IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA) -and-

IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA) S.C.C. No. : 35864 BETWEEN : RICHARD JAMES GOODWIN APPELLANT -and- BRITISH COLUMBIA (SUPERINTENDENT OF MOTOR VEHICLES} and ATTORNEY GENERAL OF BRITISH COLUMBIA - and - RESPONDENTS ATTORNEY GENERAL OF MANITOBA, ATTORNEY GENERAL OF CANADA, ATTORNEY GENERAL OF ALBERTA, ATTORNEY GENERAL OF SASKATCHEWAN, ATTORNEY GENERAL OF ONTARIO, ATTORNEY GENERAL OF QUEBEC, BRITISH COLUMBIA CIVIL LIBERTIES ASSOCIATION, INSURANCE BUREAU OF CANADA, CRIMINAL TRIAL LAWYERS' ASSOCIATION (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 FACTUM OF INTERVENER ALBERTA REGISTRAR OF MOTOR VEHICLE SERVICES (Pursuant to Rule 42 of the Rules of the Supreme Court of Canada} Alberta Justice- Civil Litigation 9th Floor Peace Hills Trust Tower 10011-109 Street Edmonton, AB TSJ 3S8 Michael Sobkin Barrister and Solicitor 331 Somerset Street West Ottawa, ON K2P OJ8 Sean McDonough Tel. : (780} 427-1257 Fa x: (780) 427-1295 Email: sean.mcdonough@gov.a b.ca Michael Sobkin Tel.: (613} 282-1712 Fax: (613) 288-2896 Email: msobkin@sympatico.ca Counsel for Intervener, Alberta Registrar of Motor Vehicle Services AgentforCounselforthelntervene~ Alberta Registrar of Motor Vehicle Services

S.C.C. No.: 35864 IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA) BETWEEN: RICHARD JAMES GOODWIN APPELLANT BRITISH COLUMBIA (SUPERINTENDENT OF MOTOR VEHICLE SERVICES) and ATTORNEY GENERAL OF BRITISH COLUMBIA RESPONDENTS AND BETWEEN: BRITISH COLUMBIA (SUPERINTENDENT OF MOTOR VEHICLE SERVICES) and ATTORNEY GENERAL OF BRITISH COLUMBIA APPELLANTS JAMIE ALLEN CHISHOLM, SCOTT ROBERTS, CAROL MARION BEAM and RICHARD JAMES GOODWIN RESPONDENTS -and- -and- -and- ATTORNEY GENERAL OF MANITOBA, ATTORNEY GENERAL OF CANADA, ATTORNEY GENERAL OF ALBERTA, ATTORNEY GENERAL OF SASKATCHEWAN, ATTORNEY GENERAL OF ONTARIO, ATTORNEY GENERAL OF QUEBEC, BRITISH COLUMBIA CIVIL LIBERTIES ASSOCIATION, INSURANCE BUREAU OF CANADA, CRIMINAL TRIAL LAWYERS' ASSOCIATION (ALBERTA) AND CRIMINAL DEFENCE LAWYERS ASSOCIATION (CALGARY), CRIMINAL LAWYERS' ASSOCIATION OF ONTARIO, ALBERTA REGISTRAR OF MOTOR VEHICLE SERVICES, MOTHERS AGAINST DRUNK DRIVING CANADA INTERVENERS

Attorney General of British Columbia 1001 Douglas Street, 6th Floor P.O. Box 9280 Stn Prov Govt Victoria, BC V8W 9J7 Gowling LaFleur Henderson LLP 2600-160 Elgin St Ottawa, ON K1P 1C3 Nathaniel Carnegie and Tyna Mason Tel.: (250) 356-2747 Fax: (250} 356-9154 Email: nathaniel.carnegia @gov.bc.ca Brian A. Crane, Q.C. Tel. : (613 233-1781 Fax : (613} 563-9869 Email: brian.crane @gowlings. com Counsel for the Respondents/ Appellants, Attorney General of British Columbia and British Columbia (Superintendent of Motor Vehicles) Agent for Counsel for the Respondents/ Appellants, Attorney General of British Columbia and British Columbia (Superintendent of Motor Vehicles) Carr Buchan & Company 520 Comerford Street Victoria, BC V9A 6K8 Supreme Advocacy LLP 100-340 Gilmour Street Ottawa, ON K2P OR3 Jeremy G. Carr Tel. : (250} 388-7571 Fax: (250) 388-7327 Email: jcarr@esquimalt law.com Marie-France Major Tel. : (613) 695-8855 Fax: (613) 695-8580 Email: mfmajor@supremeadvocacy.ca Counsel for the Respondents, Jamie Allen Chisholm, Scott Roberts and Carol Marion Beam Agent for Counsel for the Respondents, Jamie Allen Chisholm, Scott Roberts and Carol Marion Beam Gudmundseth Mickelson LLP 2525-1075 West Georgia Street Vancouver, B.C. V6E 3C9 Supreme Advocacy LLP 100-340 Gilmour Street Ottawa, ON K2P OR3 Howard A. Mikelson Q.C. and Shea H. Coulson Tel.: (604} 685-6272 Fax: (604} 685-8434 Email : ham@lawgm.com Email : shc@lawgm.com Marie-Franc Major Tel.: {613} 695-8855 Fax: (613} 695-8580 Email : mfmajor@supremeadvocacy.ca Counsel for the Appellant/Respondent, Richard James Goodwin Agent for Counsel for the Appellant/Respondent, Richard James Goodwin

