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

S.C.C. No.: 35864

BETWEEN:

IN THE SUPREME COURT OF CANADA

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

RICHARD JAMES GOODWIN

-and-BRITISH COLUMBIA (SUPERINTENDENT OF MOTOR VEHICLES} and ATTORNEY GENERAL OF BRITISH COLUMBIA

APPELLANT

RESPONDENTS -and

-ATTORNEY GENERAL OF MANITOBA, -ATTORNEY GENERAL OF CANADA, -ATTORNEY GENERAL OF ALBERTA, ATTORNEY GENERAL OF SASKATCHEWAN, ATTORNEY GENERAL OF ONTARIO,

ATTORNEY GENERAL OF QUEBEC, BRITISH COLUMBIA CIVIL LIBERTIES ASSOCIATION, INSURANCE BUREAU OF CANADA, CRIMINAL TRIAL LAWYERS' ASSOCIATION (ALBERTA} AND CRIMINAL DEFENCE LAWYERS ASSOCIATION (CALGARY), CRIMINAL LAWYERS' ASSOCIATION

OF ONTARIO, ALBERTA REGISTRAR OF MOTOR VEHICLE SERVICES and MOTHERS AGAINST DRUNK DRIVING CANADA

INTERVENERS

FACTUM OF INTERVENER ALBERTA REGISTRAR OF MOTOR VEHICLE SERVICES (Pursuant to Rule 42 of the Rules of the Supreme Court of Canada}

Alberta Justice- Civil Litigation 9th Floor Peace Hills Trust Tower 10011- 109 Street

Edmonton, AB TSJ 3S8

Sean McDonough Tel.: (780} 427-1257 Fax: (780) 427-1295

Email: sean.mcdonough@gov.ab.ca

Counsel for Intervener,

Alberta Registrar of Motor Vehicle Services

Michael Sobkin Barrister and Solicitor 331 Somerset Street West Ottawa, ON K2P OJ8

Michael Sobkin Tel.: (613} 282-1712 Fax: (613) 288-2896

Email: msobkin@sympatico.ca

AgentforCounselforthelntervene~ Alberta Registrar of Motor Vehicle Services

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 VEHICLE SERVICES) and ATTORNEY GENERAL OF BRITISH COLUMBIA

RESPONDENTS AND BETWEEN:

BRITISH COLUMBIA (SUPERINTENDENT OF MOTOR VEHICLE SERVICES) and ATTORNEY GENERAL OF BRITISH COLUMBIA

-and-JAMIE ALLEN CHISHOLM, SCOTT ROBERTS, CAROL MARION BEAM and RICHARD JAMES GOODWIN

-and-APPELLANTS

RESPONDENTS

ATTORNEY GENERAL OF MANITOBA, ATTORNEY GENERAL OF CANADA, ATTORNEY GENERAL OF ALBERTA, ATTORNEY GENERAL OF SASKATCHEWAN, ATTORNEY GENERAL OF ONTARIO,

ATTORNEY GENERAL OF QUEBEC, BRITISH COLUMBIA CIVIL LIBERTIES ASSOCIATION, INSURANCE BUREAU OF CANADA, CRIMINAL TRIAL LAWYERS' ASSOCIATION (ALBERTA) AND CRIMINAL DEFENCE LAWYERS ASSOCIATION (CALGARY), CRIMINAL LAWYERS' ASSOCIATION OF ONTARIO, ALBERTA REGISTRAR OF MOTOR VEHICLE SERVICES, MOTHERS AGAINST DRUNK

DRIVING CANADA

Attorney General of British Columbia 1001 Douglas Street, 6th Floor

P.O. Box 9280 Stn Prov Govt Victoria, BC V8W 9J7

Nathaniel Carnegie and Tyna Mason Tel.: (250) 356-2747

Fax: (250} 356-9154

Email: nathaniel.carnegia@gov.bc.ca Counsel for the Respondents/ Appellants, Attorney General of British Columbia and British Columbia (Superintendent of Motor Vehicles)

Carr Buchan & Company 520 Comerford Street Victoria, BC V9A 6K8 Jeremy G. Carr Tel.: (250} 388-7571 Fax: (250) 388-7327

Email: jcarr@esquimaltlaw.com

Counsel for the Respondents, Jamie Allen Chisholm, Scott Roberts and Carol Marion Beam

