Sahaluk v. Alberta (Transportation Safety Board), 2013 ABQB 107

Court of Queen ’ s Bench of Alberta Citation: Sahaluk v. Alberta (Transportation Safety Board), 2013 ABQB 107 Date: 20130219 Docket: 1201 15068; 1301 00437; 1301 00416; 1201 15148 Registry: Calgary Docket: 1201 15068 Between: Daniel Lee Sahaluk Applicant - and - Alberta Transportation Safety Board, The Attorney General of Alberta and The Registrar of Motor Vehicles Services Respondents Docket: 1301 00437 and Between: Darren Robert Davidson Applicant - and -

Alberta Transportation Safety Board, The Attorney General of Alberta and The Registrar of Motor Vehicles Services Respondents Docket: 1301 00416 and Between: Tyanna Chantelle Jackson Applicant - and - Alberta Transportation Safety Board, The Attorney General of Alberta and The Registrar of Motor Vehicles Services Respondents Docket: 1201 15148 and Between: Mark Wayne O ’ Shea Applicant - and -

Alberta Transportation Safety Board, The Attorney General of Alberta and The Registrar of Motor Vehicles Services Respondents _______________________________________________________ Reasons for Judgment of the Honourable Chief Justice Neil Wittmann _______________________________________________________ [ 1 ] The Applicants Daniel Sahaluk, Darren Davidson and Tyanna Jackson seek stays of administrative licence suspensions imposed upon them pursuant to s. 88.1 of the Traffic Safety Act , R.S.A. 2000, c.T-6 (“ TSA ”). The Applicant O’Shea sought similar relief.

All of the Applicants have been charged with some, one or more of having care or control of a motor vehicle while impaired, or while exceeding .08, or failing or refusing to comply with a peace officer’s demand to provide a breath sample contrary to ss. 253(1) (a), 253(1) (b), 254(2) (

b) or 254(5) of the Criminal Code . Consequently, the Applicants were subject to the alcohol-related administrative licence suspension under s. 88.1 of the TSA . The Applicants have brought applications for judicial review of the decisions of the Alberta Transportation Safety Board (“TSB”), the body which imposed the licence suspensions. 1. Facts Tyanna Jackson [ 2 ] On the night of July 6, 2012, Tyanna Jackson was visiting a friend’s apartment in Edmonton, and in the course of the evening consumed alcohol. At the time, Ms.

Jackson lived with her boyfriend and, because the issues in the relationship were exacerbated when either Ms. Jackson or her boyfriend were drinking, she elected to spend the night in her car rather than take the short cab ride home, hoping that her boyfriend would no longer be there when she arrived the next morning. When the peace officer found her, Ms. Jackson was asleep in her vehicle, in the driver’s seat reclined as far as possible, the steering wheel raised. Her key was in the ignition and turned to the accessory position to play music. The engine was not running and the vehicle’s transmission was in park.

In her affidavit, Ms. Jackson states that at no time did she intend to operate her vehicle or set it in motion. At all times it was her intention to sleep. Ms. Jackson was charged with one count of unlawful care or control of a motor vehicle with a blood alcohol concentration of over 80 MGS% alcohol, contrary to s. 253(1) (

b) of the Criminal Code . [ 3 ] Embarrassed by her situation, Ms. Jackson had difficulty returning to her job as a Level II Child and Youth Care Worker following the charge and her licence suspension, and because her responsibilities included picking up and dropping off children who did not have access to transportation, she was uncertain that she would even be able to continue her employment. Ms. Jackson did not return to work in the wake of the suspension and was ultimately terminated. By the end of July, 2012 she had returned to Goodfish Lake, Alberta to stay with her mother.

Though she was served with a Notice of Suspension form, which informs drivers of their right to appeal the licence suspension and describes the appeal process, by the time she consulted a lawyer she had missed the appeal period. Ms. Jackson’s trial is scheduled for July 23, 2013. By that time, her licence will have been suspended for more than one year.

[ 4 ] Ms. Jackson has no savings, and no other financial resources. Her family is unable to assist her financially. Though she has had an offer of employment as a Child and Youth Care Worker since returning to Goodfish Lake, the job site is located 40 minutes away from her home. She has been advised on another position that may become available in the near future, but it will require a valid driver’s licence. Ms. Jackson had hoped to complete the final year of a Bachelor of Arts program at the University of Alberta, but the suspension has negatively affected her financial situation and employment prospects.

