Daniel Lee Sahaluk Applicant - v. -, 2013 ABQB 683

Court of Queen ’ s Bench of Alberta Citation: Sahaluk v. Alberta (Transportation Safety Board), 2013 ABQB 683 Date: 20131120 Docket: 1303 15592, 1303 15591, 1303 15594, 1303 15593 Registry: Edmonton Between: Daniel Lee Sahaluk Applicant - and - Alberta Transportation Safety Board, The Attorney General of Alberta and The Registrar of Motor Vehicle Services Respondents And Between: Docket: 1303 15591 Darren Robert Davidson Applicant - and - Alberta Transportation Safety Board, The Attorney General of Alberta and The Registrar of Motor Vehicle Services Respondents And Between: Docket: 1303 15594 Tyanna Chantelle Jackson

Applicant - and - Rod Knecht, Chief of Police of The Edmonton Police Service, The Attorney General of Alberta and The Registrar of Motor Vehicle Services Respondents And Between: Docket: 1303 15593 Mark Wayne O’Shea Applicant - and - Alberta Transportation Safety Board, The Attorney General of Alberta and The Registrar of Motor Vehicle Services Respondents _ ________________________________________ ______________ Reasons for Decision of the Honourable Mr. Justice Thomas W. Wakeling _________________________________________ ______________ I.

Introduction [ 1 ] The Registrar of Motor Vehicle Services, relying on rule 3.68(4) of the Alberta Rules of Court , Alta. Reg. 124/2010, seeks an order striking out parts of three affidavits filed on behalf of Mr. Sahaluk and the other applicants (“Mr. Sahaluk” or the “applicants”)

which the Registrar claims contains “frivolous, irrelevant or improper information”. [ 2 ] Mr. Sahaluk challenges the constitutionality of parts of the Traffic Safety Act , R.S.A. 2000, c. T-6, as the following extract from Mr. Sahaluk’s amended originating application for judicial review and declaratory relief demonstrates: 9.

The Alcohol-Related Administrative Licence Suspension Regime authorized by s. 88.1 of the Traffic Safety Act and related provisions, the operation of the regime, and the manner in which the appeals from Alcohol-Related Administrative Licence Suspensions to the Board are conducted (collectively the “impugned provisions”), violate the Applicant’s rights as set out in ss. 7 , 8 and 11 of the Canadian Charter of Rights and Freedoms and the impugned provisions are therefore invalid, pursuant to s. 24 and 52 : a.

The Applicant has been deprived of his right to liberty and security of the person in a manner inconsistent with the principles of fundamental justice. The application and operation of the impugned provisions has seriously interfered with the Applicant’s psychological integrity and personal autonomy and violates the Applicant’s rights as set out in s. 7 of the Canadian Charter of Rights and Freedoms ; b. The Applicant has a reasonable expectation of privacy in his breath sample.

Section 88.1 of the Traffic Safety Act authorizes an unreasonable seizure of individual’s breath samples, and violates s. 8 of the Canadian Charter of Rights and Freedoms ; c. The impugned provisions create an offence. The Applicant’s right to be presumed innocent until proven guilty in accordance with s. 11(

d) of the Canadian Charter of Rights and Freedoms has been violated ... . 10. The pith and substance of the impugned provisions is criminal law or criminal procedure, and the impugned provisions are ultra vires the Province of Alberta. The impugned provisions are therefore unconstitutional and of no force or effect, pursuant to s. 52 of the Constitution Act, 198 2: a. The impugned provisions display a valid criminal law purpose, prohibition and true penal penalty.

The imposition and duration of Alcohol-Related Administrative Licence Suspensions are contingent upon the laying and disposition of Criminal Code charges. Further, the impugned provisions are equivalent in nature to a bail condition ... . II. Questions Presented [ 3 ] Do paragraphs 12 and 13 of the affidavit of Shannon K.C. Prithipaul sworn April 29, 2013 and paragraphs 27 and 28 of the affidavit of Mark Ian Savage sworn April 30, 2013 contain inadmissible hearsay? Ms. Prithipaul and Mr. Savage are lawyers who regularly represent persons accused of alcohol-related driving offences.

