IN THE SUPREME COURT OF CANADA (On Appeal from the British Columbia Court of Appeal) - and-

Transcription

1 Court File No BETWEEN: IN THE SUPREME COURT OF CANADA (On Appeal from the British Columbia Court of Appeal) RICHARD JAMES GOODWIN, APPELLANT, AND BETWEEN: BRITISH COLUMBIA (SUPERINTENDENT OF MOTOR VEHICLES) and ATTORNEY GENERAL OF BRITISH COLUMBIA, BRITISH COLUMBIA (SUPERINTENDENT OF MOTOR VEHICLES) and ATTORNEY GENERAL OF BRITISH COLUMBIA, RESPONDENTS. APPELLANTS, JAMIE ALEN CHISHOLM, SCOTT ROBERTS, CAROL MARION BEAM and RICHARD JAMES GOODWIN, - and- -and- -and- RESPONDENTS, ATTORNEY GENERAL OF CANADA, ATTORNEY GENERAL OF ONTARIO, ATTORNEY GENERAL OF QUEBEC, ATTORNEY GENERAL OF MANITOBA, ATTORNEY GENERAL SASKATCHEWAN, ATTORNEY GENERAL OF ALBERTA, BRITISH COLUMBIA CIVIL LIBERTIES ASSOCIA non, INSURANCE BUREAU OF CANADA, CRIMINAL TRIAL LAWYERS' ASSOClA TION (ALBERTA) and CRIMINAL DEFENCE LAWYERS ASSOCIA non (CALGARy), CRIMINAL LAWYERS' ASSOCIATION OF ONTARIO, ALBERTA REGISTRAR OF MOTOR VEHICLE SERVICES and MOTHERS AGAINST DRUNK DRIVING CANADA, INTERVENERS. FACTUM OF THE INTERVENER THE ATTORNEY GENERAL OF MANITOBA ATTORNEY GENERAL OF MANITOBA Manitoba Justice, Legal Services Branch Constitutional Law Section Broadway Winnipeg, Manitoba R3C 3L6 Michael Conner / Charles Murray Tel: (204) /5733 Fax: (204) Michae1,Conner0\gov,mb,ca Charles,Murray@gov,mb.ca Counsel for the Intervener, The Attorney General of Manitoba GOWLING LAFLEUR HENDERSON LLP Barristers & Solicitors Suite Elgin Street Ottawa, Ontario KIP lc3 D. Lynne Watt Tel: (613) Fax: (613) lynne.watt@gowlings.com Ottawa Agent for the Intervener, The Attorney General of Manitoba

2 11 GUDMUNDSETH MICKELSON LLP West Georgia Street Vancouver, British Columbia V6E 3C9 Howard A. Mickelson Shea H. Coulson Tel: (604) Fax: (604) Counsel for the Appellant, Richard James Goodwin ATTORNEY GENERAL OF BRITISH COLUMBIA 6th floor Douglas Street Constitutional Divison Victoria, British Columbia V8V lx4 Leah Greatland Alandra Harlingten Tel: (250) Fax: (250) leah.greatiand@gov.mb.ca Counsel for the Respondent, The Attorney General of British Columbia ATTORNEY GENERAL OF BRITISH COLUMBIA 6th floor Douglas Street Constitutional Divison Victoria, British Columbia V8V IX4 Leah Greatland Alandra Harlingten Tel: (250) Fax: (250) leah.greatlanduv.gov.mb.ca Counsel for the Respondent, British Columbia (Superintendent of Motor Vehicles) SUPREME ADVOCACY LLP Gilmour Street Ottawa, Ontario K2P OR3 Marie-France Major Tel: (613) , Ext. 102 Fax: (613) mfmajor@supremeadvocacy.ca Ottawa Agent for the Appellant, Richard James Goodwin GOWLING LAFLEUR HENDERSON LLP Suite Elgin Street Ottawa, Ontario KIP lc3 Brian A; Crane, Q.c. Tel: (613) Fax: (613) brian.crane@gowlings.com Ottawa Agent for the Respondent, The Attorney General of British Columbia GOWLING LAFLEUR HENDERSON LLP Suite Elgin Street Ottawa, Ontario KIP 1C3 Brian A. Crane, Q.C. Tel: (613) Fax: (613) brian.crane(m,gowlings.com Ottawa Agent for the Respondent, British Columbia (Superintendent of Motor Vehicles)

3 CARR BUCHAN & COMPANY 520 Comerford Street Victoria, British Columbia V9A 6K8 Jeremy Carr Tel: (250) Fax: (250) Counsel for the Respondent, Jamie Allen Chisholm CARR BUCHAN & COMPANY 520 Comerford Street Victoria, British Columbia V9A 6K8 Jeremy Carr Tel: (250) Fax: (250) Counsel for the Respondent, Scott Roberts CARR BUCHAN & COMPANY 520 Comerford Street Victoria, British Columbia V9A 6K8 Jeremy Carr Shea H. Coulson Tel: (250) Fax: (250) Counsel for the Respondent, Carol Marion Beam III SUPREME ADVOCACY LLP Gilmour Street Ottawa, Ontario K2P OR3 Marie-France Major Tel: (613) , Ext. 102 Fax: (613) mfmaior~supremeadvocacy.ca Ottawa Agent for the Respondent, Jamie Allen Chisholm SUPREME ADVOCACY LLP Gilmour Street Ottawa, Ontario K2P OR3 Marie-France Major Tel: (613) , Ext. 102 Fax: (613) Ottawa Agent for the Respondent, Scott Roberts SUPREME ADVOCACY LLP Gilmour Street Ottawa, Ontario K2P OR3 Marie-France Major Tel: (613) , Ext. 102 Fax: (613) mfmajor(/1l,supremeadvocacy.ca Ottawa Agent for the Respondent, Carol Marion Beam

