Richard James Goodwin (appellant) v. British Columbia (Superintendent of Motor Vehicles) and Attorney General of British Columbia (respondents) British Columbia (Superintendent of Motor Vehicles) and Attorney General of British Columbia (appellants) v. Jamie Allen Chisholm (respondent) British Columbia (Superintendent of Motor Vehicles) and Attorney General of British Columbia (appellants) v. Scott Roberts (respondent) British Columbia (Superintendent of Motor Vehicles) and Attorney General of British Columbia (appellants) v. Carol Marion Beam (respondent) 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) (35864; 2015 SCC 46; 2015 CSC 46) Indexed As: Sivia v. British Columbia (Superintendent of Motor Vehicles) et al. Supreme Court of Canada McLachlin, C.J.C., Cromwell, Moldaver, Karakatsanis, Wagner, Gascon and Côté, JJ. October 16, 2015. 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 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 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. Civil Rights - Topic 1220 Security of the person - Lawful or reasonable search - Seizure defined - At issue was the constitutional validity of ss. 215.41 to 215.51 of the Motor Vehicle Act (B.C.) ("MVA"), referred to as the automatic roadside prohibition regime ("provincial scheme") - 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" as described in the Criminal Code and the MVA - The Supreme Court of Canada stated that "The provincial scheme relies on the Criminal Code provisions that allow a police officer to compel a driver to give a sample of his breath: R.S.C. 1985, c. C-46, s. 254(2). This is clearly a seizure of a bodily substance, which means that it must not be 'unreasonable' under s. 8 of the Charter. The argument that the seizure is authorized by the Criminal Code, and that therefore there is no seizure under the provincial scheme, is artificial. The fact is that the police officer in cases such as this is seizing the breath for purposes of the provincial scheme: the Criminal Code authorization is expressly contemplated by that provincial scheme. The seizure is the plank upon which the whole provincial scheme rests. The seizure, although authorized by a different enactment, is part and parcel of the provincial scheme." - See paragraph 93. Civil Rights - Topic 1404.1 Security of the person - Law enforcement - Breath or blood samples - In 2010, British Columbia created the automatic roadside prohibition (ARP) scheme under the Motor Vehicle Act - The ARP scheme 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 issued following a roadside analysis, using an approved screening device (ASD)
- While a "fail" reading captured the same blood alcohol concentration that triggered a prohibition under the prior scheme, a concentration of.05 to.08, detected through a "warn" reading, now also resulted 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 resulted in a 90-day suspension - A "warn" reading resulted in a shorter suspension of between 3 and 30 days, depending on whether the driver had previously been served with a prohibition - All prohibitions took effect immediately upon being served on a driver - A driver who registered a "fail" or failed to provide a sample faced penalties and costs totalling over $4,000, in addition to the 90-day suspension - The Supreme Court of Canada held that the provisions that imposed prohibitions, costs and penalties for an ASD reading in the "fail" range violated s. 8 of the Charter - While the administrative nature of the scheme justified the administrative nature of the review, this did not resolve the issue of whether the scope of such review was adequate in the circumstances - The absence of meaningful review of the accuracy of the result of the seizure, in light of the unreliability of the test, raised 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 infringing provisions were not saved by s. 1 where the minimal impairment part of the proportionality test was not met - See paragraphs 49 to 85. Civil Rights - Topic 1409 Security of the person - Law enforcement - Motor vehicles - [See Civil Rights - Topic 1220 and Civil Rights - Topic 1404.1]. Civil Rights - Topic 1444 Security of the person - Right to privacy - Expectation of privacy - The Supreme Court of Canada stated that "Section 8 of the Charter provides that '[e]veryone has the right to be secure against unreasonable search or seizure.' This right is engaged where the state conducts a search or seizure that interferes with an individual's reasonable expectation of privacy. The expectation of privacy is a normative concept, reflecting the level of privacy that we, as a society, should reasonably expect in a given circumstance: R. v. Quesnelle, 2014 SCC 46, [2014] 2 S.C.R. 390, at para. 44; R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 42. It is not merely a function of how much privacy a person may expect or enjoy with respect to their person, space or belongings. Where a search or seizure engages the protection of s. 8, a reviewing court must determine whether the search or seizure is reasonable. In