In these paragraphs the deponents refer to statements made by clients either to them or another lawyer that some clients have decided to plead guilty even though they have been advised that they may have good defences to the criminal charges against them. The other message in these contested paragraphs is that clients cannot work while their licences are suspended and this adversely affects them in a number of ways. [ 4 ] Does paragraph 6 of the affidavit of Thomas Allan Pearse sworn May 6, 2013 contain inadmissible opinion evidence? Mr. Pearse is also a lawyer. In this paragraph, Mr.

Pearse gives his understanding of a medical condition while explaining the plight of a client before the Alberta Transportation Safety Board. [ 5 ] Does paragraph 8 of the affidavit of Mr. Pearse contain opinion evidence? In this paragraph Mr. Pearse states that a document Mr. Sahaluk gave to the Alberta Transportation Safety Board “corroborated the condition in question”. [ 6 ] Do paragraphs 11 and 18 of Mr. Pearse’s affidavit constitute opinion and argument? In these paragraphs Mr.

Pearse expresses the opinion that “the problem is not with the conduct of the participants, but with the fact that the Government of Alberta has elected to punish people beginning at the time of their charge, rather than their sentence” and that “[a] licence suspension would disproportionately affect rural Albertans more so than people living in large metropolitan areas”. [ 7 ] Do paragraphs 19, 20, 24, 25 and 26 of Mr. Savage’s affidavit contain primarily argumentative material? In these paragraphs, Mr.

Savage asserts that accused persons who reside in smaller centers suffer adverse effects of a kind which an accused person who resides in a large urban area would not. III. Brief Answers [ 8 ] I am satisfied that the affidavits about which the Registrar of Motor Vehicles complains have the defects alleged and I order that the parts complained of be struck. IV. Applicable Rules of Court [ 9 ] Rule 3.68(4) of the Alberta Rules of Court reads as follows:

3.68

(4) The Court may (

a) strike out all or part of an affidavit that contains frivolous, irrelevant or improper information ... . V. Statement of Facts [ 10 ] On September 6, 2012 a member of the Calgary Police Service served Mr. Sahaluk with a notice of suspension of his operator’s licence, as required by s. 88.1(2) (b)(ii) of the Traffic Safety Act . According to s. 88.1(3) (

b) of the Traffic Safety Act , Mr. Sahaluk’s operator’s licence, upon service of the notice of suspension, is suspended from the time of service until disposition of the alcohol-related driving charge which triggered the notice of suspension. [ 11 ] Mr. Sahaluk appealed his operator’s licence suspension to the Alberta Transportation Safety Board. The Board dismissed his appeal. [ 12 ] Mr. Sahaluk challenges on constitutional grounds the parts of the Traffic Safety Act which authorize a suspension of his operator’s licence. In support of his constitutional challenge, he filed the affidavits of Ms.

Prithipaul and Messrs. Savage and Pearse. [ 13 ] The Registrar has applied for an order striking portions of each of these affidavits. I heard this application on October 18, 2013 and, at the conclusion of argument, I gave my decision and my reasons. I informed counsel that I may file written reasons which incorporate those given orally on October 18, 2013. [ 14 ] The parts of the affidavits which the Registrar seeks to have struck are set out below: Ms. Prithipaul’s affidavit 12.

The client referred to above, as well as the client that I spoke to recently and who also had very good defences for trial, have expressed to our lawyers considerable trepidation about proceeding to trial knowing that their licenses will be suspended until the outcome of their charges and that they will not be given any credit for the time they have spent without their licenses if they are convicted after trial. This has prompted a number of clients to plead guilty despite counsel’s advice to the contrary. 13.

In the past, clients were concerned about hiring a lawyer while the three month license suspension was in place and would often wait until it was finished before trying to retain counsel. I have observed that it is very difficult for clients to work without a license and that without work it is difficult for clients to pay a lawyer. We have received a number of calls from clients who are having difficulty paying their fees recently because of the fact that they cannot find work and, when speaking with potential employers, can give no assurance of when they might next be in possession of their licence.

This uncertainty makes it difficult for our clients to make any plans with respect to employment, expenses, travel and their ability to defend themselves against the charges. Mr. Savage’s affidavit 19.