Attorney General of Manitoba 1205-405 Broadway Winnipeg, MB R3C 3L6 Gowling Lafleur Henderson LLP 160 Elgin Street, Suite 2600 Ottawa, ON K1P 1C3 Heather Leonoff, Q.C. Tel.: (204) 945-0717 Fax: (204) 945-0053 Email: heather.leonoff@gov.mb.ca D. Lynne Watt Tel.: (613) 786-8695 Fax: (613) 788-3509 Email: lynne.watt@gowlings.com Counsel for the Intervener, Attorney General of Manitoba Agent for Counsel for the Intervener, Attorney General of Manitoba Attorney General for Alberta 9833-109 Street Bowker Building, 4th Floor Edmonton, AB T5K 2E8 Gowling Lafleur Henderson LLP 160 Elgin Street, Suite 2600 Ottawa, ON K1P 1C3 Roderick Wiltshire Tel. : (780) 422-7145 Fax : (780) 425-0307 Email : roderick.wiltshire@ gov.ab.ca D. Lynne Watt Te l. : (613) 786-8695 Fax: (613) 788-3509 Email: lynne.watt@gowlings.com Counsel for the Intervener, Attorney General of Alberta Agent for Counsel for the Intervener, Attorney General of Alberta Attorney General for Saskatchewan 820-1874 Scarth Street Regina, SK S4P 483 Gowling Lafleur Henderson LLP 160 Elgin Street, Suite 2600 Ottawa, ON K1P 1C3 Graeme G. Mitchell, Q.C. Tel. : (306) 787-8385 Fax: {306) 787-9111 Email : graeme.mitchell @gov.s k.ca D. Lynne Watt Tel.: (613) 786-8695 Fax: (613) 788-3509 Email : lynne.watt@gowlings. com Counsel for the Intervener, Attorney General of Saskatchewan Agent for Counsel for the Intervener, Attorney General of Saskatchewan

Attorney General of Ontario 720 Bay Street, 4 1 h Floor Toronto, ON M5G 2K1 Burke-Robertson LLP 441 Maclaren Street, Suite 200 Ottawa, ON K2P 2H3 Zachary Green Tel.: {416) 326-4460 Fax: {416) 326-4015 Email: zachary.green@ontario.ca Robert E. Houston, Q.C. Tel.: {613) 236-9665 Fax: (613) 235-4430 Email: rhouston@burkerobertson.com Counsel for the Intervener, Attorney General of Ontario Agent for Counsel for the Intervener, Attorney General of Ontario Procurer General du Quebec 1200, route de I'Eglise, 2 etage Quebec, QC G1V 4M1 Noel & Associes 111, rue Champlain Gatineau, QC J8X 3R1 Brigitte Bussieres, Alain Gingras and Gilles laporte Tel.: {418) 643-1477 Fax: {418) 644-7030 Email : bbussieres@justice.gouv.gc.ca Pierre landry Tel. : (819) 771-7393 Fax: {819) 771-5397 Email: p.landry@noelassocies.com Counsel for the Intervener, Attorney General of Quebec Agent for Counsel for the Intervener, Attorney General of Quebec Attorney General of Canada 50 O'Connor Street, Suite 500, Room 556 Ottawa, ON K1P 6L2 Robert J. Frater Tel.: {613) 670-6289 Fax: {613) 954-1920 Email: robert.frater@justice.gc.ca Counsel for the Intervener, Attorney General of Canada