this regard, (1) the search or seizure must be authorized by law, (2) the law itself must be reasonable, and (3) the search or seizure must be carried out in a reasonable manner: R. v. Caslake, [1998] 1 S.C.R. 51, at para. 10; R. v. Collins, [1987] 1 S.C.R. 265, at p. 278." - See paragraph 48. Civil Rights - Topic 1508 Property - General principles - Expectation of privacy - [See Civil Rights - Topic 1444]. Civil Rights - Topic 1646 Property - Search and seizure - Unreasonable search and seizure defined - [See Civil Rights - Topic 1444]. Civil Rights - Topic 8305.1 Canadian Charter of Rights and Freedoms - Application - Section 11 - In 2010, British Columbia created the automatic roadside prohibition (ARP) scheme under the Motor Vehicle Act - The ARP scheme 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 issued following a roadside analysis, using an approved screening device -
While a "fail" reading captured the same blood alcohol concentration that triggered a prohibition under the prior scheme, a concentration of.05 to.08, detected through a "warn" reading, now also resulted 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 resulted in a 90-day suspension - A "warn" reading resulted in a shorter suspension of between 3 and 30 days, depending on whether the driver had previously been served with a prohibition - All prohibitions took effect immediately upon being served on a driver - A driver who registered a "fail" or failed to provide a sample faced penalties and costs totalling over $4,000, in addition to the 90-day suspension - The Supreme Court of Canada held that the ARP scheme did not create an "offence" within the meaning of s. 11 of the Charter - See paragraphs 35 to 47. Civil Rights - Topic 8348 Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law - [See Civil Rights - Topic 1404.1]. Constitutional Law - Topic 2502 Determination of validity of statutes or acts - General principles - Aim or purpose of statute (incl. bylaws) - The Supreme Court of Canada discussed the nature of the division of power analysis - The court stated that "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. The 'matter' of a law is its true character - that is, its pith and substance.... The law's purpose and its legal and practical effects can help identify the matter...." - See paragraphs 20 and 21. Constitutional Law - Topic 2502 Determination of validity of statutes or acts - General principles - Aim or purpose of statute (incl. bylaws) - In 2010, British Columbia created the automatic roadside prohibition (ARP) scheme under the Motor Vehicle Act - The ARP scheme 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 issued following a roadside analysis, using an approved screening device (ASD) - While a "fail" reading captured the same blood alcohol concentration that triggered a prohibition under the prior scheme, a concentration of.05 to.08, detected through a "warn" reading, now also resulted 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 resulted in a 90-day suspension - A "warn" reading resulted in a shorter suspension of between 3 and 30 days, depending on whether the driver had previously been served with a prohibition - All prohibitions took effect immediately upon being served on a driver - A driver who registered a "fail" or failed to provide a sample faced penalties and costs totalling over $4,000, in addition to the 90-day suspension - A chambers judge rejected a motorist s argument that the ARP scheme was ultra vires the Province - The Court of Appeal upheld the finding - On further appeal, the motorist again argued that the ARP scheme was ultra vires the Province, as its pith and substance was to replace the Criminal Code's impaired driving provisions with a regime of automatic and severe penalties - He asserted that the scheme s purpose was punitive, as it sought to reduce enforcement costs by removing procedural rights; its practical effect was to oust the criminal law - The Supreme Court of Canada rejected the argument - Both the legislative history and the statutory scheme supported the finding that the ARP scheme was enacted to enhance highway safety - There was a legitimate, substantial and pressing reason for the Province to regulate highway safety and the licensing of drivers to remove impaired drivers from the roads - "No doubt the ARP scheme has incidental impacts on criminal law. No doubt it targets, in part, specific criminal activity and imposes serious consequences,
