Sivia v. Superintendent of Motor Vehicles (B.C.) et al., 2016 BCCA 245

• Judge: Garson, Stromberg-Stein and Fitch, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: June 10, 2016
• Jurisdiction: British Columbia
• Citations: 2016 BCCA 245;(2016), 389 B.C.A.C. 93 (CA)

Sivia v. Superintendent (2016), 389 B.C.A.C. 93 (CA);

    671 W.A.C. 93

MLB headnote and full text

Temp. Cite: [2016] B.C.A.C. TBEd. JN.023

Satinder Jaswal (appellant/petitioner) v. Superintendent of Motor Vehicles and Attorney General of British Columbia (respondents/defendants)

(CA40119)

Scott Roberts (appellant/petitioner) v. Superintendent of Motor Vehicles and Attorney General of British Columbia (respondents/defendants)

(CA40120)

Carol Marion Beam (appellant/petitioner) v. Superintendent of Motor Vehicles and Attorney General of British Columbia (respondents/defendants)

(CA40121)

Jamie Allen Chisholm (appellant/petitioner) v. Superintendent of Motor Vehicles and Attorney General of British Columbia (respondents/defendants)

(CA40122; 2016 BCCA 245)

Indexed As: Sivia v. Superintendent of Motor Vehicles (B.C.) et al.

British Columbia Court of Appeal

Garson, Stromberg-Stein and Fitch, JJ.A.

June 10, 2016.

Summary:

Six motorists, who had received 90-day roadside driving prohibitions under ss. 215.41 to 215.51 of the Motor Vehicle Act (B.C.), challenged the constitutional validity of the legislation (referred to as the automatic roadside prohibition regime (ARP)) by way of petitions to the British Columbia Supreme Court. The motorists had each been given driving prohibitions by peace officers after they had either refused to supply a sample of breath, or having supplied a sample, registered a "fail" on an "approved screening device" (ASD) as described in the Criminal Code and the Motor Vehicle Act. The petitioners argued that the ARP regime was beyond the competence of the province to legislate as it was, in effect, criminal law, a head of power reserved to the federal government under s. 91(27) of the Constitution Act, 1867 (division of powers challenge). They also submitted that the impugned legislation violated ss. 8, 10(b) and 11(d) of the Charter.

The British Columbia Supreme Court, in a decision reported at [2011] B.C.T.C. Uned. 1639, dismissed the division of powers challenge. The court also dismissed the Charter challenges to the ARP regime based on s. 10(b), which it held was saved on a s. 1 analysis, and the challenge based on s. 11(d) (no "offence" created). The court dismissed the s. 8 Charter challenge so far as it related to a prohibition imposed as a result of a refusal to provide a sample, and to a "warn" reading on an ASD. However, the court found that the s. 8 challenge succeeded and the s. 1 justification was not made out where the prohibition was imposed as a result of a "fail" reading.

The British Columbia Supreme Court, in a decision reported at [2011] B.C.T.C. Uned. 1783, issued further reasons for judgment which confirmed that the finding of an infringement of s. 8 for a "fail" reading did not apply to a case involving a refusal. The court stayed its declaration of invalidity to June 30, 2012, and adjourned to allow further submissions.

The British Columbia Supreme Court, in a decision reported at [2012] B.C.T.C. Uned. 1030, dismissed the application for "personal and monetary remedies". The court held that the declaration of statute invalidity applied prospectively, not retroactively. The motorists appealed, submitting that the chambers judge erred in law: (1) by holding that the ARP was valid provincial legislation; in particular, in failing to characterize the ARP legislation as criminal in nature and thus within the government of Canada's exclusive jurisdiction to legislate; and (2) in failing to classify the ARP regime as an offence "by its very nature" or one that imposed "true penal consequences" and by failing to find that it unjustifiably infringed s. 11(d) of the Charter. The Province cross-appealed, submitting that the chambers judge erred in law by concluding that the provisions that imposed prohibitions, costs and penalties for an ASD reading in the "fail" range violated s. 8 of the Charter and were not saved by s. 1.

The British Columbia Court of Appeal, in a decision reported at (2014), 352 B.C.A.C. 86; 601 W.A.C. 86, dismissed the appeals and the cross-appeal. One of the motorists appealed. He asked the court to decide whether the ARP regime overstepped the bounds of provincial legislative competence and invaded the federal government's exclusive jurisdiction over criminal law. He also asked for a determination of whether the provincial regime engaged and violated the presumption of innocence guaranteed by s. 11 of the Charter. The Province also appealed, questioning whether the ARP regime engaged and violated the protection against unreasonable search and seizure found in s. 8.

The Supreme Court of Canada, in a judgment reported (2015), 476 N.R. 3; 378 B.C.A.C. 1; 650 W.A.C. 1, dismissed both appeals. The court held that: the ARP scheme was valid provincial legislation; s. 11 of the Charter was not engaged as the provincial regime did not create an "offence"; and 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 ASD, and was not saved by s. 1. McLachlin, C.J.C., dissenting in part, would have allowed the Province's appeal regarding s. 8, on the basis that the review provisions of the roadside suspension scheme offered 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. Now at issue was whether the trial judge erred in finding that the suspended declaration of statute invalidity applied only prospectively, not retroactively to the date of the enactment of the ARP scheme (Sept. 20, 2010). A prospective application precluded the court from awarding the motorists any personal or monetary remedies.

The British Columbia Court of Appeal dismissed the appeal. First, the trial judge did not err in finding that the decision constituted a substantial change in the law. Secondly, the trial judge did not err in finding that the Hislop factors (SCC 2007) (reasonable reliance or good faith by government, fairness to the litigants, and respect for the role of the legislate) favoured a prospective application of the suspended declaration of statute invalidity.

Civil Rights - Topic 8372.1

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Limits on retroactivity - See paragraphs 16 to 71.

Civil Rights - Topic 8380.2

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Declaration of statute invalidity - See paragraphs 16 to 71.

Constitutional Law - Topic 2507.2

Determination of validity of statutes or Acts - General principles - Declaration of invalidity - See paragraphs 16 to 71.

Counsel:

S.H. Coulson and A.L. Doolittle, for the appellants;

K.A. Horsman, Q.C., and A.L. Harlingten, for the respondents.

This appeal was heard on May 13, 2016, at Vancouver, B.C., before Garson, Stromberg-Stein and Fitch, JJ.A., of the British Columbia Court of Appeal.

On June 10, 2016, Stromberg-Stein, J.A., delivered the following judgment for the Court of Appeal.