver served with an ADP may apply for a review and attach any sworn statements or evidence for the consideration ofthe Superintendent: s. 94.4(1 )-(3). Unlike the 24 hour

prohibition, the driver may request and receive an oral hearing upon paying a prescribed fee: s. 94.4(5). However, there is no right of cross-examination: s. 94.5(3).

44. On a review, the Superintendent must confirm the prohibition ifhe is satisfied that that driver operated, or had care and control of~ the motor vehicle and had consumed alcohol in such a quantity as to result in a concentration of alcohol exceeding 80 milligrams of alcohol in 100 millilitres of blood (or that the person refused, without a reasonable excuse, to comply with a breath or blood sample under s. 254 of the Code): s. 94.6(1).

D) Other Driving Prohibitions in the MVA

45. There are additional driving prohibitions provided for in the A1VA but they are generally triggered by a criminal conviction for a Code offence: see ss. 98 and 99. Section 93 also

authorizes the Superintendent to impose a driving prohibition on public interest grounds where a driver has failed to comply with the A:1VA or has an unsatisfactory driving record.

E) Other Administrative Driving-Related Programs

46. Section 25.1 of the A:1VA authorizes the Superintendent, on review of a person's driving record and where he considers it in the public interest, to order a driver to participate in a

remedial program, such as the Ignition Interlock Program ("IIP,,).59 The IIP targets drivers with a record of drinking and driving by requiring them to install a device that prevents the vehicle from starting if they have been drinking aIcoho1.6o Various provisions of the MVA authorize the impoundment of vehicles in certain situations for varying durations, including in the context of 24 hour prohibitions (s. 215.4) and for driving while prohibited, driving without a licence, street racing and in other contexts: see Part 9 (ss. 250-269).

59 Martin Affidavit, paras. 22-37, Joint Record, pp. 565-567. 60 Martin Affidavit, paras. 25-27, Joint Record, pp. 565-566.

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4) The Immediate Roadside Prohibition Scheme

A) Overview

47. The IRP Scheme is found in ss. 215.41 to 215.51 of the MVA. The IRP Scheme is modelled in part on the ADP and the 24 hour prohibition. Like the 24 hour prohibition, the IRP may be imposed at the roadside on the basis of the result of a "fail" or a "warn" result on an ASD (or where a driver refuses to provide a sample without a reasonable excuse). The investigation is completed at the roadside. Like the ADP, a sample that indicates a driver's BAC of not less than 80 mg % (the "fail" threshold, discussed below) results in a 90 day prohibition. Like the ADP, an IRP may be challenged and the driver may lead his or her evidence in support of the challenge, including at an oral hearing where requested. The grounds of review are similar on their face to the grounds of review in the ADP Scheme.6l The IRP Scheme requires a driver that has been subject to a prohibition to attend any remedial program that the Superintendent orders under s. 25.1 of the MVA. Finally, peace officers are directed to impound a driver's motor vehicle provisions where the driver has been served with notice of a 30 or 90 day driving prohibition. 48. The IRP Scheme provides for enhanced procedural safeguards at the roadside. Unlike the 24 hour prohibition, a driver served with an IRP may not only provide a second breath sample, but is entitled to do so by way of a second device. This option dispels any concern regarding the reliability of the ASD results used to form the basis of the IRP. It also represents a significant operational demand upon police, who are obligated to ensure they have reasonably ready access to a second device.

49. The IRP Scheme in practice extends two further benefits to drivers, in contrast with the ADP. First, when an officer serves an IRP on a driver, the officer may complete his or her investigation at the roadside without taking the driver back to the police station to obtain samples on an approved instrument. This process is significantly less intrusive for drivers than the

process leading to an ADP. Second, if the officer serves an IRP at the roadside, the investigation

61 It should be noted that the lower court considered the ADP review scheme more fulsome than the IRP review

scheme because the former required the Superintendent to be satisfied that the driver's BAC was a certain level whereas the IRP required only that the ASD have indicated a "fail" - see Sivia #1, infra, at paras. 303-305. Sivia v.