Gudmundseth Mickelson LLP 2525- 1075 West Georgia Street Vancouver, B.C. V6E 3C9

Howard A. Mikelson Q.C. and Shea H. Coulson Tel.: (604} 685-6272

Fax: (604} 685-8434 Email: ham@lawgm.com Email: shc@lawgm.com

Counsel for the Appellant/Respondent, Richard James Goodwin

Gowling LaFleur Henderson LLP 2600- 160 Elgin St

Ottawa, ON K1P 1C3

Brian A. Crane, Q.C. Tel.: (613 233-1781 Fax: (613} 563-9869

Email: brian.crane@gowlings.com Agent for Counsel for the

Respondents/ Appellants, Attorney General of British Columbia and British Columbia (Superintendent of Motor Vehicles) Supreme Advocacy LLP 100-340 Gilmour Street Ottawa, ON K2P OR3 Marie-France Major Tel.: (613) 695-8855 Fax: (613) 695-8580

Email: mfmajor@supremeadvocacy.ca Agent for Counsel for the Respondents, Jamie Allen Chisholm, Scott Roberts and Carol Marion Beam

Supreme Advocacy LLP 100- 340 Gilmour Street Ottawa, ON K2P OR3 Marie-Franc Major Tel.: {613} 695-8855 Fax: (613} 695-8580

Email: mfmajor@supremeadvocacy.ca

Agent for Counsel for the

Appellant/Respondent, Richard James Goodwin

Attorney General of Manitoba 1205- 405 Broadway Winnipeg, MB R3C 3L6 Heather Leonoff, Q.C. Tel.: (204) 945-0717 Fax: (204) 945-0053

Email: heather.leonoff@gov.mb.ca

Counsel for the Intervener, Attorney General of Manitoba

Attorney General for Alberta 9833 - 109 Street

Bowker Building, 4th Floor

Edmonton, AB T5K 2E8 Roderick Wiltshire Tel.: (780) 422-7145

Fax: (780) 425-0307

Email: roderick.wiltshire@gov.ab.ca

Counsel for the Intervener, Attorney General of Alberta

Attorney General for Saskatchewan 820- 1874 Scarth Street

Regina, SK S4P 483

Graeme G. Mitchell, Q.C. Tel.: (306) 787-8385 Fax: {306) 787-9111

Email: graeme.mitchell@gov.sk.ca

Counsel for the Intervener, Attorney General of Saskatchewan

Gowling Lafleur Henderson LLP

160 Elgin Street, Suite 2600

Ottawa, ON K1P 1C3 D. Lynne Watt

Tel.: (613) 786-8695 Fax: (613) 788-3509

Email: lynne.watt@gowlings.com

Agent for Counsel for the Intervener, Attorney General of Manitoba Gowling Lafleur Henderson LLP 160 Elgin Street, Suite 2600 Ottawa, ON K1P 1C3

D. Lynne Watt

Tel.: (613) 786-8695

Fax: (613) 788-3509

Email: lynne.watt@gowlings.com

Agent for Counsel for the Intervener, Attorney General of Alberta

Gowling Lafleur Henderson LLP 160 Elgin Street, Suite 2600

Ottawa, ON K1P 1C3

D. Lynne Watt

Tel.: (613) 786-8695

Fax: (613) 788-3509

Email: lynne.watt@gowlings.com

Agent for Counsel for the Intervener, Attorney General of Saskatchewan

Attorney General of Ontario

720 Bay Street, 41h Floor

Toronto, ON M5G 2K1 Zachary Green

Tel.: {416) 326-4460 Fax: {416) 326-4015

Email: zachary.green@ontario.ca

Counsel for the Intervener, Attorney General of Ontario

Procurer General du Quebec 1200, route de I'Eglise, 2 etage Quebec, QC G1V 4M1

Brigitte Bussieres, Alain Gingras and Gilles laporte

Tel.: {418) 643-1477 Fax: {418) 644-7030

Email: bbussieres@justice.gouv.gc.ca

Counsel for the Intervener, Attorney General of Quebec

Attorney General of Canada

50 O'Connor Street, Suite 500, Room 556 Ottawa, ON K1P 6L2

Robert

J.

