



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Gregory v. British Columbia (Superintendent of Motor
  Vehicles)
,









2018 BCCA 7




Date: 20180112

Docket: CA43801

Between:

Bradley Kai
Gregory

Appellant

(Petitioner)

And

The Superintendent
of Motor Vehicles and
the Attorney General of British Columbia

Respondents

(Defendants)



Docket: CA43902

Between:

Edward George
Wilcock

Appellant

(Petitioner)

And

Superintendent of
Motor Vehicles and
the Attorney General of British Columbia

Respondents

(Defendants)






Before:



The Honourable Chief Justice Bauman

The Honourable Mr. Justice Lowry

The Honourable Madam Justice Garson




On appeal from:  Orders
of the Supreme Court of British Columbia, dated
June 29, 2016 (
Gregory v. British Columbia (Superintendent of Motor
Vehicles),
2016 BCSC 1192, Victoria Docket 12-4227) and August 24, 2016 (
Wilcock
v. British Columbia (Superintendent of Motor Vehicles)
, Victoria Docket
12-4071).






Counsel for the Appellants:



J. Green, Q.C.

T. Higinbotham





Counsel for the Respondents:



N. Carnegie

V. Ryan





Place and Date of Hearing:



Victoria, British
  Columbia

June 7 and 8, 2017





Place and Date of Judgment:



Vancouver, British
  Columbia

January 12, 2018









Written Reasons by:





The Honourable Chief Justice Bauman





Concurred in by:





The Honourable Mr. Justice Lowry

The Honourable Madam Justice Garson




















Summary:

Two motorists received
90-day immediate roadside driving prohibitions after registering a fail on an
ASD pursuant to the Motor Vehicle Act
.
They sought reviews of their
prohibitions, but were prevented from cross-examining the police officers that
issued the prohibitions, or challenging whether the police officers had a valid
basis for making the ASD demand pursuant to s. 254 of the Criminal Code.
On judicial review, the motorists challenged the constitutional validity of the
IRP scheme under the Motor Vehicle Act

which prevented cross-examination
or questioning the basis for the ASD demand. The chambers judge dismissed the
petition for judicial review on the basis that he was bound to follow previous
decisions upholding the scheme as constitutional. Held: Appeals dismissed. The
Supreme Court of Canada found a previous version of the scheme unconstitutional
solely on the basis that it did not provide sufficient opportunity to challenge
the reliability of ASDs. The amended scheme addresses that concern by expanding
opportunities for motorists to challenge reliability, and is therefore
constitutionally valid. The decision by the adjudicators not to consider
whether the ASD demand was valid was reasonable.

Reasons for Judgment of the Honourable
Chief Justice Bauman:

I.

Introduction

[1]

Two motorists who received 90-day immediate roadside driving
prohibitions (IRPs or, when used in the singular, IRP) under ss. 215.41
to 215.51 of the
Motor Vehicle Act
, R.S.B.C. 1996, c. 318 [
MVA
]
challenged the constitutional validity of that legislation by way of petitions
to the Supreme Court of British Columbia. These provisions were amended in 2012
to remedy the constitutional defect identified in
Sivia v. British Columbia
(Superintendent of Motor Vehicles)
, 2011 BCSC 1639 (
Sivia
,

BCSC),
affd 2014 BCCA 79 (
Sivia
, BCCA), affd
Goodwin v. British Columbia
(Superintendent of Motor Vehicles)
, 2015 SCC 46. On appeal, the petitioners
seek to have this Court declare that the amended provisions still unjustifiably
infringe s. 8 of the
Charter
and that they also unjustifiably
infringe s. 10(b) of the
Charter
such that they are of no force or
effect pursuant to s. 52 of the
Constitution Act, 1982
. They also
ask that this Court declare that fail in s. 215.5 of the
MVA
means fail pursuant to a valid breath demand under the
Criminal Code
. This
issue calls into question the reasonableness of the adjudicators decisions not
to consider the proper interpretation of the word fail in s. 215.41(3.1)
for the purposes of s. 215.5(4)(b).

[2]

If this Court agrees with their constitutional arguments, the
petitioners ask that their IRPs and the accompanying consequences be revoked.

[3]

For reasons that follow, I would dismiss the appeals.

II.

Legislative and Judicial History

[4]

There is now a somewhat lengthy legislative and judicial history
associated with the driving prohibition scheme set out in the
MVA
.
Sections 94.1 to 94.6 of the
MVA
(which are still in force) were the
subject of an appeal to this Court in
Buhlers v. British Columbia
(Superintendent of Motor Vehicles)
, 1999 BCCA 114. Those sections provide
for a 90-day driving prohibition when a driver provides a sample in compliance
with a demand for breath or a sample of blood under the
Criminal Code
and obtains a result of over .08, or refuses without reasonable excuse to
provide a breath or blood sample. This prohibition does not come into effect
until 21 days after the issuance of a notice of driving prohibition which is provided
after someone fails a demand or refuses to comply. The motorist has the right
to file a challenge to the prohibition with the office of the Superintendent of
Motor Vehicles (the Superintendent). In
Buhlers
, this Court upheld the
constitutionality of those provisions.

[5]

On 20 September 2010, the Legislature enacted an additional regime that
made prohibitions take effect immediately for those who registered over .08
on an approved screening device (ASD), or a fail result, and added
consequences for drivers who registered over .05 or a warn result. When I
refer to the IRP scheme in these reasons, it is this statutory regime to
which I refer.