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is complete and no criminal charges are laid.62 The driver thus faces no prospect of a criminal conviction or a criminal record, again unlike the situation that may face a driver served with an ADP.

B) Elements of the IRP Scheme

50. Section 215.41(3) of the MVA provides that an officer must serve an IRP in the following circumstances:

If, at any time or place on a highway or industrial road,

(a) a peace offIcer makes a demand to a driver under the Criminal Code to provide a sample of breath for analysis by means of an approved screening device and the approved screening device registers a warn or a fail, and

(b) the peace officer has reasonable grounds to believe, as a result of the analysis, that the driver's ability to drive is affected by alcohol...

51. Section 215.41 (4) also requires a peace officer to serve an IRP where he or she "has reasonable grounds to believe that a driver failed or refused, without reasonable excuse, to comply with a demand made under the Criminal Code to provide a sample of breath for analysis by means of an approved screening device ... "

52. Sections 215.41(3) and (4) oftheMVA clearly track the language of s. 254 of the Code.

53. "Driver" is defined in s. 215.41 to include "a person having care or control of a motor vehicle on a highway or industrial road whether or not the vehicle is in motion." This definition again paraphrases s. 254(2) of the Code. "Approved screening device" means a device

prescribed by the Lieutenant Governor in Council for the purposes of s. 215.41. The devices approved in B.C. for use as screening devices are also approved devices under the Code.63 "Fail" is defined to mean an indication on an ASD that a person's BAC is not less than 80 mg % and "warn" is defined to mean an indication on an ASD that a person's BAC is not less than 50 mg %.

62 Affidavit of Dafryd Hennann sworn March 16, 2011 ("Hennann Affidavit"), para. 10, Joint Record, p. 1165.

63 "Approved Screening Devices Order", SOR/2012-61, s. 1 and B.C. Reg. 590/2004 (Approved Screening Device

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54. Section 215.41(7) provides that an IRP may not be served if an ADP has been served under s. 94.1 of the MVA.

55. If a driver provides a sample indicating a "fail" result on the ASD (or refuses to provide a sample), the prohibition is 90 days and takes effect immediately: ss. 215.43(2) and (3). A driver who provides a sample that registers a "warn" is immediately prohibited from driving for 3 days for a first time prohibition: s. 215.43(1)( a). In either situation, however, "a second analysis must be performed if, after a peace officer serves on the person a notice of driving prohibition ... the person forthwith requests the second analysis": s. 215.42(1). Moreover, the second analysis must be performed with a different ASD than was used for the first analysis: s. 215.42(2). If a second analysis is performed, it governs and any prohibition must be continued, terminated or varied accordingly: s. 215.42(3).

56. The wording of s. 215.42(1) does not expressly impose an obligation on police to inform drivers of the availability of a second sample on a different device. However, without being informed accordingly, drivers could be unaware of this option. For that reason, police in B.C. were trained from the outset to otler drivers who had provided a sample that registered "fail" or "warn" on an ASD the opportunity to provide a second sample. Police were also trained to inform the driver in this situation that the second sample will govern, including if they had provided a sample indicating "warn" and the second sample indicated a "fail".64

57. A person subject to a 90 day driving prohibition must: (i) pay a $500 monetary penalty within 30 days of being served (s. 215.44)65, (ii) at his or her own expense, register in and attend any remedial program that the Superintendent orders him or her to attend (s. 215.45), and (iii) have their vehicle impounded (215.46). Section 253(7) of the MVA provides that the period of impoundment is 30 days. The driver must also pay a fee of $250 to have his or her licence reinstated following the expiry of the prohibition: s. 97.2.