Hunter Litigation Chambers Law Corp. 2100-1040 West Georgia Street Vancouver, BC V6E 4H1 Dolgin, Marshman Law 331 Somerset Street Ottawa, ON K2P OJ8 Claire E. Hunter and Eileen Patel Tel.: (604) 891-2400 Fax: (604) 647-4554 Email: chunter@litigationchambers. com Nigel Marshman Tel. : (613) 244-4488 Fax: (613) 244-1899 Email : marshman@dolginmarshmanlaw.ca Counsel for the Intervener, British Columbia Civil Liberties Association Agent for Counsel for the Intervener, British Columbia Civil Liberties Association Stikeman Elliott LLP 5300 Commerce Court West 199 Bay Street Toronto, ON MSL 1B9 Stikeman Elliott LLP 1600-50 O' Connor Street Ottawa, ON K1P 6L2 Alan L.W. D'Silva and Alexandra Urbanski Tel. : (416} 869-5204 Fax: (416) 947-0866 Email: ad silva @stikeman.com Nicholas Peter McHaffie Tel. : (613} 566-0546 Fax: (613) 230-8877 Email: nmchaffie@stikeman.com Counsel for the Intervener Insurance Bureau of Canada Agent for Counsel for the Intervener Insurance Bureau of Canada Gunn Law Group 11210-142 Street Edmonton, AB TSM 1T9 Sack Goldblatt Mitchell LLP 500-30 Metcalfe Street Ottawa, ON K1P SL4 Stephen M. Smith Tel. : (780) 488-4460 Fax: (780) 488-4783 Email: ssmith@gunnlawgroup.ca Raija Pulkkinen Tel. : (613) 235-5327 Fax: (613) 235-3041 Email: rpulkkinen@sgmlaw.com Counsel for the Interveners Criminal Trial lawyers' Association (Alberta) and Criminal Defence lawyers Association (Calgary) Agent for Counsel for the Interveners Criminal Trial lawyers' Association (Alberta) and Criminal Defence lawyers Association (Calgary)

Greenspan Partners LLP 144 King Street East Toronto, ON M5C 1G8 Supreme Advocacy LLP 100-340 Gilmour Street Ottawa, ON K2P OR3 Michael Lacy and Jonathan Rosenthal Tel.: (416) 366-3961 Fax: (416) 366-7994 Email: mlacy@144king.com Marie-France Major Tel.: (613) 695-8855 Ext. 102 Fax: (613) 695-8580 Email: mfmajor@supremeadvocacy.ca Counsel for the Intervener Criminal Lawyers' Association of Ontario Agent for Counsel for the Intervener Criminal Lawyers' Association of Ontario Farris, Vaughan, Wills & Murphy LLP 3rd Floor- 1005 Langley St. Victoria, BC V8W 1 V7 Gowling Lafleur Henderson LLP 160 Elgin Street, 26th Floor Ottawa, ON K1P 1C3 Bryant Mackey Tel.: (604) 684-9151 Fax: (604) 661-9349 Email: bmackey@farris.com Guy Regimbald Tel. : (613) 786-0197 Fax: (613) 786-0197 Email: guy.regimbald@gowlings.com Counsel for the Intervener Mothers Against Drunk Driving Canada Agent for Counsel for the Intervener Mothers Against Drunk Driving Canada

TABLE OF CONTENTS PAGE PART I- OVERVIEW AND STATEMENT OF FACTS.......................................... 1 A. Overview......................................................... 1 B. The Regulatory Context.................................................................... 2 PART II- THE QUESTIONS AT ISSUE............................................................ 4 PART Ill- ARGUMENT.................................................................... 4 A. The ARP Regime Does Not Authorize an Unreasonable Search or Seizure Contrary to Section 8 of the Charter............................................................. 4 B. The ARP Regime Does Not Charge Drivers With an Offence........................ 9 PART IV- SUBMISSION ON COSTS.................................................................... 10 PART V- ORDER SOUGHT.................................................................... 10 PART VI- TABLE OF AUTHORITIES..................................................... 11 PART VII- STATUTORY PROVISIONS.................................................... 12 Application for license.................................................................................... 12 Examination of licensees....................................................... 12 Production of motor vehicle licenses........................................... 13 Failing to stop and state name............................................................................ 13 Duty to give information....................................................................... 13 Access to driving records................................................... 14 Operator's duty to provide information............................................................ 14 Report of health professional............................................................... 15