Darren Davidson [ 5 ] On August 17, 2012, after attending a concert at Rexall Place in Edmonton and consuming alcohol, Mr. Davidson took the LRT to the Century Park station, where he had parked his car. The peace officer found Mr. Davidson in his car, his seat in the reclined position, the transmission in park, but the vehicle running. Mr. Davidson said that he had no intention to drive but had started the car in order to run the air conditioning. He was charged with one count of unlawful care or control of a motor vehicle while impaired contrary to s. 253(1) (

a) of the Criminal Code , and one count of unlawful care or control of a motor vehicle with a blood alcohol concentration of over 80 MGS% alcohol contrary to s. 253(1)(

b) of the Criminal Code . [ 6 ] Mr. Davidson lives outside of Stony Plain, Alberta, approximately 50 kilometres southwest of his place of employment. Since his licence suspension he relies upon his mother for transportation. Mr. Davidson’s mother has had to move in with him in order to drive him to and from work each day, and to drive him to visit his children. There have been times that Mr. Davidson has been unable to arrange transportation with his mother and has had to hitchhike or walk a portion of his commute. Though occasionally required to operate a vehicle as a part of his employment, Mr.

Davidson has not been asked to do so since his suspension. He does not know what impact the suspension will ultimately have on his employment, though prior to his suspension Mr. Davidson held both Class 1 and 6 Operators Licences and he says that he used these qualifications to supplement his income by driving professionally. He is no longer able to do so. [ 7 ] Mr. Davidson appealed his suspension to the TSB on August 28, 2012 and an oral hearing took place on September 13, 2012. In written reasons dated November 28, 2012, the TSB denied his appeal. Mr. Davidson’s trial is scheduled for June 19, 2013.

By that time, his licence will have been suspended for more than 10 months. Daniel Sahaluk [ 8 ] Mr. Sahaluk is a comedian who earns his living performing at comedy clubs across western Canada. On September 6, 2012 he was pulled over at a check stop in Calgary. Mr. Sahaluk says that he has a reduced lung capacity as a result of a pneumothorax and when asked to provide a breath sample, says he was unable to comply. He says that he offered to give a blood sample but this offer was refused. Mr.

Sahaluk was charged with one count of failing or refusing to comply with a peace officer’s demand to provide a breath sample contrary to s. 254(2) (

b) and s. 254(5) of the Criminal Code . [ 9 ] Since the date of his licence suspension, Mr. Sahaluk has been forced to turn down at least seven job offers because of his inability to travel. He says that the associated stress has resulted in hospitalization. Mr. Sahaluk’s appeal of his licence suspension was heard by the TSB on October 30, 2012 and written reasons denying his appeal were issued on December 11, 2012. Mr. Sahaluk’s trial is scheduled for May, 24, 2013, by which time his licence will have been suspended for nearly 9 months.

Mark Wayne O ’Shea [ 10 ] On the evening of September 9, 2012, after hosting friends at his home, Mr. O’Shea entered his vehicle, which was parked in his own driveway. He was there to smoke a cigarette because his son, who suffers from asthma, was visiting that weekend and Mr. O’Shea would not smoke in the house. Once inside his vehicle he started the car in order to turn on the heat and the stereo and rolled down the windows. Mr. O’Shea had no intention of setting the vehicle in motion and he fell asleep in the car.

The peace officers who attended at the residence that night were under the erroneous impression that Mr. O’Shea was in breach of an Emergency Protection Order, and he was charged with a breach of that Order, as well as one count of unlawful care or control of a motor vehicle while impaired contrary to s. 253(1) (

a) of the Criminal Code , and one count of unlawful care or control of a motor vehicle with a blood alcohol concentration of over 80 MGS% alcohol contrary to s. 253(1) (b).

[ 11 ] Mr. O’Shea is employed as a car salesman, and the licence suspension affected his work, He was not able to drive customers in vehicles, or move vehicles around the lot. He found it difficult to spend time with his son during the week. [ 12 ] Mr. O’Shea’s appeal of his licence suspension to the TSB was denied on November 9, 2012. Mr. O’Shea’s criminal charge was set for trial in the Provincial Court of Alberta on January 3, 2013. On that morning, after serving a nearly four-month suspension of his driver’s licence, the charges against him with withdrawn by the Crown. He remains an Applicant, but his application for a stay is moot. 2. Legislation [ 13 ]

Section 88.1 of the TSA provides: 88.1(1) In this section, (a) “notice of disqualification” means a notice of disqualification served under subsection (2); (b) “notice of suspension” means a notice of suspension served under subsection (2).

(2) Where (

a) a peace officer has charged a person with an offence under

section 253, subsection 254(5) or

section 255 of the Criminal Code (Canada), the peace officer shall, on behalf of the Registrar, (

b) in the case of a person who holds an operator’s licence, (

i) require that person to surrender to the peace officer that person’s operator’s licence, and (ii) serve on that person a notice of suspension of that person’s operator’s licence; (

c) in the case of a person who holds a licence or permit issued in another jurisdiction that permits the person to operate a motor vehicle, serve on that person a notice of disqualification (

i) disqualifying that person from operating a motor vehicle in Alberta, and (ii) disqualifying that person from applying for or holding an operator’s licence; (

d) in the case of a person who does not hold an operator’s licence, serve on that person a notice of disqualification disqualifying that person from applying for or holding an operator’s licence.

