R. v. Oughtred, 2013 BCSC 1821

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v.

Oughtred, 2013 BCSC 1821 Date: 20130726 Docket: 13-0619 Registry: Victoria Between: John Oughtred Petitioner And British Columbia (Superintendent of Motor Vehicles), and The Attorney General of British Columbia Respondents - and - Docket: 13-0793 Registry: Victoria Between: Mike Wittneben Petitioner And British Columbia (Superintendent of Motor Vehicles), and The Attorney General of British Columbia Respondents - and - Docket: 13-0794 Registry: Victoria Between: Shirley May Louie Petitioner And British Columbia (Superintendent of Motor Vehicles), and The Attorney General of British Columbia Respondents Before: The Honourable Mr.

Justice Thompson Oral Reasons for Judgment In Chambers Counsel for the Petitioners: S. Roudette Counsel for the Respondents: R. Mullett Place and Date of Hearing: Victoria, B.C. March 15 and July 26, 2013

Place and Date of Judgment: Victoria, B.C. July 26, 2013 [1] THE COURT: This is an application by three different petitioners for an interim stay of driving prohibitions. Each of theapplicant petitioners were served by a peace officer with a notice of driving prohibition under s. 215.41 of the Motor Vehicle Act. Eachexercised their right under s. 215.48 to apply to have the Superintendent of Motor Vehicles review the peace officer's action.

In eachcase, a delegate of the Superintendent confirmed the driving prohibition. [2] The applicants have filed petitions attacking the constitutionality of the current form of the immediate driving prohibitionlegislation. Their attacks on this legislation are broadly based, but include a challenge on the basis of s. 8 of the Charter. [3] An earlier version of this same legislation was successfully challenged. This court in Sivia v. British Columbia (Superintendentof Motor Vehicles), 2011 BCSC 1639, ruled that the earlier version ran afoul of s. 8.

I am told that Sivia is the subject of appeals andcross-appeals which have been heard by the Court of Appeal with judgment reserved. [4] After Sivia, the legislature enacted the Motor Vehicle Amendment Act, 2012, and on 15 June 2012, ss. 215.41 to 215.51 cameinto force. It would seem that the amendments are an effort to address some of the deficiencies identified in Sivia. [5] In the lead up to the decision in Sivia, I am told that there were many petitions filed making similar challenges, and that Siviadetermined the outcome of these many petitions.

Before Sivia was decided by Sigurdson J., a group of three applications for stays ofdriving prohibitions came on for hearing before Johnston J. in Steen v. British Columbia (Superintendent of Motor Vehicles), 2011,unreported, No. S10-4901, Victoria Registry. [6] Johnston J. used the rubric called for in RJR-MacDonald Inc. v. Canada (Attorney General), (SCC), [1994] 1S.C.R. 311, and decided that the applicants had each, on the material placed before him, made out a case for an interim stay.

It isincontestable that the prejudice to the applicants before me, which I will address later in these reasons, puts them on a stronger footingthan the applicants in Steen. [7] A reading of the reasons for judgment of Johnston J. in Steen reveals that the arguments made and the cases cited to him weresimilar to the arguments made and the authorities provided to me on the applications at bar.

The petitioners urge me to follow Steen andgrant interim stays pending the resolution of the question of whether the amendments to the legislation have been sufficient to survivethe renewed s. 8 challenge. [8] The Superintendent argues that Steen was wrongly decided and that the strictures of Re Hansard Spruce Mills Ltd., (BC SC), [1954] 4 D.L.R. 590, do not apply, such that I am free to depart from the reasoning in Steen.

In particular, theSuperintendent argues that the Steen decision was, in the words of Wilson J. as he then was, "unconsidered, a nisi prius judgment givenin circumstances familiar to all trial judges, where the exigencies of the trial require an immediate decision without opportunity to fullyconsult authority", and in the words of that same learned judge in Cairney v. Queen Charlotte Airlines Ltd. (No. 2) (1954), (BC SC), 12 W.W.R. (N.S.) 457, that the decision in Steen displayed a "patent error as to law".

For a statement of the sound reasonsbehind the comity principle that finds its expression in Hansard Spruce Mills, see R. v. Sipes, 2009 BCSC 285. [9] While it is true that the reasons for judgment in Steen were pronounced orally on the same day that arguments were received, itis apparent from reading the reasons for judgment that the decision is the product of a thorough knowledge of and reasoned applicationof the controlling authorities.

I do not agree that the judgment in Steen can be properly characterized as unconsidered or that it exhibits a"patent error as to law". [10] The Superintendent argues that in Steen the court failed to fully appreciate the distinction between suspension and exemptioncases, and this led to too little weight being placed on the public interest when it came time to weigh that important factor in the balanceof inconvenience. [11] The Superintendent's submission to me and to the court in Steen is that the result of a stay would be to produce a cascade ofstays, effectively producing a suspension of the legislation.