The problem for individual accused charged in the regional area surrounding Calgary is exacerbated by the fact that these individuals reside in smaller centres, often in towns or villages or hamlets in remote areas that do not have the full range of services within walking distance and access to public transportation of a larger town or city, to enable individual accused who are no longer able to drive (given their licence suspension) to provide themselves and their families with the basic amenities of life, let alone travel to their work places, medical appointments, take their children to school and perform other personal obligations. 20.

The net effect of the licence suspension regime as it is presently constituted imposes a doubly inordinate burden on the accused impaired driver living in a rural area: they cannot proceed to trial on the same time-frame as an accused in a larger centre, the trials often do not commence on the first designated trial date given the difficulties identified above and they are unable to cope with the basic necessities of work, family obligations and life obligations given their isolated residency and loss of licence. 24.

It is my expectation, given my 21 years’ experience in the Calgary and area criminal courts, that the above events will result in even more extended overbooking of regional trial Courts than is now occurring such that the “earlier” trial date referred to above will simply be an overbook on three, four or five other trials already set for that date, one or more of which may be an impaired driving trial itself, and the likelihood of the additional newly scheduled impaired driving trial being reached yet alone concluded in those circumstances is extremely remote. 25.

What would then ensue would be a renewed Askov Application, but this time some six or eight months from the date when the trial was originally set, and the loss of opportunity to have such Askov Application heard sooner. 26. The net effect of this entire procedure is to increase the length of time during which any individual impaired driving accused is entirely without his or her driver’s licence in a rural or semi-rural area of Alberta where the effect upon and the prejudice to that person’s personal and professional life is grossly amplified compared to the average city resident. 27.

A number of my clients in these circumstances have expressed considerable trepidation about proceeding to trial knowing that their licences will be suspended until the outcome of their charges and they will not be given any credit for the time they have spent without their licences if they are convicted after trial. This has prompted a number of my clients to plead guilty despite counsel’s advice to the contrary because they had viable defences for trial. 28.

Under the suspension regime in force prior to July, 2012, clients were concerned about hiring a lawyer while a three month licence suspension was in place and would often wait until it was finished before trying to retain counsel. It is often very difficult for

clients to work without a licence and, without work it is difficult to pay a lawyer. I have received a number of calls from clients who arehaving difficulty paying their fees recently because of the fact they cannot work and, when they speak with potential employers, cangive no assurance of when they might next be in possession of their licence. This uncertainty makes it difficult for clients to make anyplans with respect to employment, expenses, custody arrangements and travel. Mr. Pearse’s affidavit 6. Shortly after being charged, Mr. Sahaluk contacted me for the purpose of having me defend him.

We met, and I agreed to assisthim on a pro bono basis. At this time, Mr. Sahaluk advised me he was unable to provide a breath sample on the night in question becausehe suffered from various medical conditions. Although I do not have a strong background in medical science, my understanding is thatthe primary issue related to a condition called “sudden pneumothorax”. My understanding is that, because the accused is both relativelytall and quite thin, his lungs have a tendency to “collapse”. In all my dealings with Mr. Sahaluk, I noted that he was, indeed, quite talland thin. ... 8.

In an effort to get his driver’s license back before his trial, I arranged for a Transportation Safety Board hearing on October 30,2012. At this hearing, the officer was not required to attend, and the proceedings were not recorded. My understanding is that the hearingofficers were not lawyers, although I did note that they have counsel present to take notes and (presumably) help them write the actualjudgment. During the hearing, the accused was cross-examined extensively for approximately 45 minutes by the board members. Theboard members were primarily concerned not with Mr.

Sahaluk’s medical condition or his reasonable excuse, but with why he did notsimply attend upon hospital shortly after his arrest to obtain a sample of his blood to show that he was below the legal limit. This line ofquestioning went on for some time, with the accused noting that he did, indeed, offer to provide a sample of his blood. The boardmembers then attempted to cross-examine the accused on any potential arguments he may have under the Charter of Rights andFreedoms. I objected, and the board members then ended their cross-examination.

During the hearing, the accused provided a documentdescribed as “medical history

summary” which made reference to the medical condition in question and corroborated the condition inquestion. ... 11. This is a very good example of how provincial court trials actually work in Alberta. In my experience, it is very common for aprosecutor to review the evidence immediately before trial. This typically leads to “deals on the courthouse steps” that would not havebeen at an earlier date. In my opinion, the problem is not with the conduct of the participants, but with the fact that the Government ofAlberta has elected to punish people beginning at the time of their charges, rather than their sentence.