4 ATTORNEY GENERAL OF CANADA 50 O'Connor Street, Suite 500, Room 556 Ottawa, Ontario KIP 6L2 IV Robert J. Frater, Q.C. Tel: (613) Fax: (613) Robelt.Fraterlaljustice.gc.ca Counsel for the Intervener, The Attorney General of Canada CARR BUCHAN & COMPANY 520 Comerford Street Victoria, British Columbia V9A 6K8 Jeremy Carr Shea H. Coulson Tel: (250) Fax: (250) Counsel for the Respondent, Scott Roberts ATTORNEY GENERAL OF ALBERTA Suite Street 4th Floor Bowker Building Edmonton, Alberta T5K 2E8 Roderick Wiltshire Tel: (780) Fax: (780) Roderick. Wiltshirdmgov.ab.ca Counsel for the Intervener, The Attorney General of Alberta SUPREME ADVOCACY LLP too Gilmour Street Ottawa, Ontario K2P 0R3 Marie-France Major Tel: (613) , Ext. 102 Fax: (613) mfmaior@supremeadvocacy.ca Ottawa Agent for the Respondent, Scott Roberts GOWLING LAFLEUR HENDERSON LLP Barristers & Solicitors Suite Elgin Street Ottawa, Ontario KlP 1 C3 D. Lynne Watt Tel: (613) Fax: (613) lynne.watt@gowlings.com Ottawa Agent for the Intervener, The Attorney General of Alberta

5 ATTORNEY GENERAL OF SASKATCHEWAN Scarth Street Regina, Saskatchewan S4P 4B3 Graeme G. Mitchell, Q.c. Tel: (306) Fax: (306) Counsel for the Intervener, The Attorney General of Saskatchewan ATTORNEY GENERAL OF ONTARIO 720 Bay Street, 4th floor Toronto, Ontario M5G 2Kl Zachary Green Tel: (416) Fax: (416) Zachary.Greenav,ontario.ca Counsel for the Intervener, The Attorney General of Ontario ATTORNEY GENERAL OF QUEBEC 1200, route de l'eglise, 2e etage Quebec, Quebec GIV 4Ml Bridgette Bussieres Alain Gingras Gilles Laporte Tel: (418) Fax: (418) Counsel for the Intervener, The Attorney General of Quebec v GOWLING LAFLEUR HENDERSON LLP Barristers & Solicitors Suite Elgin Street Ottawa, Ontario KIP lc3 D. Lynne Watt Tel: (613) Fax: (613) lynne. wattciv,gowlings.com Ottawa Agent for the Intervener, The Attorney General of Saskatchewan BURKE-ROBERTSON Suite 200,441 MacLaren Street Ottawa, Ontario K2P 2H3 Robert E. Houston, Q.C. Tel: (613) Fax: (416) rhouston@burkerobertson.com Ottawa Agent for the Intervener, The Attorney General of Ontario NOEL & ASSOCIES Ill, rue Champlain Gatineau, Quebec J8X 3Rl Pierre Landry Tel: (819) Fax: (819) p.landrv@noelassocies.com Agent for the Intervener, The Attorney General of Quebec

6 VI HUNTER LITIGATION CHAMBERS LAW CORPORATION West Georgia Street Vancouver, British Columbia V6E 4Hl Claire E. Hunter Eileen Patel Tel: (604) Fax: (604) chunter(c41itigationchambers.com Counsel for the Intervener, British Columbia Civil Liberties Association STIKEMAN ELLIOTT LLP 5300 Commerce Court West 199 Bay Street Toronto, Ontario M5L IB9 Alan L.W. D'Silva Alexader Urbanski Tel: (416) Fax: (416) adsilva( ostikelpan.com Counsel for the Intervener, Insurance Bureau of Canada GUNN LAW GROUP Street Edmonton, Alberta T5M 1 T9 Stephen M. Smith Tel: (780) Fax: (780) ssmithial.gunnlawgroup.ca Counsel for the Intervener, Criminal Trial Lawyers' Association (Alberta) and Criminal Defence Lawyers' Association (Calgary) STIKEMAN ELLIOTT LLP O'Conner Street Ottawa, Ontario KIP 6L2 Nicholas Peter McHaffie Tel: (613) Fax: (613) !1mchaffie@stikeman.com Agent for the Intervener, Insurance Bureau of Canada SACK GOLDBLATT MITCHELL LLP Metcalfe Street Ottawa, Ontario KIP 5L4 Raija Pulkkinen Tel: (613) Fax: (613) rpulkkinen(cusgmlaw.com Agent for the Intervener, Criminal Trial Lawyers' Association (Alberta) and Criminal Defence Lawyers' Association (Calgary)

7 GREENSPAN PARTNERS LLP 144 King Street East Toronto, Ontario M5C 1 G8 Michael Lacy Jonathan Rosenthal Tel: (416) Fax: (416) Counsel for the Intervener, Criminal Lawyers' Association of Ontario ATTORNEY GENERAL OF ALBERTA o 9 th Street Edmonton, Alberta T5J 3S8 Sean McDonough Tel: (780) Fax: (780) sean.mcdonough@gov.ab.ca Counsel for the Intervener, Alberta Registrar of Motor Vehicle Services vii SUPREME ADVOCACY LLP Gilmour Street Ottawa, Ontario K2P OR3 Marie-France Major Tel: (613) , Ext. 102 Fax: (613) mfmajor@supremeadvocacy.ca Ottawa Agent for the Intervener, Criminal Lawyers' Association of Ontario MICHAEL J. SOBKIN 33 1 Somerset Street West Ottawa, Ontario K2P 018 Michael J. Sob kin Tel: (613) Fax: (613) msobkin@sympatico.ca Agent for the Intervener, Alberta Registrar of Motor Vehicle Services FARRIS, VAUGHAN, WILLS & MURPHY LLP 3 rd Floor Langley Street Victoria, British Columbia V8W IV7 Bryant Mackey Tel: (604) Fax: (604) Counsel for the Intervener, Mothers Against Drunk Driving Canada GOWLING LAFLEUR HENDERSON LLP 160 Elgin Street, 26 th Floor Ottawa, Ontario KIP Ie3 Guy Regimbald Tel: (613) Fax: (613) guy.regimbald@gowlings.com Agent for the Intervener, Mothers Against Drunk Driving Canada

