Goodwin v. British Columbia (Superintendent of Motor Vehicles)

Goodwin v. British Columbia (Superintendent of Motor Vehicles)
Collection
Supreme Court Judgments
Date
2015-10-16
Neutral citation
2015 SCC 46
Report
[2015] 3 SCR 250
Case number
35864
Judges
McLachlin, Beverley; Cromwell, Thomas Albert; Moldaver, Michael J.; Karakatsanis, Andromache; Wagner, Richard; Gascon, Clément; Côté, Suzanne
On appeal from
British Columbia
Subjects
Constitutional law
Notes
SCC Case Information: 35864
Decision Content
SUPREME COURT OF CANADA
Citation: Goodwin v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 46, [2015] 3 S.C.R. 250
Date: 20151016
Docket: 35864
Between:
Richard James Goodwin
Appellant
and
British Columbia (Superintendent of Motor Vehicles) and
Attorney General of British Columbia
Respondents
And between:
British Columbia (Superintendent of Motor Vehicles) and
Attorney General of British Columbia
Appellants
and
Jamie Allen Chisholm
Respondent
And between:
British Columbia (Superintendent of Motor Vehicles) and
Attorney General of British Columbia
Appellants
and
Scott Roberts
Respondent
And between:
British Columbia (Superintendent of Motor Vehicles) and
Attorney General of British Columbia
Appellants
and
Carol Marion Beam
Respondent
And between:
British Columbia (Superintendent of Motor Vehicles) and
Attorney General of British Columbia
Appellants
and
Richard James Goodwin
Respondent
- and -
Attorney General of Canada, Attorney General of Ontario, Attorney General of Quebec, Attorney General of Manitoba, Attorney General for Saskatchewan, Attorney General of Alberta, British Columbia Civil Liberties Association, Insurance Bureau of Canada, Criminal Trial Lawyers’ Association (Alberta), Criminal Defence Lawyers Association (Calgary), Criminal Lawyers’ Association of Ontario, Alberta Registrar of Motor Vehicle Services and Mothers Against Drunk Driving Canada
Interveners
Coram: McLachlin C.J. and Cromwell, Moldaver, Karakatsanis, Wagner, Gascon and Côté JJ.
Reasons for Judgment:
(paras. 1 to 90)
Karakatsanis J. (Cromwell, Moldaver, Wagner, Gascon and Côté JJ. concurring)
Reasons Dissenting in part:
(paras. 91 to 110)
McLachlin C.J.
Goodwin v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 46, [2015] 2 S.C.R. 250
Richard James Goodwin Appellant
v.
British Columbia (Superintendent of Motor Vehicles) and
Attorney General of British Columbia Respondents
‑ and ‑
British Columbia (Superintendent of Motor Vehicles) and
Attorney General of British Columbia Appellants
v.
Jamie Allen Chisholm Respondent
‑ and ‑
British Columbia (Superintendent of Motor Vehicles) and
Attorney General of British Columbia Appellants
v.
Scott Roberts Respondent
‑ and ‑
British Columbia (Superintendent of Motor Vehicles) and
Attorney General of British Columbia Appellants
v.
Carol Marion Beam Respondent
‑ and ‑
British Columbia (Superintendent of Motor Vehicles) and
Attorney General of British Columbia Appellants
v.
Richard James Goodwin Respondent
and
Attorney General of Canada,
Attorney General of Ontario,
Attorney General of Quebec,
Attorney General of Manitoba,
Attorney General for Saskatchewan,
Attorney General of Alberta,
British Columbia Civil Liberties Association,
Insurance Bureau of Canada,
Criminal Trial Lawyers’ Association (Alberta),
Criminal Defence Lawyers Association (Calgary),
Criminal Lawyers’ Association of Ontario,
Alberta Registrar of Motor Vehicle Services and
Mothers Against Drunk Driving Canada Interveners
Indexed as: Goodwin v. British Columbia (Superintendent of Motor Vehicles)
2015 SCC 46
File No.: 35864.
2015: May 19; 2015: October 16.
Present: McLachlin C.J. and Cromwell, Moldaver, Karakatsanis, Wagner, Gascon and Côté JJ.
on appeal from the court of appeal for british columbia
Constitutional law — Division of powers — Criminal law — Property and civil rights — Highways — Impaired driving — Provincial legislation creating automatic licence suspensions, penalties and remedial programs following roadside analysis using approved screening device — Whether automatic roadside prohibition scheme ultra vires the province as being exclusively within federal government’s criminal law power — Constitution Act, 1867, ss. 91(27) , 92(13) — Motor Vehicle Act, R.S.B.C. 1996, c. 318.