(3) Where (

a) a person’s operator’s licence is surrendered under subsection (2)(b), that person is immediately disqualified from driving a motor

vehicle in Alberta and remains so disqualified until the disposition of the criminal charge referred to in subsection (2)(a); (

b) a notice of suspension is served on a person under subsection (2)(b), the suspension, with respect to the surrendered operator’s licence, takes effect immediately and remains in effect until the disposition of the criminal charge referred to in subsection (2)(a); (

c) a notice of disqualification is served on a person under subsection (2)(c), that person is immediately disqualified from driving a motor vehicle in Alberta, and the disqualification remains in effect until the disposition of the criminal charge referred to in subsection (2)(a); (

d) a notice of disqualification is served on a person under subsection (2)(d), the disqualification takes effect immediately on the service of the notice and remains in effect until the disposition of the criminal charge referred to in subsection (2)(a).

(4) Notwithstanding that a person refuses or fails (

a) to accept from a peace officer service of a notice of suspension or a notice of disqualification, that notice is deemed to have been served at the time that the peace officer attempted to serve that notice on that person; (

b) to surrender an operator’s licence, that refusal or failure does not prevent the suspension or disqualification from taking effect; (

c) to accept service of a notice of suspension or a notice of disqualification, that refusal or failure does not prevent the suspension or disqualification from taking effect. [ 14 ] Prior to the proclamation of the Traffic Safety Amendment Act, 2011 on June 25, 2012, the licence suspension scheme under the TSA was different. The former administrative licence suspension (“ALS”) scheme was provided for in a

Schedule to the Traffic Safety Act, S.A. 1999, c.T.-6.4. The triggering event for a suspension was not the laying of a criminal charge, but rather a peace officer having reasonable and probable grounds to believe that a person had engaged in “alcohol related driving”, defined so as to include care or control of a motor vehicle. If such a person has operated a motor vehicle when an analysis of breath or blood exceeded .08, or refused to comply with a demand under s. 254 of the Criminal Code , based on a belief held by a peace officer held on reasonable and probable grounds, a license suspension resulted.

Unlike the current alcohol-related administrative licence suspension (“ARALS”) scheme, the ALS licence suspension did not last until the disposition of the criminal charge. Instead, the driver’s licence was immediately suspended for a 3-month period (6 months in the event that the peace officer had reasonable and probable grounds to believe that the impaired driver had caused injury or death) and the peace officer would issue a temporary operator’s permit which would come into effect after 24 hours and would remain in effect for 21 days.

In short, with the proclamation of the Traffic Safety Amendment Act, 2011 , the 21-day temporary operator’s permit was eliminated, and the duration of licence suspensions was changed from 3 or 6 months, as the case may be, to an indefinite period until there is a disposition of the criminal charge. [ 15 ] Licence suspensions under s. 88.1 of the TSA may be appealed to the TSB pursuant to s. 39: 39(1) In this section, “peace officer” means peace officer as defined in

section 87.1.

(2) Where (

a) a person’s operator’s licence or temporary operator’s permit is suspended, or (

b) a person is disqualified from acquiring or holding an operator’s licence or from operating a motor vehicle a 2nd or subsequent time in a 10-year period under

section 88, the person may appeal that suspension or disqualification to the Board.

(3) In an appeal under this section, the Board shall consider (

a) any relevant sworn or solemnly affirmed statements and any other relevant information; (

b) the report of the peace officer; (b.1) the certificate of annual maintenance of the approved screening device issued immediately before the issuance of the notice of suspension or notice of disqualification under

section 88; (b.2) the records of the last calibration of the approved screening device immediately before the test administered under

section 88 (

c) repealed 2011 c22 s6 ; (

d) where an oral hearing is held, in addition to the matters referred to in clauses (a), (b), (b.1) and (b.2), any relevant evidence and information given or presentations made at the hearing.

(4) An appellant is not compelled to give evidence in an appeal under this section.

(5) If, after conducting an appeal under this section, the Board is satisfied that the person drove a motor vehicle having consumed alcohol in such a quantity that the concentration of alcohol in that person’s blood was equal to or exceeded 50 milligrams of alcohol in 100 millilitres of blood at any time within 3 hours after having driven a motor vehicle, the Board must confirm the suspension or disqualification.

(6) If, after conducting an appeal under this section, the Board is satisfied that the person did not drive a motor vehicle having consumed alcohol in such a quantity that the concentration of alcohol in that person’s blood was equal to or exceeded 50 milligrams of alcohol in 100 millilitres of blood at any time within 3 hours after having driven a motor vehicle, the Board must cancel the suspension or disqualification and direct the return to that person of any fees paid to the Government by that person in respect of the appeal conducted under this section. [ 16 ] Pursuant to s. 45 of the TSA , appeals may be commenced by filing a notice of appeal with the Board, together with a prescribed fee, and must be commenced within 30 days of the suspension.