58. A peace officer who serves an individual with an IRP must promptly forward to the Superintendent copies of the person's driver's licence, the notice of driving prohibition, a certificate of service confirming service of the driver's prohibition and a report in the form that 64 Hermann Affidavit, para. 11, Joint Record, p. 1165, Exhibit "D", p. 1, Joint Record, p. 1208.

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the Superintendent requires: s. 215.47.

59. A driver served with an IRP has seven days to apply to the Superintendent for a review: s.215.48(1). The driver may attach any statement or other evidence that he or she wishes the Superintendent to consider. Where the IRP is for 30 or 90 days, the driver may also have an oral hearing if requested and upon payment of the required fee: s. 215 .48( 5). The Superintendent is required to consider any evidence submitted by the driver, the report forwarded by the peace officer, a copy of the notice of prohibition and any evidence given where the matter was conducted by way of an oral hearing: s. 215.49(1). As with the ADP Scheme, no cross-examination is permitted at the hearing: s. 215.49(3).

60. With respect to a 90 day prohibition, if the Superintendent is satisfied that the person was a driver and that the ASD registered a "fail" (or that the person failed or refused, without

reasonable excuse, to comply with a demand), then the Superintendent must confirm the driving prohibition, monetary penalty and 30 day impoundment: ss. 215.5(1)(b)(i) and (ii). If the Superintendent is satisfied the person was a driver, but that the ASD registered a "warn" rather than a "fail", the prohibition, monetary penalty and impoundment period is reduced accordingly: s.215.5(3). Finally, if the Superintendent is satisfied that the person was not a driver, or that the ASD did not register a "fail" or a "warn" (or that the person did not refuse or fail to provide a sample, or had a reasonable excuse for doing so), the Superintendent must revoke the prohibition, cancel the monetary penalty and revoke the impoundment of the person's vehicle. (There have been changes to this aspect of the IRP Scheme as a result of amendments, as discussed below).

C) Police Practices in the Use of ASDs in B. C.

61. There was extensive evidence before the lower courts on police practices and training in B.C. in the use of ASDs.66 First, when the ASD demand results in a "fail", an officer must decide whether to proceed with a Code investigation or serve an IRP.67

62. Second, as noted above, when an officer proceeds with an IRP, he or she is trained to

66 See Hennann Affidavit, Joint Record, p. 1163. 67 Hennann Affidavit, para. lO, Joint Record, p. 1165.

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offer the driver the opportunity to take a second ASD test on a different ASD.68 This second test is voluntary. Officers use standard language contained on the front cover of a booklet of IRP forms, calling the driver's attention to the fact the second analysis will prevail. There is further prescribed wording for when the driver provides a "warn" sample and wants a second test, in which case he or she is advised that a "fail" result will result in more serious consequences.69 63. Third, officers are trained to ensure a "suitable" breath sample is obtained, which includes taking a series of steps to ensure there is no possibility of mouth alcohol contamination. This includes observing drivers for any signs of belching, burping or regurgitation prior to a test, making inquiries about the timing of the driver's last drink and waiting at least 15 minutes before administering the test if there are any concerns of possible mouth alcohol contamination.70 The officer's report to the Superintendent also requires the officer to note the time of the driver's last drink. The availability of a second test substantially reduces the possibility of mouth alcohol contamination because it results in a longer observation period.71

64. Fourth, an ASD will not detect alcohol if alcohol is not present. A higher reading cannot occur without the presence of a higher concentration of alcohol. 72

65. Finally, as of December 2010, the Traffic Safety Committee of the B.C. Association of Chiefs of Police agreed to adjust the threshold for a "warn" result on an ASD from 49 mg % to 59 mg %. The purpose of this adjustment was to ensure that drivers were not issued IRPs for providing a sample indicating a "warn" result if their BAC was actually below 50 mg %.73 The "fail" threshold has always been set at 99 mg %.74

5) Procedural History

66. Three of the Respondents, Ms. Beam and Messrs. Chisholm and Roberts, filed petitions for judicial review challenging their IRPs based on "fail" results from an ASD on constitutional

68 The Code does not authorize a second ASD sample in these circumstances.

69 Hermann Affidavit, para. 11, Joint Record, p. 1165, Exhibit "D", p. 1, Joint Record, p. 1208. 70 Hermann Affidavit, paras. 27-28, Joint Record, p. 1169.