[6]

Subsequently, six motorists challenged the constitutional validity of
the new IRP scheme. Four of those motorists had their petitions heard together
by Justice Sigurdson. In reasons for judgment released 30 November 2011, he
rejected the petitioners division of powers and s. 11(d)
Charter
arguments, but found the challenged legislation violated s. 8 of the
Charter
and was not saved by s. 1. He also found that the challenged legislation
violated s. 10(b) of the
Charter
, but was saved by s. 1:
Sivia
,
BCSC. Two of the six motorists who would eventually appeal to this Court then
had their petitions heard separately by Justice Dley. He dismissed their
petitions on 25 May 2012, relying on the reasons given by Sigurdson J. in
Sivia
,
BCSC. The six petitioners then appealed to this Court on various grounds while
the Superintendent cross-appealed on the s. 8 finding:
Sivia
, BCCA.

[7]

Before this Court, Mr. Sivia abandoned his appeal and the division
had to grapple with a number of procedural difficulties as a result of the way
in which the appeals were brought. Ultimately, the petitioners relied on the
legal arguments in Mr. Sivias factums and the adjudicative facts from all
the appeals. For unknown reasons, the petitioners did not pursue the s. 10(b)
ground of appeal. The division dismissed both the appeals and cross-appeal. It
therefore approved of Sigurdson J.s holding on s. 8, but did not
consider the compliance of the original IRP scheme with s. 10(b) of the
Charter
.

[8]

The parties appealed to the Supreme Court of Canada on the division of
powers and ss. 8 and 11(d)
Charter
arguments:
Goodwin
. The
style of cause was changed to reflect the fact that Mr. Sivia had
abandoned his appeal. The Court also approved of the chambers judges s. 8
holding, but made no reference to s. 10(b) other than to note that it was
argued before Sigurdson J. and was not appealed:
Goodwin
at paras. 6-7,
footnote 3.

[9]

Accordingly, the original IRP scheme was found to infringe s. 8 of
the
Charter
by the Supreme Court of Canada in a manner not justified
under s. 1. The Supreme Court of British Columbia has pronounced on the original
schemes compliance with s. 10(b) of the
Charter
, but neither this
Court nor the Supreme Court of Canada have considered that issue.

III.

The Legislation

[10]

On 15 June 2012, Bill 46, the
Motor Vehicle Amendment Act
, S.B.C.
2012, c. 26, came into force. The

amendments were intended to
correct the constitutional defect identified in
Sivia,
BCSC. The amended
provisions set out in ss. 215.41 to 215.51 of the
MVA
are at issue
in the present case. The petitioners challenge the validity of those provisions
under both ss. 8 and 10(b) of the
Charter
.

[11]

This appeal begins where
Goodwin
ended with respect to
considering the evolution of the IRP regime. In
Goodwin
, Justice
Karakatsanis explained the changes between the IRP scheme, as it was
constituted from September 2010 to June 2012, and the amended scheme in force
thereafter as follows (at para. 13):

The scheme was amended in 2012
subsequent to the chamber[s] judges decision, and now requires that a police
officer inform a driver of her right to request and be provided a second ASD
test, and, where two samples are provided, the lower of the two results is the
basis for a driving prohibition:
MVA
, s. 215.42. It also
expands the grounds on which a driver may challenge a prohibition:
MVA
,
s. 215.5. Under the amended [IRP] scheme, the police officers report to
the Superintendent must be sworn, and police must now provide the
Superintendent with information relating to the calibration of the
ASD:
MVA
, s. 215.47. These amendments are not challenged
in these appeals.

[12]

Below is a more exhaustive list of the changes
between the 2010 and 2012 versions of the IRP scheme:

·

there is a right to a second ASD test and to be advised of that
right by the peace officer (ss. 215.41(3.1)(d), 215.42) while under the 2010
scheme a person had to request a second test on their own initiative;

·

if a second test is performed, the lower of the two results governs
(s. 215.42(3));

·

the report by a peace officer must be sworn or solemnly affirmed
(s. 215.47(d));

·

the peace officer must submit information relating to the
calibration of the ASD on which the driving prohibition was based (s.
215.47(e));

·

the superintendent must consider any peace officers reports,
including those not sworn or solemnly affirmed (s. 215.49(1)), and may
determine the weight to give to that information (s. 215.49(4)); and

·

there
are more expansive grounds on which the Superintendent is required to revoke
the prohibition and attendant consequences, including where the person is not
advised of their right to a second ASD test, the prohibition is not based on
the lower of the two results, or the Superintendent is satisfied that the
result is not reliable (s. 215.5(4)).

[13]

There are a number of elements of the IRP scheme that have remained the
same. In both the previous and amended IRP schemes there is a prohibition on
cross-examination and the burden of proof is on the person requesting a review.
The 2012 scheme did not change the precondition that a peace officer make a
demand to a driver under the
Criminal Code
 to provide a breath sample
(s. 215.41(3.1) in the 2012 scheme and s. 215.41(3) in the 2010 scheme).
The consequences of being served with a notice of prohibition also remain the
same. There is a prohibition on driving for the periods of time listed in
s. 215.43 depending on whether the ASD registers a fail or warn and
the persons history of previous prohibitions. The person is required to pay a
monetary penalty determined in accordance with s. 215.44 up to a maximum
of $500. The peace officer has the discretion to impound the persons vehicle
in the event of a warn on a first or second prohibition, and must impound the
vehicle in the event of a warn result on a third or subsequent prohibition or
a fail result (s. 215.46). Finally, there was a mandatory remedial
program if a person received a 30- or 90-day prohibition, which has since been
repealed. Presumably, the Superintendent could still exercise his discretion to
require that a driver attend such a remedial program under s. 25.1(1),
which also permits him to require that the driver comply with an ignition
interlock program.

