35864

Goodwin v. British Columbia (Superintendent of Motor Vehicles)

Constitutional law — Division of powers — Criminal law — Impaired driving — Charter of Rights — Search and seizure

On appeal from a judgment of the British Columbia Court of Appeal (2014 BCCA 79), affirming the decisions of Sigurdson J. (2011 BCSC 1639, 2011 BCSC 1783 and 2012 BCSC 1030), and affirming a decision of Dley J., (B.C.S.C., Victoria, No. 12‑1095, May 25, 2012).

In 2010, British Columbia created the Automatic Roadside Prohibition (ARP) scheme. It marked a continuation of British Columbia’s longstanding efforts to remove impaired drivers from the province’s roads through the use of license suspensions, penalties and remedial programs. The scheme calls for roadside analysis of drivers’ breath samples using an approved screening device (ASD). A “fail” reading and a driver’s refusal or failure to provide a sample both result in a 90‑day licence suspension. A “warn” reading results in a shorter suspension of between 3 and 30 days. There is a process for review of suspensions, but it only permits the Superintendent of Motor Vehicles to consider whether the applicant was a “driver” and whether the ASD registered a “fail”, “warn”, or the driver refused to provide a sample.

These appeals ask whether the ARP scheme oversteps the bounds of provincial legislative competence and invades the federal government’s exclusive jurisdiction over criminal law. They also ask whether the provincial regime engages and ultimately infringes two Charter rights: the protection against unreasonable search and seizure found in s. 8, and the presumption of innocence guaranteed by s. 11(d). The chambers judge found that the ARP scheme is intra vires the province and that s. 11(d) of the Charter is not engaged. However, he concluded that the ARP scheme violates s. 8 when the screening device registers a “fail”, though not when a driver refuses to provide a breath sample. His decision was upheld on appeal

Held (6:1) (McLachlin C.J. dissenting in part): The appeals should be dismissed.

Per Cromwell, Moldaver, Karakatsanis, Wagner, Gascon and Côté JJ.: 

The province’s purpose in enacting the ARP scheme was not to oust the criminal law, but rather to prevent death and serious injury on public roads by removing drunk drivers and deterring impaired driving. The pith and substance of the ARP scheme is the licensing of drivers, the enhancement of traffic safety and the deterrence of persons from driving while impaired by alcohol. Provinces have an important role in ensuring highway safety, which includes regulating who is able to drive and removing dangerous drivers from the roads. Provincial drunk driving programs and the criminal law will often be inter‑related. A provincial statute will not invade the federal power over criminal law merely because its purpose is to target conduct that is also captured by the Criminal Code. Deterrence can be a purpose of provincial law. There can be no doubt that the matter falls within the provincial power over property and civil rights in the province. Thus, from a division of powers standpoint, the legislation is valid.

The ARP scheme does not create an “offence” within the meaning of s. 11(d) of the Charter. The scheme is not concerned with addressing harm done to society in a public forum; instead, its focus is on the regulation of drivers and licensing, and the maintenance of highway safety. Although it has a relationship with the criminal law, in the sense that it relies on Criminal Code seizure powers and is administered by police, the scheme is more accurately characterized as a proceeding of an administrative nature. Furthermore, the ARP scheme does not impose true penal consequences. While a 90‑day suspension is a meaningful consequence for a licensing violation, and the approximately $4,000 in possible costs and penalties are significant, they are not sufficient to engage the fair‑trial rights embodied by s. 11. The driving prohibition relates directly to the regulatory terms and conditions under which a person may be licensed to drive. The protections of s. 11 are not engaged in this case.

