Summaries Sunday: OnPoint Legal Research

Sivia v. British Columbia (Superintendent of Motor Vehicles), 2014 BCCA 79

1. CASE SUMMARY

Areas of law: Motor Vehicles; Legislation; Constitutional law; Charter of Rights-

-Provisions in Motor Vehicle Act establishing automatic roadside prohibition regime for motorists registering a failure on an approved screening device infringing s. 8 of Charter (unreasonable search and seizure) and not salvageable under s.1

Background: The petitioners were motorists who had received 90-day roadside driving prohibitions (”IRP”) under provisions in the Motor Vehicle Act (“MVA”) establishing an automatic roadside prohibition regime (“ARP”) 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”). The ARP regime was founded on an impaired investigation initiated under s. 254(2) of the Criminal Code which allows a police officer who has reasonable grounds to suspect that a driver has alcohol in their body to demand a breath sample. The petitioners challenged the constitutional validity of the provincial legislation, alleging that the ARP constituted criminal law and was beyond the legislative competence of the provincial government; they also argued that the challenged provisions violated their rights under the Charter, in particular s. 8 (unreasonable search and seizure), and 11(d) (presumption of innocence for persons charged with an “offence”). The chambers judge found the legislation did not encroach on the federal head of power over criminal law and was constitutionally sound except for the prohibitions and penalties resulting from a fail reading on an ASD. The judge found this part of the provincial legislation violated s. 8 of the Charter and was not saved by s.1; this finding, however, did not apply to refusal to provide a breath sample. The petitioners appealed and the province cross-appealed. In the interim, the province enacted amendments to the MVA intended to correct the constitutional defect identified by the chambers judge. The validity of those amendments was not at issue in the appeal.

Appeal decision: Appeal and cross-appeal dismissed. The chambers judge properly concluded that the challenged legislation was not criminal law. The ARP regime did not authorize an investigation into criminal offences. It required a peace officer who, in the course of a criminal investigation, obtained a fail, warn or refusal to blow to take action under the provincial legislation in the form of an IRP. The criminal investigation launched the provincial legislation. On obtaining a “warn” from the ASD, the police officer must follow the path prescribed by the provincial legislation. On obtaining a fail result, the officer had two choices: he could choose to take only the provincial path or both the federal and provincial path. The severity of the consequences did not move the impugned legislation into the federal sphere of criminal law. When viewed against the extrinsic evidence, Hansard and the legislative scheme itself, what might be seen as contra-indicators (the search, lengthy prohibitions, high costs and penalties), supported the conclusion that the impugned legislation was intended to create strict rules and deterrents to keep intoxicated drivers off the road in the interest of public safety public and was not a colourable attempt to legislate in the criminal field. The ARP did not violate s.11(d) of the Charter. In determining whether a person has been charged with an offence and whether the proceedings are criminal in nature, the focus of the inquiry is on (1) the nature of the proceedings rather than the nature of the matter giving rise to the proceedings; and (2) whether the consequences are truly penal. The chambers judge distinguished criminal/quasi-criminal proceedings from administrative proceedings and concluded that an IRP was not by its nature a prosecution since it is automatic at the roadside, the driver is not compelled to answer and does not result in a criminal record or allow a driver to be arrested. Rather, he properly concluded that the proceeding had to do with fitness to maintain a licence, that the ARP operated to remove a privilege, that the costs associated with an IRP were administrative consequences of registering in the fail range and were aimed at the prevention of harm, not to redress a wrong to society. However, the appeal court agreed that the ARP legislation, by referencing the ASD and the Criminal Code for purposes of issuing an IRP under the MVA, was legislation authorizing a search and seizure within the meaning of s. 8 of the Charter and was unreasonable to the extent it applied to a fail result. A motorist had no meaningful way under the legislation to challenge the results of the ASD and faced quasi-criminal charges and penalties or imprisonment under the MVA should he or she drive while prohibited; this fortified the view that a motorist could not be presumed to agree to provide a sample of breath, the results of which he or she had no ability to challenge. The legislation could easily have provided a reasonable review process allowing drivers subject to a lengthy IRP to challenge the result of the ASD. This aspect of the legislation could not be said to be a minimal impairment of a driver’s right to be free from unreasonable search and seizure and was not salvageable under s. 1 of the Charter.