without the protections attendant on criminal investigations and prosecutions. However, the consequences relate to the regulation of driving privileges" - The pith and substance of the ARP scheme was the licensing of drivers, the enhancement of traffic safety and the deterrence of persons from driving while impaired by alcohol - While the ARP scheme represented a more aggressive approach by the Province than the prior scheme, it nonetheless retained its character - Deterrence could be a purpose of provincial law - The matter fell within the provincial power over property and civil rights in the province - See paragraphs 16 to 34. Constitutional Law - Topic 2502 Determination of validity of statutes or acts - General principles - Aim or purpose of statute (incl. bylaws) - The Supreme Court of Canada stated that "At the end of the day, the purposes and effects of a law must be considered together, rather than in isolation, to determine its pith and substance." - See paragraph 29. Constitutional Law - Topic 2503 Determination of validity of statutes or acts - General principles - Effect of statute (incl. bylaws) - [See first and third Constitutional Law - Topic 2502]. Constitutional Law - Topic 2508 Determination of validity of statutes or acts - General principles - Provincial legislation (incl. bylaws) - [See second Constitutional Law - Topic 2502]. Constitutional Law - Topic 2950 Determination of validity of statutes or acts - Pith and substance or matter - General principles - [See first and third Constitutional Law - Topic 2502]. Constitutional Law - Topic 6444 Federal jurisdiction (s. 91) - Criminal law - General - Matters not criminal - [See second Constitutional Law - Topic 2502]. Constitutional Law - Topic 6444 Federal jurisdiction (s. 91) - Criminal law - General - Matters not criminal - In 2010, British Columbia created the automatic roadside prohibition (ARP) scheme under the Motor Vehicle Act (MVA) - The ARP 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 were now issued following a roadside analysis, using an approved screening device - Goodwin failed to provide an adequate breath sample - He was prohibited from driving for 90 days, had his vehicle impounded for 30 days, and was required to pay monetary penalties and fees - A chambers judge rejected Goodwin's argument that the ARP scheme was ultra vires the Province s legislative powers as its practical effect was to oust the criminal law - The Court of Appeal upheld the finding - Goodwin appealed - The Supreme Court of Canada stated that "... 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, [1985] 2 S.C.R. 2, the common law duties of police include the protection of life and property and 'the duty to control traffic on the public roads': p. 12. Police officers have responsibility both for enforcing the criminal law and for seeking to maintain safety on the roads through the enforcement of provincial highway safety laws. The fact that they exercise their discretion to enforce one of these laws rather than another is consistent with police discretion generally. Such discretion is essential, allowing officers to apply the law to real world situations in a fair manner: R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190, at para. 3. A provincial enactment that allows police to make a discretionary decision about whether to enforce the Criminal
Code or the MVA in particular circumstances is not one that 'compromise[s] the proper functioning of the Criminal Code': see Chatterjee [v. Ontario (Attorney General) (2009 S.C.C.)], at para. 40." - See paragraph 28. Constitutional Law - Topic 6455 Federal jurisdiction (s. 91) - Criminal law - General - Elements of a criminal law statute - Punishment - In 2010, British Columbia created the automatic roadside prohibition (ARP) scheme under the Motor Vehicle Act - The ARP 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 were now issued following a roadside analysis, using an approved screening device - Goodwin failed to provide an adequate breath sample - He was prohibited from driving for 90 days, had his vehicle impounded for 30 days, and was required to pay monetary penalties and fees - A chambers judge rejected Goodwin's argument that the ARP scheme was ultra vires the Province s legislative powers as its practical effect was to oust the criminal law - The Court of Appeal upheld the finding - Goodwin brought a further appeal - He argued that the penalties under the ARP scheme were the "toughest" in Canada, thus giving the scheme a punitive character, one properly associated with the criminal law - The Supreme Court of Canada rejected the argument - The court stated that "... 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." - See paragraph 26. Constitutional Law - Topic 7295 Provincial jurisdiction - Property and civil rights - Regulatory statutes - Streets and traffic - [See second Constitutional Law - Topic 2502]. Motor Vehicles - Topic 7225.3 Licensing and regulation of drivers - Licence - Suspension of - Administrative or summary suspension - Impaired driving incidents - [See Civil Rights - Topic 1404.1, Civil Rights - Topic 8305.1, second Constitutional Law - Topic 2502, second Constitutional Law - Topic 6444 and Constitutional Law - Topic 6455]. Police - Topic 3007 Powers - General - Discretion respecting charges - [See second Constitutional Law - Topic 6444]. Cases Noticed: Buhlers v. Superintendent of Motor Vehicles (B.C.) et al. (1999), 119 B.C.A.C. 207; 194 W.A.C. 207; 1999 BCCA 114, refd to. [para. 9]. Provincial Secretary of Prince Edward Island v. Egan, [1941] S.C.R. 396, refd to. [para. 18]. R. v. Morgentaler, [1993] 3 S.C.R. 463; 157 N.R. 97; 125 N.S.R.(2d) 81; 349 A.P.R. 81, refd to. [para. 21]. Quebec (Attorney General) v. Canada (Attorney General) et al., [2015] 1 S.C.R. 693; 469 N.R. 97; 2015 SCC 14, refd to. [para. 21]. Reference Re Securities Act, [2011] 3 S.C.R. 837; 424 N.R. 1; 2011 SCC 66, refd to. [para. 21]. Quebec (Attorney General) v. Lacombe et al., [2010] 2 S.C.R. 453; 407 N.R. 1; 2010 SCC 38, refd to. [para. 21]. Upper Churchill Water Rights Reversion Act, 1980, Re, Churchill Falls (Labrador) Corp. et al. v. Newfoundland (Attorney General) et al., [1984] 1 S.C.R. 297; 53 N.R. 268; 47 Nfld. & P.E.I.R. 125; 139 A.P.R. 125, refd to. [para. 23]. Reference Re Upper Churchill Water Rights Reversion Act - see Upper Churchill Water