The Board’s Rules allow for non-oral appeals, which require a written submission and the payment of a $125 fee, or oral appeals, which requires an appearance before the Board and the payment of a $250 fee. [ 17 ] In the event of a conviction under s. 253 or 254 of the Criminal Code , s. 259 imposes a prohibition against the operation of a motor vehicle. It provides: 259.

(1) When an offender is convicted of an offence committed under

section 253 or 254 or this

section or discharged under

section 730 of an offence committed under

section 253 and, at the time the offence was committed or, in the case of an offence committed under

section 254 , within the three hours preceding that time, was operating or had the care or control of a motor vehicle, vessel or aircraft or of railway equipment or was assisting in the operation of an aircraft or of railway equipment, the court that sentences the offender shall, in addition to any other punishment that may be imposed for that offence, make an order prohibiting the offender from operating a motor vehicle on any street, road, highway or other public place, or from operating a vessel or an aircraft or railway equipment, as the case may be,

(

a) for a first offence, during a period of not more than three years plus any period to which the offender is sentenced to imprisonment,and not less than one year; (

b) for a second offence, during a period of not more than five years plus any period to which the offender is sentenced to imprisonment,and not less than two years; and (

c) for each subsequent offence, during a period of not less than three years plus any period to which the offender is sentenced toimprisonment. Alcohol ignition interlock device program

(1.1) If the offender is registered in an alcohol ignition interlock device program established under the law of the province in which theoffender resides and complies with the conditions of the program, the offender may, subject to subsection (1.2), operate a motor vehicleequipped with an alcohol ignition interlock device during the prohibition period, unless the court orders otherwise. Minimum absolute prohibition period

(1.2) An offender who is registered in a program referred to in subsection (1.1) may not operate a motor vehicle equipped with analcohol ignition interlock device until (

a) the expiry of a period of (

i) for a first offence, 3 months after the day on which sentence is imposed, (ii) for a second offence, 6 months after the day on which sentence is imposed, and (iii) for each subsequent offence, 12 months after the day on which sentence is imposed; or (

b) the expiry of any period that may be fixed by order of the court that is greater than a period referred to in paragraph (a). 3. The Applications for Judicial Review [18] Ms. Jackson, Mr. Davidson and Mr. Sahaluk have brought applications for judicial review and declaratory relief. Theycontend that the decisions of the TSB denying their appeals (or, in Ms. Jackson’s case, the decision to issue the suspension) werepatently unreasonable.

They further argue that the operation of the ARALS regime under s. 88.1 of the TSA has deprived them of theirright to liberty and security of the person in a manner inconsistent with the principles of fundamental justice and has interfered with theirpsychological integrity and personal autonomy in violation of s. 7 of the Canadian Charter of Rights and Freedoms (“the Charter”); thats. 88.1 authorizes an unreasonable seizure of an individual’s breath sample in violation of s. 8 of the Charter; and that the operation of s.88.1 violates their right to be presumed innocent until proven guilty in accordance with s. 11(

d) of the Charter. They further contend thatthe pith and substance of s. 88.1 is criminal law or procedure and it is therefore ultra vires the Province of Alberta. 4. The Test for a Stay [19] The test for a stay where an enactment is the subject of a constitutional challenge is well known. The Applicants mustestablish that there is a serious question to be tried; that there will be irreparable harm to them in the event no stay is granted; and that thebalance of convenience favours the granting of the stay: R.J.R.-MacDonald Inc. v. Canada (A.G.), (SCC), [1994] 1S.C.R. 311, at paras. 78-80.

The public interest is a special factor that must form part of the consideration at the second and third stages

of the test. Serious Question [20] The constitutionality of the ALS scheme prior to the proclamation of the Traffic Safety Amendment Act, 2011 on June 25,2012 was considered by the Alberta Court of Appeal in Gonzalez v. Alberta (Driver Control Board), 2003 ABCA 256. At para. 15,Paperny J.A. concluded that “driving a motor vehicle is not a liberty interest protected by s. 7.” At paras. 16-32 she considered the viresof the legislative scheme, ultimately concluding that licence suspension is a civil, not criminal consequence of impaired driving withinthe authority of the Province. At para. 37 Paperny J.A. concluded that s. 11(

d) does not apply to a hearing before the Board because, “Adriver subject to a suspension under the ALS program is not charged with a criminal or quasi-criminal offence; a driver faces awithdrawal of a privilege, not a punitive sanction; cannot be compelled to give evidence; and is not, at the end of the day, found guilty ofan offence.” [21] It is the position of the Attorney General that the decision of the Alberta Court of Appeal in Gonzalez has effectively settledthe constitutional arguments now put forward by the Applicants.

The Attorney General says that unless the new licence suspensionscheme that came into force on June 25, 2012 is different from the old, in ways that are germane to the constitutional analysis inGonzalez, there is no serious issue to be tried. [22] The Applicants contend that the present regime is distinguishable from the one before the Court of Appeal in Gonzalez inseveral significant ways.

