R. v. Wong Date:, 2016 BCPC 208

Citation: R. v. Wong Date: 20160630 2016 BCPC 208 File No: 237171-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Division REGINA v. TSE KEUNG KEN WONG REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE G. RIDEOUT Counsel for the Crown: Alison De Smet Counsel for the Defendant: Kyla Lee Place of Hearing: Vancouver , B.C. Dates of Hearing: Feb. 1, Mar. 4, 2016 Date of Judgment: June 30, 2016

INTRODUCTION [ 1 ] Tse Keung Ken Wong (the “accused”) has been charged that on the 11th day of December, 2014, at Vancouver, British Columbia, he drove a motor vehicle on a highway or industrial road knowing that he was prohibited from driving a motor vehicle pursuant to s. 215.43 of the Motor Vehicle Act (the “ Act ”), contrary to s. 95(1)(

a) of the Act .

ISSUES [ 2 ] The accused submits that a 90 day Notice of Prohibition that was issued by a Peace Officer on the accused two days prior pursuant to s. 215.41 of the Act , which underlies the current charge of driving while prohibited, was issued absent jurisdiction and accordingly the accused should be acquitted. [ 3 ] Though the accused had a right to apply to have the s. 215.41 prohibition reviewed by the Superintendent of Motor Vehicles pursuant to s. 215.48 of the Act , he elected not to do so. [ 4 ] Therefore, is the current challenge by the accused respecting the s. 215.48 prohibition issued on December 9, 2014, at law permissible, or is it impermissible as amounting to a collateral attack?

BACKGROUND [ 5 ] On December 9, 2014, the accused was issued with an Automatic Roadside Prohibition (“ARP”), pursuant to s. 215.41 of the Act by Constable Harris of the Vancouver Police Department, after two samples of his breath registered “fail” readings on an Approved Screening Device (“ASD”). [ 6 ] The circumstances surrounding the evidence of Constable Harris can be summarized as follows: • She was dispatched to investigate a possible impaired driver at 2155 hrs.; • The licence plate in relation to the vehicle being operated by the possible impaired driver was registered to the accused at an address of 1360 E. 7 th Ave., Vancouver, British Columbia; • She attended at the front of the residence of the accused approximately eight minutes after her initial dispatch, but did not see any motor vehicle relating to the accused; • She then drove into the laneway behind the residence of the accused and observed a motor vehicle parked in a driveway off of the laneway with the brake lights illuminated; • She saw the driver of the motor vehicle, (later identified as the accused), exit the motor vehicle and then lock the motor vehicle; • At no time did she see the accused operating a motor vehicle on any highway or industrial road; • She agreed the motor vehicle was parked on a parking pad which was private property and not part of any highway or industrial road; • She agreed that her jurisdiction to issue an ARP related to a person found driving on a highway or industrial road; • She agreed that she issued the ARP outside of her jurisdiction; and, • She agreed at the time she made the ASD demand there was nothing specific that could link alcohol consumption to the accused.

[ 7 ] On December 11, 2014, the accused was observed by Constable Yamniuk operating a motor vehicle in an erratic manner. The accused was stopped and following two “fail” readings on an ASD was issued a second ARP. It was during the course of this investigation that the ARP issued on December 9, 2014, by Constable Harris came to light which resulted in the accused then being charged with driving while prohibited. STATUTORY FRAMEWORK [ 8 ] ARP’s are issued pursuant to

Part 4, s. 215.41 of the Act which reads: Automatic roadside driving prohibition 215.41

(1) In this section, "driver" includes a person having the care or control of a motor vehicle on a highway or industrial road whether or not the motor vehicle is in motion.

(2) In this

section and in sections 215.42, 215.43, 215.47, 215.49 and 215.5: "approved screening device" means a device prescribed by the Lieutenant Governor in Council for the purposes of this section; "fail" means an indication on an approved screening device that the concentration of alcohol in a person's blood is not less than 80 milligrams of alcohol in 100 millilitres of blood; "warn" means an indication on an approved screening device that the concentration of alcohol in a person's blood is not less than 50 milligrams of alcohol in 100 millilitres of blood. (3) [Repealed 2012-26-1.]