71 Hermann Affidavit, para. 30, Joint Record, p. 1170. 72 Hermann Affidavit, para. 32, Joint Record, p. 117!. 73 Hermann Affidavit, paras. 36-7, Joint Record, p. 1172.

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grounds. Justice Sigurdson (the "Petition Judge") heard the petitions. The Respondent Mr. Goodwin had been served an IRP for refusing to provide a sample of breath into an ASD and filed a petition for judicial review challenging his IRP on the same constitutional grounds as the other Respondents. Mr. Goodwin's challenge was heard before Mr. Justice Dley.

67. In a decision dated November 30,2011 addressing the first three Respondents' petitions, the Petition Judge ruled that the IRP Scheme fell within provincial jurisdiction under s. 92(13) of

The Constitution Act, 1867 and that it did not violate s. 11 (d) of the Charter. The Petition Judge also ruled that the IRP Scheme violated s. 1 O(b) of the Charter, but that it was a justified

infringement in accordance with s. 1 of the Charter. However, the Petition Judge ruled that the IRP Scheme violated s. 8 of the Charter with respect to those individuals who received 90-day IRPs on the basis of a "fail" result from an ASD (the "Petition Decision,,).75

68. The Petition Judge released subsequent reasons dated December 23,2011 confirming that the ruling of unconstitutionality did not extend to IRPs based on refusals. The Petition Judge also ordered that the declaration of invalidity be stayed until June 30, 2012, and adjourned the

question of individual remedies to a later date.76

69. On May 25, 2012, Justice Dley dismissed the Respondent Goodwin's constitutional challenge on the basis that the Petition Decision had decided the issues. 77

70. On July 12,2012, the Petition Judge ruled that the Respondents Beam, Chisholm and Roberts were not entitled to have their prohibitions revoked as a result of the finding of unconstitutionality (the "Remedies Decision,,).78 These Respondents have filed a notice of appeal in relation to the Remedies Decision, but the Court of Appeal has confirmed that

scheduling a hearing of that appeal must await the resolution of the present appeal to this Court. 71. The Court of Appeal heard the appeals of the Respondent and the Appellants together. In

75 Sivia v. British Columbia (Superintendent of Motor Vehicles), 2011 BCSC 1639 ("Sivia #1 "), Joint Record, p. 1.

76 Sivia v. British Columbia (Superintendent of Motor Vehicles), 2011 BCSC 1783 ("Sivia #2"), Joint Record, p. 102.

77 Goodwin v. Superintendent of Motor Vehicles and Attorney General of British Columbia (May 25, 2012), Victoria,

21-1095 (B.C.S.C.), Joint Record, p. 119; Thorne v. Superintendent of Motor Vehicles and Attorney General of

British Columbia (May 25,2012), Victoria, 21-1078 (B.C.S.C.). _

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a decision dated March 3, 2014, the Court of Appeal upheld the Petition Decision on all points.79

6) The Decisions of the Lower Courts on s. 8 of the Charter

72. On the question of whether the IRP Scheme authorized a search, the Petition Judge noted that the scheme refers to a peace officer making "a demand to a driver under the Criminal Code to provide a sample of breath for analysis by means of an approved screening device" and that he "was not referred to any authority that holds that a provincial law that utilizes a criminal search power, or the results thereof, itself creates a search power".80

