ignition interlock breath testers

Transcription

IGNITION INTERLOCK BREATH TESTERS:
GOOD LEGISLATION, LONG OVERDUE
90 DAY ROADSIDE SUSPENSIONS:
LEGISLATION WITHOUT INTEGRITY
)
,
These materials were prepared by Mark Brayford,QC of Brayford Shapiro law firm Saskatoon,
Saskatchewan for the Saskatchewan Legal Education Society Inc. seminar, Criminal law Essentials;
May 2002.
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TABLE OF CONTENTS
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Page Number
I.
INTRODUCTION
1
ll.
THE SASKATCHEWAN IGNITION INTERLOCK
PROGRAM
1-2
Ill.
IV.
90-DAY ROADSIDE SUSPENSIONS
A. The Mechanics of the 90-Day Suspensions
2-3
B. Appealing the 90-Day Suspensions
3-4
C. Constitutional Challenges to the 90-Day
Suspensions
4-5
CONCLUSION
6
IGNITION INTERLOCK BREATH TESTERS: Good Legislation, Long Overdue
90 DAY ROADSIDE SUSPENSIONS: Legislation Without Integrity
I.
INTRODUCTION
This winter, the Saskatchewan Government brought into law ignition breath testing devices for
CONVICTED drunk drivers, as well as 90-day roadside suspensions to punish SUSPECTED
drunk drivers.
Section 259 of the Criminal Code was previously amended to require that drunk driving
suspensions must be at least one year, unless a province had an early reinstatement program
using an alcohol ignition interlock device, such as the programs in Alberta and Quebec. In that
case, the Judge could allow the first time offender to get reinstated after three months if such a
device was used. Initially Saskatchewan did not have an interlock program.
At the saine time that the Saskatchewan Government brought in an interlock program to mesh
with' the Criminal Code so as to allow for early reinstatements again, the Saskatchewan
Government also brought in legislation requiring police officers to give 90-day roadside
suspensions that start one week after the officer charges someone with over 80 or refusal.
II.
THE SASKATCHEWAN IGNITION INTERLOCK PROGRAM
When sentencing a fITst offender for a drinking and driving offence to the minimum one-year
suspension under the Criminal Code, a Judge may shorten the suspension by allowing the
offender to drive after three months if they are accepted into the alcohol ignition interlock
program. During the first three months, the offender cannot drive at all. There is no form of
restricted licence available whatsoever during this fITst three months. During this time, the
offender needs to complete such education or recovery program as might be recommended by
their addictions counselor, and if such a program is not recommended, the person has to
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successfully complete the DWI course. These latter requirements need to be completed whether
the person wishes to participate in the interlock program or not.
When one is using an interlock on one's vehicle, a person must blow into the device prior to
starting their vehicle, and sporadically thereafter. If there is alcohol on the subject's breath, the
vehicle will not start, or an alarm will sound if the vehicle is already running. Thus, it is not
practical for a drinking driver to simply have someone else start the vehicle.
The interlock device does not allow the person to have up to 80 mgs/lOO mls. Accordingly,
interlocks are a useful tool in curbing daily drinking, as you would probably not be able to start
your vehicle the next morning after a late night of heavy drinking.
The costs of participating in the interlock program are a little over $1,000.00 per vehicle.
Someone in the program must install an interlock device on every vehicle they wish to use, and
all persons driving those vehicles must operate the vehicle by using the interlock device.
Installation of the device occurs at the Auto Clubs in Saskatoon and Regina, and the monthly
monitoring of the data from the device can be done at those locations. The Prince Albert Auto
Club location does monitoring, but not installations.
(See Appendix "A" for information on the Interlock Program)
ITI.
90-DAY ROADSIDE SUSPENSIONS:
A.
The Mechanics Of The 90-Day Suspensions
When a police officer believes that your blood alcohol exceeds 80 mgs. of alcohol in 100 mls. of
blood, or that you have refused to comply with a breath demand, the police officer will suspend
your licence for 24 hours. The officer will also give you a temporary permit to drive that expires
seven days later. Thereafter, you will automatically be subject to a 90-day prohibition, without
any recourse to the Court system.
3
As one can see, this 90-day suspension is obviously not designed so that the suspected drunk
driver can become sober. Rather, you are given a week to get your affairs in order, whereupon
you receive what has been described as an administrative punishment. The Saskatoon Criminal
Defence Lawyers unsuccessfully suggested legislation changes that would have treated the pretrial driver's licence suspensions in the same way that we treat bail conditions. A Judge could
decide if there was a danger of offending before trial. These proposals were disregarded.
This is a classic case of the police officer being required by Provincial legislation to be Judge,
jury and executioner. The idea that you are innocent and should not be punished unless you are
proven guilty beyond a reasonable doubt before a Court of law is fundamentally offended by
these administrative punishments.
(See Appendix "B" for legislation establishing the 90-day suspensions)
Perhaps an even more objectionable. aspect of this legislation is that it penalizes those who
choose to have a trial. If you plead guilty on your frrst Court appearance, the remaining part of
your 90-day suspension will run concurrently with the three month judicial suspension that you
will serve before you can apply for an interlock. Alternatively, if you plead not guilty, unless the
administrator reinstates your licence during the 90-day prohibition, you will have served that 90
days before the conclusion of your criminal trial in most cases. After your criminal trial, if you
are unsuccessful, you will then begin serving a three-month suspension prior to becoming
eligible for the interlock. Hence, a person who unsuccessfully fights their criminal charges
effectively ends up with a suspension approximately two and a half months longer than the
person who simply pleads guilty.
B.
Appealing The 90-Day Suspensions
There is a provision for either a paper or oral hearing if one pays a $50.00 or $100.00 fee
respectively. The administrator, on the hearing, is solely dealing with the issue of whether the
person's blood alcohol exceeded 80 mgs., or whether they refused. The burden at such a hearing
4
is on the state to prove your guilt to the satisfaction of the administrator. It is important to note,
this hearing does not occur automatically and applying for such a hearing does not stay the
roadside suspension, nor does an acquittal at your criminal trial. For instance, even if you were
able to get your trial within a week of being charged, and assuming you were acquitted at that
criminal trial, it would appear that you would still need to apply to revoke the 90-day prohibition
created by provincial legislation.
It is to be noted that the sole issue before the administrator when reviewing the 90-day
prohibition is guilt or innocence. It does not focus on hardship to the suspect, loss of livelihood,
or likelihood of re-offending prior to trial, although there is a general hardship exemption one
can apply for pursuant to s. 96.1(1) of The Vehicle Administration Act. If your application for
revocation of the 90-day suspension is denied, you can appeal the administrator's decision to the
Highway Traffic Board pursuant to s. 91 (l) of The Vehicle Administration Act.
When initially reviewing the 90-day prohibition, the administrator is entitled to consider the
certificate of analysis. In response, to suggest a lower than 80 mgs/l00 mls blood alcohol level,
an applicant might typically supply an affidavit setting out their consumption, along with an
expert's report, or Alcotrace printout.
(See Appendix "c" - sample Alcotrace)
C.
Constitutional Challenges to The 90-Day Suspensions
The initial reaction of everyone seems to be that 90-day roadside suspensions cannot be legal.
Everyone universally reacts by saying "aren't you innocent unless they can prove you're guilty?"
Similar legislative schemes have been enacted in most other Canadian jurisdictions.
Unfortunately in the author's view, test cases pertaining to those comparable legislative schemes
have been largely unsuccessful due to the very narrow interpretation that certain Courts have
afforded to S8. 7 and 11(d) of the Canadian Charter ofRights and Freedoms:
5
"7. Everyone has the right to life, liberty and security of the person and the right
not to be deprived thereof except in accordance with the principles of fundamental
justice.
11. Any person charged with an offence has the right ...
(d) to be presumed innocent until proven guilty according to law in a fair and
public hearing by an independent and impartial tribunal;"
S. II(d) ofthe Charter, which specifically deals with the presumption of innocence, has not been
effective when challenging the administrative suspensions because they purportedly are
operating independently of the offence with which the person is charged.
With respect to s. 7 regarding liberty and security of your person, the Courts have also taken a
narrow approach to the extent of this constitutional guarantee.
Being deprived of a driver's
licence, which may be fundamental to earning your livelihood, has not persuaded the Courts that
the security of your person has been affected. This narrow construction prevents any economic
or property rights from being protected by this section.
(See Appendix "D" - Buhlers v. British Columbia (Superintendent ofMotor Vehicles) (1999), 23
C.R. (5th) 1, B.C.c.A., leave to appeal to S.C.C. denied)
An excellent leave application was prepared in the Buhlers case. This would have been an
excellent test case for the constitutional validity of this type of legislation.
Unfortunately,
because the Supreme Court of Canada denied leave to appeal, anyone wishing to initiate a
challenge to the Saskatchewan legislation would need to start out with very deep pockets.
Further, it appears you would be unlikely to get leave to appeal to the Supreme Court of Canada
unless you got a favorable decision from the Court of Appeal.
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IV.
CONCLUSION
The author has nothing but favorable conunents about the enactment of the interlock program;
the 90-day roadside suspensions, however, are the most repugnant legislative provisions
imaginable.
The 90-day suspension legislation ultimately diminishes the confidence of
Canadians that the Charter adequately protects their rights. Punishments without a trial are
unnecessary and unfair.
(Gee Mark, tell us how you really feel)
24 HOUR SUSPENSIONS vs. 90 DAY SUSPENSIONS: Legislation Without Integrity
APPENDIX "A"
)
11
VEHICLE ADMINISTRATION
2000
c.33
Section 74 amended
17(1) Subsection 74(1) is amended by striking out "Subject to" and
substituting "Subject to subsection (1.1) and".
.
.
(2)' . The following subsection is added after subsection 74(1):
"(1.1) Where a resident is convicted of an offence that is a fIrst offence
pursuant to section 253 or 254 of the Criminal Code and the person agrees to
participate in the prescribed ignition interlock program or is ordered by the
convicting judge or court to participate in that program, the period of
disqualification is the period for which the person is prohibited by the
convicting judge or court pursuant to the Criminal Code from operating a
motor vehicle".
Section 78.1 amended
18· Clause 78.1(1)(a) is repealed.
12
c.33
2000
Section 78.2 amended
19 Clause 78.2(1)(a) is repealed and the following substituted:,
"(a)
drove a vehicle having consumed any amount of alcohol".
Section 78.3'amended
20
Clause 78.3(7)(a) is repealed and the following substituted:
"(a) the new driver drove a vehicle having consumed any amount of
alcohol".
Section 90 amended
21
The following subsection is added after subsection 90(1):
"(1.1) Where the administrator or the board places an endorsement or
restriction on a driver's licence pursuant to subsection (1) that contains a
reference to night, 'night' means the period commencing one-half hour after
sunset and ending one-half hour before sunrise".
Section 91 amended
22 Subsection 91(1) is repealed and the following substituted:
"(1) A person who is aggrieved by a decision of the administrator pursuant
to section 19, 21, 21.1 or 22, clause 23(1)(c), section 23.01 or 23.02,
subsection 27(1), 29(8), 35(1), 36(1), 45(5) or 45(5.1), section 51, 56 or 71.2,
subsection 76(1), section 78.3 or subsection 93(2) may appeal the
administrator's decision to the board".
New section 96.1
23
The following section is added after section 96:
"Exemption
96.1(1) The administrator may exempt a person from the application of any
provision of this Act or the regulations where, in the opinion of. the
administrator:
'
(a) the application of the provision would cause a hardship to the
person or to other residents of Saskatchewan; and
'
(b)
granting the exemption would not be contrary to the public interest.
(2) The administrator shall not grant an exemption pursuant to subsection (1)
where the exemption would:
(a) interfere with a decision of the board; or
(b) remove any right to a hearing or right of appeal granted pursuant to
this Act".
New section 97
24 Section 97 is repealed and the following substituted:
"Regulations
97(1) For the purpose of carrying out this Act according to its intent, the
Lieutenant Governor in Council may make regulations:
(a) defining, enlarging or restricting the meaning of any word or
expression used in this Act but not defined in this Act;
13
2000
c.33
establishing classes of vehicles, drivers, driver training schools,
driver instructors, licences, permits, certificates or any other persons,
activities or things governed by this Act;
(b)
(c)
governing drivers' examinations;
(d) for the purposes of subsection 15(4), prescribing the circumstances
in which the administrator may pay for a report and prescribing the
amount that the administrator may pay;
(e) prescribing competency requirements for the issuance or renewal of
drivers' licences for classes of drivers;
(f) governing the conditions under which classes of driver's licence may
be issued;
(g) designating the types, sizes, classes and combinations of vehicles
that may be operated by new drivers or any other class of drivers;
prescribing the terms and conditions under which new drivers or
any other class of drivers may operate motor vehicles on a highway;
(h)
(i) exempting new drivers or any other class of drivers from all or any of
the terms and conditions prescribed pursuant to clause (h);
G) exempting any person or class of persons from complying with the
requirement to be photographed or to hold a photo identification card as
part of a valid driver's licence;
.'";"
(k) for the purposes of subsection 16(6), prescribing the form and
content of photo identification cards and licence certificates;
(1)
for the purposes of clause 16(1l)(c):
(i) prescribing classes of persons to whom access to or copies of
photographs of persons taken for the purposes of section 16 may be
provided;
(ii) prescribing circumstances in which access to or copies of
photographs mentioned in subclause (i) may be provided;
(m) prescribing programs for the purposes of section 23;
(n) respecting procedures for the purposes of sections 23.01 and 23.02;
(0)
respecting the display of licence plates;
(p) without limiting the generality of clause (0):
(i) permitting motor vehicles or any class of motor vehicle, other
than power units, to display a licence plate issued by the
administrator on the rear of the vehicle only and to display a licence
plate that is not issued by the administrator on the front of the
vehicle;
14
c. 33
2000
(ii) prescribing terms and conditions governing the display of
licence plates authorized by regulations made pursuant to
subclause (i);
(iii) prescribing periods during which licence plates may be
displayed in accordance with regulations made pursuant to
subclause (i);
(q)
for the purposes of section 45:
(i) prescribing the qualifications of persons who are eligible to
operate a driver training school or to give instruction as a driver
instructor;
(ii) prescribing and governing requirements to be met by applicants
for driver training school certificates and instructors' certificates,
including the information to be provided~
(iii) requiring a bond to be furnished by applicants for or holders
of a driver training school certificate or instructor's certificate and
prescribing the amount of the bond;
(iv) prescribing contracts and forms to be used by driver training
schools and driver instructors;
(v) prescribing standards for the operation of driver training
schools;
(vi) prescribing standards for driver instructors;
(vii) prescribing standards for driver training instruction given
by driver training schools and driver instructors, including, without
limiting the generality of the foregoing, the course content, the
minimum number of hours of instruction required and the vehicles
and training aids to be used;
(viii) prescribing standards for vehicles and training aids used by
driver training schools and driver instructors;
(ix) requiring returns to be made by driver training schools and
driver instructors and governing the form and content of those
returns;
(x) exempting any person, conditionally or unconditionally, from
any of the requirements set out in regulations made pursuant to
this clause and prescribing terms and conditions that apply to
persons exempted from a requirement;
(r) prescribing the design or performance specifications of any vehicle
safety item;
(s) prescribing the manner in which vehicle safety items, including
their packaging, are to be labelled;
(t) designating an organization to test and mark its approval on any
vehicle safety item and prohibiting the use, installation or sale of any
item so specified that is not marked or approved by that testing
organization;
)
15
...
2000
c.33
(u) prohibiting the sale, installation or use of vehicle safety items that
do not meet the prescribed specifications;
(v) requiring and prescribing the manner ·of the installation of any
vehicle safety item on any type or class of vehicle;
(w) prescribing the specifications and standards for safety equipment
to be worn by drivers or passengers;
(x) prescribing the manner of use of any safety equipment worn by
drivers or passengers;
.
(y) prescribing standards for vehicle safety items and requiring their
replacement;
(z) prescribing the maximum weight that may be carried in or on any
vehicle;
(aa) prescribing the maximum passenger capacity of any school bus or
public service vehicle;
(bb) prescribing the weight, size and number of vehicles that may be
operated in combination;
(cc) deeming, for the purposes of this Act or the regulations, a motor
vehicle, trailer or semi-trailer or class or model of motor vehicles, trailers
or semi-trailers to have a different manufacturer's rated capacity than
that claimed or advertised by the manufacturer;
(dd) for the purposes of subsection 69(3), declaring that, on and after a
specified date, sections 68, 69 and 70, or any parts of those sections that
may be specified in the regulations, apply to motor vehicles registered in
a foreign jurisdiction and to the owners, drivers and persons in charge of
them;
(ee) for the purposes of clause 71.1(7)(d), prescribing documents and
reports that must be forwarded to the administrator by a peace officer;
(ff)
for the purposes of subsection 74(1.1):
(i) establishing an ignition interlock program and prescribing its
terms and conditions;
(ii) prescribing the eligibility criteria for participation in the
ignition interlock program;
(gg) prescribing offences for which the period of suspension is indefInite
pursuant to subsection 74(2.1);
(hh)
for the purposes of sections 78.1 to 78.4:
(i) prescribing the persons or class of persons who are authorized
to take and analyse samples of breath;
(ii) prescribing devices for the purpose of taking samples of
breath;
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c.33
(ii)
2000
with respect to any matter governed by this Act:
(i) adopting, as amended from time to time or otherwise, all or
any part of any relevant code or standard;
amending for the purposes of this section any code or standard
adopted pursuant to subclause (i);
(ii)
requiring compliance with a code or standard adopted pursuant
to subclause (i);
(iii)
Gj) prescribing matters with respect to which fees may be charged and
the amounts of those fees;
(kk) providing for the refund or rebate of the whole or part of any fee
paid to the administrator pursuant to this Act and prescribing the
conditions governing rebates and refunds;
(ll) prescribing forms, certificates, documents and reports and the
manner in which they are to be completed;
(mm) prescribing any matter or thing required or authorized by this
Act to be prescribed in the regulations;
(nn) respecting any other matter or thing that the Lieutenant Governor
inCouncil considers necessary to carry out the intent of this Act.
(2) Regulations made pursuant to subsection (1) may make different
provisions for different classes of vehicles, drivers, driver training schools,
driver instructors, licences, permits, certificates and other persons, activities
and things governed by this Act.
(3) Regulations made pursuant to subsection (1) may specify or restrict the
manner, location or time at which a vehicle may be operated.
(4) The minister may make regulations respecting any matter or thing
required or authorized by this Act to be determined by the minister by
regulation".
Coming into force
25 This Act comes into force on proclamation.
REGINA. SASKATCHEWAN
Printed by the authority of
THE QUEEN'S PRINTER
CopyrightCi2000
THE SASKATCHEWAN GAZETTE, NOVEMBER 16, 2001
1019
SASKATCHEWAN REGULATIONS 84/2001
The Vehicle Administration Act
Section 97
Order in Council 819/2001, dated November 6, 2001
(Filed November 7, 2001)
Title
1 These regulations may be cited as The Driver Licensing and Suspension
Amendment Regulations, 2001 (No.3).
R.R's. c.V-2.1 Reg 15 amended
2 The Driver Licensing and Suspension Regulations are amended in the
manner set forth in these regulations.
Section 2 amended
3 Section 2 is amended:
..
(a) by adding the following clauses after clause (1)(1):
"(1.1) 'ignition interlock device' means a device approved by the
administrator that:
(i) is installed in a vehicle; and
(ii) is designed to measure the concentration of alcohol in the driver's
blood;
(1.2) 'ignition interlock program' means a program that enables a driver
to operate a motor vehicle with an ignition interlock device subject to the
terms and conditions set out in sections 33.1, 33.2 and 33.3";
(b) in clause (1)(P) by adding "and includes a licence issued pursuant to
section 34" after "that it is a probationary driver's licence";
(c) by striking out "and" after clause (1)(r); and
(d) by adding the following clause after clause (1)(r):
"(r.1) "restricted driver's licence" means a driver's licence that has been
restricted by the administrator, and includes a driver's licence mentioned in
subsection 33.1(1)".
Section 18 amended
4 Subsection 18(2) is amended by striking out "within the preceding three
years" and substituting "within the preceding five years".
Section 20 amended
5(1) Subsection 20(1) is amended by adding the following clause after
clause (1):
"(g) Intoxilyzer 400 D".
(2) Subsection 20(5) is amended by striking out "section 78.2(4)" and
substituting "subsections 71.1(6) and 78.2(4)".
)
clr
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.,
." ...
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~
1021
,
~:
New section 30.1
7 The following section is added after section 30:
"Review by administ~atorsection 71.2 prohibitions
30.1 A person may apply for a review pursuant to section 71.2 of the Act by:
(a) applying in writing to the administrator on a form provided by the
administrator; and
(b) paying to the administrator the fee set o~t in the fee regulations".
Section 33 amended
8 Section 33 is amended:
(a) in subsection (1) by striking out "subject to subsections (2), (3), (4)
and (5)" and substituting "subject to subsections (2) to (5.1)"; and
(b)
by adding the following subsection after subsection (5):
"(5.1) No person may apply for a driver's licence pursuant to this section if that
person has .been issued a driver's licence pursuant to section 33.1".
New sections 33.1 to 33.3
9 The following sections are added after section 83:
"Application - ignition interlock program licence
83.1(1) A person described in subsection (2) may apply to the administrator for a
driver's licence, and the administrator may issue a driver's licence to that person.
(2) A person, other than a non-resident, may apply for a driver's licence pursuant
to this section only if:
(a) the person has been convicted ofan offence pursuant to section 253 or 254 of
the Criminal Code, and that offence is a first offence within the meaning of
section 72 of the Act;
(b)
the person agrees to participate in the ignition interlock program; and
(c) the person pays the fee set out in the fee regulations.