(3.1) If, at any time or place on a highway or industrial road, (

a) a peace officer makes a demand to a driver under the Criminal Code t o provide a sample of breath for analysis by means of an approved screening device and the approved screening device registers a warn or a fail, and (

b) the peace officer has reasonable grounds to believe, as a result of the analysis, that the driver's ability to drive is affected by alcohol, the peace officer, or another peace officer, must, (

c) if the driver holds a valid licence or permit issued under this Act , or a document issued in another jurisdiction that allows the driver to operate a motor vehicle, take possession of the driver's licence, permit or document if the driver has it in his or her possession, and (

d) subject to

section 215.42, serve on the driver a notice of driving prohibition.

(4) If a peace officer has reasonable grounds to believe that a driver failed or refused, without reasonable excuse, to comply with a demand made under the Criminal Code t o provide a sample of breath for analysis by means of an approved screening device, the peace officer, or another peace officer, must take those actions described in subsection (3.1) (

c) and (d).

(5) If the driver is not in possession of his or her licence or permit issued under this Act to operate a motor vehicle at the time the driver is served with the notice of driving prohibition, the driver must promptly send the licence or permit to the Insurance Corporation of British Columbia.

(6) The notice of driving prohibition must be in the prescribed form and must contain the following: (

a) a statement that the driver is immediately prohibited from driving, for the period set out in the notice of prohibition; (

b) a statement setting out (

i) the amount of any monetary penalty imposed on the driver under

section 215.44, and (ii) the requirement that the monetary penalty be paid no later than 30 days after the date the notice is served; (

c) a statement of the right to have the driving prohibition reviewed by the superintendent under

section 215.48; (

d) instructions describing how to apply for that review.

(7) A notice of driving prohibition must not be served on a person under this

section if a notice of driving prohibition is served on the person under

section 94.1. [ 9 ] When a driver registers a “fail” following an ASD demand there are significant legal consequences including: • A prohibition for 90 days: s. 215.43(2.1) of the Act ;

• A monetary penalty of $500: s. 215.44 of the Act ; • Register in and attend any remedial program required by the Superintendent of Motor Vehicles (the “Superintendent”): s. 215.45 of the Act ; • Impoundment of any motor vehicle that the driver was operating at the time the ARP was issued: s. 215.46 of the Act . [ 10 ] A driver who is subject to an ARP may dispute the prohibition within 7 days of the date of issuance of the ARP, by filing an application at any Driver Licencing Centre in the prescribed form, and paying the prescribed fees: s. 215.48 (1) of the Act . [ 11 ] There are no provisions in the Act which allow for an extension of time for a review of an ARP: Isinger v.

The Superintendent of Motor Vehicles , 2015 BCSC 2220 at paras. 2 and 32 . [ 12 ] The filing of an application for review does not stay the driving prohibition: s. 215.48 (4) of the Act . [ 13 ] If, after considering an application for review under s. 215.48, the Superintendent is not satisfied that the disputant was a “driver” within the meaning of s. 215.41 of the Act , or is not satisfied that there was proper compliance with respect to the statutory protocols for the use of the ASD contained in the Act in relation to a 90 day prohibition, then the Superintendent must revoke the driving prohibition, cancel the monetary penalty and require that ICBC return any existing valid driver’s licence to the disputant: s. 215.5 (4)(

b) of the Act . [ 14 ] The decision of the Superintendent, upon review of an ARP, must be rendered in writing within 21 days of the date of issuance of the ARP. If the Superintendent is unable to render a decision within 21 days then the Superintendent may extend the time to render a decision: S. 215.5 (6) and (7) of the Act . [ 15 ] A decision of the Superintendent is reviewable to the Supreme Court of British Columbia pursuant to the Judicial Review Procedure Act , R.S.B.C. 1996, c. 241. POSITION OF THE PARTIES (