The demand to breathe into an approved screening device (ASD) constitutes a seizure that infringes on an individual’s reasonable expectation of privacy and engages the protection of s. 8 of the Charter. Although the province relies on the Criminal Code to authorize the breath demand, the purpose and consequences of the seizure are established in the ARP scheme, in the Motor Vehicles Act. It is the ARP scheme that authorizes the seizure of the breath sample, and is thus subject to Charter scrutiny on this basis. The breath demand is a critical component of the province’s efforts to protect British Columbians from death and serious injuries caused by impaired drivers. This compelling purpose weighs heavily in favour of the reasonableness of the breath seizure. Driving on highways is, of course, a highly regulated activity, and drivers expect that the rules of the road will be enforced. This reality, combined with the scheme’s location within a broader regulatory framework targeting driving and highway safety, supports characterizing the regime as regulatory and applying a more flexible standard in assessing its reasonableness. However, while the breath seizure occurs for a regulatory purpose, it nonetheless has certain criminal‑like features, such as its administration by a police officer pursuant toCriminal Code authorization. The consequences that follow a “fail” reading or the failure to provide a sample are not criminal, but they are immediate and serious, and arise without a further test using a more reliable breathalyser. In this case, the mechanism for determining whether a driver’s blood alcohol concentration exceeds the relevant limits is a roadside test using an ASD. The chambers judge found that in some circumstances there can be serious issues concerning whether an ASD accurately reflects blood‑alcohol readings. The use of an ASD to obtain a breath sample raises concerns that undermine the reasonableness of the seizure, specifically regarding the reliability of the test results.

The scope and availability of review is part of the analysis under s. 8. A driver’s ability to challenge the accuracy of the ASD result is critical to the reasonableness of the ARP regime. Here, the process for review of the ARP suspensions only permits the Superintendent of Motor Vehicles to consider whether the applicant was a “driver” and whether the ASD registered a “fail”, “warn”, or the driver refused to provide a sample. The absence of meaningful review of the accuracy of the result of the seizure, in light of the unreliability of the test, raises concerns about the reasonableness of the ARP scheme. Absent such review, a driver could find herself facing serious administrative sanctions without the precondition for the sanctions being met, and without any mechanism for redress. The serious consequences of a driver registering a “fail”, combined with an inability to challenge the basis on which these consequences are imposed, render the ARP scheme unreasonable. 
The objective of the scheme, reducing death and injury caused by impaired driving, is pressing and substantial, and the automatic prohibitions are rationally connected to that objective. However, the ARP scheme does not minimally impair the right of a driver to be free of unreasonable search and seizure. Subsequent amendments to the ARP scheme enhancing the scope for review of roadside screenings and prohibitions demonstrate that there are less impairing measures that can feasibly be put into place without undermining the province’s objective. Therefore, the “fail” branch of the ARP scheme is not saved under s. 1. There is no need to determine whether the same result follows where the “warn” scheme is concerned.

Per McLachlin C.J. (dissenting in part): 

There is agreement with the majority on the constitutional issue and on the s. 11(d) of the Charterissue, but not on the s. 8 issue. The province’s roadside suspension scheme does not violate the constitutional requirement that searches and seizures be reasonable. The provincial scheme in this case relies on the Criminal Code provisions that allow a police officer to compel a driver to give a sample of his breath. This is clearly a seizure of a bodily substance, which means that it must not be unreasonable under s. 8 of the Charter. To determine whether a search or seizure is reasonable, the court should examine three requirements:  (1) the state has an important purpose grounded in the broader public interest for doing the search and/or seizure; (2) the intrusion goes no further than reasonably necessary to achieve the state purpose; and (3) the intrusion is subject to judicial supervision to guard against abusive state action. Whether a search or seizure is reasonable is sometimes determined by asking whether the state action represents an appropriate balance between the state purpose and the individual’s privacy interest. However, to view the s. 8 analysis simply as a matter of balancing the state interest against the individual’s privacy interest may fail to capture what is required to establish that a search or seizure is reasonable. Even where the state purpose is of great importance, the state must not intrude upon the individual’s protected sphere more than reasonably justified by that purpose, nor do so in a way that lacks appropriate safeguards capable of judicial review. As for the privacy interest, it should be understood in the sense of what falls within the private sphere of the individual within which the individual reasonably expects to be free from state intrusion absent a higher state purpose and legal safeguards.

