SUPREME
COURT OF CANADA
Between:
Lee
Michael Wilson
Appellant
and
Superintendent
of Motor Vehicles and
Attorney
General of British Columbia
Respondents
Coram: McLachlin C.J. and Cromwell, Moldaver, Karakatsanis, Wagner,
Gascon and Côté JJ.
Reasons
for Judgment:
(paras. 1 to 43)
|
Moldaver J. (McLachlin C.J. and Cromwell,
Karakatsanis, Wagner, Gascon and Côté JJ. concurring)
|
Wilson v. British Columbia (Superintendent of Motor Vehicles),
2015 SCC 47, [2015] 3 S.C.R. 300
Lee Michael Wilson Appellant
v.
Superintendent of Motor Vehicles and
Attorney General of British
Columbia Respondents
Indexed as: Wilson v. British Columbia (Superintendent of
Motor Vehicles)
2015 SCC 47
File No.: 35959.
2015: May 19; 2015: October 16.
Present: McLachlin C.J. and Cromwell, Moldaver, Karakatsanis,
Wagner, Gascon and Côté JJ.
on appeal from the court of appeal for british columbia
Administrative law — Judicial review — Superintendent
of Motor Vehicles — Automatic roadside driving prohibition regulatory regime — Peace
officer issued Notice to driver imposing immediate driving prohibition after
roadside breath sample obtained — Driver applied to Superintendent for review
of driving prohibition — Whether peace officer entitled to rely on results of
approved screening device used to collect breath samples to impose driving
prohibition or whether other confirmatory evidence required — Whether
Superintendent’s interpretation of statutory provision imposing immediate
driving prohibition was reasonable — Motor Vehicle Act, R.S.B.C. 1996, c. 318,
ss. 215.41(3.1), 215.5.
To
address the problem of impaired driving, British Columbia has instituted a
regime in the Motor Vehicle Act (“MVA”) known as the automatic
roadside driving prohibition scheme (“ARP”). Approved screening devices (“ASD”)
are used to collect roadside breath samples. Under s. 215.41(3.1) of the MVA,
when a driver registers a “Warn” or “Fail” on the ASD, a peace officer must
issue a Notice of Driving Prohibition, provided that the officer “has
reasonable grounds to believe, as a result of the analysis, that the driver’s
ability to drive is affected by alcohol”.
In
2012, W was stopped at a police road check. He provided two samples of his
breath that registered a “Warn” reading. The peace officer served him with a
Notice, prohibiting him from driving for a period of three days.
W
applied to the Superintendent of Motor Vehicles for a review, seeking to have
the Notice revoked. He argued that the ASD result alone could not provide the
officer with the reasonable grounds required by s. 215.41(3.1) and that
the officer was also required to point to other confirmatory evidence. The
Superintendent rejected this argument. On judicial review, the Notice was set
aside. The Court of Appeal concluded that the Superintendent’s interpretation of
s. 215.41(3.1) was reasonable and reinstated the Notice.
Held:
The appeal should be dismissed.
W’s
case rests on the premise that s. 215.41(3.1) is ambiguous and that Charter
values must be applied to resolve the ambiguity. This argument suffers from
a fatal flaw — s. 215.41(3.1) is not ambiguous. Rather, when read in light
of its text, context, and legislative objective, there is only one reasonable
interpretation — the one arrived at by the Superintendent. Charter values
may not be used to create ambiguity where none exists and have no role to play
as an interpretive tool in this case.
The
plain meaning of s. 215.41(3.1) explicitly links the officer’s belief to
the result of the ASD analysis. The wording could not be clearer. W’s
submission that the officer’s belief must be based not only on the ASD result,
but also on confirmatory evidence is not supported by the text of the provision.
The officer must have an honest belief in the accuracy of the ASD result in
order to have reasonable grounds to believe “as a result of the analysis” that
the individual’s ability to drive is affected by alcohol. This interpretation
gives meaning to the words used in the statute without reading in words that
would introduce a new dimension to the provision.
The
context of the statutory scheme also indicates that the Superintendent’s interpretation
is reasonable and consistent with the limited grounds for review of a peace
officer’s decision. Nothing suggests that the Superintendent may revoke a
Notice if a peace officer does not point to other confirmatory evidence.
Although the ARP regime is triggered by a roadside demand for a breath sample
under s. 254 of the Criminal Code , it is an independent regime. It
is not subsidiary to the Code and does not incorporate its protections.