[14]

On 8 September 2014, Justice Macaulay ruled on the constitutional
validity of the amended provisions, holding that they did not violate s. 8
of the
Charter
and any violations would have been saved by s. 1:
Bro
v. British Columbia (Superintendent of Motor Vehicles)
, 2014 BCSC 1682. In
that case, the petitioners did not rely on s. 10(b) of the
Charter
,
and the decision was not appealed.

IV.

Factual Background

[15]

On 7 November 2012, Mr. Wilcock received a 90-day IRP. On 18
November 2012, Mr. Gregory received a 90-day IRP. Both Messrs. Wilcock and
Gregory unsuccessfully applied to an adjudicator for a review on the basis that
their fail readings did not result from valid
Criminal Code
ASD
demands. The adjudicators dismissed the review applications. The petitioners
then separately applied for judicial review on constitutional issues.

V.

Petition Proceedings

[16]

In the court below, Justice Bracken heard Mr. Gregorys petition on
11 December 2015. Subsequently, counsel for Mr. Wilcock appeared before Justice
Johnston and agreed to have his petition governed by the outcome of Mr. Gregorys
petition. On 29 June 2016, Bracken J. issued reasons dismissing Mr. Gregorys
petition. These reasons are effectively the lower court reasons for both
appeals. As a result, Mr. Gregorys petition was dismissed by an order of
Bracken J. pronounced on 29 June 2016. Mr. Wilcocks petition was
dismissed by an order of Johnston J. pronounced on 24 August 2016.

[17]

Before the chambers judge, Mr. Gregory argued that the amended IRP
provisions contravened s. 8 of the
Charter
because they did not
provide a means to challenge both the basis of the ASD demand and the
reliability of the test.

[18]

In his reasons the chambers judge was alive to the doctrine of
stare
decisis.
He began his analysis by determining whether
Goodwin
affected the validity of the amended legislation, as it was considered in
Bro
.
In
Goodwin
, the critical reason the sections breached the
Charter
was the drivers inability to challenge the validity of the test given concerns
about the reliability of ASDs. The chambers judge cited from the companion
decision to
Goodwin

Wilson v. British Columbia (Superintendent of Motor
Vehicles)
, 2015 SCC 47  and noted the different contexts in which the IRP
scheme in the
MVA
and the
Criminal Code
exist. He explained that
Goodwin
did not suggest that the inability to challenge the
basis
of the ASD
demand in and of itself renders the amended scheme invalid. It was on this
basis that he found
Goodwin
did not affect the validity of
Bro
.
He therefore found himself bound by
Bro
because none of the exceptions
in
Re Hansard Spruce Mills Ltd.
, [1954] B.C.J. No. 136 (S.C.),
applied.

[19]

The judge then turned to Mr. Gregorys argument on s. 10(b),
which was premised on impaired driving prosecutions under criminal law. He
highlighted the not truly penal consequences of an IRP, again citing
Goodwin
.
Ultimately, the judge held that the reasons on the s. 10(b) issue in
Sivia
,
BCSC were determinative: the scheme infringed a drivers s. 10(b) right at
the roadside screening stage, but was saved under s. 1. He again found Mr. Gregory
had not established that any of the exceptions from
Re Hansard Spruce Mills
Ltd.
would justify deviating from the reasoning in
Sivia
, BCSC.

[20]

Finally, the judge also dismissed Mr. Gregorys arguments
concerning his particular circumstances. Mr. Gregory challenged the
validity of the IRP because the officer told him not to worry because he was
not going to treat the matter as a
Criminal Code
investigation, which
rendered it a demand not made for the statutory purpose of s. 254(2) of
the
Criminal Code
, and therefore an invalid demand under s. 215.41(3.1).
The judge rejected this argument, holding that it was reasonable for the
adjudicator to conclude that his review was limited to the grounds of review
expressly set out in the
MVA
, which do not include challenging the basis
for the request. He also found that the officers comments were nothing more
than the officer communicating his intention to deal with the result under the
MVA
rather than the
Criminal Code
. The judge dismissed the petition, but
ordered a stay of the driving prohibition to continue for a period of 45 more
days to permit Mr. Gregory to consider any next steps for appellate
review.

VI.

Grounds of Appeal

[21]

The issues on appeal can be stated as follows:

a)

Do the amended
IRP provisions violate s. 8 of the
Charter
, and is any such
infringement justified under s. 1?

b)

Did the chambers
judge err in relying on the s. 10(b)
Charter
analysis in
Sivia
,
BCSC?

c)

Was it reasonable for the adjudicator to determine that the validity of
the demand is not a basis to revoke an IRP, and therefore not consider the
proper interpretation of the word fail in s. 215.41(3.1) for the
purposes of s. 215.5(4)(b)?

VII.

Submissions

Section 8
Charter
Challenge
to the Amended IRP Scheme

[22]

The petitioners submit that the court in
Bro
failed to consider
that
Sivia,
BCSC was concerned with defects in the original IRP regime
concerning both the breath demand itself and the result of the breath demand.
This finding was upheld by both the Court of Appeal and the Supreme Court of
Canada in
Goodwin
. They say the amended IRP scheme continues to
deliberately prevent a meaningful review of the ASD demands. The taking of a
breath sample is a search and is properly characterized as a warrantless
discretionary search. The adjudicators here found that the validity of the ASD
demand is not a ground of review, and the chambers judge agreed. This
demonstrates that the search is unreviewable, which renders the scheme contrary
to s. 8:
Hunter v. Southam Inc.
, [1984] 2 S.C.R. 145. The
petitioners also argue that the scheme continues to prevent meaningful
challenges to the reliability of a fail result despite introducing the
unreliability defence. A meaningful ability to challenge the reliability of
the ASD test result requires cross-examination of the officer who made the
demand.

