Sahaluk v. Alberta (Transportation Safety Board) et al., (2013) 576 A.R. 1 (QB)

• Judge: Wakeling, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: October 18, 2013
• Citations: (2013), 576 A.R. 1 (QB);2013 ABQB 683

Sahaluk v. Alta. (2013), 576 A.R. 1 (QB)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. DE.016

Daniel Lee Sahaluk (applicant) v. Alberta Transportation Safety Board, The Attorney General of Alberta and The Registrar of Motor Vehicle Services (respondents)

(1303 15592)

Darren Robert Davidson (applicant) v. Alberta Transportation Safety Board, The Attorney General of Alberta and The Registrar of Motor Vehicle Services (respondents)

(1303 15591)

Tyanna Chantelle Jackson (applicant) v. Rod Knecht, Chief of Police of the Edmonton Police Service, The Attorney General of Alberta and The Registrar of Motor Vehicle Services (respondents)

(1303 15594)

Mark Wayne O'Shea (applicant) v. Alberta Transportation Safety Board, The Attorney General of Alberta And The Registrar of Motor Vehicle Services (respondents)

(1303 15593; 2013 ABQB 683)

Indexed As: Sahaluk v. Alberta (Transportation Safety Board) et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Wakeling, J.

November 20, 2013.

Summary:

The applicants were charged with impaired driving, driving with a blood-alcohol level over the legal limit, or refusing to comply with a peace officer's demand to provide a breath sample. As a result, they were subjected to Alcohol-Related Administrative Licence Suspensions (ARALS), which were authorized by s. 88.1 of the Traffic Safety Act. The applicants challenged the constitutional validity of the ARALS scheme, arguing that (1) it was in pith and substance criminal law and procedure and not within the province's jurisdiction to enact; and (2) it violated an accused's ss. 7, 8 and 11(d) Charter rights. The Attorney General of Alberta applied for (1) reasonable particulars of the applicants' proposed arguments as required by s. 24(3) of the Judicature Act; and (2) summary judgment dismissing the applicants' s. 7 Charter challenge on the basis that there was no serious issue to be tried.

The Alberta Court of Queen's Bench, in a decision reported at (2013), 567 A.R. 56, dismissed the applications. The Registrar of Motor Vehicle Services applied for an order striking out portions of three affidavits that were filed on behalf of the applicants by lawyers who regularly represented people accused of impaired driving offences. The Registrar claimed that the affidavits contained inadmissible hearsay, opinion and argument.

The Alberta Court of Queen's Bench allowed the application.

Evidence - Topic 1504

Hearsay rule - General principles and definitions - What constitutes hearsay - The applicants were charged with alcohol-related driving offences - As a result, they were subjected to Alcohol-Related Administrative Licence Suspensions (ARALS), which were authorized by s. 88.1 of the Traffic Safety Act - The applicants challenged the constitutional validity of the ARALS scheme - They filed affidavits from lawyers who regularly represented people accused of alcohol-related driving offences - Certain paragraphs in the affidavits stated that (1) clients had told them or other lawyers that some clients decided to plead guilty even after being advised that they might have good defences to the criminal charges against them, and (2) clients could not work while their licences were suspended and this adversely affected them in several ways - The Registrar of Motor Vehicle Services applied to have these paragraphs struck - The Alberta Court of Queen's Bench granted the application - The paragraphs constituted inadmissible hearsay - The important issue was why a client pled guilty, not who the client told why he or she pled guilty - The clients' statements were therefore offered for the truth of their contents - The hearsay was not necessary or reliable - No reason was offered as to why the declarants could not present the evidence on their own - To deny the Registrar the opportunity to cross-examine the declarants to determine which factors accounted for a client's decision to plead guilty and the weight each client accorded to a factor would jeopardize the litigation system's interest in accurate fact finding - See paragraphs 25 to 34.

Evidence - Topic 1527

Hearsay rule - Exceptions and exclusions - Where admission of hearsay necessary and evidence reliable - [See Evidence - Topic 1504 ].

Practice - Topic 3663

Evidence - Affidavits - Striking out - Opinion - The applicants were charged with alcohol-related driving offences - As a result, they were subjected to Alcohol-Related Administrative Licence Suspensions (ARALS), which were authorized by s. 88.1 of the Traffic Safety Act - The applicants challenged the constitutional validity of the ARALS scheme - They filed affidavits from lawyers who regularly represented people accused of alcohol-related driving offences - Certain paragraphs in the affidavits (1) gave a lawyer's understanding of a medical condition while explaining the plight of a client before the Alberta Transportation Safety Board, and stated that a document the client gave to the Board "corroborated the condition in question"; (2) stated that "the problem is not with the conduct of the participants, but with the fact that the Government of Alberta has elected to punish people beginning at the time of their charge, rather than their sentence"; and (3) stated that licence suspensions disproportionately affected accused people living in rural areas versus urban areas - The Registrar of Motor Vehicle Services applied to have these paragraphs struck - The Alberta Court of Queen's Bench granted the application - The paragraphs constituted opinion and argument and did not assist the court - Striking the paragraphs would not prejudice the applicants' ability to present the factual foundation needed to establish their case - The evidentiary process provided other means through which relevant and important facts might be adduced - See paragraphs 36 and 37.