A) The Accused (

i) Jurisdiction [ 16 ] The accused’s submissions on the issue of jurisdiction can be summarized as follows: • The prohibition issued by Constable Harris was void ab initio as Constable Harris lacked the jurisdiction to issue the prohibition because the accused was not a driver on a highway or industrial road as required by s. 215.41 (1) of the Act : Jago v. British Columbia (Superintendent of Motor Vehicles) , 2011 BCSC 1454 at para. 14 ; • Constable Harris did not have the requisite belief that the accused’s ability to drive it was affected by alcohol as required by s. 215.41 (3.1) (

b) of the Act ; • Whether the accused’s ability to drive was affected by alcohol is not a ground of review pursuant to the Act ; • The accused has no other avenues of an appeal of the ARP as he is bound to follow the statutory process set out in the Act ; • Despite the fact that Constable Harris did not have jurisdiction to issue the prohibition, there is no other remedy available for him to correct the prohibition; • To allow the ARP issued by Constable Harris to stand would tacitly condone police officers to act without jurisdiction and subject citizens to unwarranted consequences: Transcript, March 4, 2016, p. 23, ll. 10-34.

(ii) Collateral Attack [ 17 ] The accused’s submissions on the issue of collateral attack can be summarized as follows: • As Constable Harris lacked the jurisdiction to issue the ARP then the accused was bound by an invalid order; • As Constable Harris lacked jurisdiction to issue the ARP then the prohibition should be found to be void ab initio ; • To permit the ARP issued by Constable Harris to stand would be so egregious that it results in a trial process that is fundamentally flawed and the consequences of which are so severe that this case is exceptional to the collateral attack rule; • The accused had no obligation to comply with the ARP as Constable Harris had no right to issue the ARP and, as such, this is not an attack in the classic sense of violating the collateral attack rule. (

B) The Crown (

i) Jurisdiction [ 18 ] The Crown did not specifically address the issue of jurisdiction raised by the accused. [ 19 ] In their written submissions, the Crown took the position that Constable Yamniuk’s evidence established that the accused was driving on December 11, 2014. The Certificate of the Superintendent and the ARP issued by Constable Harris established that the accused was prohibited from driving on December 9, 2014 , and therefore, the validity of the prohibition is not open to challenge : R . v. Peter , [2004] B.C.J.

No. 1883 at para. 31 . (ii) Collateral Attack [ 20 ] The Crown’s submissions on the issue of collateral attack can be summarized as follows: • Once Constable Harris issued the ARP on the accused he was bound by it until it ended or he successfully appealed the ARP; • For the accused to now argue that the ARP issued by Constable Harris was invalid would amount to a collateral attack: R. v. Anthony , 2004 BCPC 238 at para. 23 ; • Even if Constable Harris did not have the jurisdiction to issue the ARP it nonetheless remains valid unless successfully appealed: R. v. J.L.S ., [2002] B.C.J.

No. 495 at para. 38 (C.A.) ; • The submissions of the accused dealing with the validity of the ARP issued by Constable Harris are inapplicable to the case at bar; • There is a review process contained in the Act to challenge the ARP issued by Constable Harris; • The process for a review of the ARP issued by Constable Harris is printed on the front of the notice of prohibition and would have informed him of his right of a review of the ARP; • There is no evidence of any attempt by the accused to review the ARP issued by Constable Harris.

ANALYSIS (

i) Jurisdiction [21] Constable Harris never observed the accused to be in the care or control of a motor vehicle on a highway or industrial road,either in motion or not in motion, as required by s. 215.41 of the Act. [22] Constable Harris erroneously assumed that the parking pad on which the accused’s motor vehicle was located formed part ofthe laneway. She conceded in cross-examination that she was wrong. [23] In Jago, supra, at para. 14, Barrow J. found that ARPs only apply to drivers found driving or in care or control of a motorvehicle on a highway or industrial road.