(3) Notwithstanding subsection (2), a person described in that subsection is not
eligible to be issued a driver's licence pursuant to this section unless he or she has
been assessed by an addictions counsellor and:
(a) has completed an education program or a recovery program recommended
by the addictions counsellor and, where a recovery program has been
recommended, is considered by an addictions counsellor to be at low risk for
continued impaired driving; or
(b) where no education or recovery program· is recommended by the
addictions counsellor, has successfully completed the DWI course.
(4) On receipt of an application pursuant to this section, if the administrator is
satisfied that the applicant is eligible and has complied with this section and that it
is not contrary to the public interest, the administrator may issue a driver's licence
to the applicant.
(5) Subject to section 33.2, a driver's licence issued pursuant to this section is a
restricted driver's licence and remains a restricted driver's licence until one year
from the date of the conviction mentioned in clause (2)(a).
J
.J.
)
1022
)
(6) Every holder of a licence issued pursuant to this section is responsible to pay
all costs associated with the installation, monitoring, servicing and removal of an
ignition interlock device in each motor vehicle the holder operates.
"Ignition interlock program
33.2(1) Every holder ofa licence issued pursuant to subsection 33.1(1) must comply with
any restrictions that the administrator considers necessary and in the public interest.
(2) Where the holder of a licence issued pursuant to subsection 33.1(1) does not
comply with the restrictions mentioned in subsection (1), the administrator may:
(a) revoke the restricted driver's licence and suspend the driver from holding
or applying for a driver's licence; and
(b) prohibit the driver from participating in the ignition interlock program.·
(3) Where a driver does not successfully complete the ignition interlock program,
or a driver is prohibited from participating in the ignition interlock program
pursuant to clause (2)(b), the driver is not eligible for a driver's licence until one
year from the date of the conviction mentioned in clause 33.1(2)(a).
"Prohibitions
33.3(1) No driver to whom a restricted driver's licence is issued pursuant to
section 33.1 shall:
(a) operate a motor vehicle that is not equipped with an ignition interlock device;
(b) solicit a breath sample from any person for the purpose of assisting the
driver to:
(i) start a vehicle equipped with an ignition interlock device;
(ii)
keep a vehicle equipped with an ignition interlock device in motion.
(2) No person shall tamper with an ignition interlock device."
Section 34 amended
10(1) Subsection 34(1) is amended by striking out "subject to
subsections (2), (3), (4) and (5)" and substituting "subject to subsections (2) to (8)".
(2) The following subsection is added after subsection 34(7):
"(8) No person may apply for a driver's licence pursuant to this section if that
person has been issued a driver's licence pursuant to section 33.1".
Section 35 amended
11 Clause 35(a) is amended by striking out ''that subsection" and
substituting "subsection 74(2) ofthe Act".
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05/02/02
09:17 FAX 1 800 563 5003
Program Violations
All uses of the interlock. device are recorded and
. provided to S.GI for. monitoring purposes. Warnings
will be issued to partidpants who do not comply with
the program's conditions. SG! may order the removal
of the ignition interlock device and reinstate the
initial suspension period if violations continue.
Program violations include attempts to drive after
drinking, any attempt to bypass or tamper with the
device, failure to report for monitoring checks and
failure to take a test or a retest when reqUired.
I
Costs
Participants should expect the following costs:
• $125 (plus GST) installation (includes training on
the device)
• $95 (plus CST) monitoring fee per month
• $25 (plus CST) removal fee
• a one-time administration fee of $30
Additional fees may be required depending on the
driver's service requirements.
For further information on driver's licence costs or
eligibility to purchase a licence call SGI at 1-800667-986B.
For further information about the interlock device
or a complete schedule of fees, contact CAA
Saskatchewan at 1-B66-877-08:>8.
SLB241 02/2002 10M IP
)
55/111/
-_.. -----
0!l:19 FAX 1 800 563 5003
..
-------._-- --------- -
SCI CALL CENTER
What is an Ignition Interlock?
An ignition interlock is an alcohol testing device
connected to the ignition and power systems of a
vehicle It prevents the vehicle from being started if
the driver has been drinking. A built-in data logger
reccrds every event as~ociated with the use of the
interlock and every 30 to 60 day~ users must report
t,::> the interlock installer, CAA Saskatchewan, to have
tl-)2 interlock system checked and its information
downloaded.
Eligibility
To use an ignition interlock, you must meet the
fotlcwing:
• the conviction is the first one in the last five years;
- • the conviction is for impaired driving, driving while
ove, .06 or refusing a demand ior a breath test
(sections 253 and 254 of the Criminal Code);
• the court has authorizec Darticipation in an ignition
interlock program;
• the court-ordered absolute prohibition period has
been served; and
• the required addictions screening, and the education
or treatment program recommended by the
addictions counsellor is completed.
~003
Application and Licensing
There is no need to apply for the Ignition Interlock
Program. SGI will notify all drivers who meet the
eligibility criteria.
Eligible drivers will be provided with authorization to
have interlock devices installed in their vehicles. The
driver will also be reqUired to purchase a restricted
driver's licence that only allows the individual to
operate vehicles eqUipped with an ignition interlock
device.
The interlock device cannot be installed, and a
restricted driver's licence cannot be purchased, if the
driver has any other driving prohibitions, administrative suspensions or outstanding traffic fi:les, The
installation costs of the interlock will not be refunded if
the driver is unable to purchase a restricted licence.
Program Duration
After all eligibility requirements have been met and
the interlock device has been installed in a vehicle,
the device must be kept on the vehicle for the remainder of the driver's licence suspension period.
If an individual chooses to remove the device for any
reason. ignition interlock technicians will remove the
device and notify SGI. The individual's licence will be
immediately revoked for the remainder of the initial
suspension period.
Permitted Users
Anyone who wishes to drive an interlock-equipped
vehicle must comply with the program requirements.
Family members or other users of the vehicle should
come for training with the individual who is participating in the program. While others can drive the
interlock-equipped vehicle, the individual who requires
'the device is respoT1sible for any activity recorded by
the interlock.
05/02/02
09:21 FAX 1 800 563 5003
SGI CALL CENTER
---,--------------,-
----
~004
November 9, 2001
Ignition Interlock Program:
Questions and Answers
Q.
What is the Ignition Interlock Program?
A.
It is a program that allows early reinstatement of a driver's licence after a drinking
and driving conviction. It is available only to ftrst-time offenders and is designed
to encourage these individuals to get help quickly and address any alcohol-related
problems.
Q.
Wbat is an ignition interlock device?
An ignition interlock is an alcohol breath testing device connected to the ignition
and power systcms of the vehicle. Its function is to prevcnt the vehiclc from
being started if the driver has been drinking. The driver must take and pass a
breath test before the vehicle can be started or operated.
Saskatchewan will use a device called thc' WR2 which has been developed and is
being supplicd by Guardian Interlock Systems.
)
Q.
Who is eligible to participate in the program?
A.
The following criteria detennine cligibility:
- the conviction is the fllSt one in the last five years;
- -the conviction is for impaired driving, driving while over .08 or refusing
a demand for a breath test (sections 253 and 254 ofthe Criminal Code);
- the required addictions screening, and the education or treatmcnt program
recommended by the addictions counsellor is completed
- three months of the court-ordered prohibition have been served
In addition, the device cannot be installed if the driver has any other driving
prohibitionst administrative suspensions or outstmlding traffic flnes.
Q.
Wby do only first offenders qualify?
A.
Thc Ignition Interlock Program is offered as an incentive for fIrst-time offenders to
attend the required addictions screening quickly and receive hclp for their alcoholrelated problems.
05/02/02
09:22 FAX 1 800 563 5003
SCI CALL CENTER
---_._---------
!
~005
2
Q.
How does the program work?
A.
Eligible drivers will have interlock devices installed in their vehicles. The driver
will also be required to purchase a restricted driver's licence which only allows the
individual to operate vehicles equipped with an ignition interlock device.
The device prevents the driver from starting the vehicle if the device detects any
level of alcohol in the driver's breath samples. The driver must return to the
installation facility to have the device calibrated and serviced at least every 60
days. Failure to service the system by the required date could result in the device
locking itself. The vehicle will not start and will have to ·be towed or have
arrangements made with the interlock provider to allow additional days to bring
the vehicle in for servicing ofthe device.
All program activity will be monitored. A built-in data logger records every event
associated v.rith the use ofthe interlock. This infonnatio~ is provided to SOl for
monitoring purposes.
Warnings will be issued to partjcipants who repeatedly fail the breath tests, and
SGI may order the removal of the ignition interlock device and reinstate the
suspension period ifviolations contiillie.
--./'
Q.
Who pays for the program?
A.
The program costs SGI nothing. All costs are paid for by the participants in the
program on a user pay basis.
'Q.
Wbat Is the cost?
A.
Participants should expect the following costs:
- $125.00 (plus OST) installation (incluck$ training on the device)
- (a higher fee is charged for power units and luxury vehicles)
- a one·time administration fee of $30.00
- $95.00 (plus GST) monthly rental
- S25.00 deinstall fee
Additional fees may be required depending on the driver's service requirements.
Pa)1T1ents will be made directly to the interlock.provider. Cash, certified cheques,
money orders, Interac, Mastercard and Visa are all accepta~le means ofpayment
05/02102
09:23 FAX 1 800 563 5003
SGI CALL CENTER
~006
3
Individuals should contact eAA at 1·866-877-0808 for a complete schedule of
fees.
Q.
Does being in the program affed the cost of a driver's licence?
A.
No. The cost of a driver's licence is based on an individual's driving history.
Q.
When can a person enter the program?
A.
All first·time offenders who wish to be eligible for the program must ·first serve
three months of their driver's licence suspension period, undergo an addictions
screening and complete any prescribed education or treatment programs.
Q.
Is an individual eligible if the con,ict1on occurred before the program was
announced?
A.
Yes. As long as the eligibility criteria are met
Q.
How long does the device stay in the vehicle?
A.
The interlock must be kept on the vehicle until the one-year disqualification
ordered by the court has been served.
Q.
What happens if a program participant requests the interlock provider to
remove the deviee?
.""-,,,
)
SGI will be immediately notified and will reinstate the original disqualification
period. The participant's driver's licence will be suspended for the remainder of
the court ordered disqualification period.
Q.
How does someone apply for the interlock device? .
SGI will send a letter to the driver when he or she is eligible to have the interlock
installed. The driver can then go to the interlock provider and have the device
installed.
Q.
Where does one go to have the ignition interlock device installed?
A.
Saskatchewan eAA is providing facilities and doing the installation on behalf of
Guardian Interlock Systems.
The installation facilities aTe located in Regina and Saskatoon. Servicing will be
05/02/02
09:24 FAX 1 800 563 5003
SCI CALL
CE~TER
@007
4
......... /
provided in Regina, Saskatoon and Prince Albert. Individuals can contact eAA
toll free at 1-866-877-0808 for more information or to book appointments.
Q.
Why are there only three facilities?
A.
Guardian Interlock Systems proposed three central locations to keep the program's .
costs reasonably affordable for participants.
Q.
Can the device be installed in a vehicle other than a car or truck?
A.
Although the device has been successfully installed and used in some other types
of vehicles (e.g; heavy trucks, construction equipment and some off-road vehicles),
not all vehicles are suitable for use with this interlock system. The following
criteria are used to detennine vehicle suitability:
- must provide a weathelproof environment (enclosed cab)
- must be equipped with a keyed ignition system
Thus, for example, a motorcycle would not be considered a suitable vehicle.
The interlock intaller should be consulted for specific vehicle types.
Q.
.Can the device be installed In more than one vehicle?
A.
Yes, but the individual will be charged for every device that is installed, however,
the $30 admin fee is only charged once.
Q.
Can someone other thaD the restricted driver or ignition interlock participant
drive an ioterlock-equipped vehicle?
A.
Yes. Individuals such as a·spouse, family member, or employee must be trained on
how to properly use the device and must abide by all the program requirements
placed on the program participant.
While others can drive the interlock-equipped vehicle, the driver who requires the
device is ultimately responsible for any activity recorded by the interlock. Any
attempts by someone else to start the vehicle ifthey have been drinking will be
recorded and attributed to the program participant.
Q.
Is installation of the interlock restricted only to tbe program participant's
vehicle?
05/02/02
09:25 FAX 1 800 563 5003
SGI CALL CENTER
:=:.::..:..:.:::.~---
A.
No. The device can be installed on other vehicles, such as an employer's or
spouse's.
Q.
Can an individual puticipating in the interlock program get a restricted
work permit to drive vehicles for work purposes that do not have an interlock
installed?
A.
.No. Vehicles used for work purposes must have the interlock device installed.
If an employer has a fleet of vehicles, the individual should try to work out an
arrangement with the employer to have a vehicle assigned with the device installed
until the prohibition order is fmished.
)
.....
_
..
Q.
What happens if someone has been drinking and tries to operate tbe vebicle?
A.
The vehicle cannot be started if the device detests the presence of alcohol. The
date and time of the attempt, as well as the measured blood alcohol content will be
recorded.
Q.
What happens if the driver fails to give a breath sample when the system
randomly requests one?
A.
If the re-test is not taken or if alcohol is detected, an alarm will be activated. It
will remain on until the driver passes the breath test or brings the vehicle to a stop
and turns offthe engine. If the alarm is allowed to remain on, a violation will be
recorded by the syst~m and the service date will be reset to require the participant
.to return 10 the service center within five to seven days. Failure to return for
servicing will result in a pennanent lockout. It will not accept a breath test and
will not allow the starting of the vehicle Wlder any circumstances.
Q.
How will cough syrup, mouthwash or other medications that have alcohol in
them affect the interlock device?
A.
Even though the breath alcohol tester is calibrated to ensure that use of cough
syrup or mouthwash will not result in a zero BAC violation, individuals should
avoid any products containing alcohol for at least 10 minutes before using the
system or rinse their mouth thoroughly with water.
Q.
Can food or liquid other than alcohol affect tbe interlock device?
A.
Only if the food or drink contains alcohol.
~008
05/02/02
09:26 FAX 1 800 563 5003
SGI CALL CENTER
~009
6
Q.
..•
--
•..
Can individuals with breathing problems use the interlock device?
A.
Yes. Most breathing problems will not prevent a person from operating the
. device. Only a few seconds of continuous blowing into the device is required.
The interlock provider will provide advice and assistance for specific problems.
Q.
How does the system know the driver 15 the one giving the breath sample?
A.
The interlock device does not recognize specific individuals, i.e. only the driver.
However, the device has a number of sophisticated features that make it difficult
for an individual to provide a proper breath sample without having been properly
trained by a qualified service technician. Each failed attempt to provide a breath
sample is recorded and attributed to the program participant.
Q.
What are the consequences of misusing the interlock device or atte~pting to
start the vehicle after drinking?
A.
After warning the driver, continued violations will result in·the device being
removed from the vehicle and the original suspension period being reinstated. The
driver will not be· allowed back into the program unless the Highway Traffic
Board, upon an appeal, allows the individual to reinstall the interlock. The
individual will also be responsible for all the additional costs including the
deinstall fee-when the device is removed 8S well as the $125 to have the device
reinstalled.
Q.
What are the consequences' of a program participant driving a vehicle that
doesn't have an interlock?
A.
The driver will be in breach of the conditions of the restricted driver's licence,
which meanS the individual can be charged for driving while disqualified or
driving without an appropriate licence. A conviction will result in the removal of
the device and reinstatement of the original suspension period.
Q.
Can a
A.
No. The interlock system cannot be used with any remote starting devices.
Q.
What bappens if the vehic:le stalls?
"comman~
start" be used with the ignition interlock system?
05/02/02
09:27 FAX 1 800 563 5003
SCI CALL CENTER
----
~010
7
A.
There is a stall protect mode. It allows the vehicle to be safely restarted without
having to give a breath sample.
Q.
What happens if an ignition interlock equipped nhide needs to be repaired?
A.
The interlock system will not interfere with most types of repairs. The interlock
installer should be consulted when major repairs are required as a temporary
disconnection of the ignition system may be required.
Q.
wm the system work properly in Saskatchewan's cold winter dimate?
A.
Yes. The device is capable of operating accurately in extreme conditions.
However, in extremely cold weather the samPc head should be remov~d and
stored in the house when not in use. Moisture build-up on and within the
mouthpiece could freeze and cause problems with starting.
Q.
What happens if an Individual bas trouble with the ignition device and with
getting the vehicle started?
'-'"
If the "User Manual" does not cover the speCific incident, emergency scIVices will
be available from the service provider.
)
Q.
Can the vehicle be started and used if there is 8n e~ergeDCY and there may
not be someone BvaUable who can properly use the interJock?
A.
. The system allows for an emergency override. If this feature is used, the service
date is changed and the driver must bring the vehicle for servicing within five
days. The program participant will be required to complete an occurrence report,
which i~ forwarded to SGl, outlining the circumstances of the emergency. The
technician will reset the emergency override when the device is serviced.
,
I
Q.
A.
Will the Ignition interlock affect the operation of the vehicle or any warrant)·?
. The interlock device is designed to interfere as little as possible with the vehicle's
operation.
Concerns relating to warranty should be discussed with the vehicle's dealer and the
interlock provider.
"
--'
I
05/02/02
09:28 FAX 1 800 563 5003
SGI CALL CENTER
~Oll
8
'
....../
Q.
Can a driver with an interlock device travel outside ·of Saskatchewan?
A.
Yes, provided the participant continues to meet the scheduled service
requirements.
Q.
If an individual moves to another province or territory, can they keep the
system in the vehicle and continue to drive with the restricted driver's
licence?
'-.-/'
.
A.
Not at this time.
Q.
Do other provinces or territories have ignition interlock programs?
A.
Alberta has had a program since 1990. Quebec established their program in 1997.
Yukon. Manitoba and Ontario are looking at introducing a program.
Q.
Is Saskatchewan considering expanding 6le program to allow repeat
offenden to participate? If so, when?
A.
Not at this time.
Q.
Why not make it mandatory for first-time offenders·.to participate in the
program?
A.
The Ignition Interlock Program offers an opportunity for early driver's licence
reinstatement. It is a tool for encouraging individuals to g~t help early and address
any alcohol-related behaviour problems.
.
.We believe in looking for the best tools for addressing and ~aging the problem.
of drinking and driving..At this time, there is no proof that mandatory
participation will provide better results than a voluntary program. Ifother
jurisdictions introduce mandatory programs, Saskatchewan will monitor their .
experience and make an assessment.
'"--,,
)
APPENDIX "B"
8
c.33
2000
)
Section 69 amended
14(1) Subsection 69(3) is amended:
(a) by striking out "under subsection (1)" and substituting "pursuant to
subsection (2)"; and
(b)
by adding "pursuant to clause 97(I)(dd)" after "regulations".
(2) Subsection 69(4) is amended by striking o.ut "under subsection (2)" and
substituting "pursuant to clause 97(I)(dd)".
Section 71 amended
15 The following clause is added after clause 71(a):
"(a. 1) 'drive' includes having the care or control of a motor vehicle, whether
it is in motion or not".
New sections 71.1 to 71.3
16 The following sections are added after section 71:
"Administrative prohibition
71.1(1) A peace officer shall do the things set out in subsection (2), (3) or (4)
where:
(a) the peace officer has reasonable grounds to believe, by reason of an
analysis of the breath or blood of a person, that the person drove a motor
vehicle having consumed alcohol in such a quantity that the amount of
alcohol in the person's blood exceeded 80 milligrams of alcohol in 100
millilitres of blood; or
(b) the peace officer has reasonable grounds to believe that the person
failed or refused, without reasonable excuse, to comply with a demand
made pursuant to section 254 of the Criminal Code.
(2) Where the person mentioned in subsection (1) holds a valid driver's
licence, the peace officer shall:
(a) seize and take possession of the driver's licence of the person and
serve on the person a notice of prohibition; and
(b) issue a temporary permit that expires seven days after the date of
service of the notice of prohibition or on the expiry of the driver's licence,
whichever is earlier.
(3) Where the person mentioned in subsection (1) does not hold a valid
driver's licence or any other permit authorizing the person to drive a motor
vehicle, the peace officer"shall serve on the person a notice of prohibition.
(4) Where the person mentioned in subsection (1) holds a valid document
issued in another jurisdiction that authorizes the person to drive a motor
vehicle, the peace officer shall serve on the person a notice of prohibition.
=
9
2000
c. 33
(5) A notice of prohibition issued pursuant to this section:
(a) prohibits the person named in the notice from driving a motor
vehicle for 90 days, effective:
(i) seven days after the day on which the notice is served on the
person or on the expiry of the person's driver's licence, whichever is
earlier, in the case of a notice of prohibition served pursuant to
subsection (2); and
(ii) the date of service of the notice of prohibition, in any other
case;
(b) prohibits the person named in the notice from applying for or
holding a driver's licence for 90 days. effective:
(i) seven days after the day on which the notice is served on the
person or on the expiry of the person's driver's licence, whichever is
earlier, in the case of a notice of prohibition served pursuant to
subsection (2); and
(ii) the date of service of the notice of prohibition, in any other
case; and
(c) is effective notwithstanding that a peace officer is unable for any
reason to take possession of the driver's licence of the person named in
the notice.
A notice of prohibition must be in the prescribed form, must contain the
prescribed information and must be completed in the prescribed manner.
(6)
A peace officer who issues a notice of prohibition pursuant to
subsection (2), (3) or (4) shall immediately forward the following items to the
administrator:
.
(7)
(a)
of;
any driver's licence or permit that the peace officer takes possession
(b)
a copy of the notice of prohibition;
(c) a copy of any relevant certificate of analysis described in section 258
of the Criminal Code issued with respect to the driver;
(d) any other documents or reports that may be prescribed in the·
regulations.
(8) If a person mentioned in clause (2)(a) is not in possession of his or her
driver's licence when he or she is served with a notice of prohibition, the
person must promptly send the driver's licence to the administrator.