If one does this, you will have theeffect of punishing many guilty people but you will also punish innocent people in the process. Trials are very useful at sorting exactlythese kinds of issues out. For example, in this context, the license suspension regime has the effect of punishing people who will be foundnot guilty at trial, or whose charges will be withdrawn in advance because there is no reasonable prospect of conviction. ... 18. For the past 13 years, I have chosen to live in rural Alberta.

Like most people who make this decision, this is a conscious lifestylechoice designed to limit interactions with larger cities like Calgary or Edmonton. There are many benefits to this choice, but convenienceof public transportation is not amongst them. For example, an innocent person who is wrongfully charged in Calgary may well be able totake public transportation to and from work while they litigate their case. This is simply not an option in rural Alberta. Once you are onyour acreage, farm, or ranch, you require some form of transportation to get off it and interact with civil society.

A license suspensionwould disproportionally affect rural Albertans more so than people living in larger metropolitan areas. VI. Analysis A. The Ordinary Rules of Evidence Applicable in Civil Litigation Apply to Constitutional Litigation [15] That the applicants are challenging the constitutional validity of the Traffic Safety Act does not relieve them of the obligationto present evidence which complies with the norms that govern the presentation of evidence in nonconstitutional civil litigation. InDelisle v.

Canada, [1997] 2 S.C.R. 989, 1042 Justices Cory and Iacobucci opined, in the context of a Charter challenge, that “[t]heordinary rules of evidence applicable in civil trials apply”. This makes sense, given what is at stake in constitutional litigation.[1] Ajudicial determination that legislation is unconstitutional must be based on reliable factual determinations that provide a comprehensiveaccount of relevant social, political and cultural considerations. Constitutional adjudicators cannot make informed judgments without thisfactual backdrop.

To ask judges to work without these tools is akin to asking sailors to sail without provisioning their vessel withsails.[2] [16] Constitutional litigants regularly rely on ordinary, as opposed to expert witnesses, to present fact evidence which a courtconsiders in making adjudicative fact determinations. In Danson v. Ontario, (SCC), [1990] 2 S.C.R. 1086, 1089 JusticeSopinka accepted the distinction Professor Davis made between adjudicative and legislative facts: Adjudicative facts are those that concern the immediate parties: in Davis’ words, “who did what, where, when, how, and with whatmotive or intent …”.

Such facts are specific and must be proved by admissible evidence. Legislative facts are those that establish thepurpose and background of legislation, including its social, economic and cultural context. Such facts are of a more general nature andare subject to less stringent admissibility requirements. B. The Contested Passages Contain Inadmissible Hearsay [17] The parts of the affidavits which the Registrar alleges are hearsay relate to adjudicative facts. These contested passages

provide personal information about identifiable persons. [18] A useful definition of hearsay appears in The Law of Evidence in Canada 229 (3d ed. 2009) by Justices Bryant, Lederman andFuerst: “Written or oral statements, or communicative conduct made by persons otherwise than in testimony at the proceeding in which itis offered, are inadmissible, if such statements or conduct are tendered either as proof of their truth or as proof of assertions implicittherein”. [19] This definition is consistent with that utilized by Justice Fish in The Queen v.

Baldree, 2013 SCC 35, ¶ 1: “An out-of-courtstatement by a person not called as a witness in the proceedings is properly characterized as hearsay where it is tendered in evidence tomake proof of the truth of its contents”. [20] A determination that proffered evidence is hearsay does not mean that it is inadmissible. But, as Justice Fish observed in TheQueen v.

Baldree, 2013 SCC 35, ¶ 2, it “is presumptively inadmissible as a matter of law”. [21] Hearsay is admissible if it is not tendered as proof of the truth of its contents or of assertions implicit therein, if it falls withinone of the traditional exceptions to the hearsay rule or if it passes the principled approach introduced by the Supreme Court of Canada inThe Queen v. Khan, (SCC), [1990] 2 S.C.R. 531. The Queen v. Baldree, 2013 SCC 35, ¶ 6 & A. Bryant, S. Lederman &M.