The jurisdiction to issue an ARP to persons found driving on private property would not fallwithin the definition of a “highway” or an “industrial road.” [24] I am satisfied that the Crown has failed to establish that Constable Harris had the jurisdiction to issue the ARP on the accused ashe was on private property at the time he had the care or control of his motor vehicle. (ii) Collateral Attack [25] A collateral attack is judicially described as “an attack made in proceedings other than those whose specific object is thereversal, variation, or nullification of the order or judgment”: R. v.

Wilson, [1998] 2 S.C.R. 594, at p. 599. [26] The rule is a judicial creation based on general considerations related to the administration of justice. The doctrine is designedto maintain the rule of law and the reputation of the administration of justice. As a consequence, the rule against collateral attack isintended to prevent a party from circumventing the effect of the decision rendered against it: Garland v.

Consumers’ Gas Co., 2004 SCC25, at para. 72. [27] In determining whether or not a Provincial Court, in its capacity as a penal court, may determine the validity of anadministrative order on a collateral basis will depend on the statute under which the administrative order was made. [28] Expanding upon this, L’Heureux-Dubé J., in R. v.

Consolidated Maybrun Mines Ltd., (SCC), [1998] S.C.J.No. 32, at para. 15 [“Maybrun”] enumerated five factors for determining when an exception applies to a collateral attack: (1) the wording of the statute; (2) the purpose of the legislation; (3) the availability of an appeal; (4) the kind of collateral attack; and (5) the penalty on a conviction for failing to comply with the order. [29] The Act does not address the collateral attack rule.

However, the wording of the Act is structured in clear language to address s.215.41 driving prohibitions including: • Defining critical terminology: s. 215.41(1); • Driver rights: s. 215.42; • Effect of an s. 215.41 driving prohibition: s. 215.43; • Additional consequences of the driving prohibition: ss. 215.44, 215.45 and s. 215.46;

• Duties of a peace officer under s. 215.41: s. 215.47; • Framework for a review of an s. 215.41 prohibition: s. 215.48; • Considerations on review by the Superintendent: s. 215.49; and, • Decision of the superintendent after an s. 215.48: s. 215.48. [ 30 ] It is clear from the wording of the Act that it is designed to serve the twin purposes of the ARP regime in promoting highway safety and to deter impaired driving by giving peace officers more tools at the roadside to remove impaired and dangerous drivers: Wilson v.

British Columbia (Superintendent of Motor Vehicles), 2015 SCC 47 , at paras. 36 - 38 . [ 31 ] I conclude that the wording of the Act and the purposes of the Act weigh against the argument of the accused that this application is not a collateral attack of the ARP issued by Constable Harris. [ 32 ] For reasons unknown to the court, the accused did not avail himself of the review provisions set out in s. 215.48 of the Act .

In his written submissions the accused opined that as the ARP commences immediately and the Superintendent is not required to decide his review decision for up to 21 days after hearing, that the appeal mechanism for a review of the ARP was largely “meaningless”, as the accused would be bound by an invalid ARP with no remedy over and above the timeframe of the appeal process. [ 33 ] By operation of s. 215.49 of the Act , the accused would have had the opportunity to advance the argument that he was not a “driver” through the filing of written statements or affidavit evidence.

In the case of an oral hearing the accused would have the opportunity of presenting any relevant evidence or representations. [ 34 ] Arguably the accused was not a “driver” as defined in s. 215.41(1) of the Act .

Upon a review pursuant to s. 215.5 of the Act , if the Superintendent was not satisfied that the accused was a “driver”, then he must revoke the driving prohibition, cancel the monetary penalty, cancel any impoundment and, lastly, if the accused held a valid driver’s licence or permit, direct ICBC to return that licence or permit to him. [ 35 ] While the process for a review of an ARP is not without some limitations, it was a process that was available to the accused.