All three requirements of a reasonable search and seizure are met in this case. First, the state’s purpose – to prevent death and serious injury on the highway from impaired driving – is important and capable of justifying intrusion into the private sphere of the individual’s bodily substances. Second, the seizure does not go further than reasonably necessary to achieve the state purpose. The regime here is regulatory and not criminal and the activity of driving on highways is highly regulated and common in road enforcement. The third requirement – the availability of judicial supervision – presents the greatest difficulty, however, the driver can request a second test on a different device at the roadside. Further, the driver may apply to have a suspension reviewed by the Superintendent of Motor Vehicles and present statements and evidence in support of the application. The Superintendent’s decision is also subject to judicial supervision by way of judicial review. The administrative nature of the scheme and the nature of the driver’s interests at play justify the administrative nature of the review, as do the less stringent provisions to ensure accuracy of the sample. In this case, the review provisions of the roadside suspension scheme offers reasonable protection against abusive exercise of the state power to intrude on the individual’s private sphere, having regard to the nature of the scheme and the privacy interests at stake.

Reasons for decision of the majority by Karakatsanis J. Dissenting reasons by McLachlin C. J.
Neutral citation: 2015 SCC 46. Docket No. 35864

http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/15550/index.do

35959

Wilson v. British Columbia (Superintendent of Motor Vehicles)

Judicial review — Automatic roadside driving prohibition regulatory regime

On appeal from a judgment of the British Columbia Court of Appeal (2014 BCCA 202), setting aside a decision of Dley J. (2013 BCSC 1638).

To address the problem of impaired driving, British Columbia has instituted a regime in the Motor Vehicle Act (“MVA”) known as “ARP” — the automatic roadside driving prohibition scheme. Approved screening devices (“ASD”) are used to collect roadside breath samples. Under s. 215.41(3.1) of theMVA, when a driver registers a “Warn” or “Fail” on the ASD, a peace officer must issue a Notice of Driving Prohibition, provided that the officer “has reasonable grounds to believe, as a result of the analysis, that the driver’s ability to drive is affected by alcohol”.

In 2012, W was stopped at a police road check. He provided two samples of his breath that registered a “Warn” reading. The peace officer served him with a Notice, prohibiting him from driving for a period of three days. 
W applied to the Superintendent of Motor Vehicles for a review, seeking to have the Notice revoked. He argued that the ASD result alone could not provide the officer with the reasonable grounds required by s. 215.41(3.1) and that the officer was also required to point to other confirmatory evidence. The Superintendent rejected this argument. On judicial review, the Notice was set aside. The Court of Appeal concluded that the Superintendent’s interpretation of s. 215.41(3.1) was reasonable and reinstated the Notice.

Held (7:0): The appeal should be dismissed.

W’s case rests on the premise that s. 215.41(3.1) is ambiguous and that Charter values must be applied to resolve the ambiguity. This argument suffers from a fatal flaw — s. 215.41(3.1) is not ambiguous. Rather, when read in light of its text, context, and legislative objective, there is only one reasonable interpretation — the one arrived at by the Superintendent. Charter values may not be used to create ambiguity where none exists and have no role to play as an interpretive tool in this case.

The plain meaning of s. 215.41(3.1) explicitly links the officer’s belief to the result of the ASD analysis. The wording could not be clearer. W’s submission that the officer’s belief must be based not only on the ASD result, but also on confirmatory evidence is not supported by the text of the provision. The officer must have an honest belief in the accuracy of the ASD result in order to have reasonable grounds to believe “as a result of the analysis” that the individual’s ability to drive is affected by alcohol. This interpretation gives meaning to the words used in the statute without reading in words that would introduce a new dimension to the provision. 
The context of the statutory scheme also indicates that the Superintendent’s interpretation is reasonable and consistent with the limited grounds for review of a peace officer’s decision. Nothing suggests that the Superintendent may revoke a Notice if a peace officer does not point to other confirmatory evidence. Although the ARP regime is triggered by a roadside demand for a breath sample under s. 254 of the Criminal Code, it is an independent regime. It is not subsidiary to the Codeand does not incorporate its protections. Rather, the ARP regime is regulatory legislation which balances individual liberties against the protection of the public, placing greater weight on the public good.

The Superintendent’s decision is also consistent with the twin legislative objectives of increasing highway safety and deterring impaired driving. The ARP regime establishes a common standard for removing drivers from the road who pose an elevated risk to others. Allowing the police to rely on ASD test results is critical to the fulfilment of the legislative objectives.

The judgment of the Court was delivered by Moldaver J.

Neutral citation: 2015 SCC 47. Docket No. 35959

http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/15549/index.do