Rather, the ARP regime is regulatory legislation which balances individual
liberties against the protection of the public, placing greater weight on the
public good.
The
Superintendent’s decision is also consistent with the twin legislative
objectives of increasing highway safety and deterring impaired driving. The ARP
regime establishes a common standard for removing drivers from the road who
pose an elevated risk to others. Allowing the police to rely on ASD test
results is critical to the fulfilment of the legislative objectives.
Cases Cited
Applied:
R. v. McIntosh, [1995] 1 S.C.R. 686; R. v. Wholesale Travel Group
Inc., [1991] 3 S.C.R. 154; referred to: Goodwin v. British
Columbia (Superintendent of Motor Vehicles), 2015 SCC 46, [2015] 3 S.C.R.
250; McLean v. British Columbia (Securities Commission), 2013 SCC 67,
[2013] 3 S.C.R. 895; Alberta (Information and Privacy Commissioner) v.
Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654; Dunsmuir
v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Bell ExpressVu
Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559; CanadianOxy
Chemicals Ltd. v. Canada (Attorney General), [1999] 1 S.C.R. 743; R. v.
Clarke, 2014 SCC 28, [2014] 1 S.C.R. 612; Charlebois v. Saint John
(City), 2005 SCC 74, [2005] 3 S.C.R. 563; Bristol‑Myers Squibb Co.
v. Canada (Attorney General), 2005 SCC 26, [2005] 1 S.C.R. 533; R. v.
Hinchey, [1996] 3 S.C.R. 1128; Canada (Information Commissioner) v.
Canada (Minister of National Defence), 2011 SCC 25, [2011] 2 S.C.R. 306; Reference
re Securities Act, 2011 SCC 66, [2011] 3 S.C.R. 837; R. v. Gordon,
2002 BCCA 224, 100 B.C.L.R. (3d) 35; R. v. Bernshaw, [1995] 1 S.C.R.
254; Sivia v. British Columbia (Superintendent of Motor Vehicles), 2014
BCCA 79, 307 C.C.C. (3d) 77; Buhlers v. British Columbia (Superintendent of
Motor Vehicles), 1999 BCCA 114, 170 D.L.R. (4th) 344.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms,
ss. 8 , 10 (b).
Criminal Code, R.S.C. 1985, c. C‑46,
s. 254 .
Motor Vehicle Act, R.S.B.C. 1996,
c. 318, ss. 25.1(1), 215.41(3.1), 215.43(1), (2.1), 215.45, 215.46, 215.5,
253(6), (7).
Motor‑vehicle Act Amendment Act, 1966, S.B.C. 1966, c. 30, s. 34.
Motor Vehicle Act Regulations, B.C. Reg.
26/58, s. 43.09.
Motor Vehicle Amendment Act, 2010,
S.B.C. 2010, c. 14, s. 19.
Motor Vehicle Amendment Act, 2012, S.B.C.
2012, c. 26.
Authors Cited
British Columbia. Legislative Assembly. Official Report of
Debates of the Legislative Assembly (Hansard), vol. 16, No. 1, 2nd
Sess., 39th Parl., April 27, 2010, p. 4871.
British Columbia. Legislative Assembly. Official Report of
Debates of the Legislative Assembly (Hansard), vol. 36, No. 7, 4th Sess.,
39th Parl., May 3, 2012, pp. 11492‑93.
Driedger, Elmer A. Construction of Statutes, 2nd ed.
Toronto: Butterworths, 1983.
APPEAL
from a judgment of the British Columbia Court of Appeal (Saunders, Levine and
Harris JJ.A.), 2014 BCCA 202, 60 B.C.L.R. (5th) 371, 311 C.C.C. (3d) 369,
356 B.C.A.C. 133, 610 W.A.C. 133, [2015] 4 W.W.R. 579, 66 M.V.R. (6th) 99,
[2014] B.C.J. No. 1055 (QL), 2014 CarswellBC 1453 (WL Can.), setting aside
a decision of Dley J., 2013 BCSC 1638, [2013] B.C.J. No. 1960 (QL),
2013 CarswellBC 2696 (WL Can.). Appeal dismissed.
Kyla
Lee and Paul Doroshenko, for the appellant.
Robert
Mullett and Tyna Mason, for the respondents.
The judgment of the Court was
delivered by
Moldaver J. —
I.