Rights Reversion Act, 1980, Re. Ward v. Canada (Attorney General) et al., [2002] 1 S.C.R. 569; 283 N.R. 201; 211 Nfld. & P.E.I.R. 125; 633 A.P.R. 125; 2002 SCC 17, refd to. [para. 24]. Ontario (Attorney General) v. Chatterjee, [2009] 1 S.C.R. 624; 387 N.R. 206; 249 O.A.C. 355; 2009 SCC 19, refd to. [para. 27]. R. v. Dedman, [1985] 2 S.C.R. 2; 60 N.R. 34; 11 O.A.C. 241, refd to. [para. 28]. R. v. Beaudry (A.), [2007] 1 S.C.R. 190; 356 N.R. 323; 2007 SCC 5, refd to. [para. 28]. Reference Re Validity of Section 92(4) of the Vehicle Act, 1957 (Sask.), [1958] S.C.R. 608, refd to. [para. 31]. O'Grady v. Sparling, [1960] S.C.R. 804, refd to. [para. 31]. Ross v. Registrar of Motor Vehicles (Ont.) and Ontario (Attorney General), [1975] 1 S.C.R. 5; 1 N.R. 9, refd to. [para. 31]. Gonzalez v. Driver Control Board (Alta.) et al. (2003), 330 A.R. 262; 299 W.A.C. 262; 2003 ABCA 256, refd to. [para. 32]. Horsefield v. Registrar of Motor Vehicles (Ont.) (1999), 118 O.A.C. 291; 44 O.R.(3d) 73 (C.A.), refd to. [para. 32]. Canadian Western Bank et al. v. Alberta, [2007] 2 S.C.R. 3; 362 N.R. 111; 409 A.R. 207; 402 W.A.C. 207; 2007 SCC 22, refd to. [para. 33]. Kitkatla Indian Band et al. v. British Columbia (Minister of Small Business, Tourism and Culture) et al., [2002] 2 S.C.R. 146; 286 N.R. 131; 165 B.C.A.C. 1; 270 W.A.C. 1; 2002 SCC 31, refd to. [para. 33]. Ontario Public Service Employees Union et al. v. Ontario (Attorney General) et al., [1987] 2 S.C.R. 2; 77 N.R. 321; 23 O.A.C. 161, refd to. [para. 33]. Martineau v. Ministre du Revenu national, [2004] 3 S.C.R. 737; 328 N.R. 48; 2004 SCC 81, appld. [para. 37]. R. v. Wigglesworth, [1987] 2 S.C.R. 541; 81 N.R. 161; 61 Sask.R. 105; 24 O.A.C. 321, appld. [para. 38]. Guindon v. Minister of National Revenue (2015), 473 N.R. 120; 2015 SCC 41, refd to. [para. 40]. Blencoe v. Human Rights Commission (B.C.) et al., [2000] 2 S.C.R. 307; 260 N.R. 1; 141 B.C.A.C. 161; 231 W.A.C. 161; 2000 SCC 44, refd to. [para. 44]. Rowan et al. v. Ontario Securities Commission (2012), 290 O.A.C. 159; 110 O.R.(3d) 492; 2012 ONCA 208, refd to. [para. 45]. Canada (Attorney General) v. United States Steel Corp. et al. (2011), 419 N.R. 203; 333 D.L.R.(4th) 1; 2011 FCA 176, refd to. [para. 45]. Lavallee v. Alberta Securities Commission (2010), 474 A.R. 295; 479 W.A.C. 295; 2010 ABCA 48, refd to. [para. 45]. R. v. Quesnelle (V.), [2014] 2 S.C.R. 390; 460 N.R. 27; 320 O.A.C. 38; 2014 SCC 46, refd to. [para. 48]. R. v. Tessling (W.), [2004] 3 S.C.R. 432; 326 N.R. 228; 192 O.A.C. 168; 2004 SCC 67, refd to. [paras. 48, 95]. R. v. Caslake (T.L.), [1998] 1 S.C.R. 51; 221 N.R. 281; 123 Man.R.(2d) 208; 159 W.A.C. 208, refd to. [para. 48]. R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [paras. 48, 99]. R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 51]. R. v. McKinlay Transport Ltd. and C.T. Transport Inc., [1990] 1 S.C.R. 627; 106 N.R. 385; 39 O.A.C. 385, refd to. [paras. 51, 98]. Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291, refd to. [paras. 53, 95]. R. v. Jackpine (R.), [2006] 1 S.C.R. 554; 347 N.R. 201; 210 O.A.C. 200; 2006 SCC 15, refd to. [para. 53]. R. v. Rodgers (D.) - see R. v. Jackpine (R.). 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. 57]. Del Zotto v. Minister of National Revenue, [1997] 3 F.C. 40; 215 N.R. 184 (F.C.A.), revd. [1999] 1 S.C.R. 3; 252 N.R. 201, refd to. [para. 57]. British Columbia Securities Commission v. Branch and Levitt, [1995] 2 S.C.R. 3; 180 N.R. 241; 60 B.C.A.C. 1; 99 W.A.C. 1, refd to. [paras. 60, 98]. R. v. Jarvis (W.J.), [2002] 3 S.C.R. 757; 295 N.R. 201; 317 A.R. 1; 284 W.A.C. 1; 2002 SCC 73, refd to. [paras. 60, 98]. R. v. Lindsay (P.), [1999] O.A.C. Uned. 103; 134 C.C.C.(3d) 159 (C.A.), refd to. [para. 62]. R. v. Butchko (C.L.), [2005] 11 W.W.R. 95; 257 Sask.R. 41; 342 W.A.C. 41; 2004 SKCA 159, refd to. [para. 62]. R. v. Dyment, [1988] 2 S.C.R. 417; 89 N.R. 249; 73 Nfld. & P.E.I.R. 13; 229 A.P.R. 13, refd to. [paras. 65, 95]. R. v. S.A.B. et al., [2003] 2 S.C.R. 678; 311 N.R. 1; 339 A.R. 1; 312 W.A.C. 1; 2003 SCC 60, refd to. [para. 65]. R. v. Stillman (W.W.D.), [1997] 1 S.C.R. 607; 209 N.R. 81; 185 N.B.R.(2d) 1; 472 A.P.R. 1, refd to. [para. 65]. R. v. Chehil (M.S.), [2013] 3 S.C.R. 220; 448 N.R. 370; 335 N.S.R.