8 Vlll Court File No BETWEEN: IN THE SUPREME COURT OF CANADA (On Appeal from the British Columbia Court of Appeal) RICHARD JAMES GOODWIN, APPELLANT, AND BETWEEN: BRITISH COLUMBIA (SUPERINTENDENT OF MOTOR VEHICLES) and ATTORNEY GENERAL OF BRITISH COLUMBIA, BRITISH COLUMBIA (SUPERINTENDENT OF MOTOR VEHICLES) and ATTORNEY GENERAL OF BRITISH COLUMBIA, JAMIE ALEN CHISHOLM, SCOTT ROBERTS, CAROL MARION BEAM and RICHARD JAMES GOODWIN, RESPONDENTS. APPELLANTS, RESPONDENTS, - and- -and- -and- ATTORNEY GENERAL OF CANADA, ATTORNEY GENERAL OF ONTARIO, ATTORNEY GENERAL OF QUEBEC, ATTORNEY GENERAL OF MANITOBA, ATTORNEY GENERAL SASKA TCHEW AN, ATTORNEY GENERAL OF ALBERTA, BRITISH COLUMBIA CIVIL LIBERTIES ASSOCIA non, INSURANCE BUREAU OF CANADA, CRIMINAL TRIAL LAWYERS' ASSOCIA non (ALBERTA) and CRIMINAL DEFENCE LAWYERS ASSOCIATION (CALGARY), CRIMINAL LAWYERS' ASSOCIATION OF ONTARIO, ALBERTA REGISTRAR OF MOTOR VEHICLE SERVICES and MOTHERS AGAINST DRUNK DRIVING CANADA, INTERVENERS. TABLE OF CONTENTS Page No. PART I STATEJ\1ENT OF FACTS... ~... 1 OVERVIEW... 1 FACTS ,.., PART II QUESTIONS IN ISSUE... 3

9 IX PARTIn ARGUMENT... 4 The Province has jurisdiction to suspend licences to control drinking and driving... 4 (i) Access to justice favours robust provincial jurisdiction to suspend driver's licences... 8 Section 8 of the Chal ter - Assessing a driver's reasonable expectation of privacy in the context of a provincial licensing regime... 9 (i) ASDs in the criminal context (ii) Alcohol Screening for compliance with driver licence conditions Section 8 does not encompass the right to challenge the results of the ASD Conclusion PART IV PART V PART VI PARTVn ORDER SOUGHT CONCERNING COSTS ORDER SOUGHT TABLE OF, AUTHORITIES... ; STATUTES, REGULATIONS, RULES, By-LAWS... 23

10 PART I STATEMENT OF FACTS OVERVIEW l. Driving a car is a privilege, not a right. It is a highly regulated and licensed activity for obvious reasons. For the vast majority of Canadians, getting into a car is the most dangerous activity they do. As a result, motorists accept - indeed expect - some restriction of personal freedom to ensure effective enforcement of driving conditions essential to maintain safe roads. 2. The Attorney General of Manitoba (Manitoba) intervenes in this appeal to support maintaining a robust provincial jurisdiction over road safety and driver licensing. The regulation of driving under the influence of alcohol has a double aspect. To be sure, drunk driving is a crime. But consuming alcohol above prescribed limits is also a serious infraction of a basic licensing condition for drivers. Our constitutional framework contemplates that both levels of government will work cooperatively, within their respective spheres of jurisdiction, to combat the scourge of alcohol-related driving accidents, injuries and deaths. The criminal law expresses society's condemnation of those who choose to drive drunk, but it is not the only tool available or needed to fight impaired driving. The legal toolbox is also equipped with provincial licensing schemes, which remove the privilege of driving from those who are unfit due to excessive alcohol consumption or failure to meet other safety imperatives. 3. The notion that the criminal law is the only permissible legislative response to drunk driving is contrary to settled jurisprudence. It is also bad policy. Denying the provinces the jurisdiction to impose swift and stringent licensing consequences on those who drive under the influence would undennine the struggle to make our highways safer. It would also place a greater burden on our already strained criminal justice system, resulting in more delay and potentially denying access to justice. 4. Manitoba will also address s. 8 of the Charter in the context of provincial driver licensing regimes. It is well settled that drivers have a diminished expectation of privacy on our highways even in respect of searches for criminal investigations. Whatever limited privacy interest might

11 2 exist In a criminal context, in the totality of the circumstances a driver has no reasonable expectation that, for regulatory compliance purposes, the licensing authority will not suspend the privilege to drive based on the results of a minimally intrusive breath screening test. The public accepts the many responsibilities the privilege of driving entails and is well aware of the need to monitor driver sobriety for highway safety. Drivers know they may be stopped at random, including to check for sobriety. 5. Finally, Manitoba will argue that s. 8 of the Charter does not encompass a right to challenge the results obtained from an approved screening device when used for an administrative licence suspension. The reliability of evidence obtained from a search has no bearing on the reasonableness of the search itself or the significance of the intrusion into one's privacy. Rather, the degree of procedural fairness accorded to a driver in a licence suspension hearing, including whether there is a right to adduce or test evidence, is determined solely by the principles governing administrative fairness. Since a licence suspension does not implicate one's liberty or constitute an offence, there is no basis for a Charter complaint. This does not prevent a driver from seeking judicial oversight of the reasonableness of a search or seizure in the proper forum. FACTS 6. Manitoba intervenes in this appeal pursuant to a Notice of Intervention filed on February 11, Manitoba relies on the facts as set out by the parties and summarized by the courts below.

12 3 PARTH QUESTIONS IN ISSUE 8. Manitoba will address the following constitutional questions stated by the Chief Justice: (i) (ii) Are ss to of the Motor Vehicle Act, R.S.B.C.1996, c. 318, as enacted on September 20,2010 ultra vires the province of British Columbia as being exclusively within the federal government's criminal law power under s. 91(27) of the Constitution Act, Do ss to of the Motor Vehicle Act, R.S.B.C. 1996, c. 318, as enacted on September 20, 2010 infringe s. 8 of the Canadian Charter of Rights and Freedoms? 9. The regulation of highway safety is a matter squarely within provincial jurisdiction over property and civil rights. This includes setting limits on the amount of alcohol that may be consumed when driving and imposing licence consequences for violations. driving, like other forms of dangerous driving, has a double aspect. Drinking and 10. A driver's expectation of privacy is not violated when an alcohol screening device is used to determine compliance with licensing conditions under a provincial regulatory regime. 11. Further, s. 8 does not provide a right to challenge the reliability of evidence obtained by a search or seizure. The right to test the reliability of evidence is a matter of procedural fairness, which is governed by administrative law principles. In a license suspension hearing, this does not raise Charter concerns.