[23]

The Superintendent submits that while the courts in
Goodwin
and
Sivia
refer to the absence of a challenge to the basis of the demand and the lack of
cross-examination as relevant factors, the key infirmity was the inability to
challenge the reliability of the ASD result. The court in
Bro
correctly
relied on this reasoning in determining that the amended IRP scheme did not
infringe s. 8. It also correctly assessed the changes brought in by the
amendments (the expanded grounds of review and the obligation on police
officers to advise drivers of their right to a second ASD test on a different
ASD) as permitting meaningful review of the validity of ASD test results. The
court also correctly held that the invalidity of a demand is still relevant
even if it is not a formal ground on which the Superintendent could revoke the
IRP, and that it was constitutionally permissible to prohibit
cross-examination. Drivers are well-positioned to provide the evidence
necessary to establish that their BAC was less than .08 despite a fail result
without the need for cross-examination. Here, the chambers judge properly
determined that
Goodwin
did not invalidate
Bro
.

[24]

With respect to the s. 1 analysis, the Superintendent submits that
the amended schemes enhanced grounds of review ensure the scheme is minimally
impairing. Permitting drivers to challenge the validity of an ASD demand would
significantly compromise the legislative objective. Allowing cross-examination
would compromise the goal of timely disposition of reviews arising from IRPs. The
Superintendent says the benefits to society arising from the operation of the
amended scheme greatly outweigh the negative effect of a driver possibly
receiving an IRP without being able to challenge the validity of a demand or
cross-examine the investigating officer.

Error in Relying on
the s. 10(b)
Charter
Analysis in
Sivia,
BCSC

[25]

The petitioners highlight that previous cases where s. 10(b)
infringements have been justified under s. 1 relied upon an
acknowledgement that the test results could only be used for a limited purpose
and could not be used in subsequent criminal proceedings. They submit that the
chambers judge in
Sivia
, BCSC failed to address the critical question
under s. 10(b): does the use of ASD test results for the purpose of
imposing serious administrative penalties exceed the limited purposes for which
an infringement of s. 10(b) would be justified? They say the answer to
this question is yes and that it is no answer to merely label the legal
consequences as regulatory in conducting the s. 1 analysis.

[26]

The Superintendent says the same s. 1 considerations discussed
under s. 8 apply to this issue. The scope of the roadside screening is
limited to those steps necessary to screen for alcohol and is subject to strict
temporal limits. It contemplates an expeditious process that must occur at the roadside.
The salutary effects outweigh the negative impact to drivers from this
limitation on their right to counsel. He notes that the s. 10(b)
jurisprudence in roadside screening arises almost entirely in the criminal
context where the
quid pro quo
for not conferring the right to counsel
at the roadside is that the results of an ASD demand cannot be used as evidence
in a criminal proceeding. There is no rationale for extending the prohibition
on use of ASD samples under the
Criminal Code
to the use of those
samples as part of the amended IRP scheme.

Reasonableness of the
Adjudicators Decision

[27]

The petitioners argue that fail under s. 215.41(3.1)(a) of the
MVA
means a fail pursuant to a valid
Criminal Code
demand. Accordingly, the
adjudicators in their cases should have addressed whether or not the ASD
registered a fail as the result of a sample taken pursuant to a
valid

Criminal
Code
breath demand. If not, then the adjudicators were obliged to revoke
the IRP under s. 215.5(4)(b).

[28]

The Superintendent submits that the chambers judge correctly applied the
reasonableness standard of review in upholding the Superintendents conclusion
that he was not entitled to consider the validity of the demand. This
interpretation was subject to deference. It was reasonable for the adjudicators
to conclude that the issue of whether the ASD demand was invalid because it was
made for a purpose outside the ambit of s. 254(2) of the
Criminal Code
was
not relevant because s. 215.5(4)(b) did not provide for revoking an IRP on
that basis. In any event, the petitioners interpretation is inconsistent with
Goodwin
and
Wilson
.

VIII.

Analysis

[29]

The thrust of the petitioners case on appeal is the essential
submission that the court in
Bro
misread the decisions in
Sivia
.
In particular, they say that the constitutional infirmities with the IRP scheme
go further than suggested by Macaulay J. in
Bro
and the 2012 amendments
resulting in the new IRP scheme fail to address the breadth of these
infirmities.

[30]

Accordingly, much of these appeals falls to be resolved by a close
reading of
Sivia
and
Goodwin
and a determination of just what
this Court and the Supreme Court of Canada decided in these cases.

[31]

I will begin the analysis there, proceed to consider whether the IRP
amendments address the critical constitutional issues identified in these
cases, and then deal with the s. 10(b) issue.

[32]

Finally, I will consider what I will call the administrative law issue:
was the chambers judge correct in rejecting the submission effectively seeking
to review the validity of the breath demand under the
Criminal Code
.

(i)
What
Sivia
and
Goodwin
Decided

[33]

The petitioners submit that the courts in these cases concluded that the
Charter
s. 8 flaws with the then IRP scheme extended beyond a
concern that an affected driver could not challenge the reliability or accuracy
of the breath sample analysis to a concern that one could not challenge the
basis for the demand itself. If a driver cannot challenge the latter, the
petitioners submit that we are left with a warrantless, unreviewable
discretionary search that the law will not countenance:
Hunter,
at 166.