Overview
[1]
Impaired driving is a matter of grave public
concern in Canada. Over the years, various Criminal Code offences have
been enacted to deal with this problem. The provinces have also enacted
regulatory legislation in an attempt to curb the number of impaired drivers on
the road. Despite these measures, the problem of drunk driving persists,
resulting as it often does in lives lost and lives shattered.
[2]
This appeal concerns one of the mechanisms
British Columbia has instituted to address the problem: a regime in the Motor
Vehicle Act, R.S.B.C. 1996, c. 318 (“MVA”), known as the automatic
roadside driving prohibition scheme (“ARP regime” or “ARP scheme”). The ARP regime
at issue in this appeal is the successor to the regime at issue in the
companion case of Goodwin v. British Columbia (Superintendent of Motor
Vehicles), 2015 SCC 46, [2015] 3 S.C.R. 250. Although the ARP regime is a
provincial scheme, it is triggered by a roadside demand for a breath sample
under s. 254 of the Criminal Code, R.S.C. 1985, c. C-46 . Approved
screening devices (“ASDs”) are used to collect roadside samples. Under s.
215.41(3.1) of the MVA, when a driver registers a “Warn” or “Fail” on
the ASD, a peace officer must issue an immediate driving prohibition if the
officer “has reasonable grounds to believe, as a result of the analysis,
that the driver’s ability to drive is affected by alcohol”.
[3]
The interpretation of that provision is central
to this appeal. The question that arises is this: In assessing whether a peace
officer has the requisite grounds to believe that a driver’s ability to drive
is affected by alcohol, can the officer rely solely on the ASD result?
[4]
Mr. Wilson says no. He submits that to meet the
“reasonable belief” standard, the ASD result must be backed by other evidence
indicating that the driver’s ability to drive is affected by alcohol. This
could include evidence of erratic driving, or other indicators commonly
associated with impairment, such as slurred speech, glassy and bloodshot eyes,
unsteady gait, and so on.
[5]
The Superintendent of Motor Vehicles rejected
this argument and upheld a notice of driving prohibition (“Notice”) served on
Mr. Wilson. In his view, the ASD test result was sufficient, on its own, to
provide a peace officer with the grounds needed to issue a Notice. On judicial
review, the British Columbia Supreme Court set aside the Notice. On appeal from
that decision, the British Columbia Court of Appeal reinstated it.
[6]
Before this Court, Mr. Wilson contends that s.
215.41(3.1) is ambiguous, and that the adjudicator, a delegate of the
Superintendent of Motor Vehicles, erred in failing to consider Canadian Charter
of Rights and Freedoms values to resolve the ambiguity. According to Mr.
Wilson, this rendered his decision unreasonable. With respect, I disagree. The
provision is not ambiguous, and the adjudicator’s interpretation was the only
reasonable one. Accordingly, I would dismiss the appeal.
II.
Facts
A.
British Columbia’s Automatic Roadside
Prohibition Regime
[7]
Since the 1960s, British Columbia has sought to
address the problem of impaired driving through regulatory legislation enabling
peace officers to issue roadside driving prohibitions: see the Motor-vehicle
Act Amendment Act, 1966, S.B.C. 1966, c. 30, s. 34. In 2010, the
province expanded the powers of peace officers to issue such driving
prohibitions: Motor Vehicle Amendment Act, 2010, S.B.C. 2010, c. 14, s.
19. The constitutionality of the 2010 regime is at issue in the companion case
of Goodwin. The present appeal concerns an amended version of the
2010 regime: Motor Vehicle Amendment Act, 2012, S.B.C. 2012, c. 26. It
raises no constitutional challenge.
[8]
The amended ARP scheme is dependent upon, and is
only triggered by, a roadside demand for a breath sample made under s. 254 of
the Criminal Code . Under the ARP scheme, when a driver registers a “Warn”
or “Fail” on the ASD, the peace officer must issue a Notice, provided he or she
has reasonable grounds to believe, as a result of the analysis, that the
driver’s ability to drive is affected by alcohol. A driving prohibition must
also be issued to individuals who fail or refuse to comply with a demand for a
breath sample without reasonable excuse.
[9]
Drivers who blow a “Warn” — when the ASD
registers a blood alcohol concentration of 50 milligrams of alcohol in 100
millilitres of blood (“50 mg%”) or higher — receive a Notice prohibiting them
from driving for 3, 7, or 30 days, depending on their driving history: MVA,
s. 215.43(1). There is a corresponding fine of $200, $300, or $400,
respectively: Motor Vehicle Act Regulations, B.C. Reg. 26/58, s. 43.09.