13 4 PART III ARGUMENT The Province has jurisdiction to suspend licences to control drinking and driving. 12. Manitoba agrees with the arguments of the Attorney General of British Columbia (AGBC) on the division of powers issue. Driving is ubiquitous and carries many inherent dangers to life and property. As a result, it is a licensed activity subject to a high degree of regulation and control. Unique challenges exist when it comes to protecting our highways from the menace of drinking and driving. Effective alcohol screening in the field is essential to ensure licence compliance and for the safety of all users of our highways. I 13. The fight against drunk driving is an archetypal example of cooperative federalism in action. As Charron J. remarked in Orbanski:... It is important to recognize that the need for regulation and control is achieved through an interlocking scheme of federal and provincial legislation. The provincial legislative scheme includes driver licensing, vehicle safety and highway traffic rules. At the federal level, the primary interest lies in deterring and punishing the commission of criminal offences involving motor vehicles. Control of drinking and driving is not confined exclusively to laying criminal charges after a criminal offence has been committed. Roadside screening techniques contemplated by provincial legislation provide a mechanism for combating the continuing danger presented by the drinking driver, even if the driver may not ultimately be found to have reached a criminal level of impainnent More recently, in Chatterjee, Binnie J. for a unanimous Court observed that although impaired driving is a Criminal Code offence, "carnage on the roads touches numerous matters within provincial jurisdiction including health, highways, automobile insurance and property damage.,,3 1 R. v. Orbanski, 2005 sec 37 at paras , Book of Authorities of the Attorney General of Manitoba [AGMB BOA] Tab R. v. Orbanski. supra at para. 27, AGrvfB BOA, Tab Chatterjee v. Ontario (A.G.), 2009 sec 19 at para. J 5, Book of Authorities of the Appellant, Richard James Goodwin [ABOA (Goodwin)] Tab 3.

14 5 15. The AGBC correctly points out this Court has consistently upheld the validity of provincial regulatory schemes that address dangerous or impaired driving, notwithstanding such conduct may also constitute a criminal offence, and even if the provincial suspension provisions are more severe than the Criminal Code. 4 Lower courts across the country have also repeatedly upheld the constitutionality of provincial administrative licence suspensions for drivers who exceed a certain threshold of alcohol in their blood. s The pith and substance of similar provincial regimes across Canada is the regulation of drivers and the enhancement of public safety on our highways, matters that fall squarely within provincial competence. 16. With respect, the contention that it is ultra vires the provmces to Impose immediate roadside suspensions on drivers based on the results of an ASD or a refusal to take an ASD test is contrary to the dominant tide of this Court's jurisprudence, which favours the double aspect doctrine and cooperative federalism It is trite that provincial jurisdiction to grant a licence must include the authority to suspend or cancel such licence, temporarily or permanently, if a licensee fails to meet certain conditions or fails to comply with provisions of the regulatory regime. 7 In this regard, the control of licensed drivers is no different than provincial legislation regulating environmental protection, farm products, tobacco or food services establishments. As Cory J. stated in R. v. Ladouceur: "Licensed activities must be carried out exclusively by licence holders who have demonstratedtheir competence and their willingness to comply with the fair and reasonable guidelines that govern all licence holders". g 4 Prince Edward Island (Provincial Secretary) v. Egan, [1941] S.c.R. 396 at 402, 403, , Book of Authorities of the Respondents, British Columbia (Superintendent of Motor Vehicles) and Attorney General of British Columbia (Division of Powers and Section ll(d) of the Charter) [RBOA (AGBC)] v. 1, Tab 20; Re Validity (If Section 92(4) of the Vehicles Act, 1957 (Sask,), [1958] S.C.R. 608 RBOA (AGBC) v. T, TAB 41; Ross v. Registrar a/motor Vehicles, [1975] 1 S.CK 5, ABOA (Goodwin), Tab Thomson v. Alberta (Transportation and Safety Board), 2003 ABCA 256 at paras , RBOA (AGBC) v. I, Tab 40; Buhlers v. British Columbia (Superintendent of Motor Vehicles), 1999 BCCA 114, ABOA (AGBC) v.i, Tab 4; Horsefield v. Ontario (Registrar o/motor Vehicles) (1999), 172 D.L.R. (4th) 43 (Ont.C.A.), ABOA (AGBC) v.i, Tab 15; R. v. Leclair (1990), 67 Man.R. (2d) 265 (QB), ABOA (AGBC) v.l, Tab 26; R. v. MacCormack (1999), 180 Nfld & PEIR 314 (PELC.A.), RBOA (AGBC) v.i, Tab 26; White v. Nova Scotia (Registrar 0/ Motor Vehicles) (1996), 147 N.S.R. (2d) 259 (S.c.) aff'd May 27, 1996 (NSCA), ABOA (AGBC) v.ll, Tab 48; Sahaluk v. Alberta (fransportation Safety Board), 2015 ABQB 142 at paras , AGMB BOA, Tab Canadian Western Bank v. Alberta, 2007 SCC 22 at paras. 24, 30,36-37,42, RBOA (AGBC) v.i, Tab 6. 7 P.EI. (Provincial Secretary) v. Egan, supra per Rinfret I. at , RBOA (AGBC) v. I, Tab 20. S R. v. Ladouceur, [1990] 1 S.C.R at , ABOA (AGBC) v.i, Tab 25; Sahaluk v. Alberta (Transportation Safety Board), supra at paras. 232, , AGMB BOA Tab 24.