(2d) 1; 1060 A.P.R. 1; 2013 SCC 49, refd to. [para. 67]. R. v. A.M., [2008] 1 S.C.R. 569; 373 N.R. 198; 236 O.A.C. 267; 2008 SCC 19, refd to. [para. 67]. R. v. Kang-Brown (G.), [2008] 1 S.C.R. 456; 373 N.R. 67; 432 A.R. 1; 424 W.A.C. 1; 2008 SCC 18, refd to. [para. 67]. R. v. Mills (B.J.), [1999] 3 S.C.R. 668; 248 N.R. 101; 244 A.R. 201; 209 W.A.C. 201, refd to. [para. 70]. R. v. Tse (Y.F.A.), [2012] 1 S.C.R. 531; 429 N.R. 109; 321 B.C.A.C. 1; 547 W.A.C. 1; 2012 SCC 16, refd to. [para. 71]. R. v. Nur (H.), [2015] 1 S.C.R. 773; 469 N.R. 1; 332 O.A.C. 208; 2015 SCC 15, refd to. [para. 79]. R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 79]. Mounted Police Association of Ontario et al. v. Canada (Attorney General), [2015] 1 S.C.R. 3; 466 N.R. 199; 328 O.A.C. 1; 2015 SCC 1, refd to. [para. 82]. Chaussure Brown's Inc. et al. v. Québec (Procureur général), [1988] 2 S.C.R. 712; 90 N.R. 84; 19 Q.A.C. 69, refd to. [para. 86]. Ford v. Québec (Procureur général) - see Chaussure Brown's Inc. et al. v. Québec (Procureur général). British Columbia (Minister of Forests) v. Okanagan Indian Band et al., [2003] 3 S.C.R. 371; 313 N.R. 84; 189 B.C.A.C. 161; 309 W.A.C. 161; 2003 SCC 71, refd to. [para. 90]. Sheena B., Re, [1995] 1 S.C.R. 315; 176 N.R. 161; 78 O.A.C. 1, refd to. [para. 90]. R.B. v. Children's Aid Society of Metropolitan Toronto - see Sheena, B., Re. R. v. Spencer (M.D.), [2014] 2 S.C.R. 212; 458 N.R. 249; 438 Sask.R. 230; 608 W.A.C. 230; 2014 SCC 43, refd to. [para. 95]. R. v. Fearon (K.), [2014] 3 S.C.R. 621; 465 N.R. 205; 326 O.A.C. 1; 2014 SCC 77, refd to. [para. 99]. R. v. Vu (T.L.), [2013] 3 S.C.R. 657; 451 N.R. 199; 345 B.C.A.C. 155; 589 W.A.C. 155; 2013 SCC 60, refd to. [para. 99]. R. v. Golden (I.V.), [2001] 3 S.C.R. 679; 279 N.R. 1; 153 O.A.C. 201; 2001 SCC 83, refd to. [para. 99]. Wilson v. Superintendent of Motor Vehicles (B.C.), [2015] N.R. TBEd. OC.013; 2015 SCC 47, refd to. [para. 107]. R. v. Conway (P.), [2010] 1 S.C.R. 765; 402 N.R. 255; 263 O.A.C. 61; 2010 SCC 22, refd to. [para. 108]. Statutes Noticed: Canadian Charter of Rights and Freedoms, 1982, sect. 11(d) [para. 35].
Criminal Code, R.S.C. 1985, c. C-46, sect. 254(2) [para. 52]. Motor Vehicle Act, R.S.B.C. 1996, c. 318, sect. 94.1 to 94.6 [para. 8]; sect. 215.41(3) [para. 49]; sect. 215.41(6) [para. 10]; sect. 215.42(1), sect. 215.42(2), sect. 215.42(3) [para. 68]; sect. 215.43(2), sect. 215.43(3) [para. 10]; sect. 215.46(2) [para. 11], sect. 215.5(1) [para. 73]. Authors and Works Noticed: British Columbia, Hansard, Official Report of Debates of the Legislative Assembly, vol. 16, No. 1, 2nd Sess., 39th Parliament (April 27, 2010), p. 4871 [para. 25]. Hansard (B.C.) - see British Columbia, Hansard, Debates of the Legislative Assembly. Hogg, Peter W., Constitutional Law of Canada (5th Ed.) (2007 Looseleaf Supp.) (2007 Looseleaf Update, Release 1), pp. 15 to 19 [para. 23]. Pitel, Stephen, and Solomon, Robert, Estimating the Number and Cost of Impairment-Related Traffic Crashes in Canada: 1999 to 2010 (2013), generally [para. 58, footnote 5]. Counsel: 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. Solicitors of Record: Gudmundseth Mickelson, Vancouver, British Columbia, for the appellant/respondent, Richard James Goodwin; Attorney General of British Columbia, Victoria, British Columbia, for the appellants/respondents, British Columbia (Superintendent of Motor Vehicles) and the Attorney General of British Columbia;
Gudmundseth Mickelson, Vancouver, British Columbia; Carr Buchan & Company, Victoria, British Columbia, for the respondents, Jamie Allen Chisholm, Scott Roberts and Carol Marion Beam; Attorney General of Canada, Toronto, Ontario, for the intervener, the Attorney General of Canada; Attorney General of Ontario, Toronto, Ontario, for the intervener, the Attorney General of Ontario; Attorney General of Quebec, Quebec, Quebec, for the intervener, the Attorney General of Quebec; Attorney General of Manitoba, Winnipeg, Manitoba, for the intervener, the Attorney General of Manitoba; Attorney General for Saskatchewan, Regina, Saskatchewan, for the intervener, the Attorney General for Saskatchewan; Attorney General of Alberta, Edmonton, Alberta, for the intervener, the Attorney General of Alberta; Hunter Litigation Chambers, Vancouver, British Columbia; Dolgin, Marshman Law, Ottawa, Ontario, for the intervener, the British Columbia Civil Liberties Association; Stikeman Elliott, Toronto, Ontario and Ottawa, Ontario, for the intervener, the Insurance Bureau of Canada; Gunn Law Group, Edmonton, Alberta; Savage Oykhman, Calgary, Alberta, for the interveners, the Criminal Trial Lawyers' Association (Alberta) and the Criminal Defence Lawyers Association (Calgary); Greenspan Partners, Toronto, Ontario; Addario Law Group, Toronto, Ontario, for the intervener, the Criminal Lawyers' Association of Ontario; Attorney General of Alberta, Edmonton, Alberta, for the intervener, the Alberta Registrar of Motor Vehicle Services; Farris, Vaughan, Wills & Murphy, Victoria, British Columbia; Gowling Lafleur Henderson, Ottawa, Ontario, for the intervener, Mothers Against Drunk Driving Canada. This appeal was heard on May 19, 2015, by McLachlin, C.J.C., Cromwell, Moldaver, Karakatsanis, Wagner, Gascon and Côté, JJ., of the Supreme Court of Canada. The court delivered