Constitutional law — Charter of Rights — Presumption of innocence — Search and seizure — Impaired driving — Provincial legislation creating automatic licence suspensions, penalties and remedial programs following roadside analysis using approved screening device — Whether automatic roadside prohibition regime creates an offence within meaning of s. 11 of Charter and infringes the presumption of innocence — Whether automatic roadside prohibition scheme infringes right to be secure against unreasonable search or seizure — If so, whether infringement can be justified — Canadian Charter of Rights and Freedoms, ss. 1 , 8 , 11 (d) — Motor Vehicle Act, R.S.B.C. 1996, c. 318.
In 2010, British Columbia created the Automatic Roadside Prohibition (ARP) scheme. It marked a continuation of British Columbia’s longstanding efforts to remove impaired drivers from the province’s roads through the use of licence suspensions, penalties and remedial programs. The scheme calls for roadside analysis of drivers’ breath samples using an approved screening device (ASD). A “fail” reading and a driver’s refusal or failure to provide a sample both result in a 90‑day licence suspension. A “warn” reading results in a shorter suspension of between 3 and 30 days. There is a process for review of suspensions, but it only permits the Superintendent of Motor Vehicles to consider whether the applicant was a “driver” and whether the ASD registered a “fail”, “warn”, or the driver refused to provide a sample.
These appeals ask whether the ARP scheme oversteps the bounds of provincial legislative competence and invades the federal government’s exclusive jurisdiction over criminal law. They also ask whether the provincial regime engages and ultimately infringes two Charter rights: the protection against unreasonable search and seizure found in s. 8 , and the presumption of innocence guaranteed by s. 11 (d). The chambers judge found that the ARP scheme is intra vires the province and that s. 11 (d) of the Charter is not engaged. However, he concluded that the ARP scheme violates s. 8 when the screening device registers a “fail”, though not when a driver refuses to provide a breath sample. His decision was upheld on appeal.
Held (McLachlin C.J. dissenting in part): The appeals should be dismissed.
Per Cromwell, Moldaver, Karakatsanis, Wagner, Gascon and Côté JJ.: The province’s purpose in enacting the ARP scheme was not to oust the criminal law, but rather to prevent death and serious injury on public roads by removing drunk drivers and deterring impaired driving. The pith and substance of the ARP scheme is the licensing of drivers, the enhancement of traffic safety and the deterrence of persons from driving while impaired by alcohol. Provinces have an important role in ensuring highway safety, which includes regulating who is able to drive and removing dangerous drivers from the roads. Provincial drunk driving programs and the criminal law will often be interrelated. A provincial statute will not invade the federal power over criminal law merely because its purpose is to target conduct that is also captured by the Criminal Code . Deterrence can be a purpose of provincial law. There can be no doubt that the matter falls within the provincial power over property and civil rights in the province. Thus, from a division of powers standpoint, the legislation is valid.
The ARP scheme does not create an “offence” within the meaning of s. 11 (d) of the Charter . The scheme is not concerned with addressing harm done to society in a public forum; instead, its focus is on the regulation of drivers and licensing, and the maintenance of highway safety. Although it has a relationship with the criminal law, in the sense that it relies on Criminal Code seizure powers and is administered by police, the scheme is more accurately characterized as a proceeding of an administrative nature. Furthermore, the ARP scheme does not impose true penal consequences. While a 90‑day suspension is a meaningful consequence for a licensing violation, and the approximately $4,000 in possible costs and penalties are significant, they are not sufficient to engage the fair‑trial rights embodied by s. 11 . The driving prohibition relates directly to the regulatory terms and conditions under which a person may be licensed to drive. The protections of s. 11 are not engaged in this case.
The demand to breathe into an ASD constitutes a seizure that infringes on an individual’s reasonable expectation of privacy and engages the protection of s. 8 of the Charter . Although the province relies on the Criminal Code to authorize the breath demand, the purpose and consequences of the seizure are established in the ARP scheme, in the Motor Vehicle Act. It is the ARP scheme that authorizes the seizure of the breath sample, and is thus subject to Charter scrutiny on this basis. The breath demand is a critical component of the province’s efforts to protect British Columbians from death and serious injuries caused by impaired drivers. This compelling purpose weighs heavily in favour of the reasonableness of the breath seizure. Driving on highways is, of course, a highly regulated activity, and drivers expect that the rules of the road will be enforced. This reality, combined with the scheme’s location within a broader regulatory framework targeting driving and highway safety, supports characterizing the regime as regulatory and applying a more flexible standard in assessing its reasonableness. However, while the breath seizure occurs for a regulatory purpose, it nonetheless has certain criminal‑like features, such as its administration by a police officer pursuant to Criminal Code authorization. The consequences that follow a “fail” reading or the failure to provide a sample are not criminal, but they are immediate and serious, and arise without a further test using a more reliable breathalyser. In this case, the mechanism for determining whether a driver’s blood alcohol concentration exceeds the relevant limits is a roadside test using an ASD. The chambers judge found that in some circumstances there can be serious issues concerning whether an ASD accurately reflects blood‑alcohol readings. The use of an ASD to obtain a breath sample raises concerns that undermine the reasonableness of the seizure, specifically regarding the reliability of the test results.