1 PART 1- OVERVIEW AND STATEMENT OF FACTS A. Overview 1. The Alberta Registrar of Motor Vehicle Services (the " Registrar") will focus on the application of section 8 of the Charter to British Columbia's automatic roadside prohibition ("ARP") regime, and comment on the issue of whether the ARP regime creates an "offence" within the meaning of section 11 of the Charter. 2. The ARP regime itself does not directly authorize a search or seizure, but the Court may nonetheless be concerned to ensure that the ARP regime's corollary use of approved screening device ("ASD" ) results obtained through a Criminal Code search or seizure does not effectively amount to an unreasonable search or seizure. 3. Having regard to the context as a whole, the ARP regime' s corollary use of ASD results does not intrude upon a driver's reasonable expectation of privacy. The privilege of driving carries with it an acceptance of close oversight of the driver's fitness to drive, and an ongoing requirement to verify compliance. Drivers know and expect this. Drivers cannot reasonably expect that important information that police gather in the Criminal Code context about a driver's sobriety while driving will not be used for regulatory purposes connected with traffic safety. 4. The ARP regime does not charge drivers with an offence. Rather, it is part and parcel of a regulatory framework designed to swiftly remove unsafe drivers from the road and deter other drivers from conduct that presents a safety risk. These goals are reflected in the measures the ARP regime imposes- driving prohibitions, remedial education, ignition interlock, and small monetary penalties- and are not compatible with the full panoply of section 11 rights that apply to criminal prosecutions.

2 B. The Regulatory Context 5. Driving is a voluntary activity that involves the operation of heavy machinery at fast speeds on public highways. It has the potential to, and does, lead to collisions, injuries, and even deaths. 6. For the safety of all highway users, driving is heavily regulated. Drivers and their motor vehicles are subject to a great many statutory requirements, conditions, and regulations. Almost every aspect of the use of a motor vehicle is controlled. 1 7. These controls are implemented through a number of means, including examination, reporting, and roadside enforcement. Drivers reasonably expect to be required to produce evidence of compliance with the requirements for lawful operation of a motor vehicle. 2 That expectation is part and parcel of the privilege of operating a motor vehicle. 3 8. The proper operation of the regulatory framework depends upon the regulator, primarily the Superintendent, having sufficient information to implement the various regulatory programs. The Motor Vehicfe Act, like other provincial statutes, thus contains a number of provisions that require drivers and others to produce driving related information. For example: a. applicants for a licence must submit to vision testing, medical examinations, and any other tests that the Superintendent may specify, and must provide the Superintendent with the information the Superintendent considers necessary to carry out the Superintendent's powers and functions; b. the Superintendent may require licensed drivers to be examined as to their fitness and ability to drive; c. an operator must, in the manner prescribed, provide to the director all information relevant to safety issues; 1 R. v. Wise, [1992]1 S.C.R. 527, at p. 533 [Alberta Regi strar's Book of Authorities (" Regi strar's BA" ), Tab 4]. 2 R. v. Hufsky, [1988]1 SCR 621 at pp. 637-638 [R egi strar's BA, Tab 1]. 3 R. v. Smith (1996), 105 C.C.C. {3d) 58 (Ont. C.A.), at p. 81 [Regi strar's BA, Tab 3](alt. cit. 88 O.A.C. 374).

3 d. health professionals must report to the Superintendent drivers who continue to drive with a medical condition that makes it dangerous to drive; e. drivers must stop when requested to do so by a peace officer, identify themselves, and produce their licence; f. owners must identify drivers to the police if the driver is involved in an accident; and g. the Superintendent, for the purpose of carrying out the Superintendent's duties, has access to every record kept by the Insurance Corporation of British Columbia. 4 9. Requirements on drivers to provide information to substantiate compliance with lawful conditions for the exercise of the privilege of driving have been upheld in a number of cases. Drivers expect to be stopped and questioned by police concerning matters relating to the operation of their vehicles. 5 When they are, it does not constitute a search because it does not constitute an intrusion on a reasonable expectation of privacy. 6 10. One area of particular concern from the perspective of monitoring driver fitness is impaired driving. Impaired driving poses a significant risk to highway users. In order to address this concern, provincial and territorial jurisdictions across the country have implemented administrative licence suspensions programs that attach regulatory consequences to a driver's operation of a motor vehicle when the driver's blood alcohol content ("BAC") reaches specified levels. 7 The ARP regime at issue in this case is one such program. 11. The ARP regime uses the information gathered under the authority of the Criminal Code for the limited purpose of assessing whether the driver's condition is such that the driver is not in compliance with the regulatory requirements, and the driver should therefore be subjected to the regulatory measures established by the ARP regime. 4 Motor Vehicle Act, R.S. B.C. 1996, c. 318, at ss. 25(3), 29, 212.1(2), 230, 71, 73, 84, and 93.1. 5 R. v. Smith, supra note 4, at p. 81 [Registrar's BA, Tab 3]. 6 R. v. Husky, supra note 2, at pp. 637-638 [Registrar's BA, Tab 1]. 7 The Superintendent and AGBC's Response Factum describes these programs at Appendix " B".

