Sahaluk v. Transportation Safety Board (Alta.) et al.,

• Judge: Wittmann
• Neutral Citation: 2013 ABQB 378
• Citation: (2013), 567 A.R. 56 (QB),2013 ABQB 378,567 AR 56,(2013), 567 AR 56 (QB),567 A.R. 56
• Date: 03 June 2013
• Court: Court of Queen's Bench of Alberta (Canada)

Sahaluk v. Transportation Safety Bd. (2013), 567 A.R. 56 (QB)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. OC.052

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

(1201 15068)

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

(1301 00437)

Tyanna Chantelle Jackson (applicant) v. Alberta Transportation Safety Board, The Attorney General of Alberta and The Registrar of Motor Vehicles Services (respondents)

(1301 00416)

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

(1201 15148; 2013 ABQB 378)

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

Alberta Court of Queen's Bench

Judicial District of Calgary

Wittmann, C.J.Q.B.

July 3, 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 dismissed the applications.

Civil Rights - Topic 648

Liberty - Limitations on - Drivers' licences - [See Practice - Topic 5708 ].

Civil Rights - Topic 8588

Canadian Charter of Rights and Freedoms - Practice - Notice to Attorney General - 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 reasonable particulars of the applicants' proposed arguments as required by s. 24(3) of the Judicature Act - Section 24(3) dealt with the notice required to be given to the Attorney General when challenging the constitutional validity of an enactment and stated "The notice shall include what enactment or part of an enactment is in question and give reasonable particulars of the proposed argument" - The Alberta Court of Queen's Bench dismissed the application - There was no authority for the proposition that a court could find a notice to be lacking reasonable particulars and order them under s. 24(3) - A court, as master of its own process, had the authority to order reasonable particulars if it found the notice to be deficient - The notice here was detailed, contained particulars, and was reasonable at this stage of the proceedings - The particulars were not perfect, but they were not required to be, especially where the evidentiary record was not yet complete - See paragraphs 5 to 25.

Constitutional Law - Topic 9954

Practice - Notice to Crown and interested parties constitutional question (incl. attack on validity or applicability of statute) - [See Civil Rights - Topic 8588 ].

Motor Vehicles - Topic 7225.3

Licensing and regulation of drivers - Licence - Suspension of - Administrative or summary suspension (incl. impaired driving incidents) - [See Practice - Topic 5708 ].

Practice - Topic 5708

Judgments and orders - Summary judgments - Bar to application - Existence of issue to be tried - 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 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 dismissed the application - The court could not determine that the s. 7 argument was doomed to fail or that there was no serious issue to be tried, if for no other reason than that the evidentiary record for the hearing was not yet complete - In addition, the statement "driving is a privilege not a right" was not a complete answer to the challenge - The issues arising in this matter were not that simple - See paragraphs 26 to 32.

Cases Noticed:

R. v. Aberdeen (E.B.) (2006), 384 A.R. 395; 367 W.A.C. 395; 2006 ABCA 164, refd to. [para. 8].

D.W.H. v. D.J.R. et al. (2011), 528 A.R. 160; 57 Alta. L.R.(5th) 311; 2011 ABQB 791, refd to. [para. 8].

Ardoch Algonquin First Nation et al. v. Canada (Attorney General), [2004] 2 F.C.R. 108; 315 N.R. 76; 2003 FCA 473, refd to. [para. 8].

Gramaglia v. Alberta (Minister of Government Services) et al. (2007), 404 A.R. 233; 394 W.A.C. 233; 2007 ABCA 93, refd to. [para. 8].

Gonzalez v. Driver Control Board (Alta.) et al. (2001), 328 A.R. 111; 2001 ABQB 757, affd. (2003), 330 A.R. 262; 299 W.A.C. 262; 2003 ABCA 256, refd to. [para. 9].

Thomson v. Alberta (Transportation and Safety Board) - see Gonzalez v. Driver Control Board (Alta.) et al.

Baker v. Transportation Safety Board (Alta.) (2004), 355 A.R. 144; 2004 ABQB 244, refd to. [para. 9].