The scope and availability of review is part of the analysis under s. 8 . A driver’s ability to challenge the accuracy of the ASD result is critical to the reasonableness of the ARP regime. Here, the process for review of the ARP suspensions only permits the Superintendent of Motor Vehicles to consider whether the applicant was a “driver” and whether the ASD registered a “fail”, “warn”, or the driver refused to provide a sample. The absence of meaningful review of the accuracy of the result of the seizure, in light of the unreliability of the test, raises concerns about the reasonableness of the ARP scheme. Absent such review, a driver could find herself facing serious administrative sanctions without the precondition for the sanctions being met, and without any mechanism for redress. The serious consequences of a driver registering a “fail”, combined with an inability to challenge the basis on which these consequences are imposed, render the ARP scheme unreasonable.
The objective of the scheme, reducing death and injury caused by impaired driving, is pressing and substantial, and the automatic prohibitions are rationally connected to that objective. However, the ARP scheme does not minimally impair the right of a driver to be free of unreasonable search and seizure. Subsequent amendments to the ARP scheme enhancing the scope for review of roadside screenings and prohibitions demonstrate that there are less impairing measures that can feasibly be put into place without undermining the province’s objective. Therefore, the “fail” branch of the ARP scheme is not saved under s. 1 . There is no need to determine whether the same result follows where the “warn” scheme is concerned.
Per McLachlin C.J. (dissenting in part): There is agreement with the majority on the constitutional issue and on the s. 11 (d) of the Charter issue, but not on the s. 8 issue. The province’s roadside suspension scheme does not violate the constitutional requirement that searches and seizures be reasonable. The provincial scheme in this case relies on the Criminal Code provisions that allow a police officer to compel a driver to give a sample of his breath. This is clearly a seizure of a bodily substance, which means that it must not be unreasonable under s. 8 of the Charter . To determine whether a search or seizure is reasonable, the court should examine three requirements: (1) the state has an important purpose grounded in the broader public interest for doing the search and/or seizure; (2) the intrusion goes no further than reasonably necessary to achieve the state purpose; and (3) the intrusion is subject to judicial supervision to guard against abusive state action. Whether a search or seizure is reasonable is sometimes determined by asking whether the state action represents an appropriate balance between the state purpose and the individual’s privacy interest. However, to view the s. 8 analysis simply as a matter of balancing the state interest against the individual’s privacy interest may fail to capture what is required to establish that a search or seizure is reasonable. Even where the state purpose is of great importance, the state must not intrude upon the individual’s protected sphere more than reasonably justified by that purpose, nor do so in a way that lacks appropriate safeguards capable of judicial review. As for the privacy interest, it should be understood in the sense of what falls within the private sphere of the individual within which the individual reasonably expects to be free from state intrusion absent a higher state purpose and legal safeguards.
All three requirements of a reasonable search and seizure are met in this case. First, the state’s purpose — to prevent death and serious injury on the highway from impaired driving — is important and capable of justifying intrusion into the private sphere of the individual’s bodily substances. Second, the seizure does not go further than reasonably necessary to achieve the state purpose. The regime here is regulatory and not criminal and the activity of driving on highways is highly regulated and common in road enforcement. The third requirement — the availability of judicial supervision — presents the greatest difficulty, however, the driver can request a second test on a different device at the roadside. Further, the driver may apply to have a suspension reviewed by the Superintendent of Motor Vehicles and present statements and evidence in support of the application. The Superintendent’s decision is also subject to judicial supervision by way of judicial review. The administrative nature of the scheme and the nature of the driver’s interests at play justify the administrative nature of the review, as do the less stringent provisions to ensure accuracy of the sample. In this case, the review provisions of the roadside suspension scheme offer reasonable protection against abusive exercise of the state power to intrude on the individual’s private sphere, having regard to the nature of the scheme and the privacy interests at stake.
Cases Cited
By Karakatsanis J.