73. The Petition Judge nevertheless concluded that because driving prohibitions are based on the results of the ASD, and may be imposed on readings lower than a "fail", "[t]his suggests that the search is authorized by law for other than purely Criminal Code purposes".81 Although the Petition Judge recognized that the IRP Scheme does not explicitly authorize making an initial ASD demand, he ruled that because the scheme referred to an ASD, and authorized an ASD sample to be used for a purpose other than a criminal investigation, it authorizes a search for the purposes of s. 8.82

74. Turning to the reasonableness of the IRP Scheme, the Petition Judge noted that motorists have a reduced expectation of privacy with respect to the provision of breath samples and that that expectation is further reduced in the context of driving prohibitions under a regulatory scheme.83 The Petition Judge also noted that the standard of reasonableness must be applied flexibly to take into account differing expectations of privacy in different contexts, noting that the standard of reasonableness is higher in the criminal than in the non-criminal context. 84

75. The Petition Judge then identified a list of relevant considerations that weighed in favour of the reasonableness of the IRP Scheme, including the nature and purpose of the law (the

removal of drinking drivers from the highway), the fact that driving is a highly regulated activity,

79 Sivia v. British Columbia (Superintendent of Motor Vehicles), 2014 BCCA 79 ("Sivia CA"), Joint Record, p. 162.

Following the decision in Sivia CA, Mr. Sivia has played no further role in these proceedings.

80 "Sivia #1, supra at para. 208.

Sl Ibid.

82 Ibid at paras. 214 and 216.

83 Ibid at para. 223.

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the driver's diminished expectation of privacy, the minimally intrusive nature of the search and the fact that driving is a privilege and not a right. 85

76. The Petition Judge then considered factors that ostensibly weighed against the reasonableness of the IRP Scheme, including that ASD samples form the basis for an IRP (though having no evidentiary weight in a criminal prosecution), the seizure is carried out in accordance with a reasonable suspicion standard (rather than a reasonable grounds standard), the scheme is not "far removed" from criminal law, the penalties are "not inconsequential" and that drivers have a "very limited ability" to challenge the grounds for the prohibition.86

77. At several points in his analysis, the Petition Judge emphasized the manner in which the IRP Scheme "resembles" the criminal law. He notes that the scheme imposes "consequences somewhat similar to those arising out of a criminal investigation", that it contains "criminal law elements" and that he "must be mindful of the proximity of the IRP regime to a criminal law regime".87 In light of these "criminal law elements", the Petition Judge posed the following question:

[I]s it reasonable that the use of the ASD results may result in consequences somewhat similar to a criminal prosecution ... but without the limitations and constitutional

protections in place for a driver subject to a criminal investigation?88

78. Having framed the issue accordingly, the Petition Judge reviewed the evidence on the reliability of ASDs. There was evidence that an ASD could produce an unreliable result because the result "could be affected by residual mouth alcohol from recent consumption, recent use of mouthwash or recent regurgitation" and that "the ASD does not have an internal safeguard to notify that residual mouth alcohol may be impacting the testing", unlike the breath instrument.89 The Petition Judge considered this factor to be important to the s. 8 analysis because "in some circumstances there can be serious issues concerning whether an ASD accurately reflects blood-alcohol readings" which would not exist to the same extent with a breath instrument.9o

85 Ibid at para. 259. 86 Ibid at paras. 259-260. 87 Ibid at paras. 279-282. 88 Ibid at para. 282. 89 Ibid at paras. 286, 287. 90 Ibid at para. 292.

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79. The Petition Judge emphasized what he described as a driver's limited ability to challenge the result of the search or the basis for the search under the IRP Scheme.91 He noted that the reviewability of a search can be a factor in determining the reasonableness of a law, citing some of La Forest, J.'s remarks in Thomson Newspapers Ltd. v. Canada (Director of Investigation and