(9) A temporary permit issued pursuant to clause (2)(b) is deemed to be a
driver's licence of the same class as the driver's licence that was seized
pursuant to clause (2)(a), and is subject to all of the restrictions, endorsements
and conditions as the driver's licence that was seized.
10
c. 33
2000
"Review of prohibition
71.2(1) Subject to subsection (2), a person may, within 90 days after being
served with a notice of prohibition pursuant to section 71.1, apply for a review
by the administrator of a notice of prohibition in the' form and manner
prescribed in the regulations.
(2) A person who fails to comply with subsection 71.1(8) is not entitled to
apply for a review pursuant to subsection (1) unless the person submits to the
administrator a statutory declaration in the prescribed form stating that his
or her driver's licence has been lost, stolen or destroyed.
(3) An application for review must be accompanied by the prescribed fee.
(4) Where a person wishes an oral hearing, the application for review must
. , request a date and time for an oral hearing and must be accompanied by the
prescribed oral hearing fee.
(5) Where a person does not wish an oral hearing, the application for review
must be accompanied by affidavit evidence or any other information that the
person wishes the administrator to consider.
(6) An application for review does not stay the driving prohibition.
(7) The administrator is not required to hold an oral hearing unless the
application includes a request for an oral hearing and is accompanied by the
prescribed fee.
(8) IT a person requests an oral hearing but, without prior notice to the
administrator, fails to appear on the date and at the time and place arranged
for the hearing, the person is deemed to have waived the oral hearing, and the
administrator shall conduct the review as if the person had not requested an
oral hearing.
(9) On a review conducted pursuant to this section, the administrator shall
consider:
(a)
any affidavit evidence or other information provided by the person;
(b) the certificate of analysis and any other documents or reports
forwarded to the administrator by the peace officer pursuant to
subsection 71.1(7); and
(c) where an oral hearing is held, in addition to the matters mentioned
in clauses (a) and (b), any relevant evidence and information given or
representations made at the oral hearing.
(10) The sole issue before the administrator on a review pursuant to this
section is whether the administrator is satisfied that the person named in the
notice of prohibition:
(a) drove a motor vehicle having consumed alcohol in such a quantity
that the amount of alcohol in the driver's blood exceeded 80 milligrams of
alcohol in 100 millilitres of blood; or
failed or refused, without reasonable excuse, to comply with a
demand made pursuant to section 254 of the Criminal Code.
(b)
11
2000
c.33
(11) If the evidence before the administrator does not establish to the
administrator's satisfaction that the person named in the notice of prohibition
did the thing described in clause (10)(a) or (b), the administrator shall:
(12)
(a)
cancel the notice of prohibition; and
(b)
where applicable, return the driver's licence to the person.
The administrator shall:
(a)
render a decision in writing:
(i) within two days after the date of the hearing, not including
Saturdays orholidays; or
(ii) if no hearing is requested. within three days after the day on
which the affidavit evidence or other information mentioned in
subsection (4) is submitted; and
(b)
provide the driver with a written copy of its decision.
(13) The failure of the administrator to render a decision within the period
mentioned in clause (12)(a) does not affect the jurisdiction of the administrator
to consider or hear the application for review or make a decision with respect
to the application.
"Certificate of analysis as evidence
71.3 In a hearing pursuant to section 71.2, the certificate of analysis
provided to the administrator pursuant to clause 71.1(7)(c) is proof, in the
absence of evidence to the contrary, of:
(a) the amount of alcohol in the driver's blood at the time he or she was
driving, if the blood or breath sample was taken as soon as practicable
after the time when the driving was alleged to have been committed and,
in the event, not later than two hours after that time; and
(b) the statements contained in the certificate, without proof of the
signature or the official character of the person appearing to have signed
the certificate".
1023
)
Appendix amended
12 The Appendix is repealed and the following substituted:
"Appendix
NOTICE AND ORDER OF SUSPENSION,
DISQUALIFICATION OR PROHIBITION
[Subsection 20(5)]
Police Report No.
_
SGINO.
DRIVER INFORMATION
Name:
_
1
Date of Birth:
Last Name! First Namellnitial
year
Address:
_
Sex:
Male
0
1
month
Female
day
0
Telephone: ( _ _ )
Driver's Licence No.
o Sask
_
DOther
_
Indicate jurisdiction
Type of licence:
0
0
No type indicated
Licence or permit seized:
0
Probationary
0
Provisional
o Restricted
0
Learners
o No
Yes
Model:
Vehicle Make:
Year:
NOTICE AND ORDER OF SUSPENSION, DISQUALIFICATION OR PROHIBITION
On _ _~I_ _.L.I
_ at or about
_
hours at or near
_
in the Province of Saskatchewan, in relation to the operation or having care or control of a motor vehicle as defined in
The Vehicle Administration Act, the undersigned Peace Officer:
o
has reason to believe that you have consumed alcohol:
(i) by reason of analysis of your breath or blood; or
(ii)
o
by reason of reasonable and probable grounds;
has reason to believe that you have consumed alcohol in such quantity that the concentration of alcohol in your
blood exceeds 40 milligrams of alcohol in 100 millilitres of blood:
(i) by reason of analysis of your breath or blood; or
(ii)
o
o
by reason of reasonable and probable grounds;
has reason to believe by reason of analysis of your breath or blood t.hat you have consumed alcohol in such
quantity that the concentration of alcohol in your blood exceeds 80 milligrams of alcohol in 100 millilitres ofblood;
has reason to believe that you have alcohol in your body and have failed to supply or refused to comply with a
demand to supply a sample of your breath or blood;
and on behalf of the Administrator:
o
o
o
in the case of a driver who holds a probationary, provisional or restricted driver's licence, hereby suspends you
from applying for or holding a driver's licence or permit in Saskatchewan and from operating a motor vehicle on a
highway in Saskatchewan for 30 days;
in t.he case of any other driver, hereby suspends your driver's licence for 24 hours or suspends you from applying
for or holding a driver's licence or permit in Saskatchewan for 24 hours and from operating a motor vehicle on a
highway in Saskatchewan for 24 hours;
in the case of any other driver, hereby suspends you from applying for or holding a driver's licence or permit in
Saskatchewan and from operat.ing a motor vehicle on a highway in Saskatchewan for 90 days.
1
SUSPENSION START DATE [
year
"
1_ _ )
month
date
TIME:
1
_
24 br clock
1024
TEMPORARY DRIVING PERMIT
Temporary Permit Issued
YES
0
NO
0
Subject. to the terms and conditions set out. in sect.ion 71 of The Vehicle Admi,tistratio,t Act, this Temporary Driving
Permit is in effect. upon the expiry ofthe twent~·four(24) hour Suspension, Disqualification or Prohibition noted above.
1
This temporary driver's licence expires on [
year
1
mODth
I
TIME: [
date
_
24 hr clock
- oron the expiry of your driver's licence or permit which ever is earlier.
I acknowledge receipt of this Notice and Order of Suspension, Disquali.fication or Probation.
Sipature or Driver
Date
Sisnature or Peace Officer
Date
PEACE OFFICER - COMPLETE REPORT ON REVERSE
Indicate observations made regarding alcohol consumption or impairment where breath device is not used.
Coming into force
13(1) These regulations come into force on the day that sections 16, 17 and 22 of
The Vehicle Administration Amendment Act, 2000 (No.2) come into force.
(2) If these regulations are filed after the day sections 16, 17 and 22 of The Vehicle
Administration Amendment Act, 2000 (No.2) come into force, these regulations
come into force on the day they are filed with the Registrar of Regulations.
REGINA. SASKATCHEWAN
Printed by the authority of
THE QUEEN'S PRINTER
Copyright<02001
05/02/02
09:29 FAX 1 800 563 5003
SGI CALL CENTER
~012
'.
LNovember 9, 2001
9O-Day Administrative Suspensions:
Questions and Answers
Q.
What is the 90-day administrative suspension?
A.
Police officers will be authorized to immediately suspend the driver's licence of
anyone driving with a blood alcohol content (BAC) over .08 or refusing a demand
for a breath test. The suspension wil1last 90 da}'S.
Q.
Who can be suspended?
A.
'This 90-day roadside suspension will be applied to anyone charged with driving
with a BAC over .08 or refusing a demand for a breath test.
Q.
How will the suspension work?
A.
Anyone being charged with an offence for a BAC over .08 or refusing'a breath test
will also be served with the 9D-day administrative suspension. The driver will be
given a 24-hour suspension, which will take effect immediately, a seven-day
'-../'
)
driving pennit if the individual has a valid driver's licence and a 90-day
administrative suspension when the driving permit ends.
Q.
Why is this new law being introduced?
A.
The 9D-day administrative driver's licence suspension is part ofthe province's
continuing efforts to combat drinking and driving. It is an innnediate and serious
consequence for those who continue to choose to drink and drive. .
Q.
Does this replace other suspensions such as the 24-hour suspension 'or the 30day suspension for new drIvers?
A.
No. An experienced driver who drives with a BAC over, .04 may still be
suspended by the police for 24 hours. New/probationary or restricted/provisional
drivers will be suspended for 30 or 90 days if they drive after having consumed
any alcohol.
This new 90·day suspension will be applied to all classes or categories of drivers if
they drive with 8 BAC over .08 or refuse a breath test.
',,"-,,-'
05/02/02
09:30 FAX 1 800 563 5003
SGI CALL CENTER
~013
2
Q.
Is the 90.day suspension "constitutional"?
A.
Manitoba's 90.day administrative suspension was the first program of this kind in
Canada, and the first to be challenged, but 1he courts ruled it was constitutional
and did not exceed provincial authority. Challenges to the administrative
suspensions in British Columbia, Alberta, Ontario, Nova Scotia and Prince Edward
Island were also unsuccessful.
Q.
Is a person not innocent until proven guilty?
A.
When Manitoba's law was challenged, the court recognized the suspension to be an
administrative sanction. The suspension is intended to be a swift, certain means of
taking drinking drivers off the road. "Whether the driver is guilty or innocent of the
charges will be·detennined by the courts.
Q.
What if the driver is found not guilty?
A.
The Criminal Code charge is a separate matter from the administrative suspension.
Provided the 9O-day administrative suspension is lawfully imposed, it will be
maintained.
Q.
Does the 9O-day suspension result in fines or points against the driver's
licence?
A
This is an administrative suspension only, which means there are no fines and no
points will be placed against the driver's licence. If convicted then fines and driver
points will apply.
Q.
Since this Is an immediate suspension what wiD happen to the vehicle?
A.
If someone else is in the vehicle who is able to drive, they can take control of the
vehicle. If not, the vehicle will be either parked or seized depending on the
circumstances. Again depending on the circumstances, such as whether a·driver
has the means to do so, he or she may be left to find their own transportation home.
Q.
Do other provinces have 90·day suspensions?
A.
Except for Newfoundland, New Brunswick and the Northwest Tenitories, all the
other provinces' have a similar 9O-day administrative suspension with the exception
of Quebec. In that province the administrative suspension will soon be changed to
30 days for a first offence and 90 days for a second offence. There is no seven day
driving pennit granted in Quebec.
05/02/02
09:31 FAX 1 800 563 5003
SGI CALL CENTER
~014
-~----
3
Q.
Is there an appeal oftbe 90-day suspension?
Yes. The cost is $50 for a written appeal and $100 for an oral hearing. The
individual must provide evidence that he or she did not drive 8 vehic1e having
consumed alcohol in an amount that exceeded a BAC of .08 or did not tail or
refuse, without Ii reasonable excuse, to provide a breath sample.
I
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.'-..../.
)
,
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!
.......- - /
05/02/02
09:31 FAX 1 800 563 5003
SGI CALL.s.giITER
~015
II
Instru~tions
Please ensure the Driver Information is complete:
• the "Police Report No." is your internal departmental file number
I
+ the address should include a postal code
I
.. the plate number should be recorded with the vehicle make
Refer to the foilowing chart for the E1ppropriate suspension period:
1
I
I
Suspensions
Driver Type
i
I24 Hour/7 Day
iDriving Permit
and 90 Days
·30.Day
24 Hour
I
NewlProbationary Driver
!
I
./
Over zero to 0.08 BAC
E.,<ceeds 0.08 BAC
'.
Refuses hreath test
./
./
Restricted or Provisional Driver
./
Over zero to 0.08 BAC
I
Exceeds 0.08 BAC
I
Refuses breath test
"-
Experienced Driver
./
Over 0.04 to 0.08 BAC
--
I
!
I
;
Exceeds 0,08 BAC
!
Refuses breath test
I
For probationar~ restricted, learners class
and provisional drivers who .have consumed
any amount of alcohol. check Box
Apply the 30 day suspension in Box
For experienced drivers who have a BAC
between 0.04 and 0.08. check Box·
Apply the 24 bour suspension in Bo~
o
m
II!
i
I
./
./
.I
I
any driver who has heen c~arged with an
offence for eh-iving over 0.08. d~ieck Box
I
. Appiy the 24 hotH- suspension ih Bvx
and the 90 da~' S\lSpenS\on in ~ox
. i
.For any dl'iver who has ht'~n ~~arged with ~m
offence for l't:fu~ing n bl'e~\th
check Box
Apply the 24 hour s\.tspension 10 Box
and the 90 day s\1spenSioll in Box
F01'
IT]
./
./
tart.
m
m
o
L0
[I]
GJ .
NOTE: \Vhere a roadside breath device has not been used end thE, suspension is being applied "hy reason ofl'ellsonable
and probable grounds" (Boxes
(ii) and I]] (ii», observations regarding alcohol consumption or impairment
MUST be recorded on the reverse side of the lorm.
.
m
The· 90 dar suspension pel'iod can only be applied if there has been l:l charge for driving: with a BAC over 0 08 or refusing
a breath test. The driver's licence must he seized and submitted to SGI with the form.
.
Suspension Start Date
1.
30 day and 24 hour suspension periods - the suspension start date and time is immediate.
2. 90 day suspension period - the suspension start date andtirne is immediate: The temporary driving permit will expire
seven days after the 24 hour suspension or on the expiry of the driver's licence if it is sooner than the seven days.
Example: A driver is stopped and charged on 'Ihesda); January
i,
2002 at 10:00 a.m.
at
The suspension start date will be Tuesday, January 1,2002 10:00 a.m. The temporary driver's permit will
expire Wednesday, January 9. 2002 at 10:00 a.m. (seven days after the expiry of the 24 hour suspension).
The driver will be able to drive on the temporary driver's permit from Wednesda~; January 2.200210:01 a.m,
until Wednesday, January 9, 2002,9:59 R.m.
05/02/02
09:32 FAX 1 800 563 5003
SGI CALL CENTER
~016
Notice and order of suspension,
disqualification or prohibition
Check off boxes
Situation
!Regular driver, over 80mgOIo
(3,
!Regular driver, refusal
~,b,
yes
h, c
yes
c
PO
!Regular driver,
roadside .suspension (40-8OmgOlo) 2,b
.
lProbationary, provisional, restricted driver, over
80mgOIo
IProbationat'Y, provisional, restricted driver,
efusal
!Probationary, provisional, restricted driver,
oadside suspension (O-80m~%)
IUnlicenced driver, over 80mg%
~,b,
Unlicenced driver, refusal
..
Unlicenced driver, roadside suspension
40-80mg%)
Driver on 7-day permit, over 80mg%
)
c
~es
~,b,c
~es
1, a
~o
~,
~,b,c
Ino
no
~,b
no
~,b,c
00*
!Ilo*
b, C
Driver on 7-day permit, refusal
~,b,c
Driver on 7-day pennit, roadside
1, .....
•
7.day
permit
0
Ino
IMPORTANT
For drivers stopped while'oD 7-day permit only.. '
*When a driver operating on a 7.day tempo.rary driving permit is charged with over 8Orng% or refusal, do not
issue another 7-day permit Issue a permit for the number of days remaining on their original7-day permit. (VM
s. 71.1(2)(b) ", .. issue a tempoTlllYpmnit that expires i days after the date of service or on expirY of the driver's
licence.....
Example:
Driver charged wllb over 80 on the 151
24.}u suspension expires on the 200
7-d1lY permit expires on the ~
then 90 clay SUspension starts
Charged again for OVtT 80 on the 6th
24·hr suspension Cllpires on the 7th
2·day Pennit issued expireS on the 9th
then 90 day suspension slerts
I
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APPENDIX "C"
AlcoTrace(TM) 4.0
Blood Alcohol Simulation
)
Joe Innocant
185 Ibs. Height: 70
Apr. 1, 2002 120, 120
58.5 liters
1931 Day: 1
2003 Day: 1
2027 Day: 1
Name:
Weight:
Date/BAC:
Oil. Vol:
Time of offense:
Time of first test:
Time of second test:
1:1
1430 - 1830:
Elimination Rates:
5
cans of beer IMP @ 5 % alcohol
Mg/dl of blood
Minimum
Maximum
o
o
o
o
1400
1430
1500
1530
1600
1630
1700
1730
1800
1830
1900
1930
2000
2030
2100
o
o
o
o
2
7
14
22
31
40
50
56
59
58
56
53
2
5
9
13
17
19
16
11
4
o
Blood alcohol range: At time of offense:
At time of test 1:
At time of test 2:
AUC (maximum):
AUC (minimum):
1430
Absorption factor:
10 - 20 mg/dl hour
Time
1:1
in.
50.87
10.58
1830
BAE:
16
to 59 mg/dl
11 to 58 mg/dl
5 to 57 mg/dl
romol h/1
romol h/l
23.9
mg/dl per 1 cans of beer
Blood alcohol equivalent (BAE) of amount left unabsorbed
At time of offense:
13 mg/dl of blood
At time of first test:
8 mg/dl of blood
At time of second test:
6 mg/dl of blood
Licensed to: MARK BRAYFORD, Q.C.
)
1
AlcoTrace(TM) 4.0
Blood Alcohol Simulation
Joe Innocent
185 lbs. Height: 70
Apr. 1, 2002 120, 120
58.5 liters
1931 Day: 1
2003 Day: 1
2027 Day: 1
Name:
Weight:
Date/BAC:
Dil. Vol:
Time of offense:
Time of first test:
Time of second test:
1:1
1500 - 1830:
Elimination Rates:
5
cans of beer IMP @ 5 % alcohol
Mg/dl of blood
Minimum
Maximum
1500
1530
1600
1630
1700
1730
1800
1830
1900
1930
2000
2030
2100
o
o
o
o
3
8
15
22
30
34
34
31
26
19
3
8
15
22
30
34
34
31
26
19
o
o
Blood alcohol range: At time of offense:
At time of test 1:
At time of test 2:
AUC (maximum):
AUC (minimum):
1500
Absorption factor:
17 - 17 mg/dl hour
Time
1:1
in.
24.71
24.71
1830
BAE:
34
30
26
34
30
26
mmol h/l
mmol h/1
23.9
mg/dl per 1 cans of beer
Blood alcohol equivalent (BAE) of amount left unabsorbed
At time of offense:
15 mg/dl of blood
At time of first test:
9 mg/dl of blood
At time of second test:
6 mg/dl of blood
Licensed to: MARK BRAYFORD, Q.C.
to
to
to
mg/dl
mg/dl
mg/dl
1
mgldl
34.6
)
30.7
26.9
23.0
19.2
15.4
1l.5
7.7
3.8
0.0
1600
1700
1800
Time
Blood alcohol curve using a typical elimination rate of 17 mg. of alcohol per hour
"
IGNITION INTERLOCK BREAm TESTERS: Good Legislation, Long Overdue
APPENDIX "D"
- - - - - - - - --* .- - - - - - - - - -
i
1~ f<ods{~/~
I
Hone Your Charter Arguments With:
CRIMINAL
REPORTS
IMPACT ON THE
/3/
Cdur'
Fifth Series/Cinquieme serie
CRIMINAL
JUSTICE SYSTEM
Recueil de jurisprudence en droit criminel
[Indexed as: Buhlers v. British Columbia (Superintendent of
Motor Vehicles)]
Editor: Jamie Cameron
An essential text for criminal lawyers seeking to take
their Charter arguments to the next level. Leaders in the
criminal law field, including trial and appellate judges,
defence counsel, Crown attorneys and academics
assess the Charter's impact and analyze the latest
developments on such topics as:
Hinds, Prowse, Finch JJ.A.
Judgment: February 24, 1999*
Docket: Victoria CA V03242
lejJj'ey Green and Rohert Clalls, for the AppeIlant and Ihe Intervener David
B,my.
George JI. Copley, Q.c. and lean M. Walters, for the Respondents.
Constitutional issues __ Distribution of legislative ,lowers - Federal- Cilllsiitutional responsibility for criminal law - !'rll\'incial legislation imposes dri\'ing prohibition for dri\'ing "over 80" or refusing prior to com'iction without need for oral hear·
ing _ Not ultra vires -I'ith and substance is licensing of dri\'ers and safety 01'
highway.
Order # 9553887·804 $85
Constitutional issues __ Charter of Rights and Freedoms - Life, liberty and security
of person _ I'rovinciallegislation imposes driving prohibitiou I'or driving "ll\'er llf)" or
refusing prior to conviction without need for oml hearing - Driving is not Iiherty in-
Hardcover /375 pages /1996/ 0-459·55388-7
Shipping and handling are extra.
Price subjecllO change wil.hout nollce and subjecllo applicable taxes.
terest protected by s. 7.