First, the administrative suspension imposed under s. 88.1 is now contingent upon Criminal Code charges beinglaid; second, the duration of the suspension is expressly dependant upon the disposition of the criminal charges; and third, the 21-daytemporary licence is no longer available. The Applicants argue that these changes represent steps toward wedding the licence suspensionto the criminal process and are motivated, not by a concern for public safety, but are rather intended to impose a penalty and to encourageaccused persons to plead guilty.

They further contend that there are serious issues with the ARALS regime on Charter grounds. Theycontend that the impugned provisions breach s. 8, s. 11(

d) and s. 7 of the Charter. [23] Before considering the Applicants’ division of powers and Charter arguments, it is helpful to consider the jurisprudenceregarding the determination of whether there is a serious question to be tried, in circumstances where the Applicant is seeking to stay theenforcement of a public enactment. In R.J.R., the appropriate standard was described at para. 78: Whether the test has been satisfied should be determined by a motions judge on the basis of common sense and an extremely limitedreview of the case on the merits...

A motions court should only go beyond a preliminary investigation of the merits when the result ofthe interlocutory motion will in effect amount to a final determination of the action, or when the constitutionality of a challenged statutecan be determined as a pure question of law. Instances of this sort will be exceedingly rare.

Unless the case on the merits is frivolous orvexatious, or the constitutionality of the statute is a pure question of law, a judge on a motion for relief must, as a general rule, considerthe second and third stages of the Metropolitan Stores test. [24] This is a relatively low standard, and requires the Court to determine whether the Applicants’ case is frivolous or vexatious.

A) Division of Powers [25] Resolving the question of whether the ARALS regime falls outside the scope of the jurisdiction of the Province of Albertarequires the Court to apply the two-stage analysis set out by the Supreme Court of Canada in Reference re Firearms Act (Canada), 2000SCC 31 , [2000] 1 S.C.R. 783.

The Court must first determine the “pith and substance” of the law by examining its purpose andeffects; the Court must then must classify the essential character of the legislation by reference to the heads of power under theConstitution Act, 1867. [26] The question before me, in the context of this application for a stay, is not whether the ARALS regime is intra vires theProvince of Alberta, it is whether the vires of the regime constitutes a serious issue to be tried.

The Applicants concede that regulatingthe issuance, suspension and cancellation of drivers’ licences is within the competence of the Province of Alberta, and recognize that theALS regime was found to be intra vires the Province in Gonzalez. They emphasize, however, the several ways in which the ARALS

regime is different from the ALS. The Respondents acknowledge that the ARALS regime is different from the ALS, but contend that thechanges made by the Traffic Safety Amendment Act, 2011 do not affect the pith and substance of the legislation, which is the reduction ofimpaired driving through the regulation of driving privileges, a valid provincial concern. [27] I disagree with the Attorney-General’s contention that the Applicants’ division of powers argument amounts to no more thanpointing to similarities between valid provincial law and criminal law.

While it is true that a number of different licence suspensionschemes have been considered and determined to fall within the scope of provincial jurisdiction, ever since the decision of the SupremeCourt of Canada in P.E.I (Provincial Secretary) v. Egan, (SCC), [1941] S.C.R. 396, the ARALS regime differs from allof those in ways that are meaningful and germane to the question of the legislation’s vires. [28] The issue in Egan was whether a licence suspension that took effect after conviction, for a definite term, fell within the scopeof provincial jurisdiction.

Because the suspension took effect upon conviction, it was in a sense independent of the criminal proceedingsthat preceded it. Under the ALS scheme at issue in Gonzalez, the triggering event for a licence suspension was the investigating officer’sreasonable and probable grounds to believe that a person had operated a motor vehicle while impaired or had refused to comply with ademand under s. 254 of the Criminal Code, not the laying of a criminal charge itself.

Indeed, in none of the prior decisions regardingadministrative licence suspensions was the suspension triggered by the laying of a criminal charge; in none of those prior cases was thesuspension terminated only upon the resolution of the criminal charge. The ARALS regime is more closely connected to the initiationand resolution of criminal proceedings than the ALS or indeed any of the licence suspension regimes that have come before courts inCanada.

In addition, as the Applicants contend, the ARALS scheme seems well designed to encourage pleas of guilty, in view of the factthat the administrative licence suspension has the potential to last significantly longer than a suspension imposed under the provisions ofthe Criminal Code.

If the ARALS regime is not “married” to the criminal law, to use the Applicants’ analogy, it is, at the very least,engaged to it and half way down the aisle. [29] Having regard to the standard set out in R.J.R., which is that the question must not be frivolous or vexatious, the vires of theARALS regime is a serious question to be tried.

B) Charter Questions [30] The constitutionality of an administrative licence suspension regime similar in many ways to the ALS was recently consideredin Sivia v. British Columbia (Superintendent of Motor Vehicles), 2011 BCSC 1639. In Sivia, the Court held that the scheme in questionfell within the constitutional authority of the Province of British Columbia but authorized an unreasonable search and seizure, contrary tos. 8 of the Charter.