Applied: Martineau v. M.N.R., 2004 SCC 81, [2004] 3 S.C.R. 737; R. v. Wigglesworth, [1987] 2 S.C.R. 541; referred to: Sivia v. British Columbia (Superintendent of Motor Vehicles), 2014 BCCA 79, 55 B.C.L.R. (5th) 1; Buhlers v. Superintendent of Motor Vehicles (B.C.), 1999 BCCA 0114, 119 B.C.A.C. 207; Provincial Secretary of Prince Edward Island v. Egan, [1941] S.C.R. 396; R. v. Morgentaler, [1993] 3 S.C.R. 463; Quebec (Attorney General) v. Canada (Attorney General), 2015 SCC 14, [2015] 1 S.C.R. 693; Reference re Securities Act, 2011 SCC 66, [2011] 3 S.C.R. 837; Quebec (Attorney General) v. Lacombe, 2010 SCC 38, [2010] 2 S.C.R. 453; Reference re Upper Churchill Water Rights Reversion Act, [1984] 1 S.C.R. 297; Ward v. Canada (Attorney General), 2002 SCC 17, [2002] 1 S.C.R. 569; Chatterjee v. Ontario (Attorney General), 2009 SCC 19, [2009] 1 S.C.R. 624; Dedman v. The Queen, [1985] 2 S.C.R. 2; R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190; Validity of Section 92(4) of The Vehicles Act, 1957 (Sask.), [1958] S.C.R. 608; O’Grady v. Sparling, [1960] S.C.R. 804; Ross v. Registrar of Motor Vehicles, [1975] 1 S.C.R. 5; Gonzalez v. Driver Control Board (Alta.), 2003 ABCA 256, 330 A.R. 262; Horsefield v. Ontario (Registrar of Motor Vehicles) (1999), 44 O.R. (3d) 73; Canadian Western Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3; Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture), 2002 SCC 31, [2002] 2 S.C.R. 146; OPSEU v. Ontario (Attorney General), [1987] 2 S.C.R. 2; Guindon v. Canada, 2015 SCC 41, [2015] 3 S.C.R. 3; Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307; Rowan v. Ontario Securities Commission, 2012 ONCA 208, 110 O.R. (3d) 492; Canada (Attorney General) v. United States Steel Corp., 2011 FCA 176, 333 D.L.R. (4th) 1; Lavallee v. Alberta Securities Commission, 2010 ABCA 48, 474 A.R. 295; R. v. Quesnelle, 2014 SCC 46, [2014] 2 S.C.R. 390; R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432; R. v. Caslake, [1998] 1 S.C.R. 51; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353; R. v. McKinlay Transport Ltd., [1990] 1 S.C.R. 627; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Rodgers, 2006 SCC 15, [2006] 1 S.C.R. 554; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425; Del Zotto v. Canada, [1997] 3 F.C. 40, rev’d [1999] 1 S.C.R. 3; British Columbia Securities Commission v. Branch, [1995] 2 S.C.R. 3; R. v. Jarvis, 2002 SCC 73, [2002] 3 S.C.R. 757; R. v. Lindsay (1999), 134 C.C.C. (3d) 159; R. v. Butchko, 2004 SKCA 159, [2005] 11 W.W.R. 95; R. v. Dyment, [1988] 2 S.C.R. 417; R. v. S.A.B., 2003 SCC 60, [2003] 2 S.C.R. 678; R. v. Stillman, [1997] 1 S.C.R. 607; R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220; R. v. A.M., 2008 SCC 19, [2008] 1 S.C.R. 569; R. v. Kang‑Brown, 2008 SCC 18, [2008] 1 S.C.R. 456; R. v. Mills, [1999] 3 S.C.R. 668; R. v. Tse, 2012 SCC 16, [2012] 1 S.C.R. 531; R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773; R. v. Oakes, [1986] 1 S.C.R. 103; Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1, [2015] 1 S.C.R. 3; Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712; British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371; B. (R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315.
By McLachlin C.J. (dissenting in part)
R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Dyment, [1988] 2 S.C.R. 417; R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212; R. v. McKinlay Transport Ltd., [1990] 1 S.C.R. 627; British Columbia Securities Commission v. Branch, [1995] 2 S.C.R. 3; R. v. Jarvis, 2002 SCC 73, [2002] 3 S.C.R. 757; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621; R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657; R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679; Wilson v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 47, [2015] 3 S.C.R. 300; R. v. Conway, 2010 SCC 22, [2010] 1 S.C.R. 765.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 8 , 10 (b), 11 , 24(2) .
Constitution Act, 1867, ss. 91(27) , 92 .
Criminal Code, R.S.C. 1985, c. C‑46, s. 254(2) , (3) .
Highway Safety Code, CQLR, c. C‑24.2, ss. 202.4 et seq.
Highway Traffic Act, R.S.P.E.I. 1988, c. H‑5, ss. 277.2 et seq.
Motor Vehicle Act, R.S.B.C. 1996, c. 318, ss. 94.1 to 94.6, 94.2(1), 215.41(3), (6), 215.42, 215.43(1), (2), (3), 215.46(2), 215.47, 215.48, 215.49, 215.5, 262, 263.