Available for 30 DAYS Risk-Free
The accused was driving a mOlor vehicle on June 14. 1997. when he was stopped hy a police
ollicer and f'liled a roadside screening device les!. Upon ohtaining a hlood/alcohol reading of
110 milligrams of alcohol in 100 millilitres of hlood. he was charged with impaired driving
and "over 80". contrary 10 SS. 253(a) and (h) of lhe Cod". Also. pursuanl 10 recenlly cnacted
ss.9.U 1094.6 of the Motor \'"hiefe Act. he was served with a notice under s. 94. \( I )(a).
which stated Ihat upon Ihe expiration of 21 days. a driving prohibition lasling 90 days would
HIke effect. However. s. 94.4 of the Acr gave him seven days to apply for a rcvicw of the
TO ORDER "lr CALL TOLL FREE
1-800-387-5164
Please Quote Order # 9553887-804
,~~~
One Corporale Plaza, 2075 Kennedy Road, Scarborough. Ontario MlT 3V4
www.carswell.com
Year 2000 compliance: see www.carswell.com for updates
__.. _ - - - - - - - - -
British Columbia COlu1 of Appeal
Heard: November 25-27, 1998
• The investigative process
• The fault element in s. 24(2) of the Charter
• Disclosure and production of confidential
counselling records
.
• Protection for child witnesses
• Evidence and trial procedure
• Principles of criminal responsibility
• Daviault and the defence of intoxication
• Drug law enforcement
• Extradition from Canada
..
Michael S. Buhlers, Petitioner (AppeIlant) and David Barry,
Intervenor and The Superintendent of Motor Vehicles for the
Province of British Columbia and The Attorney General of the
Province of British Columbia, Respondents
...._ ..._..l!.198
*A corrigendum
was delivered hy Ihe court on April 21. 1999 correcting texi and ,,,Iding
subseclions 94.6(4) 1094.6(9) inclusive has heen incorpormcd herein.
-------~i--------·-·---
2
CRIMINAL REPORTS
23 C.R. (5Ih)
driving prohibition to the Superinlendenl, who is 1I0t required 10 hold an oral hearing. If Ihe
Superintendent, or his or her designaled onker, alier considering lhe application is satistied
Ihal the driver drove wilh a concentralion of alcohol in his or her blood of "over 80" or
refused 10 comply with a brealhalyzer demand, the prohibilion should be continued. If
neilher of these conditions arc estahlished, then the prohibilion is 10 be revoked and the
driver's licence returned. The accused applied for a review under s. ~.4 hUI on June 26,
1997 the reviewing oflicer contirnled the 90-day prohibition. Subsequently, Ihe accused was
acquined of both ch:lrges. The accused soughI a declanllion Ihat ss. 94.1 1094.6 were unconslitutional and of no force and effect. The pctition was dismissed and the accused appealed.
Held: The appeal was dismissed.
Per Hinds J.A. (Prowse and Finch JJ.A. concurring): The impugned legislalion is not "Itra
I'ires because its pilh and substance is the licensing of persons 10 drive mOlor vehicles and
Ihe enhancemenl of public safely on Ihe highway, bOlh of which are mailers wilhin Ihe legislative compelence of the Province under s. 92 of the COllstill/tioll Act. 1867. While Ihe impugned legislation must be carefully scrutinized. the courl may consider relevant extrinsic
evidence 10 detenuine the background, cOnlext and purpose of the legislalion. The legislalion
deals with Ihe prohibilion of a person opeenting a motor vehicle in Brilish Columbia for a
perioJ of 90 days alier Ihe happening of certain events. It requires a surrender to a peace
oflicer of a person's valid licence. In essence, Ihe purpose and effect of (he legislation is to
de;11 with Ihe licensing of drivers and the enh,lIIcement of highway safety. The legislation is
aimed :11 increasing the safety of the highway in order to reduce Ihe number of accidenls and
the incidence of injuries, falalities and d,uuage as a resull of drinking and driving. The auIhority to issue licences includes the aUlhority to suspend or cancel them. If legislation is
within the competence of the pmvinciallegisl,lIure, il is valid whether Ihe powers be exercisable before or after a conviction under the Crimillal Code. The colourabilily doctrine ensures
that a legislative body c:m do indirectly what it cannot do directly. However, the purpose and
effeci of the impugned legislmion docs not invade Parli.uuenl's exclusive jurisdiclion over
criminal law even though il refers 10 provisions of Ihe Crimillal Code. Its purpose and effect
is to deal with the licensing of drivers and 10 enhance highway safely.
The right or privilege 10 drive a mOlor vehicle is nOI a liberty interest prolecled by s. 7 of Ihe
Charter. Allhough Ihere may have been a bn"l.,dening of the scope of Ihe Iiberly illlerest
protected by s. 7, it does not extend to the driving of a mOlor vehicle on a public highway.
The liberly interests prolecled by s. 7 may nOI necessarily be restricled to the physicalliberly
of Ihe individual bUI may embmce lit>erlies Ih:1I are fundamenlally or inherelllly personal 10
the individual and go to the root of a pcrson's dignity and independence. Driving is nOI a
mailer Ihat is fundamenlal or inherenlly pem;nal to .11I individual. II does not go to the root
of a person's dignity and independence. The driving of a motor vehicle is nOl a conslitutional
righl. Driving a mOlor vehicle on a public highway involves the use of the Crown's property
and directly affects Ihe righls of al1 other drivers. lind pedeslrians 10 move freely and safely. II
is Ihe dUly of the Crown 10 prolecl Ihe safely of all. The right 10 operale a mOlor vehicle on a
public highway is more correctly chamclerized as a privilege, which Ihe Crown may reslrict
wilhout infringing the 1iberly interesls prolected by s. 7.
Cases considered by 11illds J.A. (Prowse and Fillch JJ.A. concurring):
B. (R.)
I'. Childrell's Aid Society ofMetropo!iwl/ Toroll/o (1994),9 R.F.L. (4th) 157,21 O.R.
(3d) 479 (note). n2 D.L.R. (4th) I, [1995) I S.C.R. 315. 26 C.R.R. (2d) 2m, (sub nom.
Sh!'el/cI B., Re) 176 N.R. 161, (sub nom. Slu'i'//(I B., Re) 78 O.A.C. I (S.C.c.)considered
. .- --_.
lIuhlers v. II.C. (Superintendent of l\lotor Vehicles)
3
Blel/coe
I'. British Coll/II/bia (1I1/mml Rights COII/missiol/), 31 C.lI.R.R. D/175. 160 D.L.R.
(4Ih) 303, 107 B.C.A.C. 162, 174 WAC. 162,49 B.C.L.R. (3d) 216, (1998) 9 W.W.R.
457,53 C.R.R. (2d) 189,7 Admin. L.R. (3d) 220 (B.C. CAl-considered
British Coll/mbia I'. HI/rst (l984l, 57 B.C.L.R. 313,12 D.L.R. (4th) 309,14 C.c.c. (3d) 193
(B.C. S.C.) - considered
Galaske \'. O'Do/llIl'll, (1994) 5 W.W.R. I, (1994) I S.C.R. 670,112 D.LR. (4Ih) 109,43
B.C.A.C. 37,69 WAC. 37, 166 N.R. 5, 89 B.C.L.R. (2d) 273, 21 C.C.L.T. (2d) 1,2
M.V.R. (3d) I (S.C.C.) - considered
Gil/ther I'. Saskatchewall Gm'erll/lIl'l/t II/sl/ral/ce, 6 M.V.R. (2d) 273. (1988)4 W.W.R. 738,
66 Sask. R. 109, 37 C.R.R. In, 62 D.L.R. (4th) 698 (Sask. CA) - considered
Godbo/ll c. LOllgl/el/i1 Wille), (sut> nom. Godbol/t \'. LOl/gl/el/i1 (City)) t52 D.L.R. (4th) 577,
(suh nom. Godbol/t I'. Lol/gllellil (Ville)) 219 N.R. I, (sub nom. Godbo/ll I'. LOl/gl/l'lIil
(City» 47 C.R.R. (2d) 1,43 M.P.L.R. (2d) I, (sub nom. LOllgllel/i1 (City) I'. Godlwl/t) 97
c.L.L.C. 210-031, (1997) 3 S.C.R. 844 (S.C.C.l-considered
Horsejield I'. Oll/ario (Registrar of MotOi' !'i'hides) (1997), 34 O.R. (3d\ 509. 28 M.V.R.
(3d) 189,46 C.R.R. Od) 149 (anI. Div. 0.) - not followed
Horsejield \'. Oll/ario (Registrar of Motor ~'eilicles) (1997), 118 C.C.C. (3d) 184, 102
O.A.C. 285, 35 O.R. (3d) 304, 30 M.V.R. (3d) 81 (ant. C.A. [In Chamhers\)considered
Leclair I'. R. (1990), 25 M.V.R. (2d) 47, (sub nom. R. \'. Leclair) 67 Man. R. (2<.1) 265 (Man.
Q.B.) - considered
Pagallelli I'. Oll/ario (Registrar of Mawr \'!'hid,'s) (1987), 6 M.V.R. (2d) 252 (anI. Div.
Ct.) - referred to
Pril/ce Edward Islalld (Prm'illcial SecI't'lOl)') I'. Egall, (1941) S.C.R. 396, (1941) 3 D.L.R.
305, 76 C.C.C. 227 (S.C.C.) - applied
Prillce Edward Islalld (Registrar of Mawr l'ehicles) I'. Rallkill (1991), 30 M.V.R. (2d) In.
(sub nom. R. I'. Rallkill (No. I)) 96 Nlld. & P.E.I.R. 167, (sub nom. R. ,'. Rallkill (No. 1)1
305 A.P.R. 167 (P.E.1. C.A.) - considered
Bel'llshaw (1994), 8 M.V.R. (3d) 75, 53 B.C.A.C. 1,87 WAC. 1,26 C.R.R. (2d) 132.
35 C.R. (4th) 201,176 N.R. 81, (1995) 3 W.W.R. 457, 95 C.C.C. (3<.1\ 193, [1995\ I
S.C.R. 254 (S.C.C.) - considered
R. I'. Dedmall. (sub nom. Dedmall I'. R.) (1985) 2 S.C.R. 2, 34 M.V.R. I. (sub nom. D"dll/all
I'. R.) 46 C.R. (3d) 193, II O.A.C. 241,20 D.L.R. (4th) 321, 60 N.R. 34, (sut> nOIll.
Dedll/all I'. R.) 20 C.C.C. (3d) 97 (S.C.C.) - considered
R. I'. Ladollc!'lIr, 21 M.V.R. (2d) 165,11990) I S.C.R. 1257,40 O.A.C. 1,48 C.R.R. 112,
108 N.R. 171,56 C.C.C. (3d) 22, 77 C.R. (3d) 110,73 O.R. (2d) 736 (nole) (S.c.c.)-
R.
I'.
considered
R.
I'.
MacCormick (1998), 163 Nil". & P.E.I.R. 1,503 A.P.R. 1,34 M.V.R. (3d) 266 WE.1.
T.D. [In Chambers)l- considered
R. I'. Morgellwler, 157 N.R. 97, 125 N.S.R. (2d) 81,349 A.P.R. 81, [19931 3 S.C.R. 463,
107 D.L.R. (4th) 537, 85 C.C.C. (3d) 118, 25 C.R. (4Ih) 179 (S.C.C.) - :lpplied
R. I'. Neale, 43 M.V.R. 194,71 A.R. 337, 28 C.C.C. (3d) 345, 52 C.R. (3d) 376, 26 C.R.R. I.
[1986]5 W.W.R. 577, 46 Alta. L.R. (2d) 225 (Alia. CAl-considered
R. I'. Neale, 54 C.R. (3d) xxvii, 75 N.R. 160 (note), 77 A.R. 239 (nole), [1987] 1 W.W.R.
lxviii, 4 M.V.R. (2d) xxxviii, (1987) I S.C.R. xi (S.C.c.)-referred to
R. I'. Oakes, [198611 S.C.R. 103,26 D.L.R. (4Ih) 200, 65 N.R. 87, 14 O.A.C. 335. 24
(3d\ 321, SO C.R. (3d) I, 19 C.R.R. 308, 53 O.R. (2d) 719 (S.C.C.)-referred 10
c.e.c.
_/
'---
4
CRIMINAL REPORTS
23 C.R. (5Ih)
R. ". Polites. 13 M.V.R. (3d) 145.41 C.R. (4Ih) 201. 100 C.C.C. (3d) 353.186 N.R. 81. 12
B.C.L.R. (3d) 201. 62 B.CAC. 241. 103 WAC. 241. [19951 3 S.C.R. 44. 32 C.R.R.
(2d) I (S.C.C.) - considercd
R. I'. Robsoll (1985). 31 M.V.R. 220. 28 B.C.L.R. (2d) 8. 19 D.L.R. (4th) 112. [1988)6
W.W.R. 519.19 C.C.C. (3d) 137.45 C.R. Od) 68.15 C.R.R. 236 (B.C. CA)-nol
followed
R. ". !VoljJ'( 1979).9 B.C.L.R. 390. I M.V.R. 261. 6 C.R. (3d) 346.46 C.C.C. (2d) 467 (B.C.
C.A.) - considered
Refer('//ce re s. 92(4) of the \'ehicles Act (Saskatchell'all). [19581 S.C.R. 608. 121 C.C.C.
321. J5 D.L.R. (2d) 225 (S.C.C.) - applied
R'1erellc,' re s. 9-1(2) of the Motor \'ehicl,' Act (British Columbia). [1985] 2 S.C.R. 486. 24
D.L.R. (4Ih) 536. 63 N.R. 266. 69 B.C.L.R. 145. 23 C.C.C. (3d) 289. 18 C.R.R. 30. 36
~I.V.R. 240. (1986) I W.W.R. 481. 48 C.R. (3d) 289, 11986] D.L.Q. 90 (S.C.C.)considered
Ross \'. Prillce Edll'ard Malld (Registl'llr of Motor I'ehicles) (1973). (1975) 1 S.C.R. 5, 23
C.R.N.S. 319.14 C.C.C. (2d) 322. I N.R. 9. 42 D.L.R. (3d) 68 (S.C.C.)-considered
White ". Nom SCOlia (Registrar of Motor F"hicles) (1996). 20 M.V.R. (3d) 192. 147 N.S.R.
(2d) 259. 426 A.P.R. 259 (N.S. S.C.) - considered
\l'Mte ". Nom Scotia (Registrar of Mowr I'ehicles) (May 27, 1996), Doc. C.A. 124997 (N.S.
C.A.)- considered
Y"hia ". Alberta (Solicitor G('//el'll/) (1992).40 M.V.R. (2d) 57. 10 C.R.R. (2d) 191 (Alta.
C.A.) - reti:rred 10
Statutes considered:
Callodiall C/Wrle/' of Rights alld F/'('('(Ioms. ParI I of Ihe Conslilulion ACI, 1982. being
Schedule B 10 (he Clmada ACI 1982 (U.K.), 1982. c. II
s. J - referred (0
s. 7 - considered
Charle des droits ('{ libertes de la persOl/lle. L.R.Q., c. C-1::!
art. 5 - referred 10
COI/Stitlllioll Act, 1867 (U.K.). 30 & 31 Viet.. c. 3. reprillled R.S.C. 1985. App. II, No.5
s. 91 - considered
s. 91 , 27 - considered
s. 92 - considered
s. 92' 13 - referred 10
s. 92' 15 - referred 10
s.
16 - referred 10
COI/Stitlllioll Act, 1982. heing Schedule B 10 Ihe Canllda ACI 1982 (U.K.). 1982. c. II. reprinted R.S.C. 1985, App. II. No. 44
s. 52 - referred 10
Crimillal Code, R.S.C. 1927, c. 36
s. 285(7) - considered
Crimillal Code. S.c. 1953-54. c. 51
s. 222 - considered
s. 223 - considered
s. 224(4) - considered
s. 238(3) - referred 10
Crimillal Code. R.S.C. 1970. c. C-34
s. 234 - relerred 10
92,
Buhlers v. B.C. (Superintendent of Motor Vehicles)
s. 237(2) - referred 10
s. 238(3) - referred 10
Crimillal Code. R.S.C. 1985. c. C-46
s. 253(01) [en. R.S.C. 1985, c. 27 (lsI Supp.). s. 36] - pursuanl 10
s. 253(11) len. R.S.C. 1985. c. 27 (lsI Supp.). s. 36)- pursuant 10
s. 253(c) (en. R.S.C. 1985. c. 27 (lSi Supp.). s. 36)- referred 10
s. 254 Irep. & sull. R.S.C. 1985. c. 27 (lsI Supp.). s. 36] - referred to
s. 254(5) [en. R.S.C. 1985. c. 27 (lsI Supp.). s. 36)- referred 10
s. 255( I) - referred 10
s. 258 - relerred 10
Highway TraDic Act. S.M. 1985-86. c. 3; C.C.S.M.• c. 1-160
s. 263.1 [en. S.M. 1989-90. c. 4. s. 9)-considered
s. 263.2 [en. S.M. 1989-90. c. 4. s. 9)- considered
Highway Traffic Act. R.S.O. 1970. c. 202
s. 21 - considered
Highway TraDic Act. R.S.O. 1990. c. Its
s. 48.3 [en. 1996. c. 20. s. 8] - considered
s. 48.3(1) [en. 1996. c. 20. s. 8)- considered
s. 48.3(2) len. 1996. c. 20. s. 8)-considered
s. 48.3(3) [en. 1996, c. 20. s. 8)-considered
s. 48.3(4) (en. 1996. c. 20. s. 8] - considered
Highll'ay TraDic Act. S.P.E.1. 1936. c. 2
s. 84( I) - considered
Highway TraDic Act. R.S.P.E.1. 1988. c. H-5
s. 277.2(1)(a) len. 1996. c. 19. s. 11] -referred 10
s. 277.2(1)(11) len. 1996. c. 19. s. 11)- referred III
s. 277.2(1)(c) (en. 1996. c. 19. s. Ill-referred 10
s. 277.3(1)(aj(ii) (en. 1996. c. 19. s. III-referred to
Mowr-"I'hicl,' Act. R.S.B.C. 1960. c. 253
s. 203 - referred 10
Motor \I"IIicle Act. R.S.B.C. 1979. c. 288
s. 92 - considered
s.94 [rep. & suh. 1982. c. 36. s. 19]-considered
s. 94(1) len. 1982. c. 36. s. 19]-considered
s. 94(2) (en. 1982, c. 36. s. 191-considered
s.214(2)-considered
s. 220.2 [en. 1982. c. 73. s. 31- referred 10
s. 220.3 (cn. 1982. c. 73. s. 3] -considered
MOIor \'ellie/£' Act. R.S.B.C. 1996. c. 318
s. 94.1 [en. R.S.B.C. 1996. c. 318 (SlIpp.). s. 23)-considered
s. 94.1(1) [en. R.S.B.C. 1996, c. 318 (SlIpP·). s. 23)- cllnsilkred
s. 94.1(1)(01) [en. R.S.B.C. 1996. c. 318 (Supp.). s. 23)- referred 10
s. 94.I(I)(h) (en. R.S.B.C. 1996. c. 318 (SlIpp.). s. 23]-referred to
s. 94.1(1)(c) [en. R.S.B.C. 1996. c. 318 (Supp.). s. 23)- referred 10
55.94.1-94.6 (en. R.S.B.C. 1996, c. 318 (Supp.). s. 231- considered
s. 94.2 len. R.S.B.C. 1996. c. 318 (Supp.). s. 23)- cllnsidered
s. 94.2(1)(n)(ii) (en. R.S.B.C. 1996. c. 318 (Supp.). s. 23)-referred 10
s. 94.3 [en. R.S.B.C. 1996. c. 318 (SlIpp.). s. 23)-referred III
s. 94.4 len. R.S.B.C. 1996. c. 318 (Supp.). 5. 231-considered
5
6
CRIMINAL REPORTS
13 C.R. (5Ih)
s. 9-1.5 (en. R.S.B.C. 1996. c. 318 (Supp.), s. 13)-considered
s. 9-1.6 len. R.S.B.C. 1996. c. 318 (Supp.). s. 23)-considered
s. 9-1.6(1)(a) (en. R.S.B.C. 1996, c. 318 (Supp.), s. 23)-referred
s. 94.6(I)(b) [en. R.S.B.C. 1996, c. 318 (Supp.), s. 23)-referred
Alowr \',-hiclt' Administratioll Act, R.S.A. 198(), c. M-22
s. 110 - referred 10
011i'nct! Act, R.S.B.C. 1979. c. 305
s. 4.1 [en. 1990, c. 34, s. 101- considered
s. 72( I) - considered
Unit,-d Stw"s CO/witlltion
Fiflh Amendmenl- referred 10
Founeenth Amendment- rel~m:d 10
lIuhlers v. II.C. (Superintendent of l\'lotor Vehicles)
10
4
Upon the issllance of the Notice the peace officer Inust send to the Superintendent of Motor Vehicles (the "Superintendent") the documents specified in s. 94.3. Those documents include the person's driver's licence, a
copy of the Notice, a certificate of service, a report of the peace officer in
prescribed foml, and a copy of a certificate of analysis (if any) under s. 258
of the Code pertaining to the driver.
5
A driver who has been served with a Notice under s. 94.4 may, within 7
days of being served with the Notice, apply to the Superintendent for a review of the driving prohibition. The driver (the "Applicant") must pay a
prescribed fee and may submit any sworn statements or other material he or
she may wish the Superintendent to consider. The Superintendent, or his or
her designated reviewing officer, is not required to hold an oral hearing unless so requested by the Applicant to do so. The reviewing officer mllst
consider any relevant information, a certificate of analysis (if any) under s.
258 of the Code and, if an oral hearing is held, any relevant evidence adduced or submissions made at the hearing.
6
If, after considering the application, the reviewing officer is satisfied
that the Applicant drove with a concentration of nlcohol in his or her blood
of "over .08", or that the Applicant without reasonable excuse failed or refused to comply with the demand made under s. 254 of the Code to supply n
sample of his or her breath or blood, the reviewing officer must confirm the
driving prohibition. If the reviewing officer is satisfied that neither of the
foregoing conditions were established, the reviewing officer must revoke
the driving prohibition and return the driver's licence and direct that the
amount of a hearing fee be refunded to the Applicant.