If the accused was not satisfied with the decision of the Superintendent, he would also have had the opportunity to seek a review of the Superintendent’s decision to the British Columbia Supreme Court pursuant to the Judicial Review Procedure Act . [ 36 ] The accused’s failure to pursue a review of his ARP through the available and appropriate administrative and judicial process weighs against the argument of the accused that this application is not a collateral attack of the ARP issued by Constable Harris. [ 37 ] The accused has characterized the jurisdiction issue as falling outside of the collateral attack rule as the ARP was void ab initio .

The accused submits that Constable Harris did not properly exercise her jurisdiction to issue the ARP to the accused as he was not found in care or control of a motor vehicle on a highway or industrial road. [ 38 ] As noted in the Jurisdiction Analysis of this ruling, I found that the Crown has not established that Constable Harris had the jurisdiction to issue the ARP. With that in mind, there was no bad faith exercised in the conduct of Constable Harris. She made an inadvertent error.

The accused was issued an invalid ARP. [ 39 ] That being said, the accused cannot use the Provincial Court as an avenue of appeal to invalidate or render inoperative the ARP issued by Constable Harris: Canada (Attorney General) v. Telezone , 2010 SCC 62 , at para. 64 . This finding weighs against the accused’s position that he is not advancing a collateral attack. [ 40 ] In the event of a conviction for driving while prohibited the potential penalties facing the accused are not inconsequential.

Those penalties include the imposition of a fine, and depending on the driving record of the accused, a possible jail sentence. A mandatory driving prohibition would also apply in the event of a conviction. [ 41 ] Those penalties may only be imposed following a trial in which proof beyond a reasonable doubt must be established by the Crown, and in which the accused’s rights under the Charter of Rights are fully protected. While finding that the potential penalties are serious, that fact alone does not constitute a reason to allow a collateral attack on the ARP.

This is particularly so in light of the twin purposes of the ARP regime in promoting highway safety and deterring impaired driving. [ 42 ] I conclude that the Maybrun factors establish that the accused’s attack on the ARP issued by Constable Harris amounts to a collateral attack which is impermissible. (iii) Is This Case an Exception to the Rule against Collateral Attack? [ 43 ] Anthony, supra , involved several issues, which included a challenge to the validity of a 24 hour prohibition issued pursuant to s.

215(2) of the Act . Mr. Anthony did not seek a review of the prohibition he was issued as prescribed by s. 215.1 of the Act . [ 44 ] In the course of her reasons, Phillips P.C.J. considered the rule against collateral attack. She expressed the rationale behind the rule as “powerful” and went on to state in part: The rule seeks to maintain the rule of law and preserve the repute of the administration of justice. To allow parties to govern their own affairs according to their own perception of matters, such as jurisdiction of the court issuing an order, would result in uncertainty.

Further, the orderly and functional administration of justice requires that court orders be considered final and binding unless they are reversed on appeal: para. 23.

Phillips P.C.J. went on to consider the threshold for an exception to the collateral attack rule in the following language: To permit an order to stand, however, which is so egregious that it results in a trial process that is fundamentally flawed would result in procedure governing substance, a result that cannot be accepted: ibid . [ 45 ] The accused submits that the prohibition issued by Constable Harris amounted to egregious conduct as she abused her authority in issuing the ARP to the accused.

The accused further submits that the Act provides peace officers with the procedures and tools to investigate impaired driving. As the consequences of an ARP are severe, it is necessary that peace officers strictly adhere to the statutory provisions of the Act . [ 46 ] The accused further submits that to allow the ARP issued by Constable Harris to stand would offend the “community’s sense of fair play and decency”.

By implication, it would authorize peace officers to act without jurisdiction thus leading to citizens being subjected to unwarranted consequences. [ 47 ] There is jurisprudence in the criminal law context in which “egregious” is defined as “conspicuously bad” (Miriam Webster Dictionary) or “outstandingly bad; shocking” (Oxford English Dictionary). Where there is also an asserted Charter of Rights violation, “particularly egregious” has been defined as “significantly serious, have a significant impact on the accused, or both”: R. v.