Motor Vehicle Act Regulations, B.C. Reg. 26/58, s. 43.09.
Rules of the Supreme Court of Canada, SOR/2002‑156, rr. 2 “authorities”, 36(2)(a)(i).
Authors Cited
British Columbia. Legislative Assembly. Official Report of Debates of the Legislative Assembly (Hansard), vol. 16, No. 1, 2nd Sess., 39th Parl., April 27, 2010, p. 4871.
Hogg, Peter W. Constitutional Law of Canada, 5th ed. Supp. Toronto: Thomson/Carswell, 2007 (updated 2014, release 1).
Pitel, Stephen, and Robert Solomon. “Estimating the Number and Cost of Impairment‑Related Traffic Crashes in Canada: 1999 to 2010”, MADD Canada, April 2013 (online: http://www.madd.ca/media/docs/estimating_presence.pdf).
APPEALS from a judgment of the British Columbia Court of Appeal (Ryan, Hinkson and MacKenzie JJ.A.), 2014 BCCA 79, 55 B.C.L.R. (5th) 1, 370 D.L.R. (4th) 609, 302 C.R.R. (2d) 1, 307 C.C.C. (3d) 77, 352 B.C.A.C. 86, 601 W.A.C. 86, [2014] 6 W.W.R. 1, 64 M.V.R. (6th) 7, [2014] B.C.J. No. 346 (QL), 2014 CarswellBC 488 (WL Can.), affirming the decisions of Sigurdson J., 2011 BCSC 1639, 27 B.C.L.R. (5th) 229, 247 C.R.R. (2d) 226, 282 C.C.C. (3d) 145, 92 C.R. (6th) 122, [2012] 5 W.W.R. 297, 23 M.V.R. (6th) 185, [2011] B.C.J. No. 2282 (QL), 2011 CarswellBC 3225 (WL Can.); 2011 BCSC 1783, 27 B.C.L.R. (5th) 326, 249 C.R.R. (2d) 368, [2012] 4 W.W.R. 506, 23 M.V.R. (6th) 282, [2011] B.C.J. No. 2484 (QL), 2011 CarswellBC 3493 (WL Can.); and 2012 BCSC 1030, 36 B.C.L.R. (5th) 360, 353 D.L.R. (4th) 351, 266 C.R.R. (2d) 82, 289 C.C.C. (3d) 476, [2013] 1 W.W.R. 176, 36 M.V.R. (6th) 235, [2012] B.C.J. No. 1438 (QL), 2012 CarswellBC 2056 (WL Can.); and affirming a decision of Dley J., B.C.S.C., Victoria, No. 12‑1095, May 25, 2012. Appeals dismissed, McLachlin C.J. dissenting in part.
Howard A. Mickelson, Q.C., and Shea H. Coulson, for the appellant/respondent Richard James Goodwin.
Nathaniel Carnegie, Leah Greathead and Tyna Mason, for the appellants/respondents British Columbia (Superintendent of Motor Vehicles) and the Attorney General of British Columbia.
Shea H. Coulson, Diego A. Solimano and Sacha L. I. Roudette, for the respondents Jamie Allen Chisholm, Scott Roberts and Carol Marion Beam.
Written submissions only by Christine Mohr and Diba Majzub, for the intervener the Attorney General of Canada.
Written submissions only by S. Zachary Green, for the intervener the Attorney General of Ontario.
Written submissions only by Brigitte Bussières, Alain Gingras and Gilles Laporte, for the intervener the Attorney General of Quebec.
Written submissions only by Michael Conner and Charles Murray, for the intervener the Attorney General of Manitoba.
Written submissions only by Graeme G. Mitchell, Q.C., for the intervener the Attorney General for Saskatchewan.
Written submissions only by Roderick Wiltshire, for the intervener the Attorney General of Alberta.
Claire E. Hunter, Eileen Patel and Nigel Marshman, for the intervener the British Columbia Civil Liberties Association.
Alan L. W. D’Silva, Nicholas McHaffie and Alexandra Urbanski, for the intervener the Insurance Bureau of Canada.
Shannon Prithipaul, Ian Savage and Michael Oykhman, for the interveners the Criminal Trial Lawyers’ Association (Alberta) and the Criminal Defence Lawyers Association (Calgary).
Michael Lacy, Joanna Baron and Andrew Burgess, for the intervener the Criminal Lawyers’ Association of Ontario.
Sean McDonough, for the intervener the Alberta Registrar of Motor Vehicle Services.
Bryant Mackey, Guy Régimbald and Matthew Estabrooks, for the intervener Mothers Against Drunk Driving Canada.