In the course of a long and carefully reasoned analysis of the reasonableness of the legislation under s. 8, Sigurdson J.listed a number of considerations, at paras. 259 - 260 as follows: Some of the relevant considerations in determining whether the ARP law is a reasonable law under s. 8 include: the nature and purposeof the law, which, as discussed earlier, is the removal of impaired drivers from the highway; the fact that the regime concerns thelicensing of driving, a highly regulated provincial activity; the fact that although a driver has an expectation of privacy, the search isminimally intrusive; the fact that driving is a privilege rather than a right; and the fact that a driver has a diminished expectation ofprivacy in a breath sample compelled at roadside for assessing sobriety.

However, countervailing considerations exist as well. First, the search by the screening device, which has limited use in a criminalinvestigation, forms the basis of the prohibition in this regulatory regime. Second, the search by the state is carried out on the basis ofreasonable suspicion, rather than reasonable belief that the driver has been drinking. Third, the ARP regime, although not part of thecriminal law, is not far removed. Fourth, the penalties and consequences flowing directly from the search, particularly at the level of a“fail” reading, are not inconsequential.

Fifth, the driver under this regime has a very limited ability to challenge the grounds for theprohibition, penalty and costs. [31] The Respondents contend that the Applicants’ s. 8 argument was wholly disposed of by the Court of Appeal in Gonzalez,because the Court of Appeal there held that the ALS regime did not require the TSB to accept evidence in breach of the Charter, becausethe procedural safeguards under an administrative regime are in any event not required to be the same as those under the criminal law. [32] In the s. 8 Charter context, there are ways in which the ARALS regime is similar to the ones at issue in Sivia and Gonzalez,and ways in which it is different.

The B.C. regime allowed for a suspension on the basis of the reading obtained via a roadside screeningdevice, whereas ARALS relies instead upon either the refusal to give a breath sample or the results of a more conclusive breathalyzer

analysis. The search under ARALS, therefore, is carried out on the basis of reasonable belief, not reasonable suspicion. However, theARALS regime, like the ARP regime at issue in Sivia, is not far removed from criminal law and indeed, for the reasons set out above,may come much closer to it. The penalties and consequences flowing from the search are substantially more serious than those in Siviaand in Gonzalez and to the extent that the ARALS regime may be characterized as criminal rather than civil law, some of the conclusionsset out in Gonzalez may not apply.

It is not necessary or appropriate, at this stage, to determine whether the Applicants will ultimately besuccessful in distinguishing the ARALS regime from the ALS, under s. 8 of the Charter. It is only necessary to conclude, as I do, thattheir argument in this regard is not frivolous or vexatious. [33] I agree with the Applicants that having concluded that their arguments in respect of the division of powers and s. 8 of theCharter are not frivolous or vexatious, it is not necessary to consider the arguments under s. 7 and s. 11 of the Charter at this time.

It willbe open to the Applicants to raise all of their Charter arguments when the case is before the Court on its merits. Irreparable Harm [34] The second part of the test is the question of irreparable harm. Ms. Jackson and Mr. Sahaluk have given evidence to the effectthat their licence suspensions have had continuing detrimental effects upon their ability to work, and Mr. Davidson states that his licencesuspension has affected his ability to visit his children, his familial relationships generally and his finances.

The Respondent Registrar,while pointing out there is divided authority on the issue of whether licence suspensions give rise to irreparable harm, has conceded thatthe Applicants likely meet the test. The Respondent Attorney General did not address the point. In view of the fact that the Applicantshave brought some evidence of irreparable harm, and the effective concession of the point by the Respondents, in my view it isappropriate to move to the third stage of the test on the basis the first two stages have been proven by the Applicants.

Balance of Convenience [35] The third part of the test is balance of convenience, described in Metropolitan Stores (MTS) Ltd. v.

Manitoba Food andCommercial Workers, Local 832, (SCC), [1987] 1 S.C.R. 110 at para. 35 as “a determination of which of the two partieswill suffer the greater harm from the granting or the refusal of an interlocutory injunction, pending a decision on the merits.” [36] The role of public interest considerations in determining the balance of convenience was described in R.J.R. at para. 80: The third branch of the test, requiring an assessment of the balance of inconvenience, will often determine the result in applicationsinvolving Charter rights.

In addition to the damage each party alleges it will suffer, the interest of the public must be taken into account.The effect a decision on the application will have on the public interest may be relied upon by either party. [37] Where the purpose of the legislation at issue is the advancement of the public interest, the Court must assume that it actuallyhas such an effect: Harper v. Canada (Attorney General), 2000 SCC 57 , [2000] 2 S.C.R. 764, at para. 9. The nature of theinterest advanced by this legislation, which is public safety, weighs heavily in this analysis.

It hardly needs repeating that the toll exactedupon society by impaired driving is harmful and severe.