Email: robert.frater@justice.gc.ca

Counsel for the Intervener, Attorney General of Canada

Burke-Robertson LLP

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

Robert E. Houston, Q.C. Tel.: {613) 236-9665 Fax: (613) 235-4430

Email: rhouston@burkerobertson.com Agent for Counsel for the Intervener, Attorney General of Ontario

Noel & Associes 111, rue Champlain Gatineau, QC J8X 3R1 Pierre landry Tel.: (819) 771-7393 Fax: {819) 771-5397 Email: p.landry@noelassocies.com

Agent for Counsel for the Intervener, Attorney General of Quebec

Hunter Litigation Chambers Law Corp. 2100- 1040 West Georgia Street Vancouver, BC V6E 4H1

Claire E. Hunter and Eileen Patel Tel.: (604) 891-2400

Fax: (604) 647-4554

Email: chunter@litigationchambers.com Counsel for the Intervener, British Columbia Civil Liberties Association

Stikeman Elliott LLP

5300 Commerce Court West 199 Bay Street

Toronto, ON MSL 1B9

Alan L.W. D'Silva and Alexandra Urbanski Tel.: (416} 869-5204

Fax: (416) 947-0866

Email: adsilva@stikeman.com

Counsel for the Intervener Insurance Bureau of Canada

Gunn Law Group 11210- 142 Street Edmonton, AB TSM 1T9 Stephen M. Smith Tel.: (780) 488-4460 Fax: (780) 488-4783

Email: ssmith@gunnlawgroup.ca

Counsel for the Interveners Criminal Trial lawyers' Association (Alberta) and Criminal Defence lawyers Association (Calgary)

Dolgin, Marshman Law 331 Somerset Street Ottawa, ON K2P OJ8 Nigel Marshman Tel.: (613) 244-4488

Fax: (613) 244-1899

Email: marshman@dolginmarshmanlaw.ca Agent for Counsel for the Intervener, British Columbia Civil Liberties Association

Stikeman Elliott LLP

1600-50 O'Connor Street Ottawa, ON K1P 6L2

Nicholas Peter McHaffie Tel.: (613} 566-0546 Fax: (613) 230-8877

Email: nmchaffie@stikeman.com Agent for Counsel for the Intervener Insurance Bureau of Canada

Sack Goldblatt Mitchell LLP 500- 30 Metcalfe Street Ottawa, ON K1P SL4 Raija Pulkkinen Tel.: (613) 235-5327 Fax: (613) 235-3041

Email: rpulkkinen@sgmlaw.com Agent for Counsel for the Interveners

Criminal Trial lawyers' Association (Alberta) and Criminal Defence lawyers Association (Calgary)

Greenspan Partners LLP 144 King Street East Toronto, ON M5C 1G8

Michael Lacy and Jonathan Rosenthal Tel.: (416) 366-3961

Fax: (416) 366-7994

Email: mlacy@144king.com

Counsel for the Intervener Criminal Lawyers' Association of Ontario

Farris, Vaughan, Wills & Murphy LLP 3rd Floor- 1005 Langley St.

Victoria, BC V8W 1 V7 Bryant Mackey Tel.: (604) 684-9151 Fax: (604) 661-9349

Email: bmackey@farris.com

Counsel for the Intervener Mothers Against Drunk Driving Canada

Supreme Advocacy LLP 100- 340 Gilmour Street Ottawa, ON K2P OR3 Marie-France Major Tel.: (613) 695-8855 Ext. 102 Fax: (613) 695-8580 Email: mfmajor@supremeadvocacy.ca Agent for Counsel for the Intervener Criminal Lawyers' Association of Ontario Gowling Lafleur Henderson LLP

160 Elgin Street, 26th Floor Ottawa, ON K1P 1C3 Guy Regimbald Tel.: (613) 786-0197 Fax: (613) 786-0197

Email: guy.regimbald@gowlings.com Agent for Counsel for the Intervener Mothers Against Drunk Driving Canada

TABLE OF CONTENTS

PAGE

PART I- OVERVIEW AND STATEMENT OF FACTS ............................................................... 1

A. Overview ... 1

B. The Regulatory Context ... 2

PART II- THE QUESTIONS AT ISSUE ...................................................................................... 4

PART Ill- ARGUMENT .................................................................................................................... 4

A. The ARP Regime Does Not Authorize an Unreasonable Search or Seizure Contrary to Section 8 of the Charter ................................................................................. 4

B. The ARP Regime Does Not Charge Drivers With an Offence ... 9

PART IV-SUBMISSION ON COSTS ..... 10

PART V- ORDER SOUGHT ......................................................................................... 10

PART VI-TABLE OF AUTHORITIES ....................................................................................... 11

PART VII-STATUTORY PROVISIONS ..................................................................................... 12

Application for license ... 12

Examination of licensees ... 12

Production of motor vehicle licenses ... 13

Failing to stop and state name ... 13

Duty to give information ... 13

Access to driving records ... 14

Operator's duty to provide information ... 14

1

PART 1- OVERVIEW AND STATEMENT OF FACTS

A. Overview

1. The Alberta Registrar of Motor Vehicle Services (the "Registrar") will focus on the

application of section 8 of the Charter to British Columbia's automatic roadside prohibition

("ARP") regime, and comment on the issue of whether the ARP regime creates an "offence"

within the meaning of section 11 of the Charter.