15 6 18. Immediate roadside suspensions are not, as Mr. Goodwin contends, a new frontier aimed at stiffening or supplanting the criminal law. Rather, administrative suspensions are a longstanding and effective tool to control dangerous driving and promote highway safety, matters that fall primarily within provincial jurisdiction. The immediacy or severity of a licence suspension for certain proscribed conduct reflects the gravity of the safety risk posed by the driver. A licence suspension does not become a criminal sanction merely because it is imposed swiftly. 19. The argument that immediate roadside suspensions interfere with the administration of the Criminal Code is equally unpersuasive. It always remains open to charge individual drivers criminally. The exercise of police discretion not to charge a driver criminally does not convert a patently intra vires provincial regulatory regime into a colourable attempt to enact criminal law. Similarly, the Attorney General may legitimately exercise prosecutorial discretion in the public interest to limit criminal prosecutions to more serious cases involving high breath readings, bodily harm or repeat offenders. 20. Taken to its logical conclusion, this argument implies that the vires of provincial licensing regimes depends on current police practices and charging policies, which may vary across the country and change over time in light of available resources or the extent of a particular problem in a province. This cannot be correct. The operational discretion of police or the exercise of prosecutorial discretion cannot render provincial highway safety legislation ultra vires any more than the exercise of prosecutorial discretion can save an unconstitutional law. 21. A similar argument was rejected by this Court in Chatterjee. It was suggested that Ontario's civil forfeiture legislation, with its lower threshold of proof, had the effect of displacing the federal forfeiture provisions. This Court acknowledged that may be true but saw no reason why the Attorney General could not elect to proceed under the provincial forfeiture legislation instead of under the Criminal Code. 9 The fact a provincial law may be favoured over the criminal law response does not render it constitutionally infinn. 22. Mr. Goodwin attempts to distinguish roadside suspension regimes from cases like Egan and Ross, where the license suspension followed a criminal conviction. With respect, this argument has no merit. If provinces may impose civil consequences flowing from a criminal conviction, it 9 Chatterjee v. Ontario (A.G.), supra at para. 49, ABOA (Goodwin) Tab 3.

16 7 necessarily follows that they have jurisdiction to impose the same consequences for identical conduct in the absence of any criminal charges. As the Ontario Court of Appeal held in Horsefield, the fact a suspension is not tied to a criminal conviction distances the provincial scheme further from the criminal law jurisdiction. 1o 23. The Alberta Court of Appeal also rejected a similar argument in Thomson v. Alberta (Transportation and Safety Board). The Court held there is nothing objectionable in the provincial goal to enhance public safety through deterrence by suspending the licences of those involved in alcohol related driving faster than might be the result under the criminallaw. l1 24. It is also suggested that immediate roadside suspensions are ultra vires because they eliminate the procedural and Charter protections that are available in criminal proceedings. This reasoning is circular. One is not entitled to the same procedural safeguards afforded to those charged with criminal offences precisely because a licence suspension does not result in a criminal conviction, does not impose a punishment and does not carry the stigma of a criminal offence. Therefore, the absence of criminal procedural protections does not lead to a conclusion that the provincial law is ultra vires or colourable. 25. Moreover, as the AGBC correctly observes, this argument improperly conflates the Charter rights analysis with jurisdiction. The extent of procedural or Charter protections that may be available under an administrative licence regime has no bearing on the distribution of powers set out in the Constitution Act~ Charter rights apply equally to both levels of government, although the content of such rights varies depending on the nature of the scheme at issue. The jurisdiction to enact legislation and assessing its compliance with the Charter are distinct 12 quest1ons. 26. Drinking and driving is only one of many activities that can lead to a provincial licence suspension for safety reasons. For example, in Manitoba like other provinces, the registrar may suspend or cancel a licence or impose conditions when a person's medical condition interferes 10 Horsejield v. Ontario (Registrar of Motor Vehicles), supra at para, 24, ABOA (AGEC) v.i, Tab 15; See also Sahalukv. Alberta (Transportation Safety Board), supra at para, 237, AGMB BOA Tab 24. II Thomson v. Alberta (Transportation and Safety Board), supra at para. 28, RBOA (AGBC) v.i, Tab 40, 12 Tsilhqot 'in First Nation v. British Columbia, 2014 sec 44 at paras , AGMB BOA Tab 26; Rejerence re Firearms Act (Can), 2000 sce 31 at paras. 48, 56, AGl'vfB BOA Tab 22.

17 8 with the ability to drive safely, including due to alcohol or drug related problems. Physicians are required to report such medical conditions to the registrar. A peace officer who has reason to believe a car has been involved in racing may, on the registrar's behalf, suspend the driver's licence for seven days. Drivers of heavy commercial trucks who exceed regulatory limits respecting hours of service must surrender their licence to a peace officer on request. 13 These are just a few examples of suspensions available under the provincial regulatory regime essential to maintain highway safety. 27. Like many other provincially regulated activities, the privilege afforded by a driver's licence carries with it important safety obligations which, if violated, may result in a licence suspension or revocation. (i) Access to justice favours robust provincial jurisdiction to suspend driver's licences 28. A determination that provinces lack the jurisdiction to impose immediate administrative licence suspensions on drivers who fail or refuse alcohol screening tests would not only undermine efforts to promote highway safety, but would result in adverse consequences for access to justice. While this is not determinative of a division of powers analysis, it bolsters the argument in favour of co-operative federalism and robust provincial jurisdiction over impaired driving. 29. The Parliamentary Committee report "Ending Alcohol-Impaired Driving: A Common Approach" rejected recommendations to lower the criminal blood-alcohol concentration to 0.05 partly because it would greatly increase the number of criminal cases in the system and reduce the speed of resolving cases. In contrast, provincial measures are designed to be implemented expeditiously and free up police and court resources. The Parliamentary Committee supported a cooperative approach among the federal and provincial governments to combat drunk driving: A more aggressive, co-ordinated effort amongst the provinces to strengthen roadside suspension programs would appear to be a cost-effective way of deterring motorists 13 The Highway Traffic Act, C.C.S.M. c H60, SS. 157,242.4(17),265.1 and The Drivers and Vehicles Act, C.C.SM., c. 0104, s. 18, AG[vlB BOA, Tabs 31 and 29; and see Sahaluk v. Alberta (Transportation Sqfety Board), supra at para.163, AGMB BOA Tab 24.