The importance of licence suspension programs in addressing this public safetyissue was expressly recognized by the Court of Appeal in Gonzalez. [38] While the Court in R.J.R. went on to note that the public interest will carry less weight in an exemption case (such as here)than in a suspension case, it is worth noting that in Metropolitan Stores it was recognized, at para. 80, that: Depending on the nature of the cases, to grant an exemption in the form of a stay to one litigant is often to make it difficult to refuse thesame remedy to other litigants who find themselves in essentially the same situation, and to risk provoking a cascade of stays andexemptions, the sum of which make them tantamount to a suspension case.

Consequently, the Court in Metropolitan Stores concluded, at para. 99, that the motion judge was “not only entitled but required to weighthe precedential value and exemplary effect of granting a stay of proceedings before the Board”

[39] The Respondents acknowledge that both the Court of Queen’s Bench and the Alberta Court of Appeal granted stays whensimilar, but ultimately unsuccessful, challenges were made to the ALS regime in Thomson v. Alberta (Transportation and Safety Board)2001 ABQB 807 , 2001 ABQB 801, 310 A.R. 219 and 2003 ABCA 322, [2003] A.J. No. 1364. The Respondent Registrarcontends that those decisions are distinguishable.

Unlike the suspensions at issue in Thomson, suspensions under the ARALS regime arenot for a fixed term and therefore any stay would effectively shorten the suspension for the duration of the stay, essentially providing theApplicants with the final relief they seek and depriving the public of the effect of the legislation for the period of the stay. Moreover,because of the indefinite term of the suspension under ARALS, there would be a much greater incentive for individuals whose licenceshave been suspended to seek stays, resulting in the cascade of applications warned of in Metropolitan Stores.

This is a flood gatesargument that has some validity. [40] From July through November 2012 there have been 4081 separate individuals charged with impaired driving offences inAlberta under ss. 253, 254 and 255 of the Criminal Code. 2123 of these charges remained active as of January 14, 2013. The precedentialvalue of a stay order in this case would be significant. Because the TSB is not a court of competent jurisdiction entitled to consider theconstitutionality of this legislation, it is likely that a great many stay applications would be brought to this Court.

Based on MetropolitanStores, it is incumbent upon me to weigh this in the balance of convenience. [41] It is also incumbent upon me to consider that in granting a stay I would likely be granting to these Applicants the final reliefthat they seek, which is the lifting of licence restrictions until the resolution of their criminal charges. In R.J.R. at para. 51, the SupremeCourt cited Lord Diplock in N.W.L. Ltd. v.

Woods, [1979] 1 W.L.R. 1294, at p. 1307: Where, however, the grant or refusal of the interlocutory injunction will have the practical effect of putting an end to the action becausethe harm that will have been already caused to the losing party by its grant or refusal is complete and of a kind for which money cannotconstitute any worthwhile recompense, the degree of likelihood that the plaintiff would have succeeded in establishing his right to aninjunction if the action had gone to trial is a factor to be brought into the balance by the judge in weighing the risks that injustice mayresult from his deciding the application one way rather than the other. [42] This consideration weighed heavily in the decision to allow the stay in Thomson, in the decisions of both this Court and theCourt of Appeal.

In that case, however, it was the parties applying for the stay who could argue that, in the event the Court failed togrant the application, the action on the merits would effectively come to an end. That is because the licence suspensions at issue inThomson took effect for a fixed term that would have expired prior to a determination on the merits. In other words, absent a stay therewas compelling reason to believe that the application on the merits would become moot. In the present case, the shoe is on the otherfoot.

Because there is very likely to be a determination of the Applicants’ criminal charges prior to a final determination on the merits ofthe constitutionality of the ARALS scheme, it is the Applicants who stand to obtain the final relief they seek by way of an interlocutorystay of proceedings. [43] The Attorney General introduced in evidence the report of Dr. Douglas J. Beirness Ph.D., Senior Research Associate at theCanadian Centre on Substance Abuse. It is the opinion of Dr.

Beirness that administrative licence suspension regimes are an efficient andeffective means of improving road safety by removing high-risk drivers from the road quickly. He pointed to a number of studies in theUnited States and Canada that demonstrate the deterrent effect of ALS schemes. Dr. Beirness stated that effective deterrence ischaracterized by three elements: certainty, celerity (ie. speed) and severity. In moving from the ALS to the ARALS scheme, the Provinceof Alberta has enhanced all three of these elements.

A stay in this matter would significantly affect all three of these elements. [44] These important factors must be weighed in the balance with the significant harm caused to the Applicants and to otherAlbertans who find themselves subject to licence suspension as a result of the impugned legislation. There is no question that therevocation of driving privileges may result in significant inconvenience and serious hardship, including the loss of employment. It isworth noting, in this regard, that the Statistics Canada

article entitled Impaired Driving in Canada, 2011, included in the parties’ AgreedStatement of Facts, indicates that approximately 20% of impaired driving charges in Alberta in 2010/2011 did not result in a conviction.One can readily infer that as many as 20% of those individuals charged with impaired driving in Alberta will find their drivers’ licencessuspended in circumstances where the charges do not result in a conviction. [45] In addition, the tripartite sequential test adopted in Metropolitan Stores is not to be applied in compartments. As stated inLongley v.