2. The ARP regime itself does not directly authorize a search or seizure, but the Court may

nonetheless be concerned to ensure that the ARP regime's corollary use of approved screening

device ("ASD") results obtained through a Criminal Code search or seizure does not effectively

amount to an unreasonable search or seizure.

3. Having regard to the context as a whole, the ARP regime's corollary use of ASD results

does not intrude upon a driver's reasonable expectation of privacy. The privilege of driving carries with it an acceptance of close oversight of the driver's fitness to drive, and an ongoing

requirement to verify compliance. Drivers know and expect this. Drivers cannot reasonably

expect that important information that police gather in the Criminal Code context about a driver's sobriety while driving will not be used for regulatory purposes connected with traffic safety.

4. The ARP regime does not charge drivers with an offence. Rather, it is part and parcel of

a regulatory framework designed to swiftly remove unsafe drivers from the road and deter other drivers from conduct that presents a safety risk. These goals are reflected in the

measures the ARP regime imposes- driving prohibitions, remedial education, ignition interlock, and small monetary penalties- and are not compatible with the full panoply of section 11 rights that apply to criminal prosecutions.

2

B. The Regulatory Context

5. Driving is a voluntary activity that involves the operation of heavy machinery at fast speeds on public highways. It has the potential to, and does, lead to collisions, injuries, and even deaths.

6. For the safety of all highway users, driving is heavily regulated. Drivers and their motor vehicles are subject to a great many statutory requirements, conditions, and regulations. Almost every aspect of the use of a motor vehicle is controlled.1

7. These controls are implemented through a number of means, including examination, reporting, and roadside enforcement. Drivers reasonably expect to be required to produce evidence of compliance with the requirements for lawful operation of a motor vehicle.2 That expectation is part and parcel of the privilege of operating a motor vehicle.3

8. The proper operation of the regulatory framework depends upon the regulator,

primarily the Superintendent, having sufficient information to implement the various regulatory programs. The Motor Vehicfe Act, like other provincial statutes, thus contains a number of provisions that require drivers and others to produce driving related information. For example:

a. applicants for a licence must submit to vision testing, medical examinations, and any other tests that the Superintendent may specify, and must provide the

Superintendent with the information the Superintendent considers necessary to carry out the Superintendent's powers and functions;

b. the Superintendent may require licensed drivers to be examined as to their fitness and ability to drive;

c. an operator must, in the manner prescribed, provide to the director all information relevant to safety issues;

1

R. v. Wise, [1992]1 S.C.R. 527, at p. 533 [Alberta Registrar's Book of Authorities ("Registrar's BA"), Tab 4]. 2

R. v. Hufsky, [1988]1 SCR 621 at pp. 637-638 [Registrar's BA, Tab 1]. 3

3

d. health professionals must report to the Superintendent drivers who continue to drive

with a medical condition that makes it dangerous to drive;

e. drivers must stop when requested to do so by a peace officer, identify themselves,

and produce their licence;

f. owners must identify drivers to the police if the driver is involved in an accident; and

g. the Superintendent, for the purpose of carrying out the Superintendent's duties, has

access to every record kept by the Insurance Corporation of British Columbia.4

9. Requirements on drivers to provide information to substantiate compliance with lawful

conditions for the exercise of the privilege of driving have been upheld in a number of cases.

Drivers expect to be stopped and questioned by police concerning matters relating to the

operation of their vehicles.5 When they are, it does not constitute a search because it does not

constitute an intrusion on a reasonable expectation of privacy.6

10. One area of particular concern from the perspective of monitoring driver fitness is

impaired driving. Impaired driving poses a significant risk to highway users. In order to address

this concern, provincial and territorial jurisdictions across the country have implemented

administrative licence suspensions programs that attach regulatory consequences to a driver's operation of a motor vehicle when the driver's blood alcohol content ("BAC") reaches specified

levels. 7 The ARP regime at issue in this case is one such program.