Drivers who blow a “Fail” — when the ASD registers a blood alcohol
concentration of 80 milligrams of alcohol in 100 millilitres of blood (“80
mg%”) or higher — and drivers who refuse or fail to provide a breath sample
receive a Notice prohibiting them from driving for 90 days and a $500 fine: MVA,
s. 215.43(2.1); Motor Vehicle Act Regulations, s. 43.09. Drivers who
receive either a 30- or 90-day driving prohibition are subject to a mandatory
30-day vehicle impoundment: MVA, ss. 215.46(2) and 253(7). At the peace
officer’s discretion, drivers who are served with a 3- or 7-day driving
prohibition may also have their vehicle impounded for the duration of their
driving prohibition: MVA, ss. 215.46(1) and 253(6). Drivers may also be
subjected to a variety of other consequences, including enrollment in a
remedial program and the imposition of an ignition interlock device: MVA,
ss. 215.45 and 25.1(1). Drivers are required to bear the costs of these
programs, and must pay a fee to have their licence reinstated and their vehicle
released if it has been impounded.
[10]
An individual who has been issued a Notice may
apply to the Superintendent of Motor Vehicles for review. However, the review
is limited and the Superintendent may only revoke a Notice under certain
grounds prescribed in s. 215.5 of the MVA. For an individual who has
blown a “Warn” or “Fail”, the factors the Superintendent is to consider are:
•
Whether the person was a “driver” within the
statutory meaning;
•
Whether the person was advised of his or her
right to a second ASD analysis and provided with a second analysis (if
requested);
•
Whether the second analysis, if requested, was performed
with a different ASD machine;
•
Whether the Notice was served on the basis of
the lower of the two analysis results;
•
Whether the ASD registered a “Warn” as a result
of the driver’s blood alcohol concentration being at least 50 mg% or the ASD
registered a “Fail” as a result of the driver’s blood alcohol concentration
being at least 80 mg%;
•
Whether the result of the analysis was reliable;
and
•
In the case of a 7-day prohibition, whether it
was the driver’s second prohibition, and in the case of a 30-day prohibition,
whether it was the driver’s third or subsequent prohibition.
B.
Mr. Wilson’s Driving Prohibition and Application
for Review
[11]
On September 19, 2012, at 10:40 p.m., Mr. Wilson
was stopped at a police road check near Coombs, British Columbia. The peace
officer conducting the road check noticed an odour of alcohol on Mr. Wilson’s
breath. Upon being questioned, Mr. Wilson admitted to having consumed four
beers hours earlier. Mr. Wilson then provided samples of his breath into two
different ASDs — the first at 10:41 p.m. and the second at 10:46 p.m. Both
devices registered a “Warn” reading. Consequently, the peace officer served Mr.
Wilson with a Notice, prohibiting him from driving for a period of three days,
under s. 215.41(3.1) of the MVA.
[12]
Mr. Wilson applied to the Superintendent of
Motor Vehicles for a review, seeking to have the Notice revoked. He argued that
the officer lacked reasonable grounds to believe that his ability to drive was
affected by alcohol. According to Mr. Wilson, the ASD result alone could not
provide the officer with the reasonable grounds required by s. 215.41(3.1) of
the MVA: the officer was also required to point to other confirmatory
evidence indicating that his ability to drive was affected by alcohol. The
relevant provision of the MVA reads:
215.41 . . . .
(3.1)
If, at any time or place on a highway or industrial
road,
(a) a peace officer makes a demand
to a driver under the Criminal Code to provide a sample of breath for analysis
by means of an approved screening device and the approved screening device
registers a warn or a fail, and
(b) the peace officer has reasonable
grounds to believe, as a result of the analysis, that the driver’s ability to
drive is affected by alcohol,
the
peace officer, or another peace officer, must,
(c) if the driver holds a valid
licence or permit issued under this Act, or a document issued in another
jurisdiction that allows the driver to operate a motor vehicle, take possession
of the driver’s licence, permit or document if the driver has it in his or her
possession, and
(d) subject
to section 215.42, serve on the driver a notice of driving prohibition.
[13]
Adjudicator Hughes rejected Mr. Wilson’s
argument and held that the “Warn” result, standing alone, provided the officer
with the grounds he needed to issue a Notice. He therefore confirmed Mr.
Wilson’s driving prohibition.
III.