Fuerst, The Law of Evidence in Canada 258 (3d ed. 2009). [22] The latter approach, in essence, inquires if the principles which justify the exceptions to the hearsay rule, would apply to thehearsay evidence under review. [23] In The Queen v. Khelawon, 2006 SCC 57 , [2006] 2 S.C.R. 787, 793 Justice Charron summarizes the essentialfeatures of the principled approach: In some circumstances, the evidence presents minimal dangers and its exclusion, rather than its admission, would impede accurate factfinding. Hence, over time a number of exceptions to the rule were created by the courts.

Just as traditional exceptions to the hearsay rulewere largely crafted around those circumstances where the dangers of receiving the evidence were sufficiently alleviated, so too must befounded the overarching principled exception to hearsay. When it is necessary to resort to evidence in this form, a hearsay statement maybe admitted if, because of the way in which it came about, its contents are trustworthy, or if circumstances permit the ultimate trier offact to sufficiently assess its worth.

If the proponent of the evidence cannot meet the twin criteria of necessity and reliability, the generalexclusionary rule prevails. Justice Charron also usefully reminded courts that they have a residual discretion to exclude hearsay even if it passes the principled test“where its prejudicial effect is out of proportion to its probative value”. 2006 SCC 57 , [2006] 2 S.C.R. 787, 794. [24] The necessity dimension recognizes the fundamental importance of accurate fact-finding. Is it necessary to admit theproffered hearsay evidence because there is no other reasonable means of presenting the evidence?

The reliability marker acknowledgesthat a significant component of the value of proffered evidence in the fact-finding process is its reliability. Are there good reasons presentthat would justify the court in not subjecting the evidence to the best device known to test the reliability of evidence – cross-examination? C. Application of General Principles to the Particular Hearsay Challenges [25] Mr. Sahaluk argued that the contested passages in the affidavits of Ms. Prithipaul and Mr. Savage do not constitute hearsay,and if they do, they meet the principled basis to the hearsay rule.

The applicants maintain in their brief that “the clients’ statements areoffered not for the proof of their contents but as evidence that the statements were made”. [26] I do not accept these submissions. Unless the trier of fact accepts that the clients’ statements accurately reflect the personalconsequences of having their operator’s licences suspended, there is no value attributable to their out-of-court declarations. They wouldbe irrelevant. No fact-in-issue turns on whether a client told the deponents why they pled guilty.[3] [27] The evidence would have to be restructured to accomplish the purpose Mr.

Woodley advanced in oral argument.[4] In oralargument, Mr. Woodley advised that the applicants led the challenged evidence to prove that accused persons who have good defencesmay plead guilty. But in its current form the impugned passages are clearly hearsay. [28] In any event, the proffered hearsay is neither necessary nor reliable and does not pass the standard fashioned by JusticeCharron in The Queen v. Khelawon. Both the deponents know who the out-of-court declarants are and nothing in their affidavits offers areason why they could not present their evidence on their own.

Under these circumstances, the court must assume that the declarants areavailable. [29] I accept the Registrar’s argument that there may be many reasons which cause a client to plead guilty: “[c]lient actions canonly be motivated by a myriad of factors, including recognition of guilt and an unwillingness to pay counsel’s fee (which, in Mr. Savageand Ms.

Prithipaul’s case is $10,000)”. [30] To deny the Registrar the opportunity to cross-examine the out-of-court declarants to determine which factors accounted for aclient’s decision to plead guilty and the weight each client accorded to a factor would jeopardize the litigation system’s interest inaccurate fact-finding. [31] This decision promotes fairness.[5] The persons whose statements the deponents have incorporated into their evidence maypresent this evidence. As well, opinion evidence of this general nature may be presented by experts.