Cheema , 2016 CarswellOnt 5375 (OCJ), at para. 11 . [ 48 ] There is jurisprudence in a tort law context which defines “egregious” as behaviour which is a marked departure from normal behaviour including conduct that was “remarkable in a bad sense; gross, flagrant outrageous”: Brown v. Newton , 2010 CarswellNS 209 (N.S. Sm. Cl. Ct.), at para. 172 . [ 49 ] In the administrative law context, there is jurisprudence which defines “particularly egregious” as “remarkably or outstandingly bad in comparison to other workplace offences”: Parmalat Dairy & Bakery Inc. v.

CAW -Canada , Local 462 (2012), 2012 CarswellOnt 9455 (Ont. Arb.), at para. 5 . [ 50 ] As noted in the “Background” of this ruling, Constable Harris made the ASD demand on the accused when there was nothing specific that could link alcohol consumption to the accused.

The accused is quite correct in his submission that it was necessary that Constable Harris have reasonable grounds to believe that the accused’s ability to drive a motor vehicle was affected by alcohol before she made the ASD demand. [ 51 ] The failure to establish reasonable grounds of belief that the accused’s ability to drive a motor vehicle is affected by alcohol is not an enumerated ground to be considered by the Superintendent in a review pursuant to s. 215.5(4)(

b) of the Act . [ 52 ] However, as discussed in the “Collateral Attack” analysis, the Act requires that a peace officer must be satisfied that before an ARP can be issued that the recipient of that ARP must be a “driver” having the care or control of a motor vehicle on a highway or industrial road, whether or not the motor vehicle is in motion: s. 215.41(1) of the Act . [ 53 ] If the accused was not a “driver” as defined by the Act , and Constable Harris did not have reasonable grounds to administer the ASD then arguably can it be established that the two “fails” were “reliable” as required by s. 215.5(4)(b)(iv) of the Act ?

The answer to this question is unknown as the accused elected not to seek a review of the ARP issued by Constable Harris. [ 54 ] I have found that Constable Harris did not exercise any bad faith in her conduct with the accused. I do not find that Constable Harris “abused her authority” when she issued the ARP on the accused when he was parked on his driveway. She made an inadvertent error when she issued the ARP. [ 55 ] The ARP that was issued to the accused states clearly on the face of the document, in capital letters, “IMMEDIATE EFFECT OF PROHIBITION AND RIGHT OF REVIEW”.

The ARP then details the immediate effect of the prohibition and details the process for a review of the prohibition. [ 56 ] I appreciate that the accused would not have a remedy for a period of time were he to have pursued the review process of the issued ARP. In addition, the accused would have to pay prescribed fees to access the review process.

All of this occurring with the continuing suspension of his licence, notwithstanding that Constable Harris had issued an ARP without jurisdiction. [ 57 ] As was discussed in the “Collateral Attack” analysis, the review process to the Superintendent is not without its limitations. However, I do not accept the submission of the accused that in relation to the specific circumstances of this case that the issuing of the ARP by Constable Harris amounted to egregious behaviour on her part and nor do I find that the process of review available to the

accused was fundamentally flawed as being essentially “meaningless”. It must be remembered that it was the unexplained choice of the accused not to pursue a review. CONCLUSION [ 58 ] In conclusion I find: • The Crown has failed to establish that Constable Harris had the jurisdiction to issue the ARP to the accused; • The accused’s challenge to the ARP issued by Constable Harris is a collateral attack and therefore impermissible; • The circumstances of this case do not justify an exception to the collateral attack rule.

DISPOSITION [ 59 ] I am satisfied beyond a reasonable doubt, based upon all of the evidence presented by the Crown, that the accused is guilty of driving while prohibited on December 11, 2014, at Vancouver, British Columbia, contrary to s. 95(1)(

a) of the Act . _____________________________ The Honourable Judge G. Rideout Provincial Court of British Columbia