Judicial History
A.
British Columbia Supreme Court (Dley J.), 2013
BCSC 1638
[14]
Mr. Wilson applied to the British Columbia
Supreme Court for judicial review. The reviewing judge noted that s.
215.41(3.1)(b) of the MVA requires a peace officer to believe, as
a result of the analysis, that the driver’s ability to drive is affected by
alcohol (para. 20). In his view, if it was the legislature’s intent that a
Notice be issued solely on the basis of an ASD reading, it would not have
included this requirement. He therefore held that on a plain reading of the
legislation, additional confirmatory evidence was required before a Notice
could be issued. It followed that the adjudicator’s interpretation of s.
215.41(3.1) was unreasonable. As there was no confirmatory evidence indicating
that Mr. Wilson’s ability to drive was affected by alcohol, the reviewing judge
set aside the Notice.
B.
British Columbia Court of Appeal (Saunders,
Levine and Harris JJ.A.), 2014 BCCA 202, 60 B.C.L.R. (5th) 371
[15]
The Superintendent appealed to the British
Columbia Court of Appeal. Writing for a unanimous court, Harris J.A. considered
the text, context, and purpose of the MVA, and concluded that the adjudicator’s
interpretation was reasonable. In his view, it better fulfilled the legislative
purpose than did Mr. Wilson’s interpretation (para. 33). He therefore
reinstated the Notice.
IV.
Issue
[16]
The only issue on appeal is whether the adjudicator’s
interpretation of s. 215.41(3.1) of the MVA was reasonable. That is a
matter of statutory interpretation. Mr. Wilson does not challenge the
constitutionality of the provision.
V.
Analysis
[17]
An administrative decision maker’s
interpretation of his or her home statute is presumptively owed deference: McLean
v. British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R.
895, at para. 21; Alberta (Information and Privacy Commissioner) v. Alberta
Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654, at para. 34; Dunsmuir
v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 54. The parties
acknowledge, correctly in my view, that reasonableness is the applicable
standard of review.
[18]
When assessing the reasonableness of an
administrative decision maker’s interpretation, Driedger’s modern rule of
statutory interpretation provides helpful guidance:
Today there is only one principle or approach, namely, the
words of an Act are to be read in their entire context and in their grammatical
and ordinary sense harmoniously with the scheme of the Act, the object of the
Act, and the intention of Parliament.
(E. A.
Driedger, Construction of Statutes (2nd ed. 1983), at p. 87)
[19]
These principles must be kept in mind when
analyzing the reasonableness of the adjudicator’s interpretation. For
convenience, I repeat the relevant portion of s. 215.41(3.1):
(3.1) If, at any time or place on a highway or industrial road,
(a) a peace officer makes a demand
to a driver under the Criminal Code to provide a sample of breath for analysis
by means of an approved screening device and the approved screening device registers
a warn or a fail, and
(b) the
peace officer has reasonable grounds to believe, as a result of the analysis,
that the driver’s ability to drive is affected by alcohol,
[20]
Mr. Wilson has the burden of demonstrating that
the adjudicator’s interpretation was unreasonable: McLean, at para. 41.
While he advances various arguments in an attempt to meet this burden, in the
end, his case rests on the premise that s. 215.41(3.1) of the MVA is
ambiguous and that Charter values must be applied to resolve the ambiguity:
Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R.
559, at para. 28. And because the adjudicator did not take Charter
values into account, his decision must, for that reason, be set aside as
unreasonable.
[21]
Before considering the merits of Mr. Wilson’s
argument, I feel obliged to point out, in fairness to the adjudicator, that he
was not asked to consider Charter values as an interpretive tool; nor,
indeed, was the reviewing judge. The ambiguity claim was made for the first
time in the Court of Appeal — and then, only in passing. This may explain why
the Court of Appeal did not explicitly address it in its reasons, although I
believe it did so implicitly.
[22]
It is settled law that a genuine ambiguity only
exists when there are “two or more plausible readings, each equally in
accordance with the intentions of the statute”: CanadianOxy Chemicals Ltd.
v. Canada (Attorney General), [1999] 1 S.C.R. 743, at para. 14; Bell
ExpressVu, at paras. 29-30. In stating that the adjudicator’s interpretation
better fulfilled the legislative purpose than did Mr. Wilson’s interpretation,
this could be taken to mean that the Court of Appeal did not consider the
provision to be ambiguous (para. 33).