Words and phrases considered
liberty
II is recognized Ihal the liberty inleresls protecled by s. 7 may n()\ necessarily be
restricled to Ihe physic,11 liberty of thC individual. In appropriale circumslances,
those illlerests may emhrace Iibenies thai are fundamelllally or inherently personal
10 the individual .Intl go 10 the root of a person's dignity and independcnce.
In my opinion, Ihe broadened scope of the Iiberly inleresl protecled by s. 7 ... does
not eXlend 10 the driving of a mOlllr vehicle on a public highway. II is nOI a mailer
that is fundmllental or inherently person'll til Ihe individlml. II is nOI a mailer Ihat
goes to the roOI of a person's dignity and independcnce. To hold olherwise would
Irivialize the liberty sought 10 be prolected by s. 7.
. . . the right or privilege to drive a motor vehicle on a public highway is not a Iibeny
prolecled by s. 7.
..
APPEAL by ,Iccused from decision reponed ill (1998), 33 M.V.R. (3d) 164.50 B.C.L.R.
(3d) 369. [1997) 2 W.W.R. 94 (B.C. S.C.), dismissing pelilion for declaralion Ihal provisions
of Motor Vehicle Act were unconstilulion;ll.
~
1,\
Hillds
i.A.
(Prowse and Fillch
ii.A.
concurring):
Introduction
This appeal raises the issue of the constitutional validity of ss. 94.1 to
7
the time of driving or that the driver refused, without reasonable excuse, to
comply with a demand, pursuant to s. 254 of the Crimil/al Code (the
"Code"), to provide a sample of breath or blood the peace officer must issue
to the driver under s. 94.1 a nptice of driving prohibition (the "Notice").
The Notice, in prescribed form, is required to state that upon the expiration
of 21 days from the date of its service the driving prohibition shall take
effect for a period of 90 days.
10
In some rccent decisions Ihe Suprcme Courl [of Canada) has revicwed. and in some
circumslill1ces broadcned. Ihe scope of thc Iiberly protected by s. 7 lof Ihe Canadiall
Chart"r of Rights alld Frt!,'dollls).
Hinds J.A.
94.6 of the Motor Vehicle Act, R.S.B.C. )996, c. 318 (the "Act"). Sections
94.1 to 94.6 will be referred to as the "Legislation". It is set forth in the
Appendix to these reasons for judgment. The Legislation came into force on
5 May 1997.
2
3
Issues
7
The major issues to be resolved in this appeal include the following:
I.
Briefly stated, the Legislation provides as follows.
If a peace officer has reasonable and probable grounds to believe that
the driver of a motor vehicle was, on the basis of an analysis, "over .08" !"It
2.
Is the Legislation constitutionally valid under the division of
powers established by ss. 91 and 92 of the COl/stitl/tiol/ Ac/,
1867?
If the Legislation is within the legislative competence of the
'IS/illl/iol/ Act,
Provincial Government under s. 92 of the
-,>
8
CRIMINAL REPORTS
23 C.R. (5Ih)
Huhlers v. H.C. (Superintendent of I\fotor Vehicles)
1867, is .here nevertheless a deprivation of a libelly protected
by s. 7 of the Charter of Rights and Freedollls (the
"Charter")?
3.
If there is a deprivation of a libeJ1y protected by s. 7 of the
Charter, does the deprivation offend the principles of fundamental Justice referred to in s. 7 of the Charter?
4.
If there is a breach of a s. 7 Charter, is the Legislation nevertheless saved by s. I of the Charter?
General Circumstances
8
Before considering the foregoing issues the circumstances which gave
rise to this appeal will be reviewed.
9
While operating a motor vehicle on 14 June 1997, the appellant was
stopped and he failed a road-side screening device test. The device recorded
110 milligrams of alcohol in 100 millilitres of blood. The investigating
peace officer served him with a Notice pursuant to s. 94.1 (I )(a) of the Act.
Pursuant to the provisions of s. 94.4 of the Act the appellant applied for a
review of the 90 day driving prohibition. His application was unsuccessful.
On 26 June 1997, under the provisions of s. 94.6(1)(a) of the Act, Reviewing Officer B. McKenzie confirmed the 90 day driving prohibition. It was
directed to take effect on 6 July 1997.
10
II
12
In addition to receiving the foregoing Notice the appellant was charged
under s. 253(a) of the Code with having the care or control of a mOlor vehicle while his ability to operate the vehicle was impaired by a!cohol. He was
also charged under s. 253(b) of the Code with having the care or control of
a motor vehicle having consumed alcohol in such a quantity that the concentration of alcohol in his blood exceeded 80 milligrams of alcohol in 100
millilitres of blood. The appellant was acquitted on both charges on 27 January 1998 in Provincial Court. The reasons for rhe acquillals were not
before us.
On 29 June 1997 David Barry was served with a Notice under s.
94.1 (I )(b) of the Act. Like the appellant, David Barry applied under s. 94.4
of the Act for a review of the 90 day driving prohibition. His application
was unsuccessful. On 6 August 1997, under the provisions of s. 94.6(1 )(b)
of rhe Act, Reviewing Officer K. Sweeney confimled the driving prohibition. It was directed to take effect on 6 August 1997.
In addition to receiving the foregoing Notice David Barry was also
charged under the Code. He was charged under s. 253(a) with impaired
driving and under s. 254(5) with refusing to comply with a demand for a
sample of his breath. On 2 April 1998 David Barry was acquitted on the
Hinds l.A.
9
charge of impaired driving and on the same date counsel acting for the
Crown stayed the charge under s. 254(5) of the Code. Reasons for the acquittal on one charge and the stay on the other were not before us.
13
On 5 August 1997 the appellant filed his petition seeking, illter alia, a
declaration that ss. 94.1 to 94.6 of the Act were unconstitutional. Other persons who had received a Notice also filed petitions seeking, among other
things, a declaration that ss. 94.1 to 94.6 of the Act were of no force and
effect. By Consent Order dated 3 December 1997 it was ordered that
Sharon Halefoglu, James Coleman, George Berekof and David Barry be
granted leave to intervene in the proceedings initiated by the appellant. The
appellant's petition was heard by Melvin J. a judge of the Supreme CouJ1,
on eight separate days in December 1997 and in February 1998. He reserved his decision. On 5 March 1998 written reasons for judgment were
handed down. On 23 November 1998 the following order was entered in the
registry.
TillS COURT ORDERS THAT Ihe petition is dismissed.
THIS COURT FURTHER ORDERS AND DECLARES THAT sections 9-1.1.
94.2.94.3.94.4.94.5 and 94.6 of Ihe Motor \fehicl" Act (S"I'I'1l'l//el/t) R.S.B.C.
1996. c. 318 ("the legislation") is within the legislative competence of the province under section 92 of Ihe COl/stitW;ol/ Act. t867. It does not infringe on the
Federal Governmenl's jurisdiction under seclion 91(27) of the COl/still/tiOI/ Act.
1867.
THIS COURT FURTHER ORDERS AND DECLARES THAT the righi to hold
a driver's licence and operate a motor vehicle within Ihe province is not a liherty
protecled hy s. 7 of the Cal/adial/ Charter of Rights (/Iut Freedollls ('·the
Cllarter").
THIS COURT FURTHER ORDERS AND DECLARES THAT the legislation.
in the event il is found to orfend the righlto Iiherly wilhin s. 7 of the Cllarter, no
principle of fundamental jnstice is contmvened.
TillS COURT FURTHER ORDERS AND DECLARES THAT if the legislation creates a violalion of s. 7 of (he Clwrt,·". the legisl:uion is a reasonahle
limit. demonstmbly juslilied in a free and democratic society. and is saved hy
section I of the Charter.
THIS COURT FURTHER ORDERS AND DECLARES THAT the legislation
does not create an offence either under Ihe Crimil/aJ Code or under the provincial legislation.
THIS COURT FURTHER ORDERS AND DECLARES THAT the legislation
is in all respects valid and does not offend section 7. nor seclions 8. 9. 10. !l(d)
or tl (h) of the Charter.
TUiS COURT FURTHER ORDERS AND DECLARES THAT the reviewing
onker. condncting a review pursuant 10 the legislation. is not a tribunal which is
compelent to resolve Chartet' issues.
10
CRIMINAL REPORTS
23 C.R. (5th)
THIS COURT FURTHER ORDERS THAT any issues remaining outstanding
in each petition, based on a,lministrative law principles pursuant to the Judicial
Rel';"II' ProCl'dul'l' Act, may be set down for hearing al the convenience of counsel aner consultation wilh Ihe Trial Coordimllors in Iheir respective
jurisdictions.
14
15
lIuhlers v. II.C. (Superintendent of Motor Vehicles)
Submission of tile Appellant
21
Under the division of powers issue, the appellant submilled that the Legislation is in pith and substance criminal law because it isenlirely dependant upon certain sections of the Code and, fUl1hermore, is dependant upon
criminal procedure. Consequently, in the submission of the appellant, the
Legislation is within the exclusive jurisdiction of Parliament under s. 91 (27)
of the COllst;tll1;OIl Act, 1867.
2::!
Counsel for the appellant assel1ed that the Legislation effectively legislates penalties, sanctions or punishment upon the occurrence of alleged
criminal misconduct which has not as yet been tried and established in a
criminal court. He alleged that the Legislation is an altemative system of
adjudication upon specific Code offences. He emphasized that under the
Code the advantage to the Crown resulting from the compulsion to provide
breath samples is balanced by the strict preconditions which exist for the
admissibility and evidentiary value of such breath samples. He submilled
that the Legislation failed to maintain such safeguards. Counsel for the appellant asserted that the Legislation embraces the benefit but not the burdens of the criminal law and procedure.
23
The appellant further contended that even if the Legislation was firmly
anchored in a provincial head of power, its net effect was to determine
whether or not an individual had engaged in conduct which was directly or
indireclly characterized as a specific criminal offence. As such, the Legislation would be IIltra I';res under the "colourability" doctrine. The essence of
this argument is that Ihe provincial legislature is allempting to do indirectly
what it cannot do directly.
Decisioll from wlJich appeal is takell
16
Melvin J. concluded that the object, purpose and character of the Legislation was directed to the elllitiement of a person to hold and to use a valid
driver's licence in the Province of British Columbia. While the evidentiary
foundation of the serving of a Notice under s. 94.1 was a belief, on reasonable and probable grounds, of the commission of a criminal offence, nevertheless in the opinion of the trial judge that did not detmct from the conclusion thai the pith and substance of the Legislation was the regulation of
driver's licences. He held that the Legislation was constitutionally valid.
17
Melvin J. concluded that the holding of a valid driver's licence and the
driving of a motor vehicle within the Province of British Columbia was not
a liberty that is protected by the provisions of s. 7 of the Charter.
IS
In the event thai he was wrong ,lI1d s. 7 of the Charter was engaged and
infringed, the trial jUdge went on to consider whether the Legislation was
nevertheless saved by s. I of the Charter. After considering the factors set
forth in R. I'. Oakes, [1986] I S.C.R. 103 (S.C.C.), he concluded that the
Legislation was "a reasonable limit, demonstrably justified in a free and a
democratic society, and is saved by s. I."
19
The trial judge concluded his lengthy reasons by stating, at para. 70:
... the applications by the petitioner on Ihe constitutional and Charter issues are
dismissed. Any issues remaining outstanding in each petition, h:lsed on administr:uive law principles pursuant to the judicial Re.'iew Procedure Act, may be
set down for hearing :11 the cnnvcnience of counsel ancr consultation with the
Trial Coordinators in their rcspective jurisdictions.
20
I now tum to consider the issues.
11
First Issue - Division of Powers
This is an appeal from that Order.
At the commencement of the hearing of the appeal we were advised that
the interveners Sharon Halefoglu, James Coleman and George Berekof
would not be represented by counsel and would not be appearing in person
on this appeal. We were advised that Mr. Green and Mr. Claus would appear before us as counsel for both the appellant and David Barry, who shall
hereafter be referred to as the ·'IllIervenor".
Hinds 1.1\,
Submissioll of the Respol/del/ts
24
Counsel for the respondents submilted that Ihe Legislation on its face is
l'ires the Province. Its pith and substance is the same as Ihe legislation
considered in the seminal decision of the Supreme Court of Canada in
Pril/ce Edward Islarul (PrOl'i1lcial Secretary) 1'. Ega1l, 11941) S.C.R. 396
(S.C.C.). He maintained, contrary to the submission of counsel for Ihe appellant, that the real purpose of the Legislation was not to "stiffen and supplement" the provisions of the criminal law with respect to driving while
under the influence of alcohol or a drug. He asserted that the admissible
extrinsic evidence adduced by the respondents confirmed that the constillltional purpose of the Legislation was to provide for, and to enhance, safely
of travel on the highways of British Columbia.
illtrtt
'---\----~.
-._--_..-
--------
12
CRIMINAL REPORTS
23 CR. (5th)
Buhlers v. B.C. (Superintendent uf Mutur Vehicles)
Hinds l.A.
13
Discussioll
25
When endeavouring to determine the constitutional validity of impugned
legislation the statement of Sopink1\ 1. in R. I'. Morgelltaler, [1993]3 S.C.R.
463 (S.C.C.) is important. At 4g 1-2 he stated:
Classilicalion of a law for purposes of felleralism involves lirSI idelllifying the
"mmler" of Ihe law and Ihen assigning it 10 one of the "classes of subjeCIS" in
respeci III which the fedeml and provincial governmenls have legislmive :llilhority under ss. 91 and 92 of the CtlImitlllioll Act, 1867, This process of c1assilicalion is "an iIllerlocking one, in which Ihe Brilish North America ACI and the
challenged legislalion reacl on one anolher and lix each other's meaning": B.
Laskin, "TesiS for Ihe Validily of Legishllion: Whal's Ihe 'Maller',!" (1955), II
U.T.L.l. 114, al p. 127. COUrlS apply consideralions of policy along with legal
principle; Ihe lask requires "a nice balance of legal skill, respect for eSlablished
rules, and plain common sense. II is 1J(11 and never can be an exaci science": F.R.
SCUll, Ch'iI Liberties alld Calladitlll FederalislII (1959), al p. 26.
A law's "mailer" is ils leading fealure or lrue characler, onen described a~ ils
pilh ,lIld subsl<lJlce: Ullioll Colliery Co. of British Collllllbia I'. B')'d"II, [l1l99)
A.C. 580 (P.C.), al p. 587; see ,llso I\'hitbn'ad I'. lValley, [1990j3 S.C.R. 1273,
'II p. 1286. There is no single Icst for a law's pith ,\lid substance. The approach
musl be l1exihle ,\lid a lechnical, fonllalislic approach is 10 he avoided. See
1I0gg, COIIStillltiollal Lal\' ofClIIuula Onl cd.) 1992), vol. I,:ll p. 15-13. While
bOlh (he purpose and effect of the law ,Ire relevalll consider:ltions in Ihe process
of chamclerizmion (see, e.g., Allol'lley·G,'lIl'1'lIl for Albl'l'w I'. Allol'lley-Gelleral
fur Callada, [1939) A.C. 117 (P.C) (the Albl'l'/(J Balik Taxmioll ReJ''''''lIc<'), al p.
130; Sldrr ". lIol/ldl'II, [19901 I S.C.R. 1366, al PI'. 1389, 1392), it is onen Ihe
case thai the legislalion's dominanl purpose or aim is Ihe key to conslilulional
validity. Rand l. pUI illhis way in Sl\'it:malll'. Elblillg, [19571 S.CR. 285, m Pl'.
J02-3:
~-I/I'ra,
wrole at p. 437, it is "nol only permissible bUI essential" to consider Ihe
malerial the legislalure had before it when Ihe stalule was enacted.
27
It is clear that the impugned legislation must therefore be scrulinized
carefully in order to determine its purpose and effect and, uhimately, ils
pilh and subslance. Moreover, a court is also enlitled 10 consider "relevanl
and not inherenlly unreliable" extrinsic evidence of the sort referred 10 by
Sopinka 1. in Morgellfaler.
28
A careful review of the Legislation reveals that it deals with Ihe prohibition of a person operating a motor vehicle in British Columbia for a period
of 90 dllys upon the happening of certain events. ]t requires II surrender to 1\
peace officer of a person's valid licence or permit to operate a motor vehicle. In essence, the purpose and effect of the Legislation is to deal wilh
licensing of drivers and the enhancement of highway traffic safety.
29
A substantial volume of extrinsic evidence was entered in the COUlt below concerning the purpose and effect of Ihe Legislation. Before us neither
counsel took objection 10 Ihe admissibility of eXlrinsic evidence; indeed,
bOlh of them referred 10 various portions of it The affidavit of Claire B.
Eraut, the Acting Superintendent of Motor Vehicles, including exhibilS "AU
to "J" thereof, and Ihe affidavit of Dr. Evelyn Vingilis, including exhibil
"B" Ihereof, demonslrate thai the purpose and effect of Ihe Legislation is 10
deter persons from driving when their ability to drive a motor vehicle is
impaired by alcohol. It imposes a prohibition from driving for a period of
90 days. The Legisllltion is aimed :It increasing the safety of highway driving in order to reduce the number of highway accidents which frequently
involve falalities, injuries and property damage, Thai is Ihe "mischief' 10
which the Legislalion is directed. The continuing serious problem of the
drinking driver was once again emphasized in the judgment of Cory J, in R.
\'. Bemshall' (1994), [19951 I S.C.R. 254 (S.C.C.) where, al 269 he staled:
The delailed distribulion made by ss. 91 and 92 places Iimils 10 direCI and immedime purposes of provinci,ll action. '" The senled
principle Ihal c,llls for a d~l~nl1inalion of Ihe "re,,1 ch.1n1Cler", Ibe
"pilh and subslance", or what purports to be enacled and whelher il
is "colourable" or is illlcnded 10 eficcI ils ostensible object, means
that Ihe lrue nalllre or Ihe legislative ael, its subsl,mce in purpose,
mUSI lie wilhin s. 92 or some other endmvmenl or provincial po~\'er.
26
Every year, drunk driving leaves a terrible Imil of demh, injury, heartbreak ,lIld
deslruclion. From Ihe poinl of view or numbers alone, it has a tilr grealer impact
(III Canadian sociely than lUly other crime. In terms of the dealhs mill serious
injuries resulting in hospilalizalion, drunk driviug is clearly Ihe crime which
causes the mosl signilic;HlI social loss 10 the counlry.
At 483-4, Sopinka 1. went on :md stated:
In determining Ihe background, Cllntext ,Uld purpllse of challenged legishllion,
the court is enlilled to refer to eXlrinsic evidence of various kinds provided it is
relev;Hll ,\lid Illli inherenlly unreliable: R"J"I'<'IIC" 1'1' R,'sidelllilli Tel/al/cil'S Act,
/979, [19811 I S.CR. 714, ,II p. 723, Pl'l' Dickson l. This clearly includes relaled legishllion (such as, in Ihis case, Ihe March regulalions and Ihe former s.
251 of Ihe Crill/il/al Code), ami evidence of Ihe "mischief' :lI which the legislation is direcled: Alberta Balik Taxmioll RI'f"rl'IICl', Sl/pra, at PI'. 130-33. It_ also
includes legislative hislory, in Ihe sense of Ihe evenls lhaloccurred during dmning and elJ;\Clmelll; as Ritchie J., concurring in R,ji'l'l'lIce 1'1' Allli·!I!ll<1tioll Act,
30
The decision of Ihe Supreme Court of Canada in Pril/ce Edward Isllll/cI
I'. Egal/, supra, has long been recognized :IS Ihe leading aUlhorily on the queslion of the constilutional validily of provincial legislation dealing wilh the suspension of licences to drive a motor vehicle. In
Ihat case, s. 84( I) of the Highway Trajfic Act, 1936, (c. 2), of Prince Edward Island, provided for Ihe automatic suspension for 12 months of a
driver's licence of a person convicted of driving a motor vehicle under lhe
influence of liquor or drugs, Section 285(7) of the Code in force at Ihal
(Prm'il/cial SecretOl:)')
14
CRIMINAL REPORTS
23 C.R. (5Ih)
lime, provided Ihat a person convicted of driving a motor vehicle while intoxicuted could, in addition to other punishment, be prohibited from driving
unywhere in Cunuda for lmy period nOI exceeding Ihree years. The Supreme
Coun of Canada held that the provincial legislalion was illtra I'ires. AI 402
Duff C.J. staled:
Huhlers v. H.C. (Superintendent of Motor Vehicles)
35
majority, spoke thus:
I am also in respeclful agreemenl wilh the view that the impugned legislation is
nOl, as cOlllended, legislalion in relation to criminal law hill in relation to the
adminislmtion i1nd control of highways in the province for the protection of the
lravelling puhlic ami of Ihe aUlomohile insurance fund created under Ihe provinci'lllegisialion. That Ihe provinces have undisputed Ulllhorily to issue licenses or
pemlils for lhe right 10 drive motor vehicles on their highways and that this
authority carries with il the authority to suspend or cancel them upon the happening of cerlain conditions. are undouhted principles. Pro,'il/cial Si'CJ"('tal'." of
32
It must be recognized, however, thut Ihe authority of a provincial legislature to issue, suspend or cancel a licence to drive upon the happening of
certain condilions or evenls does not necessarily lead to the conclusion that
provincial legislation is constilutionally valid. It may, or may not, lransgress
into the field of federal legislation.
33
A number of decisions of the Supreme Court of Canada, and of Ihis
Court, subsequenl 10 Ihe Egan decision, huve considered Ihe conslilutional
validily of provincial legislation which provided for the prohibition of a
person's licence to drive. In some cases the provisions were alleged to be in
conflici with various seclions of the Code.
34
PEl.
To somewhat similar effect, Rinfret J. had to Ihis 10 say at 416:
... II never occurred 10 anybody 10 dispule Ihe power of the provinces 10 issue
licences. or pennits, Illr Ihe righl 10 drive 1IIOior vehicles on Ihe highways of
their n:spective lerritnries. Surely lhe iIlllhorily 10 issue such licences, or permils, C:lrries wilh ilthe alllhority 10 suspend or eancellhem. upon the happening
of cerwin condilions....
