Marika Skye Winthrope Appellant v. Superintendent of Motor Vehicles, 2018 BCSC 1053

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Winthrope v. British Columbia (Superintendent of Motor Vehicles), 2018 BCSC 1053 Date: 20180626 Docket: S185072 Registry: Vancouver Between: Marika Skye Winthrope Appellant And Superintendent of Motor Vehicles Respondent Before: The Honourable Mr. Justice N. Smith On statutory appeal from: An order of the Superintendent of Motor Vehicles, dated April 12, 2018 (File C-0407885) Reasons for Judgment Counsel for the Appellant: P. Mennie Counsel for the Respondent: J.A. Dutton Place and Date of Hearing: Vancouver, B.C.

June 11, 2018 Place and Date of Judgment: Vancouver, B.C. June 26, 2018 [ 1 ] The appellant, Marika Winthrope, appeals a three month driving prohibition that was issued for what the Superintendent of Motor Vehicles (the “Superintendent”) considered to be her unsatisfactory driving record. [ 2 ] Ms. Winthrope has held a novice driver’s licence since 2012 but says she has never applied for a full licence because of the costs involved. Her driving record shows two violations—a speeding ticket in 2015 and a ticket issued on May 24, 2017 for using an electronic device while driving.

There was a one month prohibition in 2016, which I presume was based on the 2015 speeding ticket. [ 3 ] The prohibition now at issue arose after the more recent violation for using an electronic device was added to Ms. Winthrope’s driving record. Her undisputed evidence is that she used her cellular telephone while stopped at a red light in order to make a 9-1-1 emergency call about a medical issue concerning her mother. Ms.

Winthrope had been notified of the problem by her intellectually disabled brother, who was at home with their mother but incapable of calling 9-1-1 and communicating the circumstances himself. [ 4 ] The driving prohibition and this appeal are governed by ss. 93 and 94 of the Motor Vehicle Act , R.S.B.C. 1996, c. 318: 93

(1) Even though a person is or may be subject to another prohibition from driving, if the superintendent considers it to be in the public interest, the superintendent may, with or without a hearing, prohibit the person from driving a motor vehicle (

a) if the person (

i) has failed to comply with this Act or the regulations, or (ii) has a driving record that in the opinion of the superintendent is unsatisfactory, (

b) if the person's privilege of driving a motor vehicle has been suspended or cancelled in any jurisdiction in Canada or in the United States of America, or (

c) for any cause not referred to in paragraph (

a) or (

b) that relates to the use or operation of motor vehicles.

(2) In forming an opinion as to whether a person's driving record is unsatisfactory the superintendent may consider all or any part of the person's driving record, including but not limited to any part of the driving record previously taken into account by a court or by the superintendent in making any order prohibiting the person from driving a motor vehicle.

(3) If under this

section the superintendent prohibits a person from driving a motor vehicle on the grounds of an unsatisfactory driving record, a prohibition so made must not be held invalid on the grounds that the superintendent did not examine or consider other information or evidence. 94

(1) A person who is prohibited from driving a motor vehicle under

section 93 may, within 30 days after the person receives notice of prohibition from driving a motor vehicle, appeal the prohibition to the Supreme Court.

(2) The appellant must, not less than one month before the hearing, serve the superintendent, either personally or by registered mail, with a copy of the notice of appeal and notice of the date of the hearing.

(3) The court to which an appeal is made under subsection (1) must (

a) dismiss the appeal, or (

b) allow the appeal and order the superintendent to terminate the prohibition imposed under

section 93. [ 5 ] On August 9, 2017, the Superintendent sent Ms. Winthrope a Notice of Intent to Prohibit, notifying her that she was to be prohibited from driving for 90 days pursuant s. 93(1)(a)(ii) “due to [her] unsatisfactory driving record.” The letter said she could either acknowledge and accept the prohibition, or could request a review of the decision. Ms. Winthrope applied for a review on August 24, 2017. The application enclosed a letter that read, in part: ... The circumstances under which I used my cell phone were I believe extra ordinary.

I attempted to speak with the officer at the time but was denied that opportunity. I received an emergency call (while on the way to work) from an App known as ManDown from my mother’s cell phone. This dials automatically if there is no motion detected after a preset length of time. Upon answering I realized that the caller was my 22 year old brother Jamie who is mentally handicapped with Fragile X Syndrome. My mother Pamela Winthrope was apparently very ill and believed she was having a stroke.

Her medical history is such that in the past 4 years she has had a paralyzing stroke, brain aneurysm and suffers from severe arthritis. I calmed my brother down the best I could (he has limited verbal skills and cannot dial a phone himself) and called my mother when I reached work. It was subsequently confirmed that my mother had suffered a minor stroke.