Canada (Attorney General), 2007 ONCA 149 at paragraph 15 by Weiler J.A., a court should not consider the three stages as“separate hurdles” but rather as “inter-related considerations”. This view leads to the necessary weighing of the strengths and weaknessesof each criterion in order that a Court may land on a conclusion rooted in the “over arching consideration” whether it is in the interests ofjustice to grant a stay.

[ 46 ] Nevertheless, I am of the view that the balance of convenience does not favour the granting of a stay. To grant a stay at this point would effectively determine the issue, finally, for the Applicants and potentially for a great many other Albertans whose drivers’ licences are currently suspended. The precedential value of such a decision would result in a significant number of stay applications that could potentially deny the public a large part of the benefit of the legislation in advance of a determination on the merits. In the second of his two decisions in Sivia v.

British Columbia (Superintendent of Motor Vehicles) , 2011 BCSC 1783 , 27 B.C.L.R. (5 th ) 326, Sigurdson J. concluded at para. 22 that, notwithstanding his determination that the B.C. administrative license suspension regime violated s. 8 of the Charter , it would be appropriate to delay the declaration of invalidity because an immediate declaration would pose a danger to the public. Similar considerations apply here. 5. Conclusion [ 47 ] The division of powers and s. 8 Charter issues raise questions about the constitutional validity of the ARALS regime that are neither frivolous nor vexatious.

These issues and all Charter issues deserve to be heard on the merits. The Respondents have not taken issue with the Applicants’ assertion that their licence suspensions result in irreparable harm. However, in view of the fact that granting a stay in this matter would effectively amount to a final determination for these Applicants, would set a precedent that would encourage a great many more stay applications that could amount, in effect to a suspension of the entire ARALS regime, and because such a suspension could pose a danger to the public, the balance of convenience weighs against granting such a stay.

The application for a stay is denied. [ 48 ] This matter should not be left with the Applicants’ perceiving the Court is callous or indifferent to their individual circumstances. Indeed, their plight is arguably aggravated and frustrating since the release, on October 26 th , 2012, of the decision in R. v. Boudreault , 2012 SCC 56 . In Boudreault , the accused was impaired and unfit to drive and asked that a taxi be called to get him. On a cold and windy morning in February, he was required to wait outside for the taxi. He got into his truck and started the engine to turn the heat on and fell asleep.

When the taxi got there, the driver called the police and Boudreault was charged with having care or control of a motor vehicle while his ability to drive was impaired and while he had more than 80 milligrams of alcohol in 100 millilitres of his blood, contrary to ss. 253(1) (

a) and (

b) of the Criminal Code . Acquitted at trial, he was convicted by the Quebec Court of Appeal. The majority of the Supreme Court of Canada, in a judgment delivered by Fish J., reviewed the essential elements of the offence of having care or control of a vehicle in the relevant sections and stated in para. 9 that the care or control

section required an intentional course of conduct involving a motor vehicle, impairment or a blood alcohol level in excess of the legal limit, but that in addition, there must be “ a realistic risk as opposed to a remote possibility of danger to persons or property” (emphasis in original). [ 49 ] Prior to the release of Boudreault , there was not unanimity in Canadian courts as to whether a realistic risk of danger was an essential element of the offence of care or control. Whether that realistic risk exists, is a question of fact.

It is apparent from the recitation of the factual circumstances of the Applicants, Boudreault will be highly relevant to the ultimate disposition of their criminal charges. Boudreault may have been relevant to the disposition of the two appeals that were before the TSB, had it been decided earlier. And, perhaps Boudreault was influential in the decision of the Crown not to pursue the charge against O’Shea and to withdraw it. These circumstances are mentioned because the Court views the Applicants’ plight with some sympathy.

In a sense, one or more of them is being sacrificed at the alter of the greater public good, in the interests of public safety. But surely this consequence has not escaped the legislature. These are arguably “hard” cases.

It is the view of the Court however, that the balance of convenience test requires me to balance all situations engaging the public interest and safety, not just the Applicants’ circumstances. [ 50 ] Finally, as the case management judge, I wish to assure all of the parties that they will be afforded an audience before the Court so soon as they are ready to proceed with the applications on their merits. The parties may speak to me in this regard at their early convenience. Heard on the 29 th day of January, 2013. Dated at the City of Calgary, Alberta this 19 th day of February, 2013.

Neil Wittmann C.J.C.Q.B.A. Appearances: Matthew Woodley / Daina Young for the Applicants Roderick Wiltshire for the Respondent The Attorney General of Alberta William Shores, Q.C. for the Respondent Alberta Transportation Safety Board Sean McDonough for the Respondent Registrar of Motor Vehicle Services