18 9 who may consider driving with some level of impairment, allowing the courts to focus time and effort on those cases where much higher levels of impairment were found The implication of Mr. Goodwin's argument is that all drivers who fail an ASD must be dealt with in the criminal process (at least initially), rather than through provincial licence suspensions. The stresses and delays facing our criminal justice system are well-known. If all drivers who fail or refuse an ASD must first be dealt with in the criminal courts, it would exacerbate the burden on our criminal justice system and potentially impair access to justice. 31. A criminal charge is not the only means available to address the serious problem of impaired driving. Provincial licence suspensions have many salutary aspects. They are less expensive, speedier and directly address the unsafe conduct. An administrative regime may be equally or more effective at deterring driving under the influence and is more accessible than courts. As the AGBe argues, this is especially true when licence consequences are imposed swiftly, freeing up police resources and increasing the likelihood of being caught The scourge of impaired driving must be attacked on many fronts. Public education, driver rehabilitation programs, ignition interlock, administrative penalties, immediate roadside licence suspensions and, when appropriate, more severe criminal sanctions are all valid and important tools to address this pressing societal concern. They are a product of a flexible and co-operative federalism that is favoured by our constitution. Section 8 of the Charter - Assessing a driver's reasonable expectation of privacy in the context of a provincial licensing regime 33. A driver has a diminished expectation of privacy when his or her breath is screened for alcohol to gather evidence in a criminal investigation. Manitoba submits that when a driver's breath is screened for alcohol at the roadside, there is no breach of any reasonable expectation of privacy when those results are used to enforce compliance with provincial licensing conditions. 14 Ending Alcohol-Impaired Driving: A Common Approach, Report of the Standing Committee on Justice and Human Rights (June 2009, 40 th Parliament, 2 nd Session), Joint Record, Vol. IV, p R. v. Thomson, [1988] 1 S.CK 640 at para. 22, ABOA (AGEC) v.ii, Tab 37.

19 10 (i) ASDs in the criminal context 34. Even when assessing sobriety to enforce the criminal law, drivers have a very reduced expectation of privacy due to the highly regulated nature of our roadways 16 and the fact an ASD is a minimally intrusive search. 17 In R. v. Belnavis, Cory J. commented on the greatly reduced expectation of privacy in a car as follows: A person can expect that his home should be a safe castle of privacy. A person cannot possibly have the same expectation of a vehicle. Vehicular traffic must be regulated, with opportunities for inspection to protect public safety. A dangerous car is a threat to those on or near our roads. The reasonable expectation in a car must, from common experience and for the good of ali, be greatly reduced. ls 35. Almost every aspect of the use of a vehicle is controlled. Drivers are tested before receiving their licence, speed is supervised, vehicles are inspected for mechanical fitness and random check stop programs are instituted to discourage drinking and driving. These inspections and tests do not constitute unreasonable breaches of basic civil liberties but are common sense rules that exist'for the protection of society. In R. v. Wise, a majority of this Court concluded: Society then requires and expects protection from drunken drivers, speeding drivers and dangerous drivers. A reasonable level of surveillance of each and every motor vehicle is readily accepted, indeed demanded, by society to obtain this protection. All this is set out to emphasize that, although there remains an expectation of privacy in automobile travel, it is markedly decreased relative to the expectation of privacy in one's home or office. 19 [Emphasis added]. 36. More recently, the Manitoba Court of Appeal also commented on the compromise motorists readily accept to ensure road safety: Operating a motor vehicle is a privilege, not a fight; it is a highly regulated activity because, for the vast majority of Canadians, getting into a motor vehicle is the most dangerous activity they do. Impaired driving is a clear and ever-present threat to road safety CR. v. Hufsky, [J 988] 2 S.C.R. 621 (SCC) at ; and R. v. Bernshaw (1994), 16 R. v. Bernshaw, [1995] 1 S.CK 254 at paras per L'Heureux-DuM 1. ABOA (AGBC) v.l, Tab 20; R. v. Wise, (1992] 1 S.e.R. 527 at , AGMB BOA, Tab 21; R. v. Belnavis, [1997] 3 S.CR. 341 at para. 39, AGMB BOA, Tab 7; R. v. Nolet, 2010 sce 24 at para. 31, AGMB BOA, Tab R. v. Grant, 2009 sce 32 at para. Ill, AGMB BOA, Tab 11; R. v. A.M, 2008 sec 19 at para. 77, AGMB BOA, Tab 4 18 R. v. Belnavis, supra, at para. 39, AGMB BOA, Tab 7 19 R. v. Wise, supra, at 534, AGMB BOA, Tab 21

20 11 [1995] 1 S.C.R. (SCC) at paras ). Submitting to some infringements of personal liberty is the compromise motorists accept so that there can be effective enforcement of driving laws for the purpose of ensuring road safety. Parliament's legislative scheme to combat impaired driving include placing a legal duty on individuals to comply with a validly made breath demand and crirninalizing non-compliance (R. v. Woods, 2005 SCC 42 (SCC) at paras , [2005] 2 S.C.R. 205 (SCC)). The utility of these laws to ensuring road safety has long been recognized by this court (see R. v. Forsyth (1973), 15 C.C.C. (2d) 23 (Man.C.A.) at 26).20 (ii) Alcohol Screening for compliance with driver licence conditions 37. Notably, the above comments concerning a reduced expectation of privacy were made in the context of searches that ultimately led to evidence supporting a criminal prosecution. Different considerations apply when the results of breath screening are used for the purpose of enforcing compliance with a regulatory regime in which a prescribed level of alcohol is a fundamental pre-condition of the privilege to drive. Constitutional standards developed in the criminal context cannot be automatically imported to licensed activities, where routine inspection and screening is an expected feature of participation in the activity As Cory 1. held in Bernshaw, the requirement to undergo roadside breath testing should be regarded as an obligation that flows from the privilege to drive granted by licence. Complying with a reasonable request to take an ASD is a very small price to pay for that privilege This Court has supported a flexible and realistic approach to expectatiqns of privacy in the administrative context. In McKinlay Transport, Wilson 1. cited with approval an article by A.D. Reid and A.H. Young, who remarked that some activities are regulated so routinely that there is virtually no expectation of privacy from state intrusion. In other cases, regulated persons expect they may be subject to "spot checks" for compliance and, for the most part, there is no requirement of any suspicion of non-compliance before such checks are done. This is based on 20 R. v, Bagherli, 20141\1BCA 105 at para. 24, AGMB BOA, Tab 5 21 Thomson Newspapers Ltd v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.c.R. 425 at , AGMB BOA, Tab 25; R. v. McKinlay Transport Ltd, [1990] 1 S.C.R. 62, ABOA (AGBC) v.ii, Tab 29; Comite Paritaire de f'industrie de fa chemise v, Potash, [1994] 2 S.C.R. 406 at 418, 419, 421, 443, , AGMB BOA, Tab 1 22 R. v, Bernshaw, supra, at para, 33, ABOA (AGBC) v.!, Tab 20