A lawyer who practices in this areawould be entitled to offer an opinion which demonstrates the effect the challenged law will have on the set of community memberswhose interests are engaged by the legislation. MacKay v. Manitoba, (SCC), [1989] 2 S.C.R. 357, 361 (“Often expertopinion as to the future impact of the impugned legislation and the result of the possible decisions pertaining to it may be of great

assistance to the courts”). Professor Hogg reminds constitutional litigants of this evidentiary opportunity: Legislative facts … can be proved by the opinion testimony of persons expert in the relevant field of knowledge. Like other witnesses,experts are subject to cross-examination, and their testimony may be contradicted by the testimony of other experts. These safeguardsprovide some assurance of the reliability for factual findings of controverted legislative facts. P. Hogg, Constitutional Law of Canada 60-12&13 (looseleaf 5th ed. suppl. 2012 – release 1). See also A. Lokan & C.

Dassios,Constitutional Litigation in Canada 8-16 (looseleaf 2011 – release 2) (“expert evidence has taken on a crucial role in constitutionallitigation”). [32] The court’s insistence on reliable evidence is not diminished when it adjudicates constitutional disputes. See generally, Davis,“Facts in Lawmaking”, 80 Colum. L. Rev. 931, 935 (1980) (important lawmaking must be based on a satisfactory factual lase);Frankfurter & Landis, “The Business of the Supreme Court at October Term, 1928”, 43 Harv. L.

Rev. 33, 56 (1929) (“So far as [socialand economic facts] ... are subject to proof, they ought authoritatively to be ascertained by the lower courts [by the ordinary rules ofevidence]” & Chase, “Litigating a Nativity Scene Case”, 24 St. Louis Univ. L.J. 237 (1980) (contains a practical discussion of theavailable sources which may be utilized to establish the facts in a constitutional challenge). I agree with Chief Justice Stone’s opinion onthis topic in Borden’s Farm Products Co. v. Baldwin, 293 U.S. 194, 210 (1934).

At issue was the constitutional validity of New York’sMilk Control Law that stipulated a price differential for milk in favour of milk dealers not having a well-advertised trade name. ChiefJustice Stone emphasized the need for a concrete and reliable factual foundation in a constitutional dispute: [W]here the legislative action is suitably challenged, and a rational basis for it is predicated upon the particular economic facts of a giventrade or industry, which are outside of the sphere of judicial notice, these facts are properly the subject of evidence and of findings.

Withthe notable expansion of the scope of governmental regulation and the consequent assertion of the violation of constitutional rights, it isincreasingly important that when it becomes necessary for the court to deal with the facts relating to particular commercial or industrialconditions, they should be presented concretely with appropriate determinations upon evidence, so that the conclusion shall not bereached without adequate factual support. [33] Judicial notice probably would not assist the applicants establish why some persons plead guilty.

This is because the fact-in-issue - why do persons accused of some driving offences plead guilty - is not so notorious or generally accepted as not to be subject ofdebate among reasonable persons. A. Bryant, S. Lederman & M. Fuerst, The Law of Evidence in Canada 1268 (3d ed. 2009); Law v.Canada, (SCC), [1999] 1 S.C.R. 497, 541-42 (“this Court has routinely and appropriately undertaken analysis under s.1 on the basis of judicial notice and logical reasoning”); Thomson Newspapers Ltd. v.

Director of Investigation and Research, (SCC), [1990] 1 S.C.R. 425, 518 (“No authority need be cited for the proposition that our economy is dominated by largecorporations and that most of the economic activity with which the Act is concerned happens within or is organized by corporations”);The Queen v.

Jones, (SCC), [1986] 2 S.C.R. 284, 299 (“A court must be taken to have a general knowledge of ourhistory and values and to know at least the broad design and workings of our society”) & Reference Re Alberta Statutes, (SCC), [1938] S.C.R. 100, 128 & (UK JCPC), [1939] A.C. 117, 131-32 (P.C.) (Can.) (judicial notice taken of the factthat the Alberta tax on banks would sterilize them if other provinces acted in the same manner). But see The Queen v.

Cobham, (SCC), [1994] 3 S.C.R. 360, 372 (“courts are entitled to take judicial notice of the broad parameters [of the services providedby duty counsel and legal aid], such as their existence and how they are generally accessed”) & Craig v. Boren, 429 U.S. 190, 200 (1976)(the Court referred to statistical evidence describing the different drinking patterns of young male and female drivers). [34] For these reasons, I order that paragraphs 12 and 13 of Ms. Prithipaul’s affidavit and paragraphs 27 and 28 of Mr. Savage’saffidavit be struck. D.