[34]

I disagree with this essential premise.
Sivia
and
Goodwin
did not decide the s. 8 issue on the broad basis urged. In
Bro
,
Macaulay J. carefully reviewed Sigurdson J.s reasoning in
Sivia
, BCSC.
He recognized that Sigurdson J. noted (in paras. 300-302 of his reasons)
that the statutory review then in place did not permit a driver to (1) challenge
the accuracy of the ASD used in the search; (2) challenge the demand for a
breath sample as capricious; (3) cross-examine the administering officer; (4) raise
the issue of whether the driver was advised of the possibility of a second
sample; or (5) attempt to prove that he or she did not have a blood alcohol
reading over 0.08. But according to Sigurdson J., the most important of these
concerns is that the review process does not allow the driver to challenge the
apparent result of the ASD.

[35]

Macaulay J. called this concern the tipping point (at para. 28 of
Bro
) in the s. 8 infringement analysis and he quoted para. 319
of Sigurdson J.s reasons:

[319]     the fact that while
the consequences from the search are substantial and approach criminal law
sanctions, there is no way under the impugned law for the driver to challenge
the validity of the results. As evidenced by the review process already in
place under the [ss. 94.1 to 94.6] regime,
it is possible to allow for a
more meaningful review to be put in place without in any material way affecting
the governments objective of removing impaired drivers promptly and
effectively from the road. In my view, it is not reasonable to preclude a
driver a more meaningful review
of the grounds for a lengthy suspension,
penalty and costs in the fail (over 0.08) part of the [IRP] regime.

[Emphasis of Macaulay J.]

And
it was the inability to challenge the validity of the ASD results that led to
Sigurdson J.s conclusion that the scheme did not minimally impair the right
of a driver to be free of unreasonable search and seizure and thus was not
saved by s. 1 (at para. 380 of Sigurdson J.s reasons):

[380]

In my view, because of the
significant prohibition, penalty and cost implications of a fail reading, the
Province could easily have 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 considering the Province has legislated to base the
consequences of a fail reading entirely on the results of the screening
device.

[36]

Macaulay J. was correct in
Bro
(as was the chambers judge in
following it below) in concluding that
Sivia
, BCSC founded the s. 8
infringement and the s. 1 failure on the fact that the IRP scheme did not
provide for a meaningful review of the ASD test results.

[37]

He was also correct in concluding that this Court in
Sivia
, BCCA
was similarly concerned with the scheme then in place.

[38]

There the Court concluded on this aspect of the appeal (at paras. 183-184):

[183]    Thus the Chambers judge concluded that the s. 8
privacy rights of motorists subject to a roadside breath demand taken under the
provisions of the
Motor Vehicle Act
challenged on these appeals are
breached and the legislation cannot be saved by s. 1 of the
Charter
as it does not minimally impair the right. The legislation does not provide a
meaningful review of the results of the test on which the sanctions are based.

[184]    I agree with the
Chambers judge and would add nothing to his analysis.

[39]

I do not accept the petitioners central premise: the other factors
identified by Sigurdson J. in paras. 300-302 of
Sivia
, BCSC were
not considered by him, or by this Court, standing alone or together, as
infringing s. 8. Nor do I accept the submission that the Supreme Court of
Canada in
Goodwin
has suggested otherwise.

[40]

The majority judgment in
Goodwin
was written by
Karakatsanis J.
She noted that Sigurdson J. concluded that it was the reliability of ASD
results (specifically the inability to account for the presence of mouth
alcohol) that was directly relevant to the reasonableness of the search: paras. 66
and 67.

[41]

While the inability of a driver to meaningfully challenge
the basis for the breath demand was a concern in
Sivia
, BCSC, it was the
inability to challenge the accuracy of the test that was most important: para. 69.
Karakatsanis J. agreed (at para. 72):


a drivers ability to challenge the accuracy of the ASD result is thus
critical
to the reasonableness of the [IRP] scheme (emphasis added).

[42]

The same point is repeated by Karakatsanis J. at para. 75 of her
reasons and again at para. 77:

[75]      While I agree with the Chief Justice
that the administrative nature of the scheme justifies the administrative
nature of the review, this does not, in my view, resolve the issue of whether
the scope of such review is adequate in the circumstances. I agree with the
chambers judges conclusion that 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.



[77]      The ARP
scheme as enacted in 2010 depends entirely on the results from a test conducted
using an ASD, a device known to produce false positives where mouth alcohol is
present. Despite this defect regarding ASD reliability, the scheme provides no
meaningful opportunity to challenge a licence suspension issued under this
scheme on the basis that the result is unreliable. In the particular
circumstances of these appeals, in which a fail result automatically triggers
serious consequences for a driver without the possibility of review, the scheme
fails to provide adequate safeguards. Thus, despite the pressing objective and
minimal intrusiveness of the seizure, the ARP scheme fails to strike a
reasonable balance between the interests of the state against those of
individual motorists, and infringes drivers s. 8  rights.

[43]

On the s. 1 analysis,
Karakatsanis J. again agreed
with Sigurdson J. that the ARP scheme did not minimally impair the right of a
driver to be free of unreasonable search and seizure and thus was not saved by
s. 1: para. 85.

[44]

I conclude that
Bro
correctly analyzed the decisions in
Sivia
,
BCSC, and
Sivia
, BCCA and that as a matter of judicial comity, the
chambers judge correctly followed Macaulay J. On the basis of
stare decisis
,
I cannot accede to the petitioners submission that the other factors
identified by Sigurdson J. can form the basis for a finding of constitutional
invalidity as a breach of
Charter
s. 8 not saved by
Charter
s. 1:
Goodwin
.

(ii)
Do the
2012 Amendments Meet the
Sivia
/
Goodwin
Concern?

