35864         Richard James Goodwin et al. v. British Columbia (Superintendent of Motor Vehicles) et al.(Charter of rights — Division of powers — Impaired driving — Automatic roadside prohibitions)

On appeal from the judgments of the Court of Appeal for British Columbia pronounced March 3, 2014. In September, 2010, the British Columbia legislature enacted amendments to the Motor Vehicle Act, R.S.B.C. 1996, c. 318 (“MVA”).  The amendments introduced ss. 215.41 to 215.51, referenced to as the “automatic roadside prohibition” regime (“ARP”) and sometimes referred to as the “immediate roadside prohibition” regime (“IRP”). Six motorists, who had received 90-day roadside driving prohibitions under ss. 215.41 to 215.51 of theMVA challenged the constitutionality of the ARP.  They challenged the provisions on the basis that the amendments constitute criminal law and are beyond the legislative jurisdiction of the provincial government and that the amendments violate the motorists’ rights under ss. 8, 10(b) and 11(d) of the Charter.  The motorists had each been given driving prohibitions by peace officers after they had either refused to supply a sample of breath, or having supplied a sample, registered a “fail” on an “approved screening device” (“ASD”) as described in the Criminal Code and the MVA.  The ARP regime provides for a mandatory driving prohibition when a motorist’s ability to drive is affected by alcohol, as evidenced by an analysis of breath by means of an ASD that registers either a “warn” (0.05 or over) or “fail” (0.08 or over).  A prohibition is also issued if a driver fails or refuses to comply with a demand made under the Criminal Code to provide a breath sample for analysis.  Registering a “fail” on an ASD automatically leads to 90-day driving prohibition (s. 215.43(2)).  Refusing to provide a breath sample also results in a 90-day driving prohibition (s. 215.43(2)).  Registering a “warn” leads to a 3-day suspension for a first prohibition, 7 days for a second prohibition, or 30 days for a subsequent prohibition (s. 215.43(1)).  The number of prohibitions a driver has been subject to in the previous five years determines whether it is a first, second or subsequent prohibition (s. 215.43(4)).  All persons that are issued a notice of driving prohibition are also liable to pay a monetary penalty.  Other possible costs are to attend a remedial program, impoundment, towing and storage fees, licence reinstatement fees and the use and installation of an ignition interlock device.  The estimated costs of a reading in the “fail” range, exclusive of legal costs, is $4,060.  A person who has been issued a driving prohibition under s. 215.41 may apply for a review of the prohibition under s. 215.48 within seven days of being served.  The adjudicator has very limited grounds in which to reverse the prohibition. Mr. Justice Sigurdson heard the petitions of Aman Sivia, Carol Beam, Jamie Chisholm and Scott Roberts together.  Carol Beam, Jamie Chisholm and Scott Roberts all registered a “fail” on the ASD.  Aman Sivia was issued an ARP for failing to provide a breath sample.  Sigurdson J. found the challenged legislation to be constitutionally sound except for the prohibitions and penalties resulting from a “fail” reading on an ASD.  He found that this part of the provincial legislation violated s. 8 of the Charter and was not saved by s. 1.  The declaration of invalidity was stayed to June 30, 2012.  On June 15, 2012, Bill 46, the Motor Vehicle Amendment Act, 2012 S.B.C. c. 26 came into force which was intended to correct the constitutional defect in the legislation identified by Sigurdson J.  The petitions of Robert Goodwin and Kenneth Thorne, who had been prohibited from driving for failing to provide breath samples into an ASD, were heard separately by Mr. Justice Dley who dismissed both petitions.  Dley J. relied on the reasons given by Sigurdson J. in the Sivia case.  Mr. Sivia, Mr. Thorne and Mr. Goodwin lost their cases, however Ms. Beam, Mr. Chisholm and Mr. Roberts were successful in obtaining an order that part of the legislation upon which their prohibitions were based was of no force and effect. The six petitioners appealed on different grounds, some of which were common to all appeals in one way or another.  The Attorney General and British Columbia (Superintendent of Motor Vehicles) filed cross appeals with respect to the part of the legislation that had been declared of no force and effect.  The Court of Appeal dismissed the appeals and the cross appeals.