Research, Restrictive Trade Practices Commission) ("Thomson Newspapers,,).92

80. In considering the nature and efficacy of the review, the Petition Judge noted that the IRP Scheme only permitted two grounds of review, namely, whether a person was a driver at the time and whether the ASD registered a "fail" or a "warn" (or whether the driver refused without reasonable excuse to comply with the demand). The Petition Judge noted various potential shortcomings, including the driver's inability to: (i) demonstrate that his or her BAC was not over .08, (ii) challenge the accuracy of functioning of the ASD, (iii) challenge the basis for the

demand, (iv) cross-examine the officer, or (v) raise the issue of whether he or she was advised of the availability of a second demand.93 The Petition Judge ruled that the near-criminal nature of the sanctions, without a more meaningful review of the basis for the suspension, rendered the IRP Scheme unreasonable. 94

81. Having found the IRP Scheme authorized an unreasonable search, the Petition Judge ruled that the limit on the right to be free from an unreasonable search and seizure could not be justified as a reasonable limit under s. 1 of the Charter. The Petition Judge accepted that the IRP

Scheme had a pressing legislative objective to remove impaired drivers promptly from the road and that the IRP Scheme was rationally connected to that goal. 95 However, the Petition Judge ruled that the procedural shortcomings meant the IRP Scheme failed to meet the minimal impairment test:

In my view, because of the significant prohibition, penalty and cost implications of a "fail" reading, the Province could have easily provided in the legislation a reasonable and meaningful review process where a driver subject to a lengthy automatic roadside prohibition could challenge the results of the screening device. This is particularly so

91 Ibid at paras. 301-305.

92 Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices

Commission) [1990] 1 S.C.R. 425 at p. 595.

93 Sivia # 1, supra at para. 302. 94 Ibid at paras. 301-302.

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considering the Province has legislated to base the consequences of a "fail" reading entirely on the results of the screening device.96

82. In a decision dated March 3, 2014, the B.C. Court of Appeal upheld the Petition Judge's conclusion that the IRP Scheme violated s. 8 of the Charter. The Court of Appeal repeated the Petition Judge's conclusion that the IRP Scheme authorized a search for s. 8 purposes because it "utilized the Code provisions as a platform to craft a broader search, one which uses not only a "fail" but a "warn" on an ASD to require action.,,97 The Court of Appeal upheld the conclusion that the IRP Scheme was unreasonable within the meaning of s. 8 and further ruled that the infringement could not be justified as a reasonable limit under s. 1.98

7) Amendments to the IRP Scheme

83. As a consequence ofthe Petition Decision, the IRP Scheme was amended (the "Amended IRP Scheme"). The Amended IRP Scheme carne into force on June 15,2012.99 The

amendments provide that the Superintendent has to be satisfied that: (i) an applicant who

provided a breath sample into an ASD was advised of his or her right to request and be provided a second ASD test, (ii) the ASD registered a "fail" as a result of the driver's BAC being not less than .08, and (iii) the result of the analysis upon which the prohibition was served was reliable, before confirming an IRP.IOO The Amended IRP Scheme also provides that the lower ofthe two ASD samples, where two were provided, is the basis for an IRP (rather than the result of the second ASD sample): see s. 215.42(3).101 In addition, the Amended IRP Scheme provides that the Report to Superintendent must be sworn and requires police to forward to the Superintendent information relating to the calibration of the ASD, the results of which formed the basis for serving the notice of driving prohibition. 102

84. In Bro v. British Columbia (Superintendent of Motor Vehicles), the British Columbia Supreme Court upheld the constitutionality of the Amended IRP Scheme under s. 8 of the

96 Ibid at para. 380.

97 Sivia CA, supra at para. 165.

98 Ibid at paras. 167-78.

99 Bill 46 2012, Motor Vehicle Amendment Act, 2012, S.B.C., c. 26.

100 MVA, R.S.B.C. 1996, c. 318, s. 215.5(l)(b) ("Amended MVA").

101 Amended MVA, s. 215.42(3). 102 Amended MVA, s. 215.47(d) and (e).

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Charter.103 Mr. Bro filed a Notice of Appeal on September 16,2014 but has not produced a factum.