[45]

Macaulay J. in
Bro
considered the efficacy of the 2012 amendments
creating what we now term the IRP scheme. I have summarized those amendments
above. He concluded (at para. 94 of his reasons):

[94]      It follows from the
above that I do not accept any of the petitioners challenges under s. 8
of the
Charter
to the 2012 regime. In my view, the constitutional
deficiencies in the 2010 regime that Sigurdson J. identified in
Sivia
#1

are addressed by the amendments. With the addition of a right to a second
analysis and the additional grounds of review, the driver now has a
sufficiently meaningful review process, when considered in light of the
regulatory context. The additional grounds are a significant expansion of the
Superintendents review powers; the driver may now challenge the validity of
the ASD result in a number ways. I note that the additional grounds bring the
review powers in line with those available under the ADP regime, which
Sigurdson J. specifically referred to as an example of a more meaningful review
process. In case I err on that point, I turn next to whether any breach is
saved by s. 1.

[46]

Macaulay J. concluded in the alternative that any violation of s. 8
was in any event saved by s. 1. The chambers judge below accepted this
reasoning. Before us, I can discern only one complaint advanced in support of
the submission that the IRP scheme still infringes s. 8 in its lack of
accommodation of mechanisms to challenge the accuracy of the ASD results and
that is in the failure to afford a right to cross-examine the police officer
making the report to the Superintendent.

[47]

In the circumstances of the amendments creating the 2012 IRP scheme, I
cannot characterize the absence of a right to cross-examine the police officer
as tipping the balance to an unreasonable search. As Macaulay J. noted in
Bro
(at para. 52):

[
52]      In
Ocean
Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and
Licensing Branch),
2001 SCC 52 at paras. 1922, the Supreme Court of
Canada made it clear that principles of natural justice are not constitutional
restraints and may be ousted by express statutory language or necessary
implication. This means that I must accept that it is constitutionally
permissible for the legislature to prohibit cross-examination during IRP
reviews. As Sigurdson J. considered it, the lack of cross-examination is simply
one of the factors to consider in assessing the reasonableness of the 2012
regime.

[48]

I respectfully agree. I also agree with
Bro
in concluding that
the 2012 amendments meet the s. 8 concerns raised in
Sivia
/
Goodwin
.

[49]

If I am wrong in my analysis of
Sivia/Goodwin
, and I must
consider whether both the inability to cross-examine and the inability to
challenge the validity of the demand under the
Criminal Code
together
infringe s. 8, in my view these two factors in conjunction still do not
amount to an infringement. For the reasons given above, I find the concerns
with the inability to cross-examine are attenuated in the regulatory context,
and the amendments provide sufficient means to ensure the reliability of ASD
results. I would also note that it may be open to challenge the decision of a
peace officer, and the validity of the
Criminal Code
demand under the
Judicial
Review Procedure Act
, R.S.B.C. 1996, c. 241, if such a challenge is
foreclosed by the
MVA
:
Rapton v. British Columbia (Motor Vehicles)
,
2011 BCCA 396 at para. 20; see also
Atchison v. British Columbia
(Superintendent of Motor Vehicles)
, 2006 BCSC 549, and
Soychuk v.
British Columbia (Superintendent of Motor Vehicles)
, 2004 BCSC 867.

[50]

Even if there was no way to challenge the validity of the ASD demand, I
would find that the scheme was reasonable. The purpose of the IRP scheme is to
remove impaired drivers from the road, a purpose the Supreme Court has
described as compelling:
Goodwin
at para. 58. As Justice Cory wrote
in
R. v. Bernshaw
, [1995] 1 S.C.R. 254 at para. 16:

Every year, drunk driving leaves
a terrible trail of death, injury, heartbreak and destruction. From the point
of view of numbers alone, it has a far greater impact on Canadian society than
any other crime. In terms of the deaths and serious injuries resulting in
hospitalization, drunk driving is clearly the crime which causes the most
significant social loss to the country.

If a driver is truly impaired, and the concerns for ASD
reliability have been addressed as discussed above, then it is reasonable that the
Superintendent not revoke a prohibition, even if the ASD demand that justifies
the prohibition was improperly made. I would find that this balances the
publics interest in being left alone by government and the governments
interest in intruding on the individuals privacy in order to advance its
goals, notably those of law enforcement:
Hunter
at 159-160. It would
completely undermine the purpose of the scheme if someone who truly drove while
impaired could return to the road simply because a peace officer did not have
reasonable grounds to suspect that a person has alcohol or a drug in their
body and that the person has, within the preceding three hours, operated a
motor vehicle as required by s. 254 of the
Criminal Code
.

[51]

It must be remembered that this is a regulatory, not a criminal scheme.
As Justice Moldaver wrote in
Wilson
(at paras. 33-34):

[33]      In addition, it has long been recognized that
regulatory legislation, such as the
MVA
, differs from criminal
legislation in the way it balances individual liberties against the protection
of the public. Under regulatory legislation, the public good often takes on
greater weight. In
R. v. Wholesale Travel Group Inc.
, [1991] 3 S.C.R.
154, at p. 219, this Court held that

[r]egulatory legislation involves a
shift of emphasis from the protection of individual interests and the
deterrence and punishment of acts involving moral fault to the protection of
public and societal interests. While criminal offences are usually designed to
condemn and punish past, inherently wrongful conduct, regulatory measures are
generally directed to the prevention of future harm through the enforcement of
minimum standards of conduct and care.