its decision, in both official languages, on October 16, 2015, which was comprised of the following opinions: Editor: Jana A. Andersen Karakatsanis J. (Cromwell, Moldaver, Wagner, Gascon and Côté, JJ., concurring) - see paragraphs 1 to 90; McLachlin, C.J.C., dissenting in part - see paragraphs 91 to 110. Appeal dismissed. Civil Rights - Topic 1409 Security of the person - Law enforcement - Motor vehicles - At issue was the constitutional validity of ss. 215.41 to 215.51 of the Motor Vehicle Act (B.C.) ("MVA"), referred to as the automatic roadside prohibition regime ("provincial scheme") - 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" as described in the Criminal Code and the MVA - The Supreme Court of Canada stated that "The provincial scheme relies on the Criminal Code provisions that allow a police officer to compel a driver to give a sample of his breath: R.S.C. 1985, c. C-46, s. 254(2). This is clearly a seizure of a bodily substance, which means that it must not be 'unreasonable' under s. 8 of the
Charter. The argument that the seizure is authorized by the Criminal Code, and that therefore there is no seizure under the provincial scheme, is artificial. The fact is that the police officer in cases such as this is seizing the breath for purposes of the provincial scheme: the Criminal Code authorization is expressly contemplated by that provincial scheme. The seizure is the plank upon which the whole provincial scheme rests. The seizure, although authorized by a different enactment, is part and parcel of the provincial scheme." - See paragraph 93. Civil Rights - Topic 1409 Security of the person - Law enforcement - Motor vehicles - In 2010, British Columbia created the automatic roadside prohibition (ARP) scheme under the Motor Vehicle Act - The ARP scheme 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 issued following a roadside analysis, using an approved screening device (ASD) - While a "fail" reading captured the same blood alcohol concentration that triggered a prohibition under the prior scheme, a concentration of.05 to.08, detected through a "warn" reading, now also resulted 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 resulted in a 90-day suspension - A "warn" reading resulted in a shorter suspension of between 3 and 30 days, depending on whether the driver had previously been served with a prohibition - All prohibitions took effect immediately upon being served on a driver - A driver who registered a "fail" or failed to provide a sample faced penalties and costs totalling over $4,000, in addition to the 90-day suspension - The Supreme Court of Canada held that the provisions that imposed prohibitions, costs and penalties for an ASD reading in the "fail" range violated s. 8 of the Charter - While the administrative nature of the scheme justified the administrative nature of the review, this did not resolve the issue of whether the scope of such review was adequate in the circumstances - The absence of meaningful review of the accuracy of the result of the seizure, in light of the unreliability of the test, raised 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 infringing provisions were not saved by s. 1 where the minimal impairment part of the proportionality test was not met - See paragraphs 49 to 85. Civil Rights - Topic 1508 Property - General principles - Expectation of privacy - The Supreme Court of Canada stated that "Section 8 of the Charter provides that '[e]veryone has the right to be secure against unreasonable search or seizure.' This right is engaged where the state conducts a search or seizure that interferes with an individual's reasonable expectation of privacy. The expectation of privacy is a normative concept, reflecting the level of privacy that we, as a society, should reasonably expect in a given circumstance: R. v. Quesnelle, 2014 SCC 46, [2014] 2 S.C.R. 390, at para. 44; R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 42. It is not merely a function of how much privacy a person may expect or enjoy with respect to their person, space or belongings. Where a search or seizure engages the protection of s. 8, a reviewing court must determine whether the search or seizure is reasonable. In this regard, (1) the search or seizure must be authorized by law, (2) the law itself must be reasonable, and (3) the search or seizure must be carried out in a reasonable manner: R. v. Caslake, [1998] 1 S.C.R. 51, at para. 10; R. v. Collins, [1987] 1 S.C.R. 265, at p. 278." - See paragraph 48. Civil Rights - Topic 1646 Property - Search and seizure - Unreasonable search and seizure defined - "Section 8 of the Charter provides that '[e]veryone has the right to be secure against unreasonable search or seizure.' This right is engaged where the state conducts a search or seizure that interferes with an individual's reasonable expectation of privacy. The expectation of privacy is a normative concept, reflecting the level of privacy that we, as a society, should reasonably expect in a given circumstance: R. v. Quesnelle, 2014 SCC 46, [2014] 2 S.C.R. 390, at para. 44; R. v.
Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 42. It is not merely a function of how much privacy a person may expect or enjoy with respect to their person, space or belongings. Where a search or seizure engages the protection of s. 8, a reviewing court must determine whether the search or seizure is reasonable. In this regard, (1) the search or seizure must be authorized by law, (2) the law itself must be reasonable, and (3) the search or seizure must be carried out in a reasonable manner: R. v. Caslake, [1998] 1 S.C.R. 51, at para. 10; R. v. Collins, [1987] 1 S.C.R. 265, at p. 278." - See paragraph 48. Civil Rights - Topic 8348 Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law - In 2010, British Columbia created the automatic roadside prohibition (ARP) scheme under the Motor Vehicle Act - The ARP scheme 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 issued following a roadside analysis, using an approved screening device (ASD) - While a "fail" reading captured the same blood alcohol concentration that triggered a prohibition under the prior scheme, a concentration of.05 to.08, detected through a "warn" reading, now also resulted 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 resulted in a 90-day suspension - A "warn" reading resulted in a shorter suspension of between 3 and 30 days, depending on whether the driver had previously been served with a prohibition - All prohibitions took effect immediately upon being served on a driver - A driver who registered a "fail" or failed to provide a sample faced penalties and costs totalling over $4,000, in addition to the 90-day suspension - The Supreme Court of Canada held that the provisions that imposed prohibitions, costs and penalties for an ASD reading in the "fail" range violated s. 8 of the Charter - While the administrative nature of the scheme justified the administrative nature of the review, this did not resolve the issue of whether the scope of such review was adequate in the circumstances - The absence of meaningful review of the accuracy of the result of the seizure, in light of the unreliability of the test, raised 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 infringing provisions were not saved by s. 1 where the minimal impairment part of the proportionality test was not met - See paragraphs 49 to 85. Constitutional Law - Topic 2503 Determination of validity of statutes or acts - General principles - Effect of statute (incl. bylaws) - The Supreme Court of Canada discussed the nature of the division of power analysis - The court stated that "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. The 'matter' of a law is its true character - that is, its pith and substance.... The law's purpose and its legal and practical effects can help identify the matter...." - See paragraphs 20 and 21. Constitutional Law - Topic 2503 Determination of validity of statutes or acts - General principles - Effect of statute (incl. bylaws) - Aim or purpose of statute (incl. bylaws) - The Supreme Court of Canada stated that "At the end of the day, the purposes and effects of a law must be considered together, rather than in isolation, to determine its pith and substance." - See paragraph 29. Constitutional Law - Topic 2508 Determination of validity of statutes or acts - General principles - Provincial legislation (incl. bylaws) - In 2010, British Columbia created the automatic roadside prohibition (ARP) scheme under the Motor Vehicle Act - The ARP scheme 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 issued following a roadside analysis, using an approved screening device (ASD) - While a "fail" reading captured the same blood alcohol concentration that triggered a prohibition under the prior scheme, a concentration of.05 to.08, detected through a "warn" reading, now also resulted 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 resulted in a 90-day suspension - A "warn" reading resulted in a shorter suspension of between 3 and 30 days, depending on whether the driver had previously been served with a prohibition - All prohibitions took effect immediately upon being served on a driver - A driver who registered a "fail" or failed to provide a sample faced penalties and costs totalling over $4,000, in addition to the 90-day suspension - A chambers judge rejected a motorist s argument that the ARP scheme was ultra vires the Province - The Court of Appeal upheld the finding - On further appeal, the motorist again argued that the ARP scheme was ultra vires the Province, as its pith and substance was to replace the Criminal Code's impaired driving provisions with a regime of automatic and severe penalties - He asserted that the scheme s purpose was punitive, as it sought to reduce enforcement costs by removing procedural rights; its practical effect was to oust the criminal law - The Supreme Court of Canada rejected the argument - Both the legislative history and the statutory scheme supported the finding that the ARP scheme was enacted to enhance highway safety - There was a legitimate, substantial and pressing reason for the Province to regulate highway safety and the licensing of drivers to remove impaired drivers from the roads - "No doubt the ARP scheme has incidental impacts on criminal law. No doubt it targets, in part, specific criminal activity and imposes serious consequences, without the protections attendant on criminal investigations and prosecutions. However, the consequences relate to the regulation of driving privileges" - The pith and substance of the ARP scheme was the licensing of drivers, the enhancement of traffic safety and the deterrence of persons from driving while impaired by alcohol - While the ARP scheme represented a more aggressive approach by the Province than the prior scheme, it nonetheless retained its character - Deterrence