4 PART II -THE QUESTIONS AT ISSUE 12. The questions at issue are set out in the Order Stating Constitutional Questions, attached as Exhibit "A" to the Superintendent and AGBC's Appellant Factum. 13. The Registrar's factum is directed at two questions: 1. whether the ARP regime authorizes an unreasonable search or seizure, contrary to section 8 of the Charter; and 2. whether the ARP regime charges drivers with an offence so as to trigger the operation of section 11 of the Charter. PART Ill- ARGUMENT A. The ARP Regime Does not Authorize an Unreasonable Search or Seizure Contrary to Section 8 of the Charter 14. The test for an unreasonable search or seizure has two components. First, there must be a search or seizure. Second, the search or seizure must be unreasonable. 8 15. In order for there to be a search or seizure, there must be an intrusion upon a reasonable expectation of privacy. 9 In those cases where there is a search or seizure, the search or seizure will not offend section 8 if it is authorized by a reasonable law and carried out in a reasonable manner. 10 Reasonableness thus factors both into whether any expectation of privacy is sufficient to ground a finding of a search or seizure, and into the constitutionality of any search or seizure so found. 8 R. v. Tessling, [2004] 3 S.C.R. 43 2, at para. 18 [Chisholm, Rob erts and Bea m (" Respondent Drivers"') BA, Tab 9]. 9 R. v. Hufsky, supra note 2, at p. 638 [Registrar's BA, Tab 1]; R. v. Tessling, supra note 8 at para. 18 [Respondent Drivers' BA, Tab 9]. 10 R. v. Tesslin g, supra note 8 at para. 18 [Respondent Drivers' BA, Tab 9].

5 16. Reasonableness takes its colour from context. Different expectations apply in different contexts. Consistent with the importance of context, distinctions can be drawn between seizures in the criminal context and seizures in the administrative or regulatory context, to which a lesser standard may apply. 11 17. The starting point for the analysis of the alleged search or seizure in this case is a consideration of what authority any potential search or seizure is conducted under. 18. As the Superintendent and AGBC's appellant factum asserts, the Criminal Code, not the ARP regime, provides the authority for the ASD demand at issue. The ARP regime does not itself authorize the taking of a breath sample, save for a second sample at the driver's request. 12 19. It is possible, however, that this does not end the inquiry. Although the ARP regime does not authorize the initial ASD demand, it does make use of the information that arises as a result of this ASD demand. The section 8 Respondent Drivers may argue that this use, even for regulatory purposes, of information obtained through the criminal process may constitute a search or seizure if the "reasonable expectation of privacy" requirement is met. 20. There is, however, no reasonable expectation that the police will keep private from the regulator, or refrain from using for regulatory purposes, information that the police uncover in the course of a criminal investigation that directly relates to a key regulatory concern, a driver's condition at the time the driver was driving. 21. This Court's ruling in R. v. Jarvis 13 is informative. In R. v. Jarvis, an auditor inspected and required production of documents under the authority of the Income Tax Act. The auditor then 11 R. v. M ckinlay Transport Ltd., [1 990]1 S.C.R. 627, at pp. 64S-647 [Appellant Superintendent and AGBC' s BA, Tab 29). 12 Appell ant Superintend ent and AGBC Factum, para. 89. 13 R. v. Jarvis, [2002] S.C. R. 75 7 [Reg istrar's BA, Tab 2].