[34]      These comments are
particularly apt in the case of regulatory legislation involving roadside
driving prohibitions:
R. v. Gordon
, 2002 BCCA 224, 100 B.C.L.R. (3d) 35,
at paras. 26-27. Roadside driving prohibitions are a tool to promote
public safety. As such, the legislation necessarily places greater weight on
this goal. Unlike the criminal law regime, persons who register a Warn or
Fail under the regulatory regime do not end up with a criminal record, nor
are they exposed to the more onerous sanctions under the criminal law,
including the risk of incarceration. In short, regulatory legislation does not
share the same purpose as the criminal law, and it would be a mistake to
interpret it as though it did. I therefore reject Mr. Wilsons contention
that the [IRP] scheme must incorporate the same protections as those provided
under the
Criminal Code
regime.

[52]

Even if this issue was not already decided by
Sivia/Goodwin
, in
my view s. 8 is not infringed given the regulatory context, the compelling
objectives of the IRP scheme, the minimally intrusive nature of the ASD demand,
and the fact that concerns regarding ASD reliability have been addressed by
amendments granting drivers the right to a second ASD demand, and expanding the
grounds for review by the Superintendent.

[53]

In any event, I would find that the infringement was justified under
s. 1. For reasons discussed below, I would consider the Superintendents
decision that the
MVA
does not allow the validity of a demand to be
considered at a review hearing to be reasonable, and the
MVA
clearly
does not allow for cross-examination, therefore the limits on s. 8 are
prescribed by law.

[54]

A scheme which allows prohibitions to remain and to be reviewed
summarily, despite an invalid demand, still furthers the objectives of removing
impaired drivers from the road in a timely manner.

[55]

It is also minimally impairing because any scheme that allowed for
prohibitions to be revoked despite objective evidence that the person failed an
ASD demand would allow impaired drivers to remain on the road and undermine the
objectives. As well, allowing for cross-examination would make the review
process impractical, and this Court has recognized that it is not in keeping
with the legislative purpose of the scheme to import such protections:
Bahia
v. British Columbia (Superintendent of Motor Vehicles)
, 2006 BCCA 511 at para. 24;
see also
R. v. Brandon
, [1999] B.C.J. No. 3160 (B.C.S.C.) at para. 8.

[56]

Finally, the salutary benefits outweigh the deleterious effects of the
scheme since an ASD demand is a minimally intrusive search, there are now other
safeguards to ensure ASD reliability, and the results can only be used to
ground a regulatory penalty.

[57]

The petitioners introduced fresh evidence on appeal by consent and
submitted that the evidence undermined the strength of the Superintendents
position regarding the salutary benefits of the scheme. In particular, the
petitioners sought to call into question the claim that the IRP scheme reduced
the number of injuries or deaths from impaired drivers by 50%. They claim that
there are other confounding variables that make it impossible to determine
whether the IRP scheme is solely responsible for the decline in injuries and
fatalities. They presented their own statistics that indicate the total number
of IRPs and
Criminal Code
convictions has actually increased since the
introduction of the scheme.

[58]

However, even taken at its best, the petitioners evidence does not fully
negate the salutary benefits of the scheme. Even if the scheme has only contributed
to half the claimed reduction in injuries or deaths, a 25% reduction is still a
serious improvement to public safety. Given Cory J.s comments in
Bernshaw,
any
reduction facilitated by the scheme to the terrible trail of death, injury,
heartbreak and destruction caused by impaired driving would be an important
salutary benefit.

[59]

I would also observe that the petitioners evidence that more total
impaired driving proceedings are brought under the IRP and
Criminal Code
regimes does not negate the conclusion that the scheme has had a not
insignificant impact on the reduction in deaths and injuries from impaired
driving. It is entirely possible that enforcement rates have increased, in part
due to the more summary nature of the IRP scheme, while actual rates of
impaired driving have still decreased.

[60]

Moreover, the petitioners evidence does not convince me that the
factual findings by other courts on this point were in error. In
Bro
,
Macaulay J. wrote that the evidence supports a conclusion that the 2012 regime
is contributing significantly to a reduction in alcohol-related accidents and
deaths on the roads of British Columbia: at para. 102. It may be that the
petitioners evidence shows that the schemes contribution to the reduction is
not as significant as claimed by the Superintendent, but the evidence does not
prove that the contribution to the reduction is insignificant. And in
Wilson
,
the Supreme Court of Canada acknowledged that the scheme serves to deter drunk
driving: at para. 40.

[61]

For these reasons, even if there was an infringement of s. 8, I
would find it justified under s. 1.

(iii)
The
Section 10(b) Issue

[62]

As I have outlined, the parties chose not to appeal Sigurdson J.s
decision in
Sivia
, BCSC on the s. 10(b) issue and the correctness
of his conclusion has not been considered by this Court or by the Supreme Court
of Canada. The chambers judge accepted as determinative of the issue the
conclusion in
Sivia
, BCSC that while the scheme violated the drivers
s. 10(b) right to counsel at the roadside screening stage, it was saved by
s. 1 of the
Charter
: para. 71.

[63]

For his part, Sigurdson J. dealt with the s. 10(b) issue
exhaustively at paras. 331-375 of
Sivia
, BCSC. I agree with his
reasoning and would adopt it. I would add only one point to address a
submission by the petitioners in the case at bar.

[64]

The petitioners argue that prior cases involving roadside testing where
s. 10(b) has been infringed  including
R. v. Orbanski
, 2005 SCC
37, which Sigurdson J. relied upon in his decision  have only found the
infringement justified because the test results could only be used for a
limited purpose, and in particular could
not
be used as evidence in a
subsequent criminal proceeding. By contrast, the petitioners submit that the
IRP scheme uses the test results to impose immediate convictions.