could be a purpose of provincial law - The matter fell within the provincial power over property and civil rights in the province - See paragraphs 16 to 34. Constitutional Law - Topic 2950 Determination of validity of statutes or acts - Pith and substance or matter - General principles - The Supreme Court of Canada discussed the nature of the division of power analysis - The court stated that "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. The 'matter' of a law is its true character - that is, its pith and substance.... The law's purpose and its legal and practical effects can help identify the matter...." - See paragraphs 20 and 21. Constitutional Law - Topic 2950 Determination of validity of statutes or acts - Pith and substance or matter - General principles - The Supreme Court of Canada stated that "At the end of the day, the purposes and effects of a law must be considered together, rather than in isolation, to determine its pith and substance." - See paragraph 29. Constitutional Law - Topic 6444 Federal jurisdiction (s. 91) - Criminal law - General - Matters not criminal - In 2010, British Columbia created the automatic roadside prohibition (ARP) scheme under the Motor Vehicle Act - The ARP scheme 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 issued following a roadside analysis, using an approved screening device (ASD) - While a "fail" reading captured the same blood alcohol concentration that triggered a
prohibition under the prior scheme, a concentration of.05 to.08, detected through a "warn" reading, now also resulted 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 resulted in a 90-day suspension - A "warn" reading resulted in a shorter suspension of between 3 and 30 days, depending on whether the driver had previously been served with a prohibition - All prohibitions took effect immediately upon being served on a driver - A driver who registered a "fail" or failed to provide a sample faced penalties and costs totalling over $4,000, in addition to the 90-day suspension - A chambers judge rejected a motorist s argument that the ARP scheme was ultra vires the Province - The Court of Appeal upheld the finding - On further appeal, the motorist again argued that the ARP scheme was ultra vires the Province, as its pith and substance was to replace the Criminal Code's impaired driving provisions with a regime of automatic and severe penalties - He asserted that the scheme s purpose was punitive, as it sought to reduce enforcement costs by removing procedural rights; its practical effect was to oust the criminal law - The Supreme Court of Canada rejected the argument - Both the legislative history and the statutory scheme supported the finding that the ARP scheme was enacted to enhance highway safety - There was a legitimate, substantial and pressing reason for the Province to regulate highway safety and the licensing of drivers to remove impaired drivers from the roads - "No doubt the ARP scheme has incidental impacts on criminal law. No doubt it targets, in part, specific criminal activity and imposes serious consequences, without the protections attendant on criminal investigations and prosecutions. However, the consequences relate to the regulation of driving privileges" - The pith and substance of the ARP scheme was the licensing of drivers, the enhancement of traffic safety and the deterrence of persons from driving while impaired by alcohol - While the ARP scheme represented a more aggressive approach by the Province than the prior scheme, it nonetheless retained its character - Deterrence could be a purpose of provincial law - The matter fell within the provincial power over property and civil rights in the province - See paragraphs 16 to 34. Constitutional Law - Topic 7295 Provincial jurisdiction - Property and civil rights - Regulatory statutes - Streets and traffic - In 2010, British Columbia created the automatic roadside prohibition (ARP) scheme under the Motor Vehicle Act - The ARP scheme 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 issued following a roadside analysis, using an approved screening device (ASD) - While a "fail" reading captured the same blood alcohol concentration that triggered a prohibition under the prior scheme, a concentration of.05 to.08, detected through a "warn" reading, now also resulted 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 resulted in a 90-day suspension - A "warn" reading resulted in a shorter suspension of between 3 and 30 days, depending on whether the driver had previously been served with a prohibition - All prohibitions took effect immediately upon being served on a driver - A driver who registered a "fail" or failed to provide a sample faced penalties and costs totalling over $4,000, in addition to the 90-day suspension - A chambers judge rejected a motorist s argument that the ARP scheme was ultra vires the Province - The Court of Appeal upheld the finding - On further appeal, the motorist again argued that the ARP scheme was ultra vires the Province, as its pith and substance was to replace the Criminal Code's impaired driving provisions with a regime of automatic and severe penalties - He asserted that the scheme s purpose was punitive, as it sought to reduce enforcement costs by removing procedural rights; its practical effect was to oust the criminal law - The Supreme Court of Canada rejected the argument - Both the legislative history and the statutory scheme supported the finding that the ARP scheme was enacted to enhance highway safety - There was a legitimate, substantial and pressing reason for the Province to regulate highway safety and the licensing of drivers to remove impaired drivers from the roads - "No doubt the ARP scheme has incidental impacts on criminal law. No doubt it targets, in part, specific criminal activity