The judgment of Cromwell, Moldaver, Karakatsanis, Wagner, Gascon and Côté JJ. was delivered by
Karakatsanis J. —
I. Introduction
[1] The devastating consequences of impaired driving reverberate throughout Canadian society. Impaired driving renders roads unsafe, destroys lives, and imposes costs throughout the health care system. The federal and provincial governments have all acted in response to this pressing danger. The federal government has made both impaired driving and driving with a blood alcohol concentration above 0.08 offences contrary to the Criminal Code, R.S.C. 1985, c. C-46 . Across Canada, provincial governments have also addressed this concern through provincial legislation governing driver licensing.
[2] In 2010, British Columbia created the automatic roadside prohibition (ARP) scheme. It marked a continuation of British Columbia’s longstanding efforts to remove impaired drivers from the province’s roads through the use of licence suspensions, penalties and remedial programs.
[3] In the first appeal, Richard Goodwin, who was issued a driving prohibition pursuant to this new ARP scheme, asks this Court to decide whether it oversteps the bounds of provincial legislative competence and invades the federal government’s exclusive jurisdiction over criminal law (the Goodwin appeal). Mr. Goodwin further asks for a determination of whether the provincial regime engages and violates the presumption of innocence guaranteed by s. 11 of the Canadian Charter of Rights and Freedoms . The second appeal was brought by British Columbia (Superintendent of Motor Vehicles) and the Attorney General of British Columbia (collectively the Province) and questions whether the ARP regime engages and violates the protection against unreasonable search and seizure found in s. 8 (the Province appeal).
[4] As I will explain, I agree with the courts below. The ARP scheme is valid provincial legislation. Moreover, s. 11 of the Charter is not engaged as the provincial regime does not create an “offence”. However, I would uphold the chambers judge’s finding that the scheme as it was constituted from September 2010 to June 2012 violated the s. 8 rights of drivers subject to a roadside breath demand who subsequently registered a “fail” on the approved screening device (ASD), and is not saved by s. 1 .
II. Judicial History
[5] Each of the drivers in the Province appeal received prohibitions under the ARP scheme in British Columbia. Jamie Chisholm, Carol Beam and Scott Roberts provided a breath sample into an ASD and registered a “fail”. Mr. Goodwin failed to provide an adequate breath sample. Each of the drivers was prohibited from driving for 90 days, had his or her vehicle impounded for 30 days, and was required to pay monetary penalties and fees. Three of the drivers were also referred to remedial programs, which the chambers judge found was a routine consequence imposed for blowing a “fail”.[1]
[6] Before the Supreme Court of British Columbia, the petitioners argued that the ARP scheme (1) was ultra vires the province; (2) violated s. 11 (d) of the Charter ; (3) infringed s. 8 of the Charter ; (4) violated s. 10 (b) of the Charter ; and (5) such violations were not justified under s. 1 of the Charter .
[7] The chambers judge, Sigurdson J., found that the ARP scheme is intra vires ― within the legislative competence of ― the province and that ss. 11 (d) and 10 (b) are not ultimately infringed. However, he concluded that the ARP scheme violates s. 8 of the Charter . He subsequently clarified that the s. 8 infringement arises only from the screening device registering a “fail” reading over 0.08, and not from a refusal to provide a breath sample. The chambers judge declared the infringing part of the ARP scheme invalid, and suspended the declaration until June 30, 2012: 2011 BCSC 1783, 249 C.R.R. (2d) 368. His decision was upheld on appeal to the British Columbia Court of Appeal: Sivia v. British Columbia (Superintendent of Motor Vehicles), 2014 BCCA 79, 55 B.C.L.R. (5th) 1.
III. The Provincial Legislative Scheme
[8] British Columbia has had an administrative driving prohibition (ADP) scheme since 1997, as ss. 94.1 to 94.6 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318 (MVA). Under this earlier regime, which remains in force, police officers are required to serve a notice of driving prohibition where they have reasonable and probable grounds, on the basis of a breath or blood analysis, to believe that the driver of a motor vehicle has a blood alcohol concentration of more than 80 milligrams of alcohol in 100 millilitres of blood: MVA, s. 94.1(1). In practice, the grounds for serving a notice of prohibition under the ADP arise from breath analysis by an approved instrument (also known as a breathalyser) conducted at a police station: chambers judge’s reasons, at para. 55. A notice of driving prohibition served under this scheme takes effect 21 days later, for a duration of 90 days: MVA, s. 94.2(1). The same consequences follow where a driver fails or refuses, without reasonable excuse, to provide a breath sample: MVA, s. 94.1(1)(b).
[9] This scheme is similar to other provincial schemes across the country.[2] It was upheld as constitutional, as regards both division of powers and s. 7 of the Charter , in Buhlers v. Superintendent of Motor Vehicles (B.C.), 1999 BCCA 0114, 119 B.C.A.C. 207.