11. The ARP regime uses the information gathered under the authority of the Criminal Code

for the limited purpose of assessing whether the driver's condition is such that the driver is not in compliance with the regulatory requirements, and the driver should therefore be subjected

to the regulatory measures established by the ARP regime.

4

Motor Vehicle Act, R.S.B.C. 1996, c. 318, at ss. 25(3), 29, 212.1(2), 230, 71, 73, 84, and 93.1.

5

R. v. Smith, supra note 4, at p. 81 [Registrar's BA, Tab 3]. 6

R. v. Husky, supra note 2, at pp. 637-638 [Registrar's BA, Tab 1]. 7

4

PART II -THE QUESTIONS AT ISSUE

12. The questions at issue are set out in the Order Stating Constitutional Questions,

attached as Exhibit "A" to the Superintendent and AGBC's Appellant Factum.

13. The Registrar's factum is directed at two questions:

1. whether the ARP regime authorizes an unreasonable search or seizure, contrary

to section 8 of the Charter; and

2. whether the ARP regime charges drivers with an offence so as to trigger the

operation of section 11 of the Charter.

PART Ill- ARGUMENT

A. The ARP Regime Does not Authorize an Unreasonable Search or Seizure Contrary to

Section 8 of the Charter

14. The test for an unreasonable search or seizure has two components. First, there must

be a search or seizure. Second, the search or seizure must be unreasonable.8

15. In order for there to be a search or seizure, there must be an intrusion upon a

reasonable expectation of privacy.9 In those cases where there is a search or seizure, the

search or seizure will not offend section 8 if it is authorized by a reasonable law and carried out

in a reasonable manner.10 Reasonableness thus factors both into whether any expectation of

privacy is sufficient to ground a finding of a search or seizure, and into the constitutionality of

any search or seizure so found.

8

R. v. Tessling, [2004] 3 S.C.R. 432, at para. 18 [Chisholm, Roberts and Beam ("Respondent Drivers"') BA, Tab 9].

9

R. v. Hufsky, supra note 2, at p. 638 [Registrar's BA, Tab 1]; R. v. Tessling, supra note 8 at para. 18 [Respondent Drivers' BA, Tab 9].

10

5

16. Reasonableness takes its colour from context. Different expectations apply in different

contexts. Consistent with the importance of context, distinctions can be drawn between

seizures in the criminal context and seizures in the administrative or regulatory context, to

which a lesser standard may apply.11

17. The starting point for the analysis of the alleged search or seizure in this case is a

consideration of what authority any potential search or seizure is conducted under.

18. As the Superintendent and AGBC's appellant factum asserts, the Criminal Code, not the

ARP regime, provides the authority for the ASD demand at issue. The ARP regime does not

itself authorize the taking of a breath sample, save for a second sample at the driver's

request.12

19. It is possible, however, that this does not end the inquiry. Although the ARP regime

does not authorize the initial ASD demand, it does make use of the information that arises as a

result of this ASD demand. The section 8 Respondent Drivers may argue that this use, even for

regulatory purposes, of information obtained through the criminal process may constitute a

search or seizure if the "reasonable expectation of privacy" requirement is met.

20. There is, however, no reasonable expectation that the police will keep private from the

regulator, or refrain from using for regulatory purposes, information that the police uncover in

the course of a criminal investigation that directly relates to a key regulatory concern, a driver's

condition at the time the driver was driving.

21. This Court's ruling in

R.

R.

required production of documents under the authority of the Income Tax Act. The auditor then

11

R. v. McKinlay Transport Ltd., [1990]1 S.C.R. 627, at pp. 64S-647 [Appellant Superintendent and AGBC's BA, Tab

29).

12

Appellant Superintendent and AGBC Factum, para. 89.

13

6

developed concerns that the case at hand might involve criminal tax evasion. One of the issues before the Court was whether the auditor could pass the information obtained through

administrative means to Investigative Services for the purpose of investigating possible criminal

misconduct.

22. The Court concluded that the auditor could lawfully pass the information on, holding

that the taxpayer could not claim a reasonable expectation of privacy with respect to the

information. The Court reasoned:

.... once an auditor has inspected or required a given document under section

231.1(1) and 231.2(1), the taxpayer cannot truly be said to have a reasonable

expectation that the auditor will guard its confidentiality.14

23. The Court's willingness in

R.

through administrative compulsion, where lesser standards may apply, in the criminal

sphere underscores the reasonableness of allowing information gathered in the criminal

sphere, where there are safeguards like the need for a reasonable suspicion, to be used

for the purpose of an administrative licence suspension regime.