6 developed concerns that the case at hand might involve criminal tax evasion. One of the issues before the Court was whether the auditor could pass the information obtained through administrative means to Investigative Services for the purpose of investigating possible criminal misconduct. 22. The Court concluded that the auditor could lawfully pass the information on, holding that the taxpayer could not claim a reasonable expectation of privacy with respect to the information. The Court reasoned :.... once an auditor has inspected or required a given document under section 231.1(1) and 231.2(1), the taxpayer cannot truly be said to have a reasonable expectation that the auditor will guard its confidentiality. 14 23. The Court's willingness in R. v. Jarvis to allow for the use of information obtained through administrative compulsion, where lesser standards may apply, in the criminal sphere underscores the reasonableness of allowing information gathered in the crim inal sphere, where there are safeguards like the need for a reasonable suspicion, to be used for the purpose of an administrative licence suspension regime. 24. This is particularly true when the nature of the information in question in the present case is considered. The information, that a particular driver has generated a fail or a warn on an ASD, relates to whether the driver meets the conditions required to drive, including sobriety. This information is critically important for regulating highway safety, but provides little in the way of " core biographical data" 15 that is not relevant to traffic safety. The results of an ASD test do not indicate why a driver drank, where a driver drank, who the driver drank with, or even specifically what the driver drank. They only indicate that the driver drove with a dangerous BAC. 14 R. v. Jarvis, supra note 13, at pp. 807 to 808 [R egistrar's BA, Tab 2]. 15 R. v. Tessling, supra note 8, at para. 25 [R espondent Drivers' BA, Tab 9].

7 25. As discussed in paragraph 8, supra, the traffic safety regulatory regime requires the provision of information from multiple sources to enforce compliance. Drivers must provide information on safety issues, and health professionals are required to report drivers who drive with unsafe medical conditions. Some of this information may be far more connected with a driver's biographical core than the results of an ASD test. 26. It is also worth noting that even the ASD demand itself, issued in the context of a criminal investigation, has been described as "a very small price to pay for the privilege of driving". 16 The ASD demand is made to the driver in close proximity to the time of the driver' s actual driving, at or near the scene of the actual driving. It requires only a breath of air, and is used only to measure the driver's BAC in conjunction with the driver's driving. 27. In all of the circumstances, a driver faced with the realization that he has blown a warn or a fail on an ASD could not reasonably expect that the fact of his warn or fail will not be considered for the purposes of regulating traffic safety generally and addressing the driver's driving privileges specifically. The use of the ASD results in the ARP regime does not breach any reasonable expectation of privacy, and does not constitute a search or seizure. 28. In the event this Court considers that the ARP regime does authorize a search or seizure, the Registrar submits that the foregoing analysis demonstrates the minimal intrusiveness of any search or seizure. Given the importance of the ARP regime in the regulation of traffic safety, the search or se izure, if there is one, is reasonable. 29. One aspect of the ARP regime that warrants further mention is the immediacy of the administrative consequences. The section 8 Respondent Drivers take issue with the immediacy (at paras. 49-52 of their FactumL because it does not allow for advance review. 16 R. v. Bernshaw, [1995]1 S.C. R. 254 at p. 276, per Cory J.'s concurring reason s (Lam er C.J. and Iacobucci J. also con curring) [Appell ant Superintendent and AGBC's BA, Tab 20].

8 30. The record before this Court includes evidence of the importance of immediacy. The Tenth Report of the Standing Committee on Justice and Human Rights entitled " Ending Alcohol Impaired Driving: A Common Approach" concluded that "swiftness and certainty" of suspension are essential to effective deterrence. 17 31. The British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, Quebec, and New Brunswick administrative licence suspension programs all provide for immediate suspensions. 18 Consistent with the evidence in this case, Wakeling J. (now J.A.) recognized the importance of immediacy in Sahaluk v. Alberta (Transportation Safety Board}, 2015 ABQB 142, quoting with approval from expert evidence before the Alberta court to the effect that the speed with which the suspension was applied was the key element of deterrence. 19 32. Immediacy is at most one factor to consider if in fact the ARP regime intrudes upon reasonable expectations of privacy, and its implications upon the reasonableness of any search are mixed, given the importance of immediacy to the statutory scheme. This Court's decision in Jarvis and the factors discussed in paragraphs 23-27, supra, support the reasonableness of any search. The availability of an appeal and the nature of the appeal may also be relevant. Sigurdson J. held in the present case that the provisions of the ARP regime dealing with refusals, which share the same immediacy as the ASD fail provisions, do not violate section 8 because they are subject to a more meaningful after the fact review process than the ASD fail.. 20 provisions. 17 Martin affidavit, Ex. M [R ecord, v. IV, pp. 747-748]. 18 Th e Sup erintendent and AGBC' s Response Factum describes these programs at Appendix " B". 19 Sahaluk v. Alberta (Transportation Safety Board), 2015 ABQB 142, at para72, fn 106 [R egist rar's BA, Tab 5]. 20 Reasons for Judgment of the Supreme Court of British Columbia (Sigurdson, J.), 2011 BCSC 1783, at para. 5 [R ecord, v. 1, pp. 104-105].