2. COMMENT BY THE COUNSEL FOR THE APPELLANT, Shea Coulson

The Automatic Roadside Prohibition regime at issue in Sivia is the first of its kind in Canada. The implications of finding it valid provincial legislation and that is does not constitute an offence for the purposes of s. 11 of the Charter extend far beyond the impaired driving arena.

In particular dispute at the Court of Appeal was the importance of the practical effects of the ARP regime. Justice Sigurdson of the BC Supreme Court had found that as a matter of practical reality the majority of drivers were no longer being sanctioned under the Criminal Code for impaired driving offences. Instead, as a matter of policy both police and Crown Counsel pursued the administrative prohibition as they felt its penalties were sufficient for impaired driving offences without aggravating factors such as personal injury. This is the majority of cases. The administrative process also saved police, Crown Counsel and the Provincial Court a huge amount of time and money.

In the Court of Appeal the appellants introduced new evidence which was obtained from a freedom of information request and not contested by the Crown. The new evidence showed that reports to Crown Counsel for “simple” impaired driving offences (i.e. those without aggravating factors) had declined from 10,000 per year in 2009 to 2,000 per year in 2011, the first full year the ARP regime was in force. The pre-ARP yearly average RtCC’s were about 8,000 per year. Ultimately, there was no dispute that the ARP regime had replaced the Criminal Code in a practical sense.

The Court of Appeal did not give significance to this practical reality and rejected the argument that the legislation was designed implicitly to promote this outcome and thereby supplant the Criminal Code with a regime free of Charter rights in order to save time and money.

At the same time, the ARP regime has been designed in a manner that explicitly violates s. 11 of the Charter except for the threshold issue of whether it creates an “offence”. The Court of Appeal rejected the argument that the regime created an “offence”, relying on the Wiggelsworth and Martineau framework, particularly insofar the Court held those cases require examination of the appearance of the proceedings rather than their substance. The appellant raised several problems with this approach, but his arguments were rejected.

Combining the practical effects of the regime with the s. 11 outcome, it is now the case that in British Columbia most drivers essentially have no Charter rights when ‘accused’ of and sanctioned for impaired driving. This has been exacerbated by a decision of the B.C. Supreme Court holding that the adjudicators reviewing an ARP regime sanction (who are delegates of the Superintendent of Motor Vehicles) have no jurisdiction to consider the Charter: Williams v. British Columbia (Superintendent of Motor Vehicles), 2012 BCSC 1976.

Beyond the impaired driving sphere, the ARP regime provides a template for the province to regulate wrongful or criminal behaviour that generally, as a practical reality, does not give rise to imprisonment under the Criminal Code or a provincial offence provision. So long as the province creates an administrative regime that does not have the appearance of a criminal prosecution and does not create true penal consequences (which essentially means imprisonment), then it has a free hand to legislate away s. 11 rights as a practical reality. Creating incentives for police and Crown Counsel to pursue the administrative rather than criminal process will not, according to the Court of Appeal, make the regime ultra vires the province. This is because the province has been held to have a power to pass legislation designed to deter crime or regulate certain spheres of activity so long as the goals are not “punitive”. As an example, soon we may see traffic court removed to an administrative process before an adjudicator of the Superintendent of Motor Vehicles with no procedural or Charter protections.

It may be that the Supreme Court of Canada will be asked to weigh in on these issues.

Innovations with s. 8

The B.C. Court of Appeal’s decision in Sivia upheld a unique application of s. 8 by Supreme Court Justice Jon Sigurdson. Justice Sigurdson found that s. 8 required proper independent oversight of automatic sanctions stemming from searches performed roadside. In other words, because the pre-authorization requirements for a search are waived for impaired driving searches, there must be an after the fact process that ensures the sanction stemming from the search is valid. This review process must give the sanctioned individual a meaningful opportunity to challenge the sanction. This reasoning provides an opportunity to raise s. 8 issues in other administrative regimes that authorize searches but do not afford an effective opportunity for review.

Remedies

Despite finding that the ARP regime violated s. 8, the B.C. Supreme Court declined to provide any remedy to the petitioner drivers, instead deferring the prospective declaration of invalidity for 6 months to allow the Legislature to respond. Drivers sought restitution of the fines and costs they were required to pay as a result of the sanction as well as compensation for lost income and correction of their driving record. The court denied these requests.

Given the Court of Appeal upheld the Supreme Court’s section 8 ruling, the remedies issue, which is under appeal, is now set to come before the Court of Appeal. A successful remedies appeal would require the province to pay back millions of dollars to drivers sanctioned under the old, unconstitutional regime.