Practice - Topic 3664

Evidence - Affidavits - Striking out - Hearsay - [See Evidence - Topic 1504 ].

Practice - Topic 3665

Evidence - Affidavits - Striking out - Argument - [See Practice - Topic 3663 ].

Cases Noticed:

Delisle v. Canada (Attorney General) et al., [1999] 2 S.C.R. 989; 244 N.R. 33, refd to. [para. 15].

Northern Telecom Ltd. v. Communications Workers of Canada and Canada Labour Relations Board, [1980] 1 S.C.R. 115; 28 N.R. 107, refd to. [para. 15, footnote 2].

Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086; 112 N.R. 362; 41 O.A.C. 250, refd to. [para. 16].

R. v. Baldree (C.) (2013), 445 N.R. 247; 306 O.A.C. 1; 2013 SCC 35, refd to. [para. 19].

R. v. Khelawon (R.), [2006] 2 S.C.R. 787; 355 N.R. 267; 220 O.A.C. 338; 2006 SCC 57, refd to. [para. 23].

Miranda v. Arizona (1966), 384 U.S. 436, refd to. [para. 31, footnote 5].

R. v. Edwards Books and Art Ltd. - see R. v. Videoflicks Ltd. et al.

R. v. Videoflicks Ltd. et al., [1986] 2 S.C.R. 713; 71 N.R. 161; 19 O.A.C. 239, refd to. [para. 31, footnote 5].

R. v. Sioui, [1990] 1 S.C.R. 1025; 109 N.R. 22; 30 Q.A.C. 280, refd to. [para. 31, footnote 5].

MacKay et al. v. Manitoba, [1989] 2 S.C.R. 357; 99 N.R. 116; 61 Man.R.(2d) 270, refd to. [para. 31].

Borden's Farm Products Co. v. Baldwin (1934), 293 U.S. 194, agreed with [para. 32].

Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1, refd to. [para. 33].

Thomson Newspapers Ltd. v. Director of Investigation and Research, Combines Investigation Act et al., [1990] 1 S.C.R. 425; 106 N.R. 161; 39 O.A.C. 161, refd to. [para. 33].

R. v. Jones, [1986] 2 S.C.R. 284; 69 N.R. 241; 73 A.R. 133, refd to. [para. 33].

Reference Re Alberta Statutes, [1938] S.C.R. 100, affd. [1939] A.C. 117 (P.C.), refd to. [para. 33].

R. v. Cobham, [1994] 3 S.C.R. 360; 172 N.R. 123; 157 A.R. 81; 77 W.A.C. 81, refd to. [para. 33].

Craig v. Boren (1976), 429 U.S. 190, refd to. [para. 33].

Alberta Human Rights Commission v. Alberta Blue Cross Plan (1983), 48 A.R. 192 (C.A.), refd to. [para. 35].

Alberta (Treasury Branches) v. Leahy et al. (1999), 234 A.R. 201 (Q.B.), refd to. [para. 35].

Renfrew Insurance Ltd. v. Donald et al. (2012), 538 A.R. 324; 2012 ABQB 228, refd to. [para. 35].

Canalta Concrete Contractors v. Trend Construction Ltd. (1985), 38 Alta. L.R.(2d) 153 (Q.B. Master), refd to. [para. 35].

Smith et al. v. Canada Post Corp. (1994), 75 O.A.C. 15; 20 O.R.(3d) 173 (Div. Ct.), refd to. [para. 36].

Bell Canada v. Canadian Human Rights Commission et al., [1991] 1 F.C. 356; 39 F.T.R. 97 (T.D.), refd to. [para. 36].

Authors and Works Noticed:

Bryant, Alan W., Lederman, Sidney N., and Fuerst, Michelle K., The Law of Evidence in Canada (3rd Ed. 2009), pp. 229 [para. 18]; 258 [para. 21]; 774, 775 [para. 35, footnote 6]; 1268 [para. 33].

Chase, Litigating a Nativity Scene Case (1980), 24 St. Louis Univ. L.J. 237, generally [para. 32].

Davis, Facts in Lawmaking (1980), 80 Colum. L. Rev. 932, pp. 935 [para. 32]; 940 [para. 31, footnote 5].

Frankfurter and Landis, The Business of the Supreme Court at October Term, 1928 (1929), 43 Harv. L. Rev. 33, p. 56 [para. 32].

Hogg, Peter, Constitutional Law of Canada (5th Ed. 2007) (2012 Looseleaf Supp., Release 1), pp. 60-12, 60-13 [para. 31].

Lokan, A., and Dassios, C., Constitutional Litigation in Canada (2011) (Looseleaf), pp. 8-16 [para. 31]; 8-18.5 [para. 36].

Counsel:

Matthew Woodley (Reynolds, Mirth, Richards & Farmer LLP), for the applicants;

Sean McDonough (Alberta Justice), for the Registrar of Motor Vehicle Services;

William Shores, Q.C. (Shores Jardine LLP), for the Alberta Transportation Board;

Rodrick Wiltshire (Alberta Justice), for the Attorney General of Alberta.

This application was heard on October 18, 2013, before Wakeling, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for decision on November 20, 2013.