[23]
Be that as it may, Mr. Wilson maintains that s.
215.41(3.1) is ambiguous and that Charter values must be applied to
discern the legislature’s true intent. In support of his position, he
emphasizes that the Criminal Code roadside screening regime passes
constitutional muster because it contains various safeguards designed to
protect the ss. 8 and 10 (b) Charter rights of drivers —
safeguards that do not exist under the ARP regime. In particular, he points to
the following features of the Criminal Code regime:
•
A driver may challenge whether the police had
the “reasonable suspicion” necessary to make a demand;
•
The test must be conducted forthwith; and
•
The ASD results cannot be used as evidence in a
criminal trial to prove either impairment or the driver’s blood alcohol level.
[24]
Mr. Wilson submits that because the ARP scheme
is triggered by a roadside demand for a breath sample under the Criminal
Code , it must be interpreted in a way that is consistent with
the Code’s protections. To that end, he contends that the
“reasonable grounds to believe” requirement must be given a robust
interpretation — it cannot be satisfied by the ASD result alone. Other
confirmatory evidence is required. Mr. Wilson insists that unless his
interpretation is adopted, the ARP scheme will be out of sync with Charter values
because it does not approximate the protections associated with ASD testing
under the Criminal Code .
[25]
With respect, Mr. Wilson’s argument must fail.
It suffers from a fatal flaw — s. 215.41(3.1) is not ambiguous. As I observed
earlier, at para. 22, a genuine ambiguity exists only when there are two or
more plausible readings, each equally in accordance with the intentions of the
statute. Section 215.41(3.1) does not meet that test. Indeed, in my view, it
does not even give rise to two plausible readings, let alone two such readings
that are equally in accordance with the intentions of the statute. Rather, as I
will explain, when read in light of its text, context, and legislative
objective, it admits of only one reasonable interpretation — the one arrived at
by the adjudicator. Charter values may not be used “to create ambiguity
when none exists”: R. v. Clarke, 2014 SCC 28, [2014] 1 S.C.R. 612, at
para. 1. Consequently, they have no role to play as an interpretive tool in
this case: Charlebois v. Saint John (City), 2005 SCC 74, [2005] 3 S.C.R.
563, at paras. 23-24; Bell ExpressVu, at para. 62. That being so, in the
circumstances, I need not decide whether Mr. Wilson’s argument would
necessarily have succeeded had I found s. 215.41(3.1) to be ambiguous.
A.
Text
[26]
The plain meaning of s. 215.41(3.1) supports the
adjudicator’s interpretation. It explicitly links the officer’s belief to the
result of the ASD analysis. The provision states that the peace officer must
have reasonable grounds to believe, as a result of the analysis, that
the driver’s ability to drive is affected by alcohol. The wording could not be
clearer. The ASD analysis is the yardstick against which to measure the
reasonableness of the officer’s belief.
[27]
Mr. Wilson submits that the officer’s belief
must be based not only on the ASD result, but also on confirmatory evidence
showing that the driver’s ability to drive is affected by alcohol. I would
reject this interpretation. It is not supported by the text of the provision,
and it requires the court to read in words that are simply not there. This
Court has cautioned against judicial rewriting of legislation under the guise
of interpreting it:
. . . the contextual approach allows the courts to depart
from the common grammatical meaning of words where this is required by a
particular context, but it does not generally mandate the courts to read words
into a statutory provision. It is only when words are “reasonably capable of
bearing” a particular meaning that they may be interpreted contextually. . . .
. . .
The Crown is asking this Court to
read words into s. 34(2) which are simply not there. In my view, to do so would
be tantamount to amending s. 34(2), which is a legislative and not a judicial
function. [First emphasis in original; second
emphasis added.]
(R. v. McIntosh, [1995] 1 S.C.R. 686,
at p. 701; cited with approval in Bristol-Myers Squibb Co. v. Canada
(Attorney General), 2005 SCC 26, [2005] 1 S.C.R. 533, at para. 174. See also R. v. Hinchey, [1996] 3 S.C.R. 1128, at paras. 8-9
and 36; Canada (Information Commissioner) v. Canada (Minister of National
Defence), 2011 SCC 25, [2011] 2 S.C.R. 306, at para. 40.)