In Reference re s. 92(4) of the \'ehicles Act (Saskatchell'an), [1958]
S.C.R. 608 (S.C.c.), the impugned provincial legislation provided for the
suspension or revocation of a driver's licence where the driver refused to
pennil a sample of breulh to be oblained if he or she was suspected of driving a mOlOr vehicle under the influence of ulcohol. At thai time, ss. 222 und
223 of the Code created, respectively, the offence of driving while intoxicUled and the offence of driving while the ability to drive was impaired by
alcohol. Section 224(4) provided:
... no person is required 10 give a s:lmple of blood. urine, breilth or olher bodily
subslilnce for chemical anillysis for lhe purposes of lhis seclion and evidence
that a person refused 10 give such .1 sample or Ihal such a sample was nOI laken
is nOI admissihle nor shall such a refusal or the fact Ihm a s:unple was nOI l:lken
be the suhjeci of commenl hy any person in the proceellings.
15
The majority decision of the Supreme Court concluded Ihut the impugned provincial legislation was not IIltra I'ires. At 616. Fauteux 1. for the
I do not lind lilly diflicnlly in dCllling with the presenl case. Primarily, responsibility for Ihe regulalion of highwily tr,iflic. including authorily 10 prescribe the
conditions mId Ihe 1II,IIlller of Ihe usc of 1IIoior vehicles on highwilys and Ihe
opera lion of a system of licences for lhe purpose of securing Ihe observance of
regulalions respecting lhese 1IIilIlers in the inleresl of the public gener:llly. is
commilled to Ihe locill legisliltures.
31
Hinds lA.
36
37
I'.
Egal/' .
In Ross 1'. Prince Edward Island (Registrar (If Motor Vehicles) (1973),
[1975] 1 S.C.R. 5 (S.C.C.), the appellant was convicted under s. 234 of Ihe
Code of impaired driving. On appeal he wus prohibited from driving for a
period of six months, except from Monday to Friday he could drive to and
from work, and he could drive while at work from 8:00 a.m. to 5:45 p.m.
Section 21 of the Highll'ay TrafJic Act, R.S.O. 1970, c. 202, provided Ihat
upon conviction on a number of sections of the Code, including s. 234, a
person's driver's licence was attlomatically suspended for 3, 6, or 12
months, depending on the circumstances set out in s. 21 of the Onl<trio
legislation.
The Supreme Court of Canada held that Ihe provincial legislalion was
constitutionally valid. Pigeon J., who wrote for the majority, said this al 9:
In 1941. a suhslantiillly similar queslion concerning the villidity and effect of
provincial motor vehicle legislation was raised in the case of PrOl';l/cial S"C!"I'tary of Pril/cl' Edll'ard Islal/d ". Egal/'. Although a conclusion on the appeal
could have heen reached on a question of jurisdiction of Ihe court below, lhis
Courl went on unanimously to delermine that Ihe operation and validity of provincial legislalion suspending driving licences upon conviclion of cerlain offences under the Crimil/at Codt' remained unaffected hy Ihe enactment, hy the
Parli:unenl of Canadil. of a provision for Ihe m:lking of orders prohihitiug a convicled person from driving a motor vehicle during a period not exceeding Ihree
years.
38
Later, at 12-13, Pigeon 1. stated:
.,. The direclion Ihal Ross' opemtor's licence was not to be suspended shows
Ihal the judge who made lhe prohihilory order considered not only that the plllhibition may be limited as to lime and place, but also thai the person to wh01ll
the order is directed should enjoy the right to drive OIl specilied time ami phlce,
irrespective of provinciallegislalion concerning Ihe suspension of driving privileges. In terms, Ihe Crimil/at COdi' merely provides for the making of prohihilOry orders limited as to time and place. If such an order is made in respect of a
period of time during which :1 provincial licence suspension is in effect. there is,
strictly speilking. no repugnancy. BOlh legislations c.m fully operate simultane-
--,-
16
CRIMINAL REPORTS
23 C.R. (5th)
ously. It is Irue Ihat Ihis m~ans Ihal as long as Ihe provincial licence suspension
is in eff~cl, the person concern~d gels Ill) hen~lit from the indulgence gramed
under the fed~ral legisl'lIillll. BUI, is the silualion any differem in law from Ihat
which WilS considered in Ihe Egi/II cilse nill11ely. Ihal due to Ihe provincial legislation, the righl 10 drive WilS Insl hy rcason of the conviction, although Ihe convic:ling m"gislnlle hild 111.)d~ no prohihitory order whalsoever"?
39
The question posed by Pigeon J. was, in effect, answered in the
negutive.
40
The British Columbia Court of Appeal decision in R. I'.
(1979),9
B.C.L.R. 390 (B.C. C.A.), involved a 24-hour driver's licence suspension.
The appellant was observed sitting in his parked vehicle. A police officer
noted signs of the appellant's impairnlent and under s. 203 of the B.C. Motor \lehicle Act, R.S.B.C. 1960, c. 253 [now s. 215], he suspended the appellant's licence for 24 hours. Shortly thereafter, the appellant was seen
driving his vehicle. He was charged under s. 238(3) of the Code with driving a motor vehicle while he was disqualified from so doing, due to the 24hour suspension of his licence under s. 203 of the Motor \lehicle Act. On
appeal it was alleged that s. 203 of the Motor \lehicle Act was IIltra \'ires. In
rejecting that submission, Craig J.A., who gave the judgment of the court,
stuted at 396:
wou.r
----._v·
lIuhlers v. II.C. (Supcrintcndcnt of Motor Vehicles)
There are a number of decisions in trial courts in this Province and in
other provinces to which reference will be made. They are not binding upon
us but are deserving of consideration.
42
In British CO/llmhia I·.lIl1rst (1984), 14 C.C.C. (3d) 193 (B.C. S.C.), the
constitutional validity of s. 220.3 of the Motor \lehicle Act, R.S.B.C. 1979,
c. 288 [now s. 226(1) of the Act] was in issue. Section 220.3 created an
offence of refusing to comply with a demand to supply a blood sample
under s. 220.2 of the Motor \lehicle Act. Under s. 237(2) of the Code, no
person was required to give a sample of blood, urine or other bodily substance, except breath, for chemical analysis. Moreover, evidence that the
person failed or refused to give .1 sample was not admissible and such refusal was not to be the subject of comment in any proceedings. It was ar-
17
gued by Mr. Hurst lhat the provincial legislation was ultra I'ires by reason
of paramount federal legislation. Spencer J. rejected that argument. He concluded that provincial legislation dealt with the regulation of highway traffic which in his view fell within the provincial jurisdiction under subsections 92(13), (15) and (16) of the Constitution Act, 1867. He found there
was no contradiction between the federal and provincial legislation and that
the latter was illfra \'ires.
43
In Leclair I'. R. (1990), 67 Man. R. (2d) 265 (Man. Q.B.), the constitutional validity of ss. 263.1 and 263.2 of the Manito/Ja J/ig!lll'ay Tr{!/Jic Act,
S.M. 1985-86, c. H-60, was raised. Those sections are, with minor exceptions, similar to the Legislation. The applicant asserted that the Manitoba
legislation was ultra vires because it was in pith and substance criminal
law. After considering the argument advanced by the applicant on the question of the division of powers between the federal government and the provincial legislature, Hirschfield J. stated, at 274:
In my view, Ihe purpose and eff~cl of ss. 263.1 and 263.2 :Ire to reguhll~ :l1ll1
conlrol Irarnc upon provincial highw:lys and ro:lds and :Ire Iherefore c1~:lrly
wilhin Ihe exclusive rights granted 10 lhe Province under s. 92(13\ of Ihe Constitution Act, t1l67. Prnvinci:ll legishllion :lnd enaclments which h:l\'c as Iheir
purpose Ihe regul:ltion of properlY and civil righls and which :Ire not in connicl
wilh express legislation enacted under Ihe Fedcral criminal law have heen held
10 he. imra \'ires Ihc provinciallegishllure. The suspension of the drh'er's licence
imposed under Ihe seclions in qucstion is in my opinion an :ldminislmlive 'KI
and a civil consequence of one of Iwo wrongs conuuilled by :In individu:ll. It is
Illl! punishmenl such 'IS 10 hring Ihe 111:111er within Ih~ exclusive jurisdiction of
Ihe Fcdenll Parli:lmenl. (See noss v. negistrllr of I\lolnr Vehicles lind the Attorney Generlll of Ont:lrio (1973), 14 c.c.c. (2d) 322 (S.C.c.\,)
In my npinion, the legis I,ll ion in this p"rlicul"r case is wilhin Ihe powers of Ihe
provinci,,1 legisl'lIure. It is legisl;lIion ell:lcted wilh regard 10 Ihe use of iI highway in Ihe province of Brilish Columhiil ,lIld Ihe safe use of Ihe highway. I
cannol see why Ihe Egall cilse should he distinguished merdy hecause Ihe provinchll legislature provided Ihal Ihe action wilh regard 10 Ihe licence would he
laken afrer a conviclion under Ihe Criminill Code. If the kcislaljon is within Ihe
cO!Dp~tence of Ihe provincj,,1 legjslillure il is valid whelher Ihe powers he exercjsahll' hefore nr aner a l"ol!ykljnn IInder Ow Criminal Code. The legislalure is
Irying 10 ensure Ihe safely of Ihe users of Ihe highway. and is legislaling wilhin
irs jurisdiction. (Emphasis addedl
41
Hinds J.A.
1 Iherefore hold Ih:ll Ihc impugned seclions of Ihe Acl are in pith mul suhsl:lncc
properly and civil righls. The sec lions do nOI impinge upon ,lIId are nol in conl1icl with Fedeml Iegislalion :lnd :Ire Ihus illlra I'ires lhe jurisdiclion of the Province of Maniloha. (See Multiple Access Ltd. v. McCutcheon, 119821 2 S.C.R.,
161; n. v. Frllncis, (19881 I S.C.R. 1025; VlIlidily of Sect inn 92(4) of lhc
Vehicles Act, t957 (SlIsk.), 119581 S.C.R. 608.)
In R. v. MacCormick (1998), 34 M.V.R. (3d) 266 (P.E.I. T.O. [In Chambers]), the constitutional validity of S5. 277.2 (I)(c) and 277.3(1 )(a)(ii) of
Ihe Highll'ay Traffic Act, IAct to amend t!le] S.P.E.I. 1996, Cap. 19 were
challenged. It was alleged that those sections were ullra I'ires the provincial
legislature. Section 277.2 (I)(a), (b), and (c), and s. 277.2(1)(c) are, with
inconsequential differences, identical to ss. 94.1 (I )(a), (b), and (c) and
94.2(1 )(a)(ii) of the Legislation.
45
The facts in MacCorlll;ck were that the applicant was charged with refusal to comply with the demand to submit to a breathalyzer test under s.
254(5) and 255( I) of the Code. In addition, she was charged with opemting
44
.-._----------18
CRI~lINAL
REPORTS
23 C.R. (5Ih)
lIuhlers v, II.C. (Superintendent of 1\I0lor Vehicles)
a motor vehicle while impaired under ss. 253(a) and 253(c) of the Code.
Ms. MacConnick was issued :t Notice of Driving Prohibition for 90 Days
under the foregoing sections of:the P.E.I. Highll'ay Trajfic Act. She sought a
declaration thm ss. 277.2(1 )(c) and 277.3( I)(a)(ii) were of no force and
effect.
-16
Webber J. considered many of the authorities 10 which I have referred,
including Ega/l, Ross, Leclair (all supra) and the trial decision in Blt/llers
(the subject of this appeal). She also considered, bUI declined to follow, Ihe
decision in Horsejield ". Omario (Registrar of Motor \'ehicles) (1997),28
M.V.R. (3d) I~N (Ont. Div. Ct.) to which I shall shonly refer. After considering the foregoing authorities Webber J. concluded that the impugned legislation was not ultra ,'ires.
-17
In Horsejield, supra, s. 48.3 of the Highway Traffic Act, R.S.O. 1990, c.
H-8, was alleged to be ultra "ires Ihe Province. It provided:
48.3(\) Where a police ofliccr is s:lIistied that a person driving or having Ihe
carc, charge or conlrol of a mOlor vehidc mccts onc of Ihe crilcria set out in
suhscclion (3), the oflicer shall notify the Regislrar of thaI fact, or causc the
Registrar to hc so notilied, in Ihe form and m,lIl1ler and within the lime prescrihed hy Ihe regul:llions.
50
In granting the llpplication, Stong J. recognized that a province had the
constitutional authority to pllSS legislation with respect to the licensing of
motor vehicles and drivers llnd the power to regulate the suspension of
licences. He concluded, however, that the province had legislated that, for
the stlltutory suspension to he· implemented, a statutory element was required. That element WllS that the person had a concentration of ,,!cohol in
his or her blood of over .08 as revealed by analysis of the person's hlood or
breath taken pursuant to a demand under s. 254 of the Code. Stong J. COIlcluded that the province of Ontario had exceeded its jurisdiction in legislating in an area occupied by Parliament under s. 9 I of the CO/lslitlltio/l Act.
1867, and that the impugned legislation was IIltra I'ires the Province of
Ontario.
51
The Horsejield decision has been appealed by the Registrar of Motor
Vehicles and the appeal is scheduled to be heard on II March I 99l).
52
It is noteworthy that in collateral proceedings, when granting an application made by the Attorney General on beh"lf of the Registrar of Motor Vehicles for a stay of the judgment of Stong J., repot1ed in If/orsejil'ld \'. 01/tario (Regis/rar ofM%r Vehicles)] (1997), 118 C.C.C. (3d) 184 (Ont. C.A.
lIn Chambers)), Finlayson LA. observed, at 19 I:
Upon being nOli lied under suhseclion (I), the Regislrar shall suspend Ihe
person's driver's licence Illr a period of <)0 d'lys.
(3) Thc crileria for the purpose of suhscclion (I) arc:
The person has a concenl....lion of akohol in his or her hllllld in excess
of 80 milligrams in I(XI millilitres of hlood, as shown hy an analysis of
the person's hre,nh or hlood laken pursuant 10 a demand made under s.
254 of Ihe Crill/illlli Cod.. (CwuIlI,l) or pursuant to s. 256 of Ihe Crill/i1101 Cadi' (Cmllllla)
2.
The person 1:libl or rcfused 10 provide a hreath or hlood sample in response 10 a demand made under s. 25-1 of Ihe Crimillal Cod.. (CWll/tllI)
(-l) The suspension lakes effccl fmm Ihe lime nOlice of Ihe snspcnsion is givcn,
in accordance with s. 52, tn Ihe Jlcrson whosc Iiccnse is suspcndcd.
-Ill
4<)
In some respects, it is similar to Ihe Legislation, but there are some minor differences. The Ontario legislation requires in s. 48.3( I) that a police
officer he "s:lIisfied" whereas the Legislation refers in s. 94.1 (I) to a peace
ofticer having "reasonable and probable grounds to believe", In the Ontario
legislation there is no waiting period before Ihe suspension t"kes effect; in
the Legisbtion " 21-d;ty waiting period is provided before the prohibition
takes effect.
... I deal tirsl with the lIIerits of the C:lse. As to Ihe merits, there is no issue Ih:ll
the constitutional v:llidity of the impugned legislation is a serious question to he
delcrmincd. Addilion:llly, recognizing thm the threshold of satisfying this leSI is
a low one, I am COlllenl to say th:ll the judgmclII under appeal makes .1 limited
an:llysis of existing case hlw and is not direclly supporled hy :lny aUlhority.
The facls are set out in the following pOJ1ion of the helldnole of Jlor-
sejield:
The accused W:lS charged wilh opemlion of a mOlor vehicle wilh a hlood :llcohol
level in excess of 80 millignulls of ,I!cohol in 100 millililres or hlood folk
1<)
the administralion of two hreathalyzer tests. The lesls were adminislered pursuanI 10 a dcm,md uuder s. 245(3) of the Crimil/lll Code. The police ornccr g:lvc
the :lccused a Notice of Licence Suspension al Ihe pol icc sialion :lfter Ihe hreath
samples had heen takcn :lnd aftcr Ihe Provinci:ll Regislrar of Molor Vehicles had
heen advised of the re'ldings pllfsuant to s. 48.3(1) of the lligllll'llY TmJJic Act
and had inslfllcled the omcer 10 proceed to issue the notice. Section 48.3(3) of
Ihc Act providcs Ihe circumstmlces in which the arrcsting oflicer is requircd 10
nOlify the Registmr of the resuhs of the hrealh:llyzer Icsts including, illler alia.
when a person h:is:l concenlmtion of hlood (sic) in excess of 80 milligmllls in
100 millililres of hlood :IS shown hy an analysis of Ihe person's hremh or hlood
laken pursuant to :I demand made under s. 245 or 256 of Ihe Code. The accused's licence was autom:ltically suspended hy Ihe Regislnlr for <)(J days UpOIl
issuance of Ihe Notice pursuanllo s. 48.3(2) and (4) of the Adminislralive Drivers' Licence Suspension IADLS) provisions of Ihe Acl. The accused broughl :In
application, illler alia, for an illlcrim and permanent injunction suspending the
operalion of the ADLSP and of Ihe Registmr's order suspending Ihe accused's
licence on the grounds, illll'r alia, Ihal the legislalion crc,ning Ihe ADLS was
unconslilulional.
(2)
l.
lIinds J.A.
53
It would appear that the weight to he given to the decision of Stong 1. in
I/orsejield h"s not yet been detennined.
-.,.r/
CRIMINAL REPORTS
2ll
Sol
55
23 C.R. (5Ih)
The authorities of the Sup(eme Court of Canada, and of this Court, to
which I have referred, including Egan, the Reference re s. 92(4) of the
Vehicles Act (Saskatchell'an) case, Ross, and Woljf(all sllpra), and the decisions of the trial courts including Hllrst, Leclair, and MacCormick (all
sl/pra) support the conclusion that even though the Legislation refers to ss.
253(b) and 234(5) of the Code, it is not lI!tra I'ires because in pith and substance it deals with mailers within the legislative competence of the Province under s. 92 of the Constitlltion Act, 1867.
nuhlers v. II.C. (Superintendent of Motor Vehicles)
lIinds J.A.
21
lic highways. Both the purpose and effect of the Legislation were within the
jurisdiction of the province. The doctrine of colourability was not offended.
61
The allegation that the Legislation is unfair in that parts of it offend the
concept of fundamental justice, the fact that the appellant was acquitted on
the criminal charges against him, and thai the Intervenor was acquitted on
one charge and the other charge was stayed, are matters to be considered
under the third issue herein, if it is decided that the provisions of s. 7 of the
Charter are indeed engaged.
Conclusioll Oil First Issue
Upon reviewing the provisions of the Legislation and the extrinsic evidence adduced in the court below, I conclude that the purpose and effect of
the Legislation, its pith and substance, is the licensing of persons to drive
motor vehicles and the enhancement of public safety on the highway. Those
are malleI'S within the jurisdiction of the province. The authorities to which
I have referred (with the exception of the Horsejield decision), establish
that the Legislation did not improperly encroach upon the federal jurisdiction under s. 91(27) of the Constitution Act. 1867. I therefore conclude that
the Legislation, on a division of powers analysis, is not IIltra ,'ires.
Second Issue. Is there a Deprivation or a Liberty Protected by S. 7 or
Colourability Doctrine
56
Counsel for the appellant made it clear that, notwithstanding the content
of his factum, he was not relying on the "paramountcy doctrine". He was
not relying on the concept that the federal legislation was paramount to the
provincial legislation. Instead, he raised in argument the "colourability"
doctrine. It is described by Professor Hogg, in COl/stili/tiona! Lall' of Canada, 4th ed. (Toronto: Carswell 1997) at 392, "(tlhe 'colourability' doclrine
is involved when a statute bears the formal trappings of a matter within
jurisdiction but in reality is addressed to matter outside jurisdiction."
57
Another way of describing the "colourability" doctrine is that a legislative body cannot do indirectly what it cannot do directly: see Hogg, ConstillItiona! Lall' of Canada, supra, at 394.
5H
See also the comments of Sopinka J. in Morgenta!er, supra, at 496:
III <IllY CVCIlI, Ihe cnloumhility l1ol'lriue re<llly jusl resmles (he basic rule, <lpplica-
62
7. Everyone has the righl to life, liherty and security of Ihe person and Ihe right
not he deprived thereof except in accordance with Ihe principles of fund:unental
justice.
63
hie in this C,lse as much .'IS ,lilY olher, Ihal lilnn ,I)one is not cOlllrolling in (he
delerminalion of constiUllional character, and Ihal the court will examine (he
suhstance of Ihe legisl:llillu 10 delcnnine wh:ll the legislature is really doing:
59
6ll
Counsel for the appellant argued that while the Legislation purported to
deal with the 90-day prohibition from driving in reality it relied on the provisions of ss. 253(b) and 254(5) of the Code for the provisions of the Legislation to be engaged. He asserted that it thereby invaded the exclusive jurisdiction of Parliament in relation to criminal law and procedure.
In my view, the purpose and effect of the Legislation was to deal wilh
the licensing of drivers and was to enhance the safety of persons using pub-
the Charter?