Lloyd v. Transportation Safety Board (Alta.) et al. (2012), 546 A.R. 116; 2012 ABQB 443, refd to. [para. 9].

Juneja et al. v. Registrar of Motor Vehicle Services (Alta.) (2008), 459 A.R. 348; 2008 ABQB 573, refd to. [para. 9].

Alberta (Motor Vehicle Services, Infrastructure and Transportation) v. King, [2007] A.R. Uned. 415; 2007 ABQB 29, refd to. [para. 9].

Lax Kw'alaams Indian Band et al. v. Canada (Attorney General) et al., [2011] 3 S.C.R. 535; 423 N.R. 3; 313 B.C.A.C. 3; 533 W.A.C. 3; 2011 SCC 56, refd to. [para. 10].

Eaton v. Board of Education of Brant County, [1997] 1 S.C.R. 241; 207 N.R. 171; 97 O.A.C. 161, refd to. [para. 10].

M.(R.E.D.) v. Director of Child Welfare - see S.E.M. Re.

S.E.M., Re (1988), 88 A.R. 346 (C.A.), refd to. [para. 10].

Canadian Commercial Bank v. McLaughlan et al. (1988), 92 A.R. 105 (Q.B.), refd to. [para. 12].

Stoney Tribal Council et al. v. PanCanadian Petroleum Ltd., [2005] A.R. Uned. 100; 2005 ABCA 204, refd to. [para. 12].

Gulf Canada Ltd. v. Tug Mary Mackin and Sea-West Holdings Ltd. (1984), 52 N.R. 282 (F.C.A.), refd to. [para. 12].

R. v. Van der Peet (D.M.), [1996] 2 S.C.R. 507; 200 N.R. 1; 80 B.C.A.C. 81; 130 W.A.C. 81, refd to. [para. 14].

Gonzalez v. Driver Control Board (Alta.) et al. (2003), 327 A.R. 308; 296 W.A.C. 308; 2003 ABCA 112, refd to. [para. 27].

Lavallee v. Alberta Securities Commission (2010), 474 A.R. 295; 479 W.A.C. 295; 2010 ABCA 48, refd to. [para. 27].

Blencoe v. Human Rights Commission (B.C.) et al. (2000), 260 N.R. 1; 141 B.C.A.C. 161; 231 W.A.C. 161; 2000 SCC 44, refd to. [para. 27].

R. v. Morgentaler, Smoling and Scott, [1988] 1 S.C.R. 30; 82 N.R. 1; 26 O.A.C. 1, refd to. [para. 28].

R. v. White (J.K.), [1999] 2 S.C.R. 417; 240 N.R. 1; 123 B.C.A.C. 161; 201 W.A.C. 161, refd to. [para. 28].

Chaoulli v. Quebec (Attorney General) (2005), 335 N.R. 25; 2005 SCC 35, refd to. [para. 28].

Guarantee Co. of North America v. Gordon Capital Corp., [1999] 3 S.C.R. 423; 247 N.R. 97; 126 O.A.C. 1, refd to. [para. 29].

Tottrup et al. v. Clearwater No. 99 (Municipal District) (2006), 401 A.R. 88; 391 W.A.C. 88; 2006 ABCA 380, refd to. [para. 31].

Statutes Noticed:

Judicature Act, R.S.A. 2000, c. J-2, sect. 24(3) [para. 7].

Authors and Works Noticed:

Lokan, Andrew K., and Dassios, Christopher M., Constitutional Litigation in Canada, generally [paras. 8, 20].

Counsel:

Matthew Woodley and Daina Young, for the applicants;

Roderick Wiltshire, for the respondent, The Attorney General of Alberta;

William Shores, Q.C., for the respondent, Alberta Transportation Safety Board;

Sean McDonough, for the respondent, Registrar of Motor Vehicle Services.

These applications were heard on June 3, 2013, before Wittmann, C.J.Q.B., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following reasons for judgment on July 3, 2013.