24. This is particularly true when the nature of the information in question in the present

case is considered. The information, that a particular driver has generated a fail or a warn on

an ASD, relates to whether the driver meets the conditions required to drive, including sobriety.

This information is critically important for regulating highway safety, but provides little in the way of "core biographical data"15 that is not relevant to traffic safety. The results of an ASD test

do not indicate why a driver drank, where a driver drank, who the driver drank with, or even

specifically what the driver drank. They only indicate that the driver drove with a dangerous

BAC.

14

R. v. Jarvis, supra note 13, at pp. 807 to 808 [Registrar's BA, Tab 2]. 15

7

25. As discussed in paragraph 8,

supra

, the traffic safety regulatory regime requires the

provision of information from multiple sources to enforce compliance. Drivers must provide information on safety issues, and health professionals are required to report drivers who drive

with unsafe medical conditions. Some of this information may be far more connected with a

driver's biographical core than the results of an ASD test.

26. It is also worth noting that even the ASD demand itself, issued in the context of a criminal investigation, has been described as "a very small price to pay for the privilege of driving".16 The ASD demand is made to the driver in close proximity to the time of the driver's actual driving, at or near the scene of the actual driving. It requires only a breath of air, and is used only to measure the driver's BAC in conjunction with the driver's driving.

27. In all of the circumstances, a driver faced with the realization that he has blown a warn

or a fail on an ASD could not reasonably expect that the fact of his warn or fail will not be considered for the purposes of regulating traffic safety generally and addressing the driver's driving privileges specifically. The use of the ASD results in the ARP regime does not breach any

reasonable expectation of privacy, and does not constitute a search or seizure.

28. In the event this Court considers that the ARP regime does authorize a search or seizure,

the Registrar submits that the foregoing analysis demonstrates the minimal intrusiveness of any

search or seizure. Given the importance of the ARP regime in the regulation of traffic safety,

the search or seizure, if there is one, is reasonable.

29. One aspect of the ARP regime that warrants further mention is the immediacy of the

administrative consequences. The section 8 Respondent Drivers take issue with the immediacy

(at paras. 49-52 of their FactumL because it does not allow for advance review.

16

R. v. Bernshaw, [1995]1 S.C.R. 254 at p. 276, per Cory J.'s concurring reasons (Lamer C.J. and Iacobucci J. also concurring) [Appellant Superintendent and AGBC's BA, Tab 20].

8

30. The record before this Court includes evidence of the importance of immediacy. The

Tenth Report of the Standing Committee on Justice and Human Rights entitled "Ending Alcohol

Impaired Driving: A Common Approach" concluded that "swiftness and certainty" of suspension

are essential to effective deterrence.17

31. The British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, Quebec, and New

Brunswick administrative licence suspension programs all provide for immediate suspensions.18

Consistent with the evidence in this case, Wakeling J. (now J.A.) recognized the importance of

immediacy in

Sahaluk v

.

Alberta (Transportation Safety Board},

approval from expert evidence before the Alberta court to the effect that the speed with which

the suspension was applied was the key element of deterrence.19

32. Immediacy is at most one factor to consider if in fact the ARP regime intrudes upon

reasonable expectations of privacy, and its implications upon the reasonableness of any search

are mixed, given the importance of immediacy to the statutory scheme. This

Court

'

s

Jarvis

supra

,

search. The availability of an appeal and the nature of the appeal may also be relevant.

Sigurdson J. held in the present case that the provisions of the ARP regime dealing with

refusals, which share the same immediacy as the ASD fail provisions, do not violate section 8

because they are subject to a more meaningful after the fact review process than the ASD fail

. . 20

prOVISIOnS.

17

Martin affidavit, Ex. M [Record, v. IV, pp. 747-748]. 18

The Superintendent and AGBC's Response Factum describes these programs at Appendix "B". 19

Sahaluk v. Alberta (Transportation Safety Board), 2015 ABQB 142, at para72, fn 106 [Registrar's BA, Tab 5]. 20

Reasons for Judgment of the Supreme Court of British Columbia (Sigurdson, J.), 2011 BCSC 1783, at para. 5 [Record, v. 1, pp. 104-105].