Section 7 of the Charter provides:
64
Submission of tile Appellant
The appellant submitted that it is not only "absolute rights" or "fundamental liberties" that are protected by s. 7 of the CharIer. While recognizing that no liberty or right is absolute, including the right to drive a motor
vehicle, counsel asserted that once a person is licensed to drive there is a
"general liberty" to drive and it is protected by s. 7 of the Charter. The fact
that the "general liberty" to drive is subject to regulation does not reduce
the "general liberty" to drive to a mere privilege to drive. The appellant
placed great reliance on the decision of this Court in R. \'. Rohso/l (19R5),
19 C.c.c. (3d) 137 (B.C. C.A.), to which I shall later refer.
Submission of tile Respondents
The respondents argued that driving is not a "fundamental liberty", a
"general liberty" or any other type of right or liberty protected by s. 7 of the
CharIer. Permission to drive a motor vehicle is a licensed and regulated
activity which is a privilege - not a right or a liberty. The respondents asserted that the decision in Rohson has not been followed in other appellate
courts in Canada and its authority has been overtaken, if not directly overruled, by subsequent decisions of the Supreme Court of Canada. The re-
22
CRIMINAL REPORTS
23 C.R. (5Ih)
Iluhlers v. B.C. (Superintendent of Motor Vehicles)
spondents maintained that driving a motor vehicle is not a liberty protected
by s. 7 of the Charter.
DisclIssioll
65
66
In Rohso1l, supra, the appellant was charged with driving while prohibited stemming from a "road-side suspension" for a period of 24 hours. The
issue on appeal was whether s. 214(2) of the Motor Vehicle Act, R.S.B.C.
1979, c. 288, the "road-side suspension law" was unconstitutional as being
inconsistent with s. 7 of the Charter.
69
70
After comparing the provisions of s. 7 of the Charter with the provisions
of the Fifth and the Fourteenth Amendments of the United States Constitution Nemetz C.J.B.C., for the majority, at 140 stated:
I adopt, however, Ihose American authorities which do nol confine Ihe definition of liberty 10 mere freedom from bodily reslrainl. In Bolling I'. Sharpt'
(1954), 347 U.S. 497, Chief Justice Warren said, in pan: '''Ubeny' under law
eXlends to Ihe full range of cOl/dlicl which Ihe individual is free to pursue and il
cannot be restrained except tt)r proper governmenlal objective" (my emphasis). I
am in respectful agreement with this general doctrine.
"Liberty" under the Charter cannot be taken to cre,lIe an absolute right to drive.
Age. inlimlity and other impedimems may reslricl the graming of drivers'
licences. However, once the licence is granted there becomes allached 10 il Ihe
general liberty to employ one's skill and abilily - in this case the abilily 10
drive. Accordingly, such liberty constitutes a right under the Charter and a person c,lImot be deprived of it except in accordance with Ihe principles of fundamental jllslice.
67
Chief Justice Nemetz concluded that the provisions of s. 214(2) offended the principles of fundament,,1 justice and deprived the appellant of
his right or his general liberty under s. 7 of the Charter to drive a motor
vehicle. He held that the "road-side suspension law" contained in s. 214(2)
of the Motor \lehicle Act was unconstitutional.
6l!
Rohso1l was decided on 6 March 1985. It was one of the earlier cases on
the interpretation of s. 7 of the Charter. On 31 July 1985 the Supreme Court
of Canada handed down its decision in R. I'. Dedman, [1985) 2 S.C.R. 2
(S.c.c.). The provisions of s. 7 of the Charter were not involved in that
decision because the circumstances involved in that case arose prior to the
coming into effect of the Charter. However, Dedman has consistently been
interpreted in subsequent decisions as authority for the proposition that the
right to drive a motor vehicle on a public highway is not a fundamental
liberty but is a licensed activity that is subject to regulation and control by
provincial authorities for the protection of life and property on public roads.
The decision in Rohson was not referred to in Dedmal/.
Hinds J.A.
23
SlIpreme COllrl of Callada Decisiolls
In a number of cases, the Supreme Court of Canada has commented on
the applicability of the provisions of s. 7 of the Charter to the driving of a
motor vehicle.
In Reference re s. 94(2) of the Motor Vehicle Act (British Co/umhia),
[19851 2 S.C.R. 486 (S.C.C.), s. 94 of the Motor \fehicle Act, R.S.B.C.
1979, c. 288, as amended by the Motor \fehicle Amendment Act /982.
(B.C.), c. 36, s. 19 was alleged to be of no force and effect because the
legislation was inconsistent with s. 7 of the CharIer. Section 94( I) provided
for a fine and for a mandatory period of imprisonment for the offence of
driving on a highway without a valid driver's licence or while under licence
suspension. Section 94(2) provided that the offence was one of absolute liability and the guilt of the accused was established by the proof of driving,
whether or not the driver was aware of the suspension. The Supreme Court
of Canad,1 upheld the decision of the British Columbia Court of Appeal Ih:tl
s. 94(2) was inconsistent with s. 7 of the Charter because a mandatory sanction of imprisonment cannot be attached to an absolute liability offence
without offending s. 7. In obiter, and before dealing with the mandatory
imprisonment sanction, Wilson J. made the following observation:
Assuming that I am correcl in my analysis of s. 7 and ils relalionship to s. I, an
ahsolllle liability ofTence c,lIlnot violate s. 7 unless it impairs Ihe right to life,
liberty or security of the person. II cannot violate s. 7 hecause it offends the
principles of fundamelllal justice hecause they are nOI prolected by s. 7 absenl
an imp<lirment of the s. 7 right. Leaving aside for the moment the mand<ltory
imprisonment s<lnction, I cannol lind an illlerference with life, liberty or sccurily
of the person in s. 94 of Ihe Moml' \-'..IIiclt' ACI. II is true thaI the section prevents
citizens from driving their vehicles when their licences are suspended. Citizens
are also prevented from driving on the wrong side of the road. Indeed. all regulatory offences impose some restriction on liberty broadly construed. BUll Ihink
it would Irivialize Ihe CharTer 10 sweep all those offences inlO s. 7 as viol<llions
of Ihe righi III life, liherty and security of the person even if they C,IIl he suslained under s. I. II would he my view, therefore, thai absolute Iiahility offences
of Ihis lype do not per Sf! offend s. 7 of Ihe Charter.
71
In R. I'. Ladouceur, [19901 I S.C.R. 1257 (S.C.c.), Cory 1., who gave
the majority judgment, observed at 1280:
... Proper laws and regulations are necessary 10 regu1<1le Ihe Illi.rilm of driving
a motor vehicle on public Ihoroughfares. [Emphasis added I
72
In Ga/aske 1'. O' DonI/ell, r1994] I S.C.R. 670 (S.C.C.), a civilt0l1 case,
Cory J. made the following comment when describing the driving of a vehicle at 686:
... The driving of a mOlor vehicle is neither a Goo-given nor a constiuuiou<ll
right. 11 is a licensed activity thai is suhject to a number of cl\'1ditions, including
24
CRIMINAL REPORTS
23 C.R. (5th)
Ihe demonslration of a minimum standard of skill and knowledge pertaining to
driving....
73
Mr. Justice Cory amplified Ihe foregoing remarks when, in the later case
of R. I'. BerJ/s/wlI', SlIpra, he opined at 276:
This requirement 10 undergo the ALERT testing immediately should he regarded as one of the ohlig:llions th:ll !lows from the righl 10 drive. In Galaske I'.
O'DllImeJJ, [19941 IS.C.R. 670, at p. 686, it was noted that the driving of a
motor vehicle is neither a God-given nor a conslilutional right. Railler, it is a
privilege granted hy licence. Allached to every righl are concomilant dUlies, obligations and responsibilities. This is Irue of the licensed right 10 drive. One of
the prime responsibilities of a driver is 10 see th,lI reasonable care is exercised in
the operalionilf the motor vehicle, and specilically, Ihal il is driven in a manner
which does nOI endanger memhers of the public. That dUly or responsibility eannO! he fullilled by .1Il impaired driver who, by delinition, endangers others. In
furtherance of Ihe dUly not to endanger others, there exists an obligation 10 comply with a police oflicer's reasonahle request to supply a brealh sample. Complying wilh a reasonable requesl 10 lake an ALERT leSI is a very small price 10
pay for the ~ of driving. (Emphasis added I
74
75
Buhlers v. H.C. (Superintendent of Motor Vehicles)
The sole issue to he resolved on Ihis appeal is whether the comhined effect of ss.
94(1) and 92 of Ihe Motor Ve/tic/e Act, R.S.B.C. 1979, c. 288, creates an offence
of OIhsolute Iiahilily or stricl liahility.
79
Counsel for the respondents submitted that the Supreme Court of Canada in R. I'. Polites, (1995) 3 S.C.R. 44 (S.C.C.), had settled the issue and
had detennined that the right to drive a motor vehicle was not a "liberty"
protected by s. 7 of the Charier.
After setting forth the provisions of ss. 92 and 94 of the Motor Vehicle
Act, Cory J. referred to SSt 4.1 and 72( I) of the 0lfellce Act, R.S.B.C. 1979,
c. 305, which provided:
Section 4.1 of the Ohi'llce Act, R.S.fl.C. 1979, c. 305 (amended in 1990l
provides:
4.1 Notwithstanding section 4 or the provisions of any other Act, no person is
liable 10 imprisonment with respect to an OIhsolute liolhility offence.
That submission was supported by statements made in White \'. Nom
Scotia (Registrar of Motor Vehicles) (1996), 20 M.V.R. (3d) 192 (N.S.
S.C.); aff'd. without reasons (May 27, 1996), Doc. C.A. 124997 (N.S.
C.A.), where, at 199, paragraph 14, MacAdam J. stated:
Further, s. 72( I) of the Difelice Act provides Ihat the fOlilure to pay a line will not
result in a jOlii leml:
72.(1) Suhjectlo suhseclion (6), hut notwithstanding any other provision of Ihis
ACI. any other Acl, regulation, municipal bylaw or order made hy a juslice, no
justice shall, except under the Small Claims Act, order thai a person he impris·
oned hy reason only that he defaults in paying a line.
MacCormick, slIpra, at 277 at
80
Cory J. noted that those sections of the 0lfellce Act had not been argued
The foregoing submission by counsel for the respondents was contested
by counsel for the appellant who maintained that Polites did not settle that
issue. It is therefore necessary to review the Pollles decision.
81
in the courts below.
His conclusion of the issue posed for determination was set forth at
(See also the statement of Webber J. in R.
paragraphs 32 and 33.)
77
25
liable on conviction to a fine alld to imprisonment. On summary conviclion
the Provincial Court judge acquitted the accused on the basis that s. 92 created an absolute liability for which imprisonment was a mandatory penally.
He concluded that the liberty referred to in s. 7 of the Cllarter was offended. He declared under s. 52 of the COllstitlltioll Act, 1982, Ihat the provisions of SSt 92 and 94(1) of the Motor Vehicle Act were of no force and
effect. Wood J., the summary conviction appeal court judge, in lengthy reasons, upheld the decision of the Provincial Court judge. The British Columbia Court of Appeal dismissed the Crown's appeal.
In his reasons for the majority in the Supreme Court of Canada, Cory J.
78
at 50 set forth the issue to be detennined:
... The question of whether the righl to operate a motor vehicle is, of itself, a
right protected hy s. 7 h;ls heen, in our view, resolved hy Ihe Supreme Courl of
CanOida in R. I'. POllfes, (19951 S.C,J. No. 70 (reported at (19951 3 S.C.R. 44).
76
llinds J.A.
I'.
The accused had been prohibited from driving a motor vehicle under s,
92 of the British Columbia Motor \'ehicle Act. Section 92 provided that a
person convicted of an offence under various sections of the Act, including
s. 94(1), was "automatically and without notice" prohibited from driving a
motor vehicle for 12 months. He was seen driving a motor vehicle during
Ihe period of prohibition ,10£1 was charged under s. 94( I) of the Act. Section
94(1) provided that a person who drives a motor vehicle on a highway,
while he is prohibited from driving under s. 92, commits an offence and is
68-69, paragraph 47:
In summary, il is my opinion Ihal ss. 92 and 94 of the B.C. Motor l'I'hide Act
create an ahsolute liahility offence since they effectively eliminate Ihe defence
of due diligence. Neverlheless, Ihe ahsolute Iiahility offence does not contravene
the Charter. This conclnsion !lows fromlhe OIpplication of s. 4.1 ami of s. n( I)
of the Difelice Act. These sections respeclively imlicate thai, notwilhSlanding Ihe
provisions of any olher Acl, no person is liahle to imprisonment for an ahsolute
liahility offence, and thaI the non-payment of a line will not result in imprisonment. TIlliS, an accused convicted under ss. 92 ami 94 of the B.C. MOIll/" I '"hicl,'
Act faces no risk of imprisonment and Ihere is, :Iccordingly, no violation of the
right 10 life, liherty and security of the person under s. 7 of the Charter.
26
CRIr.,'lINAL REPORTS
23 C.R. (5Ih)
82
In the disposition of the appeal Cory J. emphasized that the appeal was
brought to determine whether the offence was one of absolute liability or of
strict liability. The majority concluded that it was an offence of absolute
liability and that the accused was not in jeopardy of imprisonment. His personal liberty, protected under s. 7 of the Charter, was not affected and
therefore the provisions of s. 7 were not involved.
83
In my view, the majority decision in POllles does not specifically determine that the right to drive a motor vehicle is not protected under s. 7 of the
Charter. Inferentially, however, its supports the submission of counsel for
the respondents that the right to drive is not a "liberty" protected by s. 7.
The majority concluded that the provisions of s. 7 were not involved because, although the offence was an absolute liability offence, the accused
faced no risk of imprisonment and, therefore, the accused's personal liberty
was not affected. But if the majority had been of the opinion that, absent the
liability to imprisonment, the accused's right to drive was, nevertheless, a
libeny protected under s. 7 of the Charter, it is anticipated that the majority
would have so stated. I say that because of the dissenting judgment of
Gonthier J., concurred in by La Forest, L'Heureux~Dube, and McLachlin JJ.
where, at 99 he stated:
... There is no fundameillal righl to drive a molor vehicle, any more Ihan Ihere is
a fundament,11 right 10 own a gun or any olher inslrument of potenlial destruction. II is a privilege, a privilege which, s,ldly, is often ,lhused wilh Iragic repercussions. A legisl:lIure can provide for consequences which are 10 ,lIIach when
Ihis privilege is ahused and slipulates standards of hehaviour for cOl1linued licensing....
PrOl'illcial Appellate COllrl Decisio1ls
84
I now turn to consider decisions of provincial appellate courts concerning the applicability of s. 7 to the right to drive a motor vehicle.
lI5
In R. I'. Neale, 19R6] 5 W.W.R. 577 (Alta. C.A.), the accused's licence
to drive a motor vehicle was suspended for 24 hours because a police 01'l'icer suspected the accused's ability to drive was impaired by alcohol. A
short time later, the accused was seen driving his vehicle. He was charged
with driving while his licence was under suspension. The accused submilled
that the 24-hour provisions of s. 110 of the Motor Fe/dele Admi1listration
Act violated s. 7 of the Charter. On the Crown's appeal the Albena Court of
Appeal concluded that the accused's right to drive was not protected by s. 7
of the Charter. In reaching that conclusion the Court stated at 584-5:
r
"Liherly" of Ihe person in Ihe C'lllailian Charier is directed 10, or has as its purpose, Ihe protection of persons in a physical sense. The p,lrlicular function of
liberty in the trilogy of life, Iiherty and security of Ihe person touches on the
right of free movement A person chained in a prisnn is suhjeci In \\'hal
Hinds 1.A.
Huhlers v. H.C. (Superintendent nr Motor Vehicles)
27
Queen's Bench judge would descrihe as "actual physical restrainl", clearly a
deprivation of Iiherly under s. 7. BUI equally, a person ordered not In leave his
home would he deprived of liherty under s. 7 hecause the righl of free movement is restricted. He is denied Ihe use of his physical abilily 10 move himself.
Whether hy chains or hy Ihre,lt of legal sanction, Ihe deprivation occurs.
While the right of free movement on puhlic thoroughfares is lradition:llly recognized, we do nol view the opcnllion of a motor vehicle on a highway :IS a fUllllamenial right, essential to civilized endeavour. If it were, then, of course, all
driver licensing regulation, indeed all highw,ly reguhllion, is prima r.lde vinlalive of the Charier and must he justified under s. I. While one can speak of the
liherty 10 operate a motor vehicle, we agree with Le Dain J. speakiug for the
majorily in Dedmal/I'. R., [198512 S.C.R. 2, 46 C.R. (3d) 193,34 M.V.R. 1,20
C.C.C. (3d) 97 al 121,20 D.L.R. (4th) 321, 60 N.R. 34(011\.1, Ilmtthe right 10
circulate in a motor vehicle on a puhlic highway "is not a fundmnental liherty
like the ordinary right of movement of the individual, hut a licensed activity thai
is suhject 10 regulalion and conlrol for the protection of lire and properly." The
ordin:lry right of movement is protecled, hut circulation in a motor vehicle is
not.
86
The Court in Neale, supra, declined to follow the B.C. Courl of Appeal
decision in Rohson. At the conclusion of the discussion of Ihal case Ihe
court observed, at 581:
We nole our diflicully with the concept of a liherty allached In a licence.
The Supreme Court of Canada refused leave to appeal the Neale decision: see [1987] I S.C.R. xi (S.c.c.).
The decision reached in Neale, supra, was reaffirmed in the subsequent
88
case of Yehia \'. Alherta (Solicitor General) (1992), 40 M.V.R. (2d) 57
(Alta. C.A.).
The Saskatchewan Court of Appeal in Ginther I'. Saskatchewan Gorern89
ment Insurance, [1988] 4 W.W.R. 738 (Sask. C.A.), referred to Ihe comment of Le Dain J. in Dedmal/, supra, and concluded that (he righl (0 drive
a motor vehicle was not a right protected by s. 7.
The Prince Edward Island Court of Appeal in Prince Edward Island
90
(Registrar of Motor Vehicles) I'. Rankin (1991), 30 M.V.R. (2d) 122 (P.E.I.
C.A.) applied both Dedman, supra, and Neale, supra, in concluding that Ihe
righl to drive is not protected by s. 7 of the Charter. It is nOled that at the
end of his reasons for judgment of Ihe Court, Mitchell J.A. observed at 124:
87
,Ill
The Courl recognizes Ihill cancellation of a licence while
appeal is still pending seems unfair. Perhaps the Highway Trahic Act ought to he amended to allnw
for :1 stay hy adding a provision simil:lr 10 s. 261 of Ihe Crill/iI/at Cod,'. IInwever, Ihal is a mailer for Ihe Legislillure, not Ihe Courts. The Chartl'r neilher
provides constitutional prolection ror :III human activities nor a remedy for
every grievance.
~
28
CRIMINAL REPORTS
23 C.R. (5Ih)
lluhlers v.
That admonition is relevant to the circumstances of both the appellant and
of the Intervenor in this appeal.
There are a number of trial decisions across Canada that support the submission advanced herein by the respondents, Le., that driving a motor vehicle is 1I0t a "liberty" protected by s. 7 of the Charter. The licence or pernlission to drive a motor vehicle is a privilege, not a liberty. Those trial
decisions include:
In some recent decisions the Supreme Court has reviewed, and in some
circumstances broadened, the scope of the liberty protected by s. 7. The
broadening of the scope was noted by McEachern C.J.B.C. in Blencoe \',
British Columhia (Human Rights Commission) (1998), 160 D.L.R. (4th)
303 (B.C. c.A.). At 334 he referred to it as "the emerging, preferred view in
the Supreme Coun of Canada".
96
In B. (R.) I'. Children's Aid Society of Metropolitan Toronto (1994),
[1995] I S.C.R. 315 (S.C.C.) the scope of the liberty protected by s. 7 was
. considered, In that case the parents of a child were members of the Jehovah
Witness faith. For religious reasons they objected to certain medical procedures being carried out on their infant daughter because the procedures
would entail the giving of a blood transfusion. The Ontario Children's Aid
Society intervened and obtained an order granting temporary wardship during which medical investigations were conducted. Medical opinion indicated that exploratory surgery was necessary and it would possibly require a
blood transfusion. The temporary wardship was extended by Provincial
Court order. The exploratory surgery was performed. The child received a
blood transfusion. The temporary wardship was terminated and the child
was returned to the care of her parents. The parents asserted Ihat their liberty interests under s. 7 were infringed by the actions of the Children's Aid
Society.
WlIite v. Nova Scotia (Registrar a/Motor Vehicles), sl/pra; and
R. v. MacCormick, sl/pra.
The only decision to which we were referred which supports RohsOll,
supra, and concludes that the right to drive a motor vehicle is protected by
s. 7 of the Charter, is R.I'. Horsejield, supra, to which I have earlier referred. As previously noted, Ihat case is under appeal.
93
After considering the decisions of the Supreme Court of Canada, the
decisions of the provincial appellate courts and the decisions of several trial
courts, to all of which I have referred, I conclude that the decision of this
Coun in Rohson has been overtaken by the more recent decisions of the
Supreme Court. Indeed, the Ihrust of the decisions of the Supreme Court is
to the opposite effect.
9-!
It is imponant to remember Ihat in all of the cases mentioned above
which discuss the right or privilege of driving a motor vehicle, that discussion takes place in the context ofstatutes governing the driver's use of public highways. Without access to public highways, the right to drive a motor
vehicle as presenlly understood, would be for all practical purposes meaningless. Driving a motor vehicle considered only as an extension of the individual's right to move freely, might well be thought to contain a "liberty"
component; but driving a motor vehicle on a public highway involves the
use of the Crown's property, and directly affects the rights of all other drivers and pedestrians to move freely and safely. It is the duty of the Crown to
protect the safety of all, which underlies its right to regulate and control the
use of its highways through licensing statutes, and the limitations on individual rights which they necessnrily impose. The right to operate a motor
vehicle on a public highway is therefore more correctly to be characterized
as a privilege which the Crown may restrict without infringing the liberty
interests protected by s.7 of the Charter.
29
Broadened Scope of s. 7 of the Charter.
Pagallelli I'. Olltario (Registrar of Motor Vehicles) (1987),6 M.V.R. (2d) 252
(Onl. S.C.);
92
Hinds J.A.
95
Provincial Trial Court Decisions
91
n.c. (Superintendent uf Mutur Vehicles)
97
There were three separate reasons for judgment Ihat dealt with the scope
of s. 7.