21 12 the common sense view that the threat of unannounced inspection may be the only means of detecting non-compliance Whatever expectation of privacy may exist in the criminal context, when a breath sample is used for administrative licensing purposes the totality of circumstances suggest that any reasonable expectation of privacy is negligible or non-existent:., The subject matter of the search is one's breath, something a person exhales every few seconds throughout their life.., The screening occurs in a vehicle at the roadside, a public place where one already has a greatly reduced expectation of privacy... An ASD is an efficacious and minimally intrusive means to check sobriety.24 The only information obtained relates to the consumption of alcohol, a fundamental licence condition.., The regulatory framework governing drivers and vehicles is well known, especially in relation to alcohol consumption. The driving public is well aware of the possibility of mandatory inspections and searches as part of the privilege of driving. 25 Indeed, society expects and demands a reasonable level of surveillance of every motor vehicle and driver to prevent drinking and driving. 26., Since Hufsky and Ladouceur, drivers know they may be stopped randomly by police to check for sobriety, among other things related to road safety. Orbanski clarified that a spot check for sobriety logically includes the ability to perform screening measures such as asking questions related to alcohol consumption and requesting drivers to perform physical sobriety tests at the roadside. 27., In the context of a licensing regime, an ASD may lead to administrative consequences, including the loss of the privilege to drive. But a driver's liberty and security of the person are not at risk. It does not result in a criminal conviction, pun ishment or possible jail R. v. McKinlay Transport Ltd, supra, at , ABOA (AGBC) v.n, Tab 29; Thomson Newspapers Ltd v. Canada, supra, at 507, AGMB BOA, Tab The Respondents Chisholm et al. rely on R. v. Wills from the Ontario Court of Appeal, suggesting that a breath sample is an invasion of privacy (factum, para. 36). However, in R. v. McMillan, 2013 ONCA 109 at paras , Rosenberg I.A. held that Wills had been overruled by this Court in Grant. Breath samples are not a significant state intrusion into one's privacy. 25 R. v. Nolet, supra, at para. 31, AGMB BOA, Tab 16; R. v. Gomboc, 2010 SCC 55 at paras. 32, 82, 94-95, ABOA (AGBC) v.i, Tab R. v. Belnavis, supra, at paras , AGMB BOA, Tab 7 27 R. v. Orbanski, supra, at paras. 1,24-27,44,47, AGMB BOA, Tab R. v. Werhun, 1991 CarswellMan 177, [1991] 2 W.W.R. 344 at paras , AGMB BOA, Tab 20

22 Gomboc confirmed that the terms of a legislative scheme are an important consideration, if not determinative, in assessing the reasonableness of any expectation of privacy in the circumstances. 29 In Manitoba, as in other provinces, both drivers and their medical practitioners must report to the registrar any change in medical condition that may affect their ability to drive safely.3o This may lead to further assessments and a loss of one's licence. If drivers are deemed to know that their personal medical information cannot be kept confidential from the licensing authority when it impacts fitness to drive, what reasonable expectation of privacy can there be with regard to checking one's breath for alcohol content for the same purpose?3! 42. It is also instructive to note that all provinces have instituted graduated licence systems whereby novice drivers must have zero blood alcohol until acquiring a certain number of years of driving experience. In Manitoba, a driver may not have any blood alcohol whatsoever during the Learner stage (nine months), Intermediate stage (15 months) and for a period of three years after a driver obtains a full licence. Thus, a person cannot drink any alcohol and drive for the first five years of licensed driving. Thereafter, more experienced drivers may consume modest amounts of alcohol up to Breach of the zero alcohol threshold can lead to a roadside 24- hour suspension among other consequences for novice drivers To determine compliance with the Act and regulations, a peace officer may, on demand, require a novice driver (or the supervising driver) to provide a breath sample in an approved device. 33 Given that the alcohol threshold is zero, a peace officer may conceivably have no objective indicia to suspect that a novice driver has consumed alcohol. Nonetheless, the only way to verify regulatory compliance is through breath screening. Novice drivers can have no reasonable expectation that they will not be subjected to an ASD to enforce these stringent licence conditions. Manitoba submits the mere fact the rules are relaxed somewhat for more 29 R. v. Gomboc, supra, at paras. 32, 82, 94-95, ABOA (AGBC) v.i, Tab For example, in Manitoba, see The Highway Traffic Act, C.C.S.M., c. H60, s. 157 AGMB BOA, Tab 31 and The Drivers and Vehicles Act, C.C.S.M., c. D104, SS. 14, 18, 18.1, AGMB BOA, Tab See also: Re Validity QfSectian 92(4) a/the Vehicles Act, 1957 (Sask.), supra at 615, RBOA (AGBC) v.i, Tab The Highway Traffic Act, C.C.S.M. c. H60, ss. 26.3, 273,279(1), AGMB BOA, Tab 31; The Drivers and Vehicles Act, C.C.S.M. c. DI04, s. 8 and 9, AGMB BOA, Tab 29; Driver's Licence Regulation, Man. Reg , ss. 11.2(2),14, AGMB BOA, Tab Driver's Licence Regulation, Man. Reg. 180/2000, s A passenger acting as a "supervising driver" for a novice driver must not exceed 0.05 blood alcohol, AGMB BOA, Tab 27