35959         Lee Michael Wilson v. Superintendent of Motor Vehicles, Attorney General of British Columbia(Transportation law — Automatic roadside prohibitions — Approved screening devices)

On appeal from the judgment of the Court of Appeal for British Columbia pronounced May 30, 2014. Mr. Wilson was stopped at a road check and asked to give a breath sample using an approved screening device (“ASD”).  He blew a “warn” which is defined in s. 215.41(2) of the Motor Vehicle Act, as “the concentration of alcohol in a person’s blood is not less than 50 milligrams of alcohol in 100 millilitres of blood”.  The officer noted Mr. Wilson had “an odour of liquor on his breath” and “admitted to four beers hours earlier”.  Mr. Wilson was subsequently issued a three-day driving prohibition.  He challenged the prohibition, arguing there was no evidence, other than the “warn” reading, that his ability to drive was affected by alcohol.  A delegate of the Superintendent of Motor Vehicles upheld the prohibition on the basis that the “warn” reading alone was sufficient under s. 215.41(3.1) of theMotor Vehicle Act.  The decision was quashed on judicial review.  The Superintendent appealed.  The Court of Appeal held that the chambers judge incorrectly applied the reasonableness standard of review.  A court must be deferential to a tribunal’s interpretation of its statute, so long as it is reasonable.  Having concluded that the delegate’s interpretation of s. 215.41(3.1) was reasonable, given the wording of the provision as well as its context and purpose, the Court of Appeal allowed the appeal.

36002         Zurich Insurance Company v. Chubb Insurance Company of Canada (Insurance — Motor vehicle liability policy)

On appeal from the judgment of the Court of Appeal for Ontario pronounced May 15, 2014. On September 23, 2006, Ms. Singh was injured in a single-vehicle accident while driving a vehicle rented from Wheels 4 Rent.  Despite having declined the opportunity to purchase an optional death and dismemberment policy offered by Chubb Insurance Company of Canada, she submitted an application for Statutory Accident Benefits to Chubb.  It declined benefits on the basis that the optional policy was not a motor vehicle policy, and it had been declined.  Chubb argued that the Statutory Accident Benefits scheme did not apply because it was not an “insurer” under the Insurance Act, R.S.O. 1990, c. I.8.  Eventually, she received benefits from Zurich Insurance Company, which insured Wheels 4 Rent’s rental vehicles pursuant to a “motor vehicle liability policy”.  Zurich administered the claim on a “without prejudice” basis, arguing that Chubb was the first insurer and should have paid first.  The Arbitrator chosen by Zurich and Chubb determined, based on agreed facts, that Chubb was not an insurer for the purposes of the Act and the Regulation because it had not issued a “motor vehicle liability policy” to Wheels 4 Rent or Ms. Singh.  Under the arbitration agreement, that meant that Chubb was not obligated to pay her benefits under the “pay first, dispute later” rules. The applications judge allowed an appeal on the grounds that Chubb was an “insurer” under the statutory regime because its policy was a “motor vehicle liability policy” and there was sufficient nexus between Chubb and Ms. Singh to require the payment of Statutory Accident Benefits.  A majority of the Court of Appeal allowed a further appeal.

36068         Barrett Richard Jordan v. Her Majesty the Queen (Charter of Rights and Freedoms – Right to be tried within a reasonable time)

On appeal from the judgment of the Court of Appeal for British Columbia pronounced June 20, 2014. Between March and December 2008, the applicant was the subject of a police investigation into a dial-a-dope operation selling cocaine and heroin.  The police executed a search warrant at the applicant’s residence which yielded 42.3 grams of heroin, 1463.5 grams of cocaine and crack cocaine, $6640 in cash and an employee “shift calendar” for the dial-a-dope line.  The applicant was charged with several drug trafficking related offences in 2008.  In September 2012 the applicant brought an application for judicial stay of proceedings pursuant to s. 24(1) of the Charter alleging his rights under s. 11(b) had been infringed due to an unreasonable delay in bringing his case to trial.  The trial judge found that 32.5 months of delay in this case was due to institutional delay. The Supreme Court of British Columbia convicted the applicant of drug related offences and the Court of Appeal dismissed the appeal.