9

B. The ARP Regime Does Not Charge Drivers With an Offence

33. The expression "person charged with an offence" is limited to matters that are, by their

very nature, criminal, and matters that may lead to true penal consequences.21

34. Determining whether a matter is criminal in nature is not an "overly legalistic" test, as

the section 11 Appellant Goodwin suggests, but rather a search for the substantive purpose of

the provision in question. It seeks to identify the nature of the concern that the proceedings in

.

.

d

quest1on are a1me at.

35. The purpose of administrative licence suspension programs like the ARP regime is to

regulate driver conduct and licensing in the interest of traffic safety. The ARP regime is

concerned with removing drivers that pose a safety risk from the road, and deterring other

drivers from conduct that would create a safety risk. It is not concerned with moral

blameworthiness or redressing public wrongs.

36. The nature of the ARP regime is illustrated by the measures imposed by the regime. The

measures are internally related to the traffic safety goals of the regime, not true penal

consequences. They consist of fixed term driving prohibitions, remedial programs, vehicle

impoundment, the required use of ignition interlock, the need to have a licence reinstated, the

associated costs of these measures, and fixed penalties of up to $500.23

37. The process leading to the sanction is a factor in the test of the nature of the matter.24

To this end, it is important to note that not only does the current process not resemble a criminal prosecution, requiring such a process would undermine the efficacy of the ARP regime and driver safety programs in general.

21

Martineau v. M.N.R., [2004] 3 S.C.R. 737, at para. 19 [Respondent Superintendent and AGBC's BA, Tab 14].

22

Martineau, supra note 21, at paras. 31-32 [Respondent Superintendent and AGBC's BA, Tab 14]. 23

These measures are described in the Reasons for Judgment of the Supreme Court of British Columbia

(Sigurdson, J.), 2011 BCSC 1639 at paras. 20-31 [Record, vol. 1, pp. 11-14]

24

10

38. Section 11 requires, among other things, that a penalty can only be imposed after

charges are laid and a trial is conducted, and that guilt be proven beyond a reasonable doubt.

These prerequisites are incompatible with driver fitness and monitoring programs, including the

ARP regime, where immediacy is an important component, the safety of the highway using

public is at issue, and the liberty interests of drivers are not at stake.

PART IV SUBMISISON ON COSTS

39. The Registrar does not seek costs, and requests that no costs be ordered against it.

PART V- ORDER SOUGHT

40. The Registrar does not seek an order on the merits of the appeal, but requests

permission to make an oral argument not to exceed 10 minutes.

All of which is respectfully submitted May 1, 2015.

Sean McDonough

11

PART VI- TABLE OF AUTHORITIES

AUTHORITY PARAGRAPH

Case Law

Martineau v. M.N.R., [2004] 3 S.C.R. 737 [Respondent Superintendent 33,34,37

and AGBC's BA, Tab 14]

R. v. Bernshaw, [1995]1 S.C.R. 254 [Appellant Superintendent and 26

AGBC's BA, Tab 20]

R. v. Hufsky, [1988]1 SCR 621 [Registrar's BA, Tab 1] 7, 9, 15

R. v. Jarvis, [2002] S.C.R. 757 [Registrar's BA, Tab 2] 21, 22, 23, 32

R. v. McKinlay Transport Ltd., [1990]1 S.C.R. 627 [Appellant 16

Superintendent and AGBC's BA, Tab 29]

R. v. Smith (1996}, 105 C.C.C. (3d} 58, 88 O.A.C. 374 (Ont. 7,9

C.A.)[Registrar's BA, Tab 3]

R. v. Tessling, [2004) 3 S.C.R. 432 [Respondent Drivers' BA, Tab 9] 14, 15, 24

R. v. Wise, [1992]1 S.C.R. 527 [Registrar's BA, Tab 4} 6

Sahafuk v. Alberta (Transportation Safety Board), 2015 ABQB 142 31

[Registrar's BA, Tab 5]

Legislation

Motor Vehicle Act, R.S.B.C. 1996, c. 318, ss. 25(3}, 29, 71, 73, 84, 93.1, 8

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PART VII- STATUTORY PROVISIONS

Motor Vehicle Act,

R

.S.B.C. 1996, c. 318, ss. 25(3L 29, 71, 73, 84, 93.1, 212.1(2L 230

Application for licence

25 (3) For the purpose of determining an applicant's driving experience, driving skills, qualifications,

fitness and ability to drive and operate any category of motor vehicle designated for that class of

driver's licence for which the application is made, the applicant must

Examination of licensees

(a) submit to one or more, as the Insurance Corporation of British

Columbia may specify, of the following: a knowledge test; a road test; a

road signs and signals test,

(b) submit to one or more, as the superintendent may specify, of the following: a vision test; medical examinations; other examinations or tests, other than as set out in paragraph (a),

(b.l) provide the corporation with information required to measure the

applicant's driving experience, driving skills and qualifications,

(c) provide the superintendent with other information he or she considers

necessary to allow the superintendent to carry out his or her powers, duties and functions,

(d) submit to having his or her picture taken, and

(e) if required by or on behalf of the corporation, identify himself or

herself to the corporation's satisfaction.