[28]
Mr. Wilson further submits that the adjudicator’s
interpretation gives no meaning to s. 215.41(3.1)(b). He points out that the
provision uses mandatory language requiring peace officers to issue a Notice
when there are reasonable grounds to believe an individual’s ability to drive
is affected by alcohol. He argues that if a “Warn” or a “Fail” result
constitutes reasonable grounds on its own, para. (b) is superfluous: the
legislature could have simply stated that the officer must issue a Notice on
the basis of a “Warn” or “Fail” result. For that reason, he contends that the
wording of the statute must require something more than merely the ASD result.
[29]
In my view, both the Court of Appeal and the
Crown respondent provide a convincing answer to this argument. As they point
out, there can be situations in which a driver blows a “Warn” or “Fail”, but
the officer has reason to doubt the accuracy of the result. Two examples come
to mind:
•
The officer has reason to doubt that the ASD
device functioned properly.
•
The officer has reason to doubt that the sample
was taken properly (i.e., in accordance with the procedures for obtaining
reliable readings from ASD devices).
The inclusion of the
phrase “as a result of the analysis” precludes an officer from issuing a Notice
in such situations. The officer must have an honest belief in the accuracy of
the ASD result. Only then will he or she have reasonable grounds to believe “as
a result of the analysis” that the individual’s ability to drive is affected by
alcohol. This interpretation gives meaning to the words used in the statute; it
does not read in wording that introduces a new dimension to the provision, as
Mr. Wilson would have it.
B.
Context
[30]
The context of the statutory scheme also
indicates that the adjudicator’s interpretation is reasonable. His interpretation
is consistent with the grounds on which the Superintendent may review a peace
officer’s decision to issue a Notice: MVA, s. 215.5(1). The
grounds for review are limited. As described in para. 10, they include whether
the driver was advised of his or her right to a second analysis, whether the
second analysis was performed on a different machine, whether the ASD
accurately registered a “Warn” or “Fail”, and whether the ASD result was
reliable. In short, the grounds of review focus primarily on the manner in
which the ASD test was administered and the reliability of the results. Nothing
suggests that the Superintendent may revoke a Notice if a peace officer does
not point to other confirmatory evidence. This indicates that the legislature
did not intend to require other confirmatory evidence as a precondition to
issuing a Notice, and in turn, supports the reasonableness of the adjudicator’s
interpretation.
[31]
Mr. Wilson makes one final argument about
context. He asserts that because the ARP scheme is triggered by a Criminal
Code demand for a breath sample, it is subsidiary legislation and therefore
must incorporate the protections that are present under the Code. He
insists that by departing from these protections, the adjudicator’s
interpretation ignores the link between the two statutes.
[32]
This argument can be disposed of summarily. The MVA
and the Code are two independent statutes, with two distinct
purposes. They were enacted by two different levels of government, neither of
which is subordinate to the other: Reference re Securities Act, 2011 SCC
66, [2011] 3 S.C.R. 837, at para. 71. Under the MVA, the demand for a
breath sample triggers a regulatory regime that is wholly independent of the Criminal
Code . The fact that the MVA relies on a Criminal Code demand
for a breath sample does not render it subsidiary legislation.
[33]
In addition, it has long been recognized that
regulatory legislation, such as the MVA, differs from criminal
legislation in the way it balances individual liberties against the protection
of the public. Under regulatory legislation, the public good often takes on
greater weight. In R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R.
154, at p. 219, this Court held that
[r]egulatory legislation involves a
shift of emphasis from the protection of individual interests and the
deterrence and punishment of acts involving moral fault to the protection of
public and societal interests. While criminal offences are usually designed to
condemn and punish past, inherently wrongful conduct, regulatory measures are
generally directed to the prevention of future harm through the enforcement of
minimum standards of conduct and care.
[34]
These comments are particularly apt in the case
of regulatory legislation involving roadside driving prohibitions: R. v. Gordon,
2002 BCCA 224, 100 B.C.L.R. (3d) 35, at paras. 26-27. Roadside driving
prohibitions are a tool to promote public safety. As such, the legislation
necessarily places greater weight on this goal. Unlike the criminal law regime,
persons who register a “Warn” or “Fail” under the regulatory regime do not end
up with a criminal record, nor are they exposed to the more onerous sanctions under
the criminal law, including the risk of incarceration. In short, regulatory
legislation does not share the same purpose as the criminal law, and it would
be a mistake to interpret it as though it did. I therefore reject Mr. Wilson’s
contention that the ARP scheme must incorporate the same protections as those
provided under the Criminal Code regime.
[35]
In sum, the adjudicator’s interpretation of s.