23 14 experienced drivers such that they can begin consuming modest amounts of alcohol (up to 0.05) does not alter the expectation of privacy in regard to licence compliance checks. 44. An analogy can be drawn with other regulatory regimes governing workplace safety, building safety, aviation safety, fire safety, environmental quality, food quality, health standards and the like, for which inspections have been routinely authorized by statutes without specifying grounds for intruding upon one's privacy.34 For example: III Safety and health officers can inspect workplaces and issue an immediate stop work order if the officer discovers activities that likely involve an imminent risk of serious injury.35 III Public health inspectors may shut down a restaurant for unsanitary conditions that endanger public health. 36 III Fire commissioners may conduct a fire safety inspection and make various orders including that premises be closed immediately for the protection of persons or property It is acknowledged that such inspections do not normally involve taking a sample from a person. However, the minimally intrusive nature of a breath sample is not a sufficient basis to distinguish a roadside inspection from other types of regulatory safety inspections, given the potential for grave harm. A licensed driver can have no greater expectation that his or her breath will not be screened for regulatory compliance purposes than a restaurant owner has with regard to food handling practices that could endanger health. 46. Manitoba does not suggest that drivers lose all expectation of privacy in their cars. But the underlying purpose of an inspection is a key consideration in assessing the reasonableness of an expectation of privacy. A search or seizure may be entirely proper when used for one purpose, but raise s. 8 concerns if the evidence is used for criminal investigation. 47. Thus, absent sufficient grounds, drivers reasonably expect that state agents will not search their trunk or personal items for evidence of offences unrelated to road safety. But that type of search is markedly different from a roadside inspection to check for sobriety, licence, ownership, 34 R.v. McKinlay Transport Ltd, supra, at , ABOA (AGBC) v.i, Tab The Workplace Safety and Health Act, C.C.S.M., c. W210, SS. 2, 23, 24, 36, AGMB BOA, Tab The Public Health Act, C.C.S.M. c. P2IO, SS. 2, 83,86, AGMB BOA, Tab 32 and the Food and Food Handling Establishments Regulation, M.R. 339/88, S5. 3, 4, AGMB BOA, Tab The Fire Prevention and Emergency Response Act, C.C.S.M. c. F80, S5. 7, 11, 12, AGMB BOA, Tab 30

24 15 insurance, mechanical fitness, driver fitness or other matters going to entitlement to drive. As Doherty J.A. explained in R. v. Be/navis: One may legitimately have a reasonable expectation of privacy with respect to certain kinds of state encroachments, but not others. For example, persons driving motor vehicles on public highways cannot reasonably expect that they can keep information or documentation referable to their entitlement to drive that motor vehicle confidential from the police: R. v. Hufsky (1988), 40 c.c.c. (3d) 398 (SeC) at 410. Those same persons could, however, have a reasonable expectation of privacy that agents of the state cannot enter the vehicle and examine its contents. [Emphasis added] This point is also illustrated in Colarusso. A seizure of blood did not raise s. 8 Charter concerns as long as it was used by the coroner for non-criminal purposes, but became an unreasonable seizure once appropriated for criminal law enforcement. 39 And in Jarvis, Revenue Canada was entitled to compel production of information and documents in the course of a civil tax audit provided officials did not "cross the Rubicon" from a civil dispute into a penal investigation. Section 8 of the Charter was engaged in the penal context but not for the civil audit function. 40 In contrast, in Nolet, this Court held that s. 8 applied to both provincial and criminal offences, because the context was always penal. 41 In the case at bar, s. 8 of the Charter applies when an ASD is used to enforce the criminal law but does not raise similar concerns when the result is used for licence compliance. 49. An analogy may be drawn with safety screening at airports, considered in R. v. Chehil. Karakatsanis l, writing for the Court, rejected the suggestion that travellers lacked any reasonable expectation of privacy in their checked luggage in an airport setting. She affirmed the trial judge's finding that while.mr. Chehil implicitly consented to the security screening of his bag, this did not undermine his expectation of privacy with regard to general police investigations. 42 The trial judge held that by purchasing a ticket and boarding a plane, a 38 R. v. Be/navis (1996),29 OK (3d) 321 (Ont.C.A.) at para. 31, affd [1997] 3 S.C.R. 341, AGMB BOA, Tab 6; See also R. v. HufSky, [1988] 1 S.c.R. 621 at 638, AGMB BOA, Tab 12; R. v. Mellenthin,[1992] 3 S.C.R. 615, AGMB BOA, Tab R. v. Colarusso, [1994] 1 S.C.R. 20 at 62-64, AGMB BOA, Tab R. v. Jarvis, 2002 sec 73 at para. 88, AGMB BOA, Tab R. v. Nolet, supra, at para. 45, AGMB BOA, Tab R. v. Chehif, 2013 see 49 at para. 59, AGMB BOA, Tab 9

25 16 reasonable inference can be drawn that a passenger intends his luggage to be subjected to security measures but this does not extend to a police search for evidence of a crime Similarly, by applying for a driver's licence and getting behind the wheel, a driver implicitly accepts that he or she will be subjected to reasonable, minimally intrusive screening measures to detect alcohol when the results are used solely to ensure licence compliance and road safety. This does not mean a driver gives up all reasonable expectation of privacy in regard to a criminal investigation. 51. Based on the foregoing, there can be no s. 8 Charter concern if the results of a roadside ASD are used solely to impose administrative consequences on one's driver licence. Even if a driver maintains some reasonable expectation of privacy in the licensing context, Manitoba submits that expectation is negligible and fully met by a statutory framework that expressly contemplates using alcohol screening for regulatory compliance. If an ASD demand under s. 254 of the Code can be used to further a criminal investigation, surely the results can also be used to suspend a provincial driver's licence without constituting an unreasonable search. Section 8 does not encompass the right to challenge the results of the ASD 52. The respondents' chief complaint under s. 8 of the Charter appears to be that administrative licence consequences are imposed before there is an opportunity to review (1) the accuracy of the ASD results or (2) the actions of the police and the reasonableness of the search.44 Manitoba submits that s. 8 of the Charter does not provide any right to challenge the accuracy of evidence adduced in subsequent administrative proceedings. However, a driver is always entitled to seek an appropriate remedy for an alleged breach of s. 8 either at a criminal trial or, in the absence of charges, from a superior court. 53. The courts below held the regime authorized an unreasonable search primarily because the administrative review process did not allow the driver to challenge the accuracy of the ASD result or demonstrate that he or she did not have a reading over Even if it could be said 43 R. v. Chehil, 2011 NSCA 82 at para. 35, citing the reasons ofthe trial judge, AGMB BOA, Tab 8 44 Factum of the Respondents Chisholm et al., at para Court of Appeal, Reasons for Judgment, at paras