The Superintendent emphasizes the following passage from Attorney Generalof Manitoba v. Metropolitan Stores (MTS) Ltd., (SCC), [1987] 1 S.C.R. 110, at paragraph 80: 80. The reason why exemption cases are assimilated to suspension cases is the precedential value and exemplary effect of exemptioncases.

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 torefuse the same remedy to other litigants who find themselves in essentially the same situation, and to risk provoking a cascade of staysand exemptions, the sum of which make them tantamount to a suspension case. [12] This same passage was the subject of argument in Steen and was the subject of careful consideration by Johnston J. in hisreasons for judgment.

Before me, the Superintendent points to affidavit evidence to the effect that after Steen many petitions were filed,and invites me to infer that stays were made available to all or most of those petitioners. But if the Superintendent understood Steen tostand for the proposition that each person who joined the same challenge as was mounted by the petitioner in Sivia was entitled to a stay,then, with respect, the Superintendent failed to fully understand those reasons for judgment.

At paragraph 32 of his reasons in Steen,Johnston J. made it clear that each application for a stay should be decided on its own merits: As to whether or not any decision I make might have the unintended consequence of encouraging others to seek a stay, each of those whodo seek a stay is going to have to be judged on their merits. [13] To return to the above excerpt from Metropolitan Stores, the words "depending on the nature of the cases" are of importance.

The cases at bar are, in my opinion, just the sort that are amenable to the balancing of inconvenience on an individual basis, and there is no reason to suggest that an interim stay of a driving prohibition in favour of one applicant should provoke a cascade of exemptions. [ 14 ] It is evident that it was the opinion of Johnston J. that this type of case is an exemption case and not a suspension case - and not a case that can be characterized as a suspension case masquerading as an exemption case. [ 15 ] If in fact the apprehended cascade occurred or the floodgates opened after Steen , then I suggest that this is so because the Superintendent either misunderstood Steen or chose to open those gates.

I follow Steen and, as Johnston J. did, I will now proceed to apply the RJR-MacDonald analytical framework to the individual applications before me. Serious Question to be Tried [ 16 ] In his material the Superintendent properly conceded that there is a serious question to be tried. That is, does the new version of the legislation sufficiently address the defects identified in Sivia ? [ 17 ] The Superintendent does suggest that the petitioners have not been as diligent as they might have been in bringing their petition on for hearing at an early date.

The matter is scheduled for a five-day hearing in early September 2013. The Superintendent takes the view that it will be a much shorter hearing, perhaps as short as one day, and, accordingly, time could have been found sooner for a one-day hearing. [ 18 ] My view of the matter is that the issues raised by the petitions may well take as long as five days to be heard. After all, these stay applications have occupied two days. I do not find there to be any lack of diligence in bringing the petitions on for hearing.

Irreparable Harm [ 19 ] Following are the material excerpts from the affidavits of each of the applicants: Affidavit of John Oughtred sworn January 28, 2013, filed February 19, 2013 5. I am a business owner of a company called Oughtred Coffee and Tea, which has been operated by my family for the past forty [40] years. This work is my sole source of income. 6. As a business owner, I am also financially responsible for the livelihood of forty five [45] of my staff members. 7.

My work requires me to be able to drive from site to site throughout Vancouver Island, the Lower Mainland, and the Interior of BC to obtain contracts and to train staff. I am also routinely required to pick up and deliver equipment and supplies. 8. Also, I am required to drive twenty [20] different vehicles to perform my work, which would make it impossible for me to comply with the Ignition Interlock Program. Further, I am also unable to comply with this program because clients and members of my staff often accompany me from one work site to another. 9.

These are daily work demands and crucial aspects of my obligations as a business owner. Thus, without my driver's license, I am unable to work and I have no source of income. An unrestricted drivers' licence is therefore crucial to my work as a business owner and essential to my livelihood. Affidavit of Mike Wittneben, sworn March 1, 2013, filed March 4, 2013 5. I work for a construction company. This work is my sole source of income. My community also relies on me for my work as a volunteer firefighter for the East Sooke Fire Department. 6.

My work in construction requires me to be able to drive between work sites throughout the Greater Victoria area to secure contracts and to pick up and deliver tools and supplies. Driving is a routine part of my work demands, and a crucial aspect of my obligations as a construction worker. My employer has advised that without an unrestricted licence I will lose my job. 7. Therefore, without my unrestricted driver's license, I am unable to work as a construction worker and I have no source of income. 8. Further, it is critical to my volunteer work as a firefighter that I can accommodate an unpredictable

schedule and respond to calls with little or no notice. It is therefore impossible for me to comply with the interlock requirement for this work. 9. I therefore require my driver's license to fulfill my responsibilities to my work. 10. Also, I am the sole member of my household with a drivers' licence and I live in a very remote area in East Sooke. I have two young children; twins, whom I need to be able to drive to and from school, daycare, and other activities on a daily basis. Without my drivers' licence my children will have no other way to safely attend their routine activities. 11.