98
Lamer C.J. reiterated the view he had expressed in previous decisions
that s. 7 should be restricted to circumstances where the physical liberty of
the individual was involved. At 340-41 he stated:
Wilh due respecl for the conlmry opinion, I am slill convinced Ihal Ihe nalure of
Ihe righls guaranleed by s. 7, laken as a whole, and lhe close connection cSlablished belween Ihose righls and Ihe principles of fundamenlal juslice, necessarily mean Ihal Ihis conslillliional prolection is connecled wilh lhe physical dimension of Ihe word "liberly", which can be losI Ihrough Ihe operalion of Ihe
legal system. In a majorily of cases, therefore, this prOleclion is specilic In our
criminal or penal justice syslem and is Iriggered primarily by the operation of
Ihal system.... in my view, the principle thai musl be adopted is lhal genemlly
speaking s. 7 was nOI designed to protecl even fundamental individual freedoms
if Ihose freednms have no conneclion with lhe physical dimension of Ihe concept of "liberly". There are olher provisions in Ihe Charter thai perform Ihal
funclion.
)0
99
CRIMINAL REPORTS
23 C.R. (5Ih)
La Forest J., with whom L'Heureux-Dube, Gonthier and McLachlin J1.
concurred, briefly summarized the general issue raised in the appeal by staling, at 351:
This appeal raises lhe constitulionality of slate illlerference with chih.l-rearing
decisions. The appellallls are parenls who argue Ihal the Onlario Child Welfare
Act, R.S.O. t '.lS0, c. 66, infringes Iheir righl to choose medical Irealmelll ti.lr
Ihcir infalll in accordance with the h:nCIS of Ihdr lililh. They claim Ihal this right
is prolected under bOlh ss. 7 :lIld 2(01) of Ihc C{{Iuulitm Charter of Rights {{lui
Fn-(·dollls.
lOll
nuhltrs v. H.C. (Superintendent (If Motor Vehides)
101
He went on and concluded that the impugned legislation deprived the
parents of their right to determine the medical treatment to be given to their
child. In so doing it infringed upon their parental liberty which in his view
was protected by s. 7. That deprivation was, however, made in accordance
with the principles of fundamental justice. Therefore, La Forest J. agreed
with all of the other justices who heard the appeal that the parents' appeal
should be dismissed.
102
The joint reasons of Iacobucci and Major JJ., with whom Cory J. concun'ed, focussed more on the liberry interest of the child than the alleged
liberry interest of the parents. At 431, Justices Iacobucci and Major stated:
We note Ihal La Foresl J. holds Ihal "liherly" encompasses Ihe righl of parents 10
have input inlo Ihe educalion of Iheir child. In facl, "liherly" may very well
permil parents 10 choose among eqllilll)' effeClive Iypes of medicallreatmenl for
Iheir children, bUI we do nol lind il neceSS:lry 10 delennine Ihis queslion in Ihe
insl:1II1 cilse. We s:lY Ihis bcc:lIIse, :\ssuming Wilholll deciding Ihal "liberty" has
such :I re:leh, il cerlainly does nOI eXlend hI proieci Ihe appellanls in Ihe c:lse al
hilr. There is simply JlO room wilhin s. 7 for parents 10 ovefl'ide the child's righl
10 life :lml security of the person.
In .my evcnl, Ihere is :In immense difference helween s.mclioning some inpul
inlo a child's educalion :lnd prolecting :I p:lrelll's righl to refuse Iheir children
medic:ll treatmelll Ihat a profession:11 adjudges 10 he necessary .md for which
3t
Ihere is no legilim:lte alternalive. The child's righl to life musl not be so completely subsumed to the parentnl liberty 10 m:lke decisions regarding thai child:
... I Emph:lsis in origin:lll
103
After reviewing a number of authorities in connection with the scope o'r
s. 7 La Forest J. observed, at 368:
The lIbove-ciled cllses give us :111 important indication of Ihe meaning of the
concepl of Iiherty. On Ihe one band, libcrty does nOI l11elln unconstrained freedom; sec R" B.C. Mowr \'ehid" Act, (1985] 2 S.C.R. 486 (pl'l" Wilson J., at p.
524); R. I'. Edll'ards Books al/(I A,.t Ltd., (1986]2 S.C.R. 713 (p"r Dickson C.J.,
:II PI'. 785-86). Freedom of Ibe individual to do whal he or she wishes l11ust, in
any organized society, he suhjecled 10 numerous conslraints for Ihe common
good. The Slate undouhtedly has the right to impose many types of restraillls on
illllivilhwi behaviour, and not lIlIlimit:lIions will allmci Chart",. scruliny. On Ihe
lHher hand, Iiherty docs nOI mean mere freedom from physiclll reslr:lilll. In a
free and democratic socielY, the individu:llmusl ~ left room for personal :lUlonomy 10 live his or her own life and 10 make decisions Ihal are of fund.unental
personal import:lIlce.
Ilinds J.A.
The more recent decision of Ihe Supreme Court in Godhollt c. LOllgllelli!
(Vii/e), [ 1997] 3 S.C.R. 844 (S.C.c.) is instructive on the scope of s. 7. That
case involved the validity of a resolution of the city of Longueil requiring
its permanent employees to live within the limits of the city. Ms. GodboUI
agreed when she was hired as a police radio operator that she would live in
Longueil. Later she took up residence in a house she bought in an adjacent
municipality. She was dismissed 1'1'0111 her employment for her failure to
reside in Longueil. The issue on appeal was whether her right to privacy
under s. 5 of the Quebec Charter and her rights to liberty under s. 7 of the
104
Charter were infringed.
La Forest J., with whom L'Heureux-Dulle and McLachlin JJ. concurred,
concluded that Ms. Godbout's rights under both s. 5 of the Quebec Charter
and s. 7 were infringed. With respect to the lalter, La Forest J. had this
10
say at 893:
The foregoing discussion serves simply to reilerale my general view Ih.lI the
right 10 liherty enshrined in s. 7 of Ihe Churl,'" prolecls within ils mnbit the righl
10 an irreducible sphere of personal .lIItonomy wherein individuals m:lY make
iuherently private choices free from Slate iuterference. 1 must emplmsize here
Ih,lI, :IS the tcnor of my commenls in B.(R.) should indicate, 1 do not by any
means regard Ihis sphere of mllonomy as being so wide :IS to encompass any ,md
nil decisions Ihal individuals mighl make in cOJlducting Iheir affairs. Indeed,
snch a view would nll1 conlmry to Ihe b:lsic idea, expressed hOlh :Il Ihe oulsel of
these reasons and in my re:lsons in B.(R.), th:ll individuals C:lnnot, in :lny organized sociely, be guaranleed an unbridled freedom \() do whalever Ihey please.
Morcover, I do not even eonsidcr thai the sphere of .mtonomy includcs wilhin its
scope every mailer Ihat mighl, however vaguely, he descrihed :IS "private".
Rather, as I see iI, the aulonomy protecled by Ihe s. 7 right 10 Iiherly encompasses only Ihose malleI'S that cnn properly be characterized as fundament:llly or
inhercnlly pcrsonal such Ih:lt, by their very n:llure, Ihey implic:lle hasic choices
going tolhe cure of what il means 10 eujoy individu:ll dignity and independcncc.
As 1 have already expl:lined. 1 look the view in B.(R.) th:ll parcnmt dccisions
respecting Ihe medical care provided to Iheir children fall wilhin this narrow
class of inherently personal mailers. In my view, choosing where to estahlish
one's home is, likewise, n quintesselllially private decision going to the very
heart of personal or individual autonomy.
105
Major J., with whol11 Lamer C,J. and Sopinka 1. concurred, agreed with
La Forest J. that the impugned legislation infringed Godbout's right to privacy under s. 5 of the Quebec Charter. He found it unnecessary to determine whether the residency requirements infringed her rights under s. 7.
106
In separate reasons Cory 1., with whom Gonthier and Iacobucci JJ. concurred, was of Ihe same general view as that expressed b' '~ajor J.
.~
~~-
32
CRIMINAL REPORTS
23 C.R. (5th)
107
On the basis of the laller two decisions it is apparent that a more expansive scope of the liberty interests protected by s. 7 has been advocated by
some members of the Supreme Court.
108
It is recognized that the liberty interests protected by s. 7 may not necessarily be restricted to the physical liberty of the individual. In appropriate
circumstances, those interests may embrace liberties that are fundamentally
or inherently personal to the individual and go to the root of a person's
dignity and independence.
109
'-..---/
Hinds l.A.
lIuhlers v. II.C. (Superinlendent of Motor Vehicles)
(c)
if the person holds a valid licence or permit issued under this
ACI to operate a motor vehicle.
(i)
take possession of the person's licence or pemlit if the
person has it in his or her possession, and
(ii)
(d)
serve on the person a notice of driving prohihition, or
if the person
(i)
holds a valid document issued in another jurisdiction
that allows the person to operate a motor vehicle, or
(ii)
does nOI hold a valid licence or pennit
tor vehicle,
10
operate a mo-
In my view, the broadened scope of the liberty interest protected by s. 7,
as expressed by some of the members of the Supreme Court in B.(R.) and in
Godhollt, does not extend to the driving of a motor vehicle on a public highway. It is not a mailer that is fundamental or inherently personal to the individual. It is not a mailer that goes to the root of a person's dignity and
independence. To hold otherwise would trivialize the liberty sought to be
protected by s. 7.
(2)
If a person referred to in suhsection (I) (c) is not in possession of his or
her licence or permit issued under Ihis Act to operate a motor vehicle at
the time the person is served with Ihe notice of driving prohihition, the
person must promptly send Ihe licence or pennit to the Insurance Corporation of British Columhia.
110
In my view, the right or privilege to drive a motor vehicle on a public
highway is not a Iibel1y protected by s. 7.
(3)
III
Having reached the conclusion that the Legislation is not ultra ,'ires on a
division of powers analysis and that it does not deprive an individual of a
libet1y protected by s. 7, it is unnecessary to consider the third and fourth
issues previously set forth in paragraph 7 of these reasons.
The notice of driving prohihition mnst be in the prescribed fonn amI
musl contain
(a)
a stalemenl of the right to have Ihe driving prohihition reviewed
hy the superinlendent under section 94.4.
112
serve on the person a notice of driving prohibition.
(h)
(c)
I would dismiss the appeal.
Appeal dismissed.
Appendix
Effect of notice of drh·jng prohibition
94.2 (1)11" a person is served with a nOlice of driving prohibition under
Sections 94.1 to 94.6 provide:
(a)
section 94.1 (1) (c),
suhject to subsection (2), Ihe notice acls as a tempomry
driver's licence that expires 21 days fmm the date if is
served. and
(ii)
despite the fact the person is or may be subject to another prohibition from driving. the person is prohibited
from operating a mOlor vehicle for 90 days effective on
the expimtion of the temporary driver's licence referred
to in sUhparagraph (i), or
(b)
section 94.1(1) (d), despite the factlhe person is or may be subjecl to another prohihition from driving, the person is prohihited
from operating a motor vehicle for 90 days effective 21 days
from the date the notice is served.
Notice of driving prohibilion
94.1 (\ lIf a peace oflicer has reasonable and prohable grounds to believe
(a)
by reason of an analysis of the hreath or blood of a person, Ihal
a person oper:lled a motor vehicle or had care or conlrol of a
motor vehicle having consumed alcohol in such a quanlily Ihal
the concelllr,llion of alcohol in Ihe person's blood exceeded 80
milligmms of alcohol in 100 millilitres of blood. or
(b)
Ihat a person failed or refused. withoul a reasonahle excuse. 10
comply with a demand made on Ihe person 10 supply a sample
of his or her breath or blood under section 254 of the C,"imillal
Code in respect of fhe operation or care or cOlllrol of a motor
vehicle.
the peace oflicer must.
prescrihed instmctions descrihing how 10 apply for thaI review,
and
a statement that if the person on whom the notice of driving
prohihition is served docs nol apply for a review under section
94.4, the person will be prohibited from operating a motor vehicle for a period of 90 days.
(2)
m
If a person is subject 10 a driving prohibition under section 215 at the
lime the person is served with a notice of driving prohibition under sec-
33
34
CRIMINAL REPORTS
23 C.R. (5Ih)
Buhlers v.
tion94.1, the tempomry driver's licence referred to in subseclion (1) (a)
(i) is valid only on expiry of the driving prohibilion under section 215.
(3)
The temporary driver's licence referred 10 in subsection (1) (a) (i)
(a)
is of the same class, and
(a)
(b)
is subject to all of Ihe same restriclions and conditions
requests an oral hearing at the time of filing the application for
review. and
(b)
pays the prescribed oral hearing fees.
(6)
Duties of peace officer
94.3
Hinds J.A.
The superinlendent is not required 10 hold an oral hearing unless the
applicant
as the licence or pennit laken by Ihe peace officer or sent 10 the Insurance Corporation of British Columbia under seclion 94.1.
(5)
n.c. (Superintendent of Motor Vehicles)
A peace onicer who serves a notice of driving prohibition on a person
under section 94.1 must promptly forward 10 the superinlendenl
(a)
the person's licence or pennil to operate a motor vehicle. if Ihe
peace onicer took the licence or pennil into possession.
(b)
a copy of the notice of driving prohibition,
(c)
a cerlilicate of service in the prescribed fonn showing that the
nOlice of driVing prohibilion was personally served on the person subject 10 the driving prohibition.
(d)
(e)
If a person requests an oral hearing and fails to appear on the date and at
Ihe time and place arranged for the hearing. withoul prior notice 10 the
superintendent, the righl 10 an oral hearing is deemed to have heen
waived by the person.
Considerations
94.5 (\)In a review of a driving prohibition under section 94.4, Ihe superintendent must consider
a report. in Ihe prescribed fonn, sworn or solemnly aflirmed hy
the peace omcer, and
a copy of any certilicate of analysis under section 258 of Ihe
10 the person.
Crimillol COc/I' with respecI
(a)
any relevant sworn or solemnly affinned statements and any
other relevanl infonnation,
(b)
the reporl of the peace officer forwarded under section 94.3(d),
(c)
a copy of any certificale of analysis under section 258 of Ihe
Crimil/al Code with respect to Ihe person served with Ihe notice
of driving prohihition. and
(d)
if an oral hearing is held. in addition til the mailers referred to
in paragraphs (a) to (c), any relevant evidence given or represent,lIions m:tde at the hearing.
Ueview of driving prohibition
94.4 (1)A person may, within 7 days of being served wilh a notice of driving
prohibition under seclion 94.1, apply to the superintendenl for a review
of the driving prohihition hy
(a)
tiling an application for review with tbe superinlendent,
(b)
payiug
(c)
10
(2)
the superintendenl
The superintendenl may consider a copy of the certilicate referred
subsection (I )(c) without proof
10
in
(a)
of the identily and oflicial characler of the person appe<tring to
have signed Ihe cerlilicate, or
(h)
that the copy is a true copy.
(i)
the prescribed applicalion fee. and
Oecision of the superintendent
(ii)
the prescrihed hearing fee. and
94.6 (I)lf after considering an application for review under section 94.4, the
superintendent is satislied that
if it has not been taken by the peace officer or sent to the superintendenl under seclion 94.1. surrendering 10 Ihe Insurance Corporation of Brilish Columhia his or her licence or pennit to operate a mOlor vehicle uuless Ihe person completes aud liIes with
the superintendenl a statutory declaralion in Ihe prescribed lonn
stating Ihat the licence or pennit has been lost. stolen or
destroyed.
(2)
An applicalion for review must be in the fonn. conlain Ihe infonnalion
aud be completed in Ihe manner required by Ihe superinlendenl.
(3)
An applicant may allach to the application for review any sworn statemenls or other evidence that the applicant wishes Ihe superinlendent 10
consider.
(4)
The tiling of an application for review does not Slay the driving
prohibition.
(a)
the person operated or had care or control of a motor vehicle
having consumed alcohol in such a quantily that Ihe concenlr;tlion of alcohol in the person's hlood exceeded 80 milligrams of
alcohol in 100 millilitres of blood, or
(b)
Ihe person failed or refused, without a reasonahle excuse. to
comply wilh a demand made on Ihe person to supply a sample
of his or her breath or hlood under section 254 of the Crimil/al
Codi! in respeci of the operation or care or control of a motor
vehicle
the superintendent muSI conlirm the driving prohihition.
(2)
If after considering an application for review under seclion 94.4, Ihe
superintendenl is satislied that
(a)
the person did nol operate or have care or eonlrol of a motor
.'.y \IUII the
vehicle having consumed alcohol in such a r
35
--.-
36
CRII-.IINAL REPORTS
"
23 C.R. (5Ih)
37
R. v. F. (D.S.)
(b)
conccntr.llion of ilkohol in Ihe person's blood exceeded SO milligfilms of :I!cohol in 100 millililres of blood, or
Ihe person
(i)
(8)
did nOI f:lil or refuse to comply wilh a demand made on
Ihe person 10 supply a sample of his or her breath or
blood under section 250t of the Crimi//al Cod.. in respecI of Ihe operation or care or conlrol of a motor vehick, or
h'ld a re:lsllll:lble excuse for failing or refusing 10 comply wilh the d.:milnd referred 10 in subparagmph (0,
the superinlendenl must
(ii)
(3)
(ot)
(c)
revoke Ihe driving prohibilion,
Id)
direct Ihe Insur.lllce Corporalion of Brilish Columbi:l 10 relurn
any licence or permit to opemte iI mOlor vehicle laken inlo possession by Ihe peace ol"licer or senl 10 Ihe corporation, and
(e)
direcI tlull the :lpplicaliou and he:lring fees pilid be refunded to
Ihe :lppliC<Ull.
Subject 10 subsection (4), Ihe decision of Ihe superil1lendent, and Ihe
re:lsons for the decision, must be in wriling and a copy mUSl be selll to
the ilpplic:lnt wilhin 21 d:lys of the ll:lle the nOlice of driving prohibition
W:lS served on Ihe :lpplicillll under seclion 94. I.
If Ihe superilllendelll is unable to send Ihe decision 10 Ihe ilpplicalll
within Ihe 2 I day period set OUI in subseclion (3), Ihe superil1lendelll
m:lY extend thm periOd tilr :\ period detennined by Ihe superintendent.
(5)
If Ihe superinlendelll extends Ihe period for sending a decision to Ihe
:lpplic:lllt under subseclion (4), Ihe snperil1lendent musl
(:I)
sl:lY Ihe driving prohibilion imposed on the applicant under seclion 94.2
tilr Ihe period of the extension detennined under subsection (4), and
(b)
if the applic'1l11 held iI valid licence
operme iI mOlor vehicle :11 Ihe lime
nOlice of driving prohibition under
Corporalion of Brilish Columbi:l to
drivcr's licence Ihal
(i)
is v:.lid on the expimtion of Ihe lempomry driver's licence referred 10 in
s,xlion 94,2(1)(01)(0, :lnd
or permil issued under Ihis Act to
Ihe applicalll was served wilh the
seclion 94.1, direct Ihe Insumnce
issue 10 Ihe :lpplicalll a temporary
(ii)
expires with the period of eXlension delermined under subsection (4).
(6)
The temporary driver's licence issued under subseclion (5) (b)
(:1)
is of Ihe same class, and
(b)
is subject
10
all of Ihe same reslrictions and conditions
as the licence or pennil laken by Ihe peace officer or senl 10 Ihe Insurance Corpor:llion of Brilish Columbiil under sec'lion 94. I.
(7)
The superimeudent musl promplly give Ihe applicalll nOlice of an eXlension made under suhsection (4).
(9)
The copy referred 10 in subsection (3) and the notice referred til in subsection (7) must be sent to the applicant
(a)
at the lasl known address of Ihe applicanl :IS shown in
the records maintained hy the Insumnce Corpomtion of
Brilish Columbia, or
(h)
al the address shown in the application for review, if
that :,ddress is different from Ihe :Iddress in Ihe Insurance Corporation of British Columbia's records.
A nOlice of eXlension given under subseclion (7) is deemed 10 he a notice of prohibition for the purposes of seclion 95(3)(a).
[Indexed as: R. v. F. (D.S.)]
Her Majesty The Queen, Respondent and F., D.S., Appellant
.Ontario Court of Appeal
Morden A.C.J.O., Austin, O'Connor
Heard: December 3, 1998
Judgment: March 9, 1999
Docket: CA C27704
Alii! K. Kapoor, for the appellant.
SCOtl C. HlIIcl1isOIl, for the respondent.
JJ.A'(-I
\
E,'idenee - - Exclusionary rules - Admissibility ( character evide
-In criminal
maHers - Similar fact e,·idence - Evidence of llbnsive c
not cm'ered by multi·
pie assault counts admissible in case of alleged assault by husband - Evidence relevant
and probath'e force outweighing prejudicial effect - I<:,'idence would enahle jury to
understand relationship and strongly supported complainant's explanlilion for not
lea,'ing IIr reporting earlier - Trial judge properly instructing jury that e,'idence not
to be used til conclude lIccused type of person who would he disposed tn commit of·
fences chllrged.
Evidence - - Opinion evidence - Expert evidence - Expert opinion that abused persons tend to stay in rellitionships and not report properly admitted - E,'idence reliable
and Court of Appeal not to interfere with trial judge's decision that evidence necessar.v.
The accused was charged wilh a numher of assaults. II was alleged tbat he had .lssmilled and
abused his wife over a period of approximately one-year.
The complainant described Ihe various incidents that g:lve rise to Ihe charges and in addition
was permilled to lestify about abusive behaviour of the accused Ihal was not included in any
of the allegations covered by Ihe (() eounlS in Ihe indiclment. The trial judge held Ihal the
evidence of discreditable conduct was admissible for three purposes: to complete Ihe narralive of the eomplaimmt's description of her rel:llionship wilh Ihe accused; to demonslrate the

ignition interlock breath testers

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