PART II: QUESTIONS IN ISSUE

85. On December 18,2014, this Court stated the following constitutional questions:

i) Do the repealed sections 215.41 - 215.51 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318, enacted on September 20,2010, infringe s. 8 of the Canadian Charter of Rights and

Freedoms for drivers with "fail" results on an approved screening device as defined in s.

215.41(2) or drivers who refuse or "fail" without reasonable excuse to provide a sample of breath for analysis by means of an approved screening device as described in s. 215.41 (4)?

ii) 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?

PART III: ARGUMENT

1) The IRP Scheme Does Not Authorize a Seizure and Section 8 does not Apply A) The Foclls of Section 8

86. The purpose of s. 8 is to protect people against unreasonable searches and seizures by agents of the State before they happen. Section 8 of the Charter is above all concerned with protecting a person's reasonable expectation of privacy. 104

87. All searches or seizures must be authorized by law, the law must be reasonable, and the search or seizure must be carried out in a reasonable fashion to survive s. 8 scrutiny. lOS Where

legislation authorizes a search that would violate a person's reasonable expectation of privacy, the requirement to obtain prior judicial authorization wherever reasonably feasible will satisfy the reasonableness of the law requirement under s. 8. I 06 In the roadside screening context, where

103 Bro v. British Columbia (Superintendent of Motor Vehicles), 2014 BCSC 1682 at para. 94. 104 Hunter v. Southam Inc .• [1984] 2 S.C.R. 145 ("Hunter") at paras. 25 and 27.

105 R. v. Collins, [1987] 1 S.C.R. 265 at p. 278. 106 Hunter, supra at paras. 14,27-29.

(31)

prior judicial authorization is not feasible, the requirement that an officer satisfy a statutory standard for making a demand is sufficient for the seizure to be reasonable. 107

B) The IRP Scheme does not Authorize Initial Seizure of a Driver's Breath

88. The AGBC concedes that a police officer who receives a breath sample from a driver further to an ASD demand has made a "seizure" of the driver's breath for s. 8 purposes. 89. However, the officer's seizure of a breath sample by way of the initial ASD demand occurs under the authority of the Code, not the MVA. The MVA therefore does not engage s. 8 with respect to an officer's initial ASD demand.

90. The control of drinking and driving on the roadway is an area in which provincial and federal legislation operates concurrently. 108 Police officers may derive their authority to take steps as part of the roadside screening process from either the Code or from provincial highway traffic legislation. This Court recognized that fact in R. v. Orbanski; R. v. Elias ("Orbanski") (unanimously on this point):

Control of drinking and driving is not confined exclusively to the laying of criminal charges after a criminal offence has been committed. Roadside screening techniques contemplated by provincial legislation provide a mechanism for combatting the

continuing danger presented by the drinking driver, even if the driver may not ultimately be found to have reached a criminal level of impairment. Examples of such provisions in the Manitoba Highway Traffic Act applicable at the roadside include s. 263.1, which permits a peace officer to suspend a driver's licence if the officer has reason to believe that the driver's blood alcohol level exceeds 80 milligrams of alcohol in 100 millilitres of blood or if the driver refuses to comply with a demand for a breath or blood sample made under s. 254 of the Criminal Code. 109 [emphasis added]

91. Given the fact police exercise powers under authority of either the Code or the MVA, it is important to precisely identify the source of a search or seizure power before conducting as. 8 analysis. Provincial legislation confers a power on peace officers to stop vehicles and ask the driver questions about alcohol consumption and to perform physical coordination tests at the

107 R. v. Woods, 2005 see 42, [2005] 2 S.C.R. 205 ("Woods") at para. 9.

108 Canadian Western Bank v. Alberta, 2007 see 22, [2007] 2 S.c.R. 3 at para. 30 (referring to dangerous driving);

Reference re Securities Act, 2011 see 66, [2011] 3 S.e.R. 837 at para. 66.

References

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