2 9 The superintendent may require a person to whom a driver's licence has been issued to attend at

a time and place for one or both of the following purposes:

(a) to submit to one or more of the following tests, to be conducted by

the Insurance Corporation of British Columbia: a knowledge test; a road

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(b) to be otherwise examined as to the person's fitness and ability to drive and operate motor vehicles of the category for which he or she is licensed.

Production of motor vehicle licences

71 A person commits an offence if the person, being in possession or control of a motor vehicle or trailer for which a licence has been issued under this Act, and being requested by a peace officer or constable to produce or exhibit the licence, refuses or fails to do so.

Failing to stop and state name

7 3 ( 1) A peace officer may require the driver of a motor vehicle to stop and the driver of a motor vehicle, when signalled or requested to stop by a peace officer who is readily identifiable as a peace officer, must immediately come to a safe stop.

(2) When requested by a peace officer, the driver of a motor vehicle or the person in charge of a motor vehicle on a highway must state correctly his or her name and

address and the name and address of the owner of the motor vehicle.

(3) A person who contravenes subsection (1) or (2) commits an offence and is liable to a fine of not less than $100 and not more than $2 000 or to imprisonment for not less than 7 days and not more than 6 months, or to both.

Duty to give information

84 (1) If a peace officer has reason to believe that a motor vehicle has been involved in an accident or in a contravention of this Act, the Commercial Transport Act or the Transportation Act, the

regulations under any of these Acts, the bylaws of a municipality or the laws of a treaty first nation, and so informs the owner or a person in the motor vehicle, it is the duty of the owner or person, as the case may be, if required by the peace officer, to give all information it is in his or her power to

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give relating to the identification of the driver of the motor vehicle at the relevant time or during the relevant period.

(2) If the owner or other person fails to comply with subsection (1), or gives

information that he or she knows to be false or does not believe to be true, he or she commits an offence against this Act.

Access to driving records

9 3 • 1 Despite the Freedom of Information and Protection of Privacy Act, or any other enactment, the superintendent, for the purpose of carrying out his or her powers, duties and functions under this Act or another enactment, has access to every driver's record kept by the Insurance Corporation of British Columbia.

Operator's duty to provide information

212. 1 (1) An operator must, in the manner prescribed, provide to the Insurance Corporation of British Columbia all information it requires relevant to insurance issues, including specific answers to all questions it submits.

(1.1) An operator must, in the manner prescribed, provide to the director all

information the director requires relevant to safety issues, including specific answers to all questions the director submits.

(2) An operator who receives from the Insurance Corporation of British Columbia or the director any form of return with directions to fill it out must properly fill it out and answer fully and correctly each question contained in it, and must deliver it to the corporation or the director within the time, in the manner and to the location prescribed.

(3) When required by the Insurance Corporation of British Columbia or the director, an operator must deliver to the corporation or the director, within the time, in the

manner and to the location prescribed, all records in his or her possession or control in any way relating to the operator's property or service or affecting his or her business, or copies of those records.

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Report of health professional

2 3 0 ( 1) This section applies to every legally qualified and registered psychologist,

optometrist, medical practitioner and nurse practitioner who has a patient 16 years of age or older who

(a) in the opinion of the psychologist, optometrist, medical practitioner or nurse practitioner has a medical condition that makes it dangerous to the patient or to the public for the patient to drive a motor vehicle, and (b) continues to drive a motor vehicle after being warned of the danger by the psychologist, optometrist, medical practitioner or nurse

practitioner.

(2) Every psychologist, optometrist, medical practitioner and nurse practitioner referred to in subsection (1) must report to the superintendent the name, address and medical condition of a patient referred to in subsection (1).

(3) No action for damages lies or may be brought against a psychologist, an

optometrist, a medical practitioner or a nurse practitioner for making a report under this section, unless the psychologist, optometrist, medical practitioner or nurse practitioner made the report falsely and maliciously.