215.41(3.1) is consistent with the statutory context, and Mr. Wilson’s is not.
C.
Legislative Objective
[36]
The adjudicator’s decision is also consistent
with the legislative objective. Roadside driving prohibitions serve a pressing
public safety purpose. As Cory J. said in R. v. Bernshaw, [1995] 1
S.C.R. 254, at para. 16:
Every
year, drunk driving leaves a terrible trail of death, injury, heartbreak and
destruction. From the point of view of numbers alone, it has a far greater
impact on Canadian society than any other crime. In terms of the deaths and
serious injuries resulting in hospitalization, drunk driving is clearly the
crime which causes the most significant social loss to the country.
[37]
Roadside driving prohibitions are an important
tool for confronting and reducing the devastating effects of impaired driving.
Courts have repeatedly held that driving prohibitions serve the twin purposes
of increasing highway safety and deterring impaired driving: Sivia v.
British Columbia (Superintendent of Motor Vehicles), 2014 BCCA 79, 307
C.C.C. (3d) 77, at para. 104; Gordon, at paras. 25-27; Buhlers v. British
Columbia (Superintendent of Motor Vehicles), 1999 BCCA 114, 170 D.L.R.
(4th) 344, at paras. 28-29.
[38]
The ARP regime in question is no exception. When
its predecessor was introduced in 2010, Minister de Jong confirmed that the
objective of the scheme was to improve highway safety and to deter impaired
driving:
Bill
14 [the Motor Vehicle Amendment Act, 2010] fulfils a throne speech
commitment to introduce significant changes to reduce impaired driving and
dangerous driving and improve public safety on our highways.
The
amendments will address impaired driving by focusing on intervention and
deterrence. . . .
Of late we are sadly seeing an
escalation in incidents of impaired driving and all of the resulting tragedy
that flows from that. The amendments . . . will give police more tools at
the roadside to remove impaired and dangerous drivers from the road as a means
of reducing the body count on B.C.’s highways. [Emphasis added.]
(British Columbia, Legislative Assembly, Official
Report of Debates of the Legislative Assembly (Hansard), vol. 16, No. 1, 2nd
Sess., 39th Parl., April 27, 2010, at p. 4871)
[39]
When the amended regime came into force in 2012,
Minister Bond emphasized that the legislature had not wavered from these goals:
In September
2010, with the support of this House, we introduced new sanctions for impaired
driving. We set a goal to reduce impaired driving fatalities by 35 percent by
the end of 2013 . . . .
After just one year we saw a 40 percent drop in
alcohol-related deaths on British Columbia’s highways, and 45 people are alive
today because this House was bold in the attempt to change the way we tackle
drinking and driving. . . .
. . .
. . . Our goal is to protect
this important law that has shown great success in deterring drinking and
driving and in saving lives in our province. [Emphasis added.]
(British Columbia, Legislative Assembly, Official
Report of Debates of the Legislative Assembly (Hansard), vol. 36, No. 7, 4th
Sess., 39th Parl., May 3, 2012, at pp. 11492-93)
[40]
Allowing the police to rely on ASD test results
is critical to the fulfilment of these objectives. ASD testing provides an
immediate, efficient tool for assessing whether an individual’s ability to
drive is affected by alcohol. As the Court of Appeal noted, at para. 33,
scientific evidence shows that at 50 mg% — the level needed to register a “Warn”
— driving skills are significantly impaired and the likelihood of being
involved in a collision is markedly elevated. Evidence also shows that it is
extremely difficult to identify drivers who have been drinking by observation
alone: Sivia, at para. 100. These are the concerns that the ARP scheme
is designed to address. It establishes a common standard for removing drivers
from the road who pose an elevated risk to others. It also serves to deter
drunk driving.
[41]
In sum, the adjudicator’s interpretation is
consistent with the legislative objectives of the ARP scheme, and Mr. Wilson’s
is not.
D.
Conclusion on the Interpretation of Section
215.41(3.1)
[42]
The adjudicator’s interpretation is consistent
with the text, context, and legislative objectives of the ARP scheme. Mr.
Wilson’s interpretation is not. The provision is unambiguous. The adjudicator’s
interpretation is the only plausible one.
VI.
Disposition
[43]
For these reasons, I would dismiss the appeal.
Appeal
dismissed.
Solicitors for the
appellant: Acumen Law Corporation, Vancouver.
Solicitor for the
respondents: Attorney General of British Columbia, Victoria.