I therefore also require my driver's licence to fulfill my responsibilities to my family. 12. Further, I suffer from a myriad of neck and back problems associated with a long standing injury, and I am in the regular car [sic]

of a chiropractor. My ability to attend these appointments is completely dependent on my ability to drive, and as a result of receiving the Notice of Driving Prohibition, I have been unable to see my chiropractor. Affidavit of Shirley Louie, sworn February 15, 2013, filed March 4 2013 5. I am a recreation coordinator for the Stzuminus Community Centre . I also work as an on call bus driver for the Stzuminus Elementary School . This work amounts to my sole source of income. Further, my community relies on me to coach several different children's and adults' soccer teams. 6.

My work as a recreation coordinator requires me to drive all over the Stzuminus Reserve to pick up and drop off clients for outdoor activities and other adult programs. Driving is thus a routine part of my work demands and a crucial aspect of my responsibilities. 7. Also, I am required to drive several different vehicles to perform my work. I am required to possess a Class 4 as well as a Class 2 licence in order to drive a work van and a passenger bus. My employer has advised that it will not install an interlock device on any work vehicle, thus without an unrestricted licence I will lose my job.

An unrestricted drivers' licence is therefore crucial to my work as a recreation coordinator and essential to my livelihood. 8. I am also required to drive a school bus for my work as an elementary school bus driver. My employer has advised that it will not install an interlock device on any work vehicle, thus without an unrestricted licence I will lose my job. Further, it is critical to my work as an "on call" school bus driver that I can accommodate an unpredictable

schedule and respond to calls with little or no notice. Thus, the nature of my work makes it impossible for me to comply with the Interlock Ignition Program. 9. As a soccer coach, my community also relies on me to transport underprivileged children who have no other means of transportation to and from soccer practice and games. Without my help these children will have no other way to attend weekly soccer practices.

Therefore, without my licence I will not be able to fulfill my community responsibilities. [ 20 ] It was made clear in RJR-MacDonald at paragraph 59 that the question at this stage of the test does not depend on the degree of harm: “It is harm which either cannot be quantified in monetary terms or which cannot be cured . . .” There is, in my view, no question but that the harm in the case of each of the applicants can properly be described as irreparable.

Balance of Inconvenience [ 21 ] I agree with Johnston J. that the aims of the legislation are entitled to significant weight, given the serious societal problem that drinking and driving continues to present, and the authorities make clear that this public interest is entitled to significant weight in the balance whether this is regarded as a suspension case or an exemption case. But there is a difference between the two types of cases when the court is called upon to attach weight to the public interest.

This was said in RJR-MacDonald at paragraph 80: The third branch of the test, requiring an assessment of the balance of inconvenience, will often determine the result in applications involving 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 upon the public interest may be relied upon by either party.

These public interest considerations will carry less weight in exemption cases than in suspension cases. [ 22 ] With respect to each of these applicants, and I am addressing their cases individually, I find that the degree of harm that they will suffer via a prohibition is more serious than any of the three cases addressed by Johnston J. in Steen . Having made that observation, and although I am following Steen , I am exercising an independent discretion, focused on the individual circumstances of the applications before me.

In each of these three applications, I put considerable weight on the fact that each of the applicants will have the continuation of their ability to work compromised unless a stay is granted. [ 23 ] I grant the interim stay of the driving prohibition sought by each of the applicants. The Superintendent submits that I may, as a term of the stay, impose the requirement that an interlock device be installed by the petitioner at his or her expense.

While that may be an appropriate term in some cases, in these particular cases, given the evidence before me, the imposition of that term is impractical and I find would amount to a decision not to grant the stay sought. [ 24 ] Accordingly, I order a stay for 120 days, with liberty to apply to extend the stay if, for instance, the court has heard the petitions herein but not yet decided the case. By giving this example, I am not intending to limit the bases on which an application to extend might be made, and the parties may extend the stay by consent. [ 25 ] Is there anything arising, counsel? [ 26 ] MS.

ROUDETTE: No, My Lord -- [ 27 ] MR. MULLETT: Liberty -- [ 28 ] MS. ROUDETTE: -- thank you. [ 29 ] MR. MULLETT: Sorry, didn't mean to interrupt. Liberty to apply to you, My Lord? [ 30 ] THE COURT: Liberty to apply. [ 31 ] MR. MULLETT: Are you seizing yourself of these stays? [ 32 ] THE COURT: Should I? I mean Mr. Justice Johnston did not seem to seize himself. I do not see any reason why I should be

seized, do you? [ 33 ] MR. MULLETT: I'm not submitting one way or the other, My Lord, I just -- [ 34 ] THE COURT: You are just drawing it to my attention. [ 35 ] MR. MULLETT: I'm drawing it to your attention. [ 36 ] THE COURT: Yes, thank you. Any position on that? [ 37 ] MS. ROUDETTE: I have no position, thank you. [ 38 ] THE COURT: No. I will not seize myself of the matter - that is, the matter of any applications to extend. “Thompson J.”