[10] The introduction of the new ARP scheme in 2010 marked a shift in British Columbia’s approach to the regulation of drunk driving. Instead of relying on the use of breathalyser tests at the police station, driving prohibitions would now be issued following a roadside analysis, using an ASD. While a “fail” reading captures the same blood alcohol concentration that triggers a prohibition under the ADP scheme, a concentration of 0.05 to 0.08, detected through a “warn” reading, would now also result in the issuing of a roadside suspension, although for a shorter duration. Similar to the earlier scheme, a “fail” reading and a driver’s refusal or failure to provide a sample both result in a 90-day suspension: MVA, s. 215.43(2). A “warn” reading results in a shorter suspension of between 3 and 30 days, depending on whether the driver has previously been served with a prohibition: MVA, s. 215.43(1). All prohibitions take effect immediately upon being served on a driver: MVA, ss. 215.41(6) and 215.43(3).
[11] Unlike the earlier ADP, the ARP scheme imposes additional consequences beyond the normal costs associated with the prohibition itself, such as a reinstatement fee. The chambers judge found that a driver who registers a “fail” or fails to provide a sample faces penalties and costs totalling over $4,000, in addition to the 90-day suspension: para. 56. Drivers subject to a 30 or 90 day suspension also face mandatory vehicle impoundment: MVA, s. 215.46(2).
[12] The ARP scheme as enacted in 2010 also differs from the predecessor regime with respect to the scope of available review. The ADP scheme would permit the Superintendent of Motor Vehicles to consider whether a driver’s blood alcohol concentration was in fact above 0.08, whereas the ARP scheme limited the grounds of review to whether the applicant was a driver, whether (in the case of a “warn”) the prohibition was in fact a subsequent prohibition, and, whether the approved screening device registered a “warn” or a “fail”, or alternatively, whether the driver failed or refused, without reasonable excuse, to provide a breath sample: chambers judge’s reasons, at para. 57; MVA, s. 215.5.
[13] The scheme was amended in 2012 subsequent to the chamber judge’s decision, and now requires that a police officer inform a driver of her right to request and be provided a second ASD test, and, where two samples are provided, the lower of the two results is the basis for a driving prohibition: MVA, s. 215.42. It also expands the grounds on which a driver may challenge a prohibition: MVA, s. 215.5. Under the amended ARP scheme, the police officer’s report to the Superintendent must be sworn, and police must now provide the Superintendent with information relating to the calibration of the ASD: MVA, s. 215.47. These amendments are not challenged in these appeals.
IV. Issues
[14] The appeals raise four constitutional issues. The first is a matter of the division of powers between the federal and provincial governments: Is the ARP scheme as enacted in 2010 ultra vires British Columbia as being exclusively within the federal government’s criminal law power under s. 91(27) of the Constitution Act, 1867 ?
[15] If the ARP scheme is within British Columbia’s legislative competence, the remaining issues concern its compliance with ss. 8 and 11 (d) of the Charter .[3] If the legislative scheme infringes either of these Charter rights, this Court must also determine whether the infringement is a reasonable limit justified under s. 1 .
V. Analysis
A. Is the ARP Scheme Ultra Vires the Province?
[16] Under the Constitution Act, 1867 , the federal government exercises exclusive jurisdiction over the criminal law and procedure (s. 91(27) ), while each province exercises exclusive jurisdiction over property and civil rights in the province (s. 92(13) ).
[17] Mr. Goodwin argues that the ARP scheme is ultra vires the Province of British Columbia, as its pith and substance is to replace the Criminal Code ’s impaired driving provisions with a regime of automatic and severe penalties. He asserts that the purpose of the scheme is punitive, as it seeks to reduce enforcement costs by removing procedural rights. Its practical effect, he submits, is to oust the criminal law.
[18] The Province counters that the ARP scheme is a valid exercise of the Province’s jurisdiction to legislate in the area of property and civil rights under s. 92(13) of the Constitution Act, 1867 . In the Province’s view, Provincial Secretary of Prince Edward Island v. Egan, [1941] S.C.R. 396, and this Court’s other decisions confirming the validity of provincial impaired driving regimes provide a complete answer to the drivers’ claim that the ARP scheme is ultra vires.
[19] Mr. Goodwin says that this case should be distinguished from Egan and other decisions upholding provincial regimes. Those regimes, he says, were intended to create a parallel scheme of licensing, not to impact the application and enforcement of the Criminal Code . By contrast, the ARP scheme creates both the penalties and the means to investigate who should be penalized, effectively removing the more onerous and protective processes associated with criminal investigations and prosecutions: chambers judge’s reasons, at paras. 69-73.