[65]

In my view, just because it may be disproportionate to use roadside test
results obtained in violation of s. 10(b) in subsequent criminal
proceedings, does not mean it would necessarily be disproportionate to use
those results to impose administrative penalties that further the pressing and
substantial objectives of the
MVA
. As Moldaver J. wrote in
Wilson,
[u]nlike
the criminal law regime, persons who register a Warn or Fail under the
regulatory regime do not end up with a criminal record, nor are they exposed to
the more onerous sanctions under the criminal law, including the risk of
incarceration: at para. 34. Given this lesser jeopardy facing the
individual, I would consider it rationally connected to the purpose of the
MVA
,
minimally impairing, and proportionate to use ASD test results to impose the
regulatory penalties under the IRP scheme.

(iv)
The
Administrative Law Issue

[66]

Section 215.41(3.1) of the
MVA
provides:

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,

the peace officer, or another
peace officer, must,

(c) if the driver holds a valid
licence or permit issued under this Act, or a document issued in another
jurisdiction that allows the driver to operate a motor vehicle, take possession
of the driver's licence, permit or document if the driver has it in his or her
possession, and

(d) subject to section 215.42, serve on the driver a notice
of driving prohibition.

[67]

In turn, s. 215.5(1)(b) provides:

(b) in respect of a 90-day
driving prohibition resulting from a sample of breath for analysis by means of
an approved screening device and the approved screening device registering a
fail,

(i) the person was advised of his
or her right to forthwith request and be provided with a second analysis under
section 215.42 (1),

(ii) the second analysis, if the
person requested a second analysis, was provided by the peace officer and was
performed with a different approved screening device than was used in the first
analysis and the notice of driving prohibition was served on the person on the
basis of the lower analysis result,

(iii) the approved screening device
registered a fail and registered the fail as a result of the concentration of
alcohol in the person's blood being not less than 80 milligrams of alcohol in
100 millilitres of blood, and

(iv) the result of the analysis on the basis of which the
notice of driving prohibition was served was reliable, or

[68]

The petitioners pose this question in their factum and submit that the
answer is in the affirmative:

Does a correct statutory
interpretation of the word fail in s. 215.41(3.1)(b) of the
MVA
mean a fail pursuant to a
valid
demand under the
Criminal Code
and should fail in s. 215.5(1)(b) of the
MVA
be given the same
interpretation?

[69]

I need not outline the facts in each case that purportedly support this
submission. In essence, the petitioners are arguing that the police officers in
each case made an invalid demand because they made it for purposes outside the
ambit of s. 254(2) of the
Criminal Code
. Each adjudicator decided
that the validity of the breath sample demand is not an issue in the review
under the
MVA
.

[70]

In the words of the Wilcock adjudicator:

I disagree with Mr. Greens
analysis and reading of the Act. I find that the validity of the demand is not
an issue in this review. Section 215.5(1)(c) of the
Motor Vehicle Act
requires me to confirm a prohibition if I am satisfied that a driver failed or
refused to comply with a demand made under the
Criminal Code
. Section
215.5(1)(b), which governs this review, does not incorporate that requirement.
That section requires me to confirm your prohibition if I am satisfied that you
were the driver within the meaning of section 215.41(1), and that the ASD
registered a FAIL.

The decision of the Gregory adjudicator is to the same
effect.

[71]

Here the adjudicators are interpreting their home statute. Their
interpretation in the circumstances is entitled to deference and no case
calling for a more critical review has been advanced:
McLean v. British
Columbia (Securities Commission)
, 2013 SCC 67.

[72]

Applying a reasonableness standard of review to the adjudicators
decisions, as the chambers judge did, was correct. The adjudicators decisions
on this point certainly fall within the range of reasonable outcomes. The more
so when one looks at the statutory definition of the word fail in s. 215.41(2):

"fail" means an
indication on an approved screening device that the concentration of alcohol in
a person's blood is not less than 80 milligrams of alcohol in
100 millilitres of blood;

[73]

The petitioners would, effectively, add words to the definition not
included by the Legislature.

[74]

I also agree with the respondents reliance on the Supreme Court of
Canadas decision in
Wilson.
The purpose of the
Criminal Code
breath sample demand under s. 254(2) of the
Criminal Code
is
investigatory. It may provide the reasonable and probable grounds for a further
analysis under s. 254(3). The respondents submit that the reference in
s. 215.41(3.1) to a demand under the
Code
does not mean that the
purpose of the
Code
provision (determining whether there are grounds for
a further analysis) governs. The purpose of an ASD demand is established by the
IRP scheme. The respondents cite
Wilson
to this effect:

The
MVA
and
the
Code
are two independent statutes, with two distinct purposes. They
were enacted by two different levels of government, neither of which is
subordinate to the other: [
Reference re Securities Act
, 2011 SCC 66,
[2011] 3 S.C.R. 837, at para. 71]. Under the
MVA
, the demand for a
breath sample triggers a regulatory regime that is wholly independent of the
Criminal
Code.
The fact that the
MVA
relies on a
Criminal Code demand
for a breath sample does not render it subsidiary legislation.

[75]

I agree.

[76]

I would also observe that a driver may still have recourse to challenge
the validity of an ASD demand through judicial review of the peace officers
decision, even if the issue may not be considered during a review by the
Superintendent:
Rapton
, at para. 20; see also
Atchison
and
Soychuk
.

[77]

In conclusion, I would not give effect to the grounds of appeal
advanced; I would dismiss the appeals.

The Honourable Chief Justice Bauman

I agree:

The Honourable Mr. Justice
Lowry

I agree:

The Honourable Madam Justice
Garson