9 B. The ARP Regime Does Not Charge Drivers With an Offence 33. The expression "person charged with an offence" is limited to matters that are, by their very nature, criminal, and matters that may lead to true penal consequences. 21 34. Determining whether a matter is criminal in nature is not an "overly legalistic" test, as the section 11 Appellant Goodwin suggests, but rather a search for the substantive purpose of the provision in question. It seeks to identify the nature of the concern that the proceedings in.. d 22 quest1on are a1me at. 35. The purpose of administrative licence suspension programs like the ARP regime is to regulate driver conduct and licensing in the interest of traffic safety. The ARP regime is concerned with removing drivers that pose a safety risk from the road, and deterring other drivers from conduct that would create a safety ri sk. It is not concerned with moral blameworthiness or redressing public wrongs. 36. The nature of the ARP regime is illustrated by the measures imposed by the regime. The measures are internally related to the traffic safety goals of the regime, not true penal consequences. They consist of fixed term driving prohibitions, remedial programs, vehicle impoundment, the required use of ignition interlock, the need to have a licence reinstated, the associated costs of these measures, and fixed penalties of up to $500. 23 37. The process leading to the sanction is a factor in the test of the nature of the matter. 24 To this end, it is important to note that not only does the current process not resemble a criminal prosecution, requiring such a process would undermine the efficacy of the ARP regime and driver safety programs in general. 21 M artineau v. M.N.R., [2004] 3 S.C.R. 737, at para. 19 [Respondent Superintendent and AGBC' s BA, Tab 14]. 22 Martineau, supra note 21, at paras. 31-32 [Respondent Superintendent and AGBC' s BA, Tab 14]. 23 Th ese meas ures are described in the Reasons for Judgment of the Supreme Court of British Columbia (Si gu rdson, J.), 2011 BCSC 1639 at paras. 20-31 [Record, vol. 1, pp. 11-14] 24 Martineau, supra note 21, at para. 24 [Respondent Superintendent and AGBC' s BA, Tab 14].

10 38. Section 11 requires, among other things, that a penalty can only be imposed after charges are laid and a trial is conducted, and that guilt be proven beyond a reasonable doubt. These prerequisites are incompatible with driver fitness and monitoring programs, including the ARP regime, where immediacy is an important component, the safety of the highway using public is at issue, and the liberty interests of drivers are not at stake. PART IV SUBMISISON ON COSTS 39. The Registrar does not seek costs, and requests that no costs be ordered against it. PART V- ORDER SOUGHT 40. The Registrar does not seek an order on the merits of the appeal, but requests permission to make an oral argument not to exceed 10 minutes. All of which is respectfully submitted May 1, 2015. Sean McDonough Counsel to the Alberta Registrar of Motor Vehicle Services

11 PART VI- TABLE OF AUTHORITIES AUTHORITY PARAGRAPH Case Law Martineau v. M.N.R., [2004] 3 S.C.R. 737 [Respondent Superintendent 33,34,37 and AGBC's BA, Tab 14] R. v. Bernshaw, [1995]1 S.C.R. 254 [Appellant Superintendent and 26 AGBC's BA, Tab 20] R. v. Hufsky, [1988]1 SCR 621 [Registrar's BA, Tab 1] 7, 9, 15 R. v. Jarvis, [2002] S.C.R. 757 [Registrar's BA, Tab 2] 21, 22, 23, 32 R. v. McKinlay Transport Ltd., [1990]1 S.C.R. 627 [Appellant 16 Superintendent and AGBC's BA, Tab 29] R. v. Smith (1996}, 105 C.C.C. (3d} 58, 88 O.A.C. 374 (Ont. 7,9 C.A.)[Registrar's BA, Tab 3] R. v. Tessling, [2004) 3 S.C.R. 432 [Respondent Drivers' BA, Tab 9] 14, 15, 24 R. v. Wise, [1992]1 S.C.R. 527 [Registrar's BA, Tab 4} 6 Sahafuk v. Alberta (Transportation Safety Board), 2015 ABQB 142 31 [Registrar's BA, Tab 5] Legislation Motor Vehicle Act, R.S.B.C. 1996, c. 318, ss. 25(3}, 29, 71, 73, 84, 93.1, 8 212.1(2}, 230