[20] This argument was rejected in the courts below. For the reasons that follow, I agree. Mr. Goodwin misapprehends the nature of the division of power analysis. While purpose and effect are relevant considerations, neither is determinative. A proper analysis considers both purpose and effect in order to determine first what the “matter” of the legislation is, and second whether the “matter” falls within a head of provincial power.
[21] The “matter” of a law is its true character ― that is, its pith and substance: R. v. Morgentaler, [1993] 3 S.C.R. 463, at p. 481. The law’s purpose and its legal and practical effects can help identify the matter: Quebec (Attorney General) v. Canada (Attorney General), 2015 SCC 14, [2015] 1 S.C.R. 693, at para. 29; Reference re Securities Act, 2011 SCC 66, [2011] 3 S.C.R. 837, at paras. 63-64; Quebec (Attorney General) v. Lacombe, 2010 SCC 38, [2010] 2 S.C.R. 453, at para. 20.
[22] The core of Mr. Goodwin’s submission is that the ARP scheme is nothing more than crime control dressed up as licensing. In his view, the Province’s purpose in enacting this scheme was to provide a criminal law response to drunk driving without engaging the Charter and its attendant procedural protections: A.F. (Goodwin), at paras. 74-78.
[23] This is essentially an argument that the ARP scheme is a colourable attempt at invading the federal criminal law. Of course, it is the substance and not the form of the law that defines its true character. As this Court emphasized in Quebec (Attorney General) v. Canada (Attorney General), courts must take care “not to endorse a ‘colourable’ statute, that is, one that in form appears to relate to a matter within the legislative competence of the enacting order of government, but in substance addresses a matter falling outside its competence”: para. 31; see also P. W. Hogg, Constitutional Law of Canada (5th ed. Supp.), at pp. 15-19; Reference re Upper Churchill Water Rights Reversion Act, [1984] 1 S.C.R. 297.
[24] However, whether or not an impugned law is alleged to be colourable, the fundamental pith and substance analysis remains the same. The impact of provincial legislation on Charter rights may be relevant to this analysis, but it is not determinative. This Court has cautioned that the purpose of legislation cannot be confused with the means chosen to carry out the purpose: Ward v. Canada (Attorney General), 2002 SCC 17, [2002] 1 S.C.R. 569, at para. 25. The fact that the means used to achieve a provincial purpose may engage different, or fewer, Charter protections than the means used to achieve a related federal purpose does not necessarily imply that the provincial purpose was to avoid or undermine Charter protections.
[25] I agree with the chambers judge that the Province’s purpose in enacting the ARP scheme was not to oust the criminal law, but rather to prevent death and serious injury on public roads by removing drunk drivers and deterring impaired driving. The ARP scheme is part of the MVA, which establishes a regulatory regime setting the terms and conditions of driver licensing in British Columbia. It continues British Columbia’s ongoing efforts to stem the tide of drunk-driving related incidents in the province. The ARP scheme was introduced “as a means of reducing the body count on B.C.’s highways” in the face of an increase in drunk-driving accidents and deaths: British Columbia, Official Report of Debates of the Legislative Assembly (Hansard), vol. 16, No. 1, 2nd Sess., 39th Parl., April 27, 2010, at p. 4871, per Hon. M. de Jong. Although Mr. Goodwin argues that such statements conceal the scheme’s true purpose of removing drivers’ procedural rights, both the legislative history and the statutory scheme support finding that the ARP scheme was enacted to enhance highway safety.
[26] Mr. Goodwin also challenges the ARP scheme on the basis that its legal and practical effects go beyond British Columbia’s constitutional powers. In Mr. Goodwin’s view, the penalties under the ARP scheme are the “toughest” in Canada, thus giving the scheme a punitive character, one properly associated with the criminal law. However, the imposition of significant financial penalties and the loss of important privileges do not necessarily make legislation punitive. The legal effects can act as a deterrent to serve the goal of highway safety. Both are compatible with a regulatory licensing regime.
[27] In terms of practical effects, Mr. Goodwin submits that the ARP scheme ousts the criminal law. Noting this Court’s admonition at para. 40 of Chatterjee v. Ontario (Attorney General), 2009 SCC 19, [2009] 1 S.C.R. 624, that the province can legislate “so long as those measures are taken in relation to a head of provincial competence and do not compromise the proper functioning of the Criminal Code ”, he relies on evidence suggesting that, since the introduction of the ARP regime, the police have chosen to enforce the provincial ARP scheme instead of the federal criminal law sanctions against impaired driving. This, he argues, differentiates those provincial schemes that complement the criminal provisions from the ARP scheme, which supplants the criminal provisions.
[28] As the chambers judge noted, the fact that the police have tended to enforce the provincial ARP scheme rather than the criminal law is certainly a factor to consider in the pith and substance analysis. However, it is not determinative. As this Court noted in Dedman v. The Queen,