Opinion and Argument Has No Place in an Affidavit [35] There is no dispute between the parties as to the nature of the general rule - affidavit evidence should not include argument orthe opinion of lay persons. Alberta Human Rights Commission v. Alberta Blue Cross Plan, 1983 ABCA 207 , 48 A.R. 192, 193(C.A. 1983) (“affidavits ought to be confined to evidence”); Alberta Treasury Branches v. Leahy, 1999 ABQB 185 , 234 A.R.201, 228 (Q.B. 1999) (“The purpose of affidavit evidence is to place the necessary facts before the court and should not containargument, opinions or conclusions”); Renfrew Insurance Ltd. v.

Donald, 2012 ABQB 228, ¶ 36 (“while ... there is no absoluteinadmissibility to lay opinions, admitting them would be ... exceptional and unusual as it will be rare for a lay person’s opinion to be ofany interest to a trial judge”) & Canalta Concrete Contractors v. Trend Construction Ltd., (AB KB), 38 Alta. L.R. 2d153, 156 (“it is the function of a witness to give evidence. Argument is for counsel, not witnesses”). The deponent who gives evidence ofwhich he or she has personal knowledge and is restricted to the facts-in-issue provides the court with material which will assist it todischarge its fact-finding role.

Seldom will it be the case that a layman in constitutional litigation can provide an opinion which will bereliable and assist the court.[6] E. Application of General Principle to the Opinion and Argument Objection [36] The material in the affidavits of Messrs. Pearse and Savage to which the Registrar takes objection on this ground does notassist the court. For example, in paragraphs 6 and 8 of his affidavit, Mr. Pearse provides an opinion on a medical condition of one of hisclients. He has not been qualified to do this. The Queen v.

Edwards Books and Art Ltd., (SCC), [1986] 2 S.C.R. 713, 768(a layperson who is not a Muslim cannot give opinion evidence on the features of the Muslim faith). In any event, his opinion is notnecessary to understand the factual background Mr. Pearse is discussing. Paragraphs 19, 20, 24, 25 and 26 of Mr. Savage’s affidavit andparagraphs 6, 11 and 18 of Mr. Pearse’s affidavit incorporated opinions and argument which are best left to counsel based on factsestablished in accordance with the rules of evidence. Canada Post Corp. v. Smith, (ON SC), 20 O.R. 3d 173, 188(Div.

Ct. 1994) (the striking of an entire affidavit of a lawyer not qualified as an expert was upheld); Bell Canada v. Canadian HumanRights Commission, (FC), [1991], 1 F.C. 356, 361 (Tr. Div. 1990) (“The respondents may instruct their counsel toposit such

interpretations of the statute in oral or written argument but the respondent qua deponent ... cannot be permitted to give ... herinterpretation of the statute law”) & A. Lokan & C. Dassios, Constitutional Litigation in Canada 8-18.5 (looseleaf 2011 – release 2) (“In

several cases, portions of affidavits have been struck for venturing into the realm of submissions that are more appropriately made by counsel in a factum”). The opinions Messrs. Pearse and Savage hold on these topics are irrelevant. [ 37 ] I order these paragraphs be struck. This determination will not prejudice the ability of Mr. Sahaluk to present the factual foundation he needs to establish his case. The evidentiary process provides other means through which relevant and important facts may be adduced. VI. Conclusion [ 38 ] I order that paragraphs 12 and 13 of Ms.

Prithipaul’s affidavit, paragraphs 6, 8, 11 and 18 of Mr. Pearse’s affidavit and paragraphs 19, 20, 24, 25, 26, 27 and 28 of Mr. Savage’s affidavit be struck. [ 39 ] Counsel made very helpful submissions, with a sharp focus on the key issues, and I thank them for their assistance. Heard on October 18, 2013. Dated at Edmonton, Alberta on November 20, 2013. Thomas W.

Wakeling Justice of the Court of Queen’s Bench of Alberta Appearances: Matthew Woodley Reynolds, Mirth, Richards & Farmer LLP for the Applicants Sean McDonough Alberta Justice for the Registrar of Motor Vehicles Services William Shores, QC, Shores Jardine LLP for the Alberta Transportation Board Rodrick Wiltshire

Alberta Justice for the Attorney General of Alberta