12 PART VII- STATUTORY PROVISIONS Motor Vehicle Act, R.S.B.C. 1996, c. 318, ss. 25(3L 29, 71, 73, 84, 93.1, 212.1(2L 230 Application for licence 25 (3) For the purpose of determining an applicant's driving experience, driving skills, qualifications, fitness and ability to drive and operate any category of motor vehicle designated for that class of driver's licence for which the application is made, the applicant must (a) submit to one or more, as the Insurance Corporation of British Columbia may specify, of the following : a knowledge test; a road test; a road signs and signals test, (b) submit to one or more, as the superintendent may specify, of the following: a vision test; medical examinations; other examinations or tests, other than as set out in paragraph (a), (b.l) provide the corporation with information required to measure the applicant's driving experience, driving skills and qualifications, (c) provide the superintendent with other information he or she considers necessary to allow the superintendent to carry out his or her powers, duties and functions, (d) submit to having his or her picture taken, and (e) if required by or on behalf of the corporation, identify himself or herself to the corporation's satisfaction. Examination of licensees 2 9 The superintendent may require a person to whom a driver's licence has been issued to attend at a time and place for one or both of the following purposes : (a) to submit to one or more of the following tests, to be conducted by the Insurance Corporation of British Columbia : a knowledge test; a road test; a road signs and signals test;

13 (b) to be otherwise examined as to the person's fitness and ability to drive and operate motor vehicles of the category for which he or she is licensed. Production of motor vehicle licences 71 A person commits an offence if the person, being in possession or control of a motor vehicle or trailer for which a licence has been issued under this Act, and being requested by a peace officer or constable to produce or exhibit the licence, refuses or fails to do so. Failing to stop and state name 7 3 ( 1) A peace officer may require the driver of a motor vehicle to stop and the driver of a motor vehicle, when signalled or requested to stop by a peace officer who is readily identifiable as a peace officer, must immediately come to a safe stop. (2) When requested by a peace officer, the driver of a motor vehicle or the person in charge of a motor vehicle on a highway must state correctly his or her name and address and the name and address of the owner of the motor vehicle. (3) A person who contravenes subsection (1) or (2) commits an offence and is liable to a fine of not less than $100 and not more than $2 000 or to imprisonment for not less than 7 days and not more than 6 months, or to both. Duty to give information 84 (1) If a peace officer has reason to believe that a motor vehicle has been involved in an accident or in a contravention of this Act, the Commercial Transport Act or the Transportation Act, the regulations under any of these Acts, the bylaws of a municipality or the laws of a treaty first nation, and so informs the owner or a person in the motor vehicle, it is the duty of the owner or person, as the case may be, if required by the peace officer, to give all information it is in his or her power to

14 give relating to the identification of the driver of the motor vehicle at the relevant time or during the relevant period. (2) If the owner or other person fails to comply with subsection (1), or gives information that he or she knows to be false or does not believe to be true, he or she commits an offence against this Act. Access to driving records 9 3 1 Despite the Freedom of Information and Protection of Privacy Act, or any other enactment, the superintendent, for the purpose of carrying out his or her powers, duties and functions under this Act or another enactment, has access to every driver's record kept by the Insurance Corporation of British Columbia. Operator's duty to provide information 212. 1 (1) An operator must, in the manner prescribed, provide to the Insurance Corporation of British Columbia all information it requires relevant to insurance issues, including specific answers to all questions it submits. (1.1) An operator must, in the manner prescribed, provide to the director all information the director requires relevant to safety issues, including specific answers to all questions the director submits. (2) An operator who receives from the Insurance Corporation of British Columbia or the director any form of return with directions to fill it out must properly fill it out and answer fully and correctly each question contained in it, and must deliver it to the corporation or the director within the time, in the manner and to the location prescribed. (3) When required by the Insurance Corporation of British Columbia or the director, an operator must deliver to the corporation or the director, within the time, in the manner and to the location prescribed, all records in his or her possession or control in any way relating to the operator's property or service or affecting his or her business, or copies of those records.

15 Report of health professional 2 3 0 ( 1) This section applies to every legally qualified and registered psychologist, optometrist, medical practitioner and nurse practitioner who has a patient 16 years of age or older who (a) in the opinion of the psychologist, optometrist, medical practitioner or nurse practitioner has a medical condition that makes it dangerous to the patient or to the public for the patient to drive a motor vehicle, and (b) continues to drive a motor vehicle after being warned of the danger by the psychologist, optometrist, medical practitioner or nurse practitioner. (2) Every psychologist, optometrist, medical practitioner and nurse practitioner referred to in subsection (1) must report to the superintendent the name, address and medical condition of a patient referred to in subsection (1). (3) No action for damages lies or may be brought against a psychologist, an optometrist, a medical practitioner or a nurse practitioner for making a report under this section, unless the psychologist, optometrist, medical practitioner or nurse practitioner made the report falsely and maliciously.