I have taken steps to prevent this from happening again, including arranging for alternate emergency contact for my family. [ 6 ] On October 10, 2017, the Superintendent sent a notice of prohibition that confirmed the prohibition “based on your unsatisfactory driving record.” The notice did not address the circumstances set out in Ms. Winthrope’s letter. It asked Ms. Winthrope to return the notice with her voluntary acknowledgement of the prohibition and said the prohibition would commence on the date of acknowledgment. [ 7 ] Ms.

Winthrope did not voluntarily acknowledge the prohibition and was served with a further notice of prohibition by a police officer on January 22, 2018. She filed a notice of appeal on February 9, 2018, but also applied to the Superintendent for a further review on March 22, 2018. The parties consented to an interim stay of the prohibition. [ 8 ] As part of her review application, Ms. Winthrope provided the Superintendent with an affidavit setting out the circumstances in more detail. She said she is the primary caregiver for both her 22-year-old brother, Jamie, and her mother, Pamela.

She said Pamela has a history of strokes, one of which caused partial paralysis, and suffers from a variety of other medical conditions. Jamie suffers from Fragile X Syndrome, a genetic condition that causes intellectual disability as well as behavioural problems. She said he is able to operate a computer, but cannot dial a telephone and requires 24-hour supervision because he would not respond appropriately in emergency situations. [ 9 ] Ms. Winthrope’s affidavit described the ManDown application on her mother’s cell phone as one that automatically notifies designated contacts in case of emergency.

She described the May 24, 2017 incident as follows: 34. On or about May 24, 2017, I was driving to work. At some time during my drive, I received a notification from ManDown. 35. Jamie couldn’t figure out what was going on so he activated the phone call, by pressing the “SOS” button in ManDown to get in touch with me. I picked up the phone, but Jamie was unable to vocalize what was wrong with Pamela. 36. I hung up the phone on Jamie and waited until I was stopped behind a red light on Marine Drive in North Vancouver, before I picked up the phone again to call 911. 37.

Before I was able to call emergency services, an RCMP Vehicle noticed that I was using my phone and immediately pulled me over. 38. The reason for the ManDown notification and Jamie’s subsequent call, as I learned afterwards, was that Pamela had experienced a mini-stroke and was unable to get to her phone. Jamie therefore tried to get in touch with me to call for help. [ 10 ] Pamela Winthrope also provided the Superintendent with an affidavit confirming her health problems. Her description of the events of May 24, 2017 is: 9.

On or around May 24, 2017, I experienced a third mini-stroke as I was watching over Jamie. I felt my lower face and my mouth going completely numb, causing me to panic. 10. My panic attack caused me to start shaking uncontrollably. Jamie noticed that I was in distress and he went directly to my phone to use the ManDown App.

[ 11 ] In a separate letter submitted to the Superintendent, Ms.

Winthrope said she had planned to dispute the ticket she had received for using her cellular telephone, but did not do so because, while renewing her vehicle insurance, she was erroneously told by a representative of the Insurance Corporation of British Columbia that she was required to pay the ticket before her insurance could be renewed. [ 12 ] In a decision dated April 12, 2018, the adjudicator delegated by the Superintendent referred to s. 214.2 of the Motor Vehicle Act , which prohibits the use of electronic devices, including hand held cellular telephones, while driving.

The adjudicator also referred to the exceptions set out in s. 214.4: 214.4

Section 214.2 does not apply to a person who uses an electronic device (

a) while operating a motor vehicle that is safely parked off the roadway or lawfully parked on the roadway and is not impeding traffic, (

b) to call or send a message to a police force, fire department or ambulance service about an emergency, or (

c) that is configured and equipped to allow hands-free use in a telephone function, is used in a hands-free manner and is used in accordance with the regulations, if any. [ 13 ] In response to the circumstances described by Ms. Winthrope, the adjudicator said:

Section 214.4(

b) permits a driver to call or send a message to a police force, fire department or ambulance service about an emergency. Your submission does not indicate that when you received the notification you were in a position that posed an immediate danger to your personal safety. You state in your submission that after you received the notification you waited until you were at a red light before responding.

This indicates that you did not respond immediately which suggest [ sic ] that you may have had an opportunity to safely pull over to the side of the road to respond to the notification; however, you waited until you came to a red light. Therefore, I am not satisfied that the circumstances you describe meet these criteria under the Act for the purposes that they were intended. [ 14 ] The adjudicator also noted that conditions of the novice licence include a prohibition against the use of any type of electronic device. [ 15 ] Ms.

Winthrope said the driving prohibition would cause hardship because she needs to be able to drive in order to properly care for and assist her family members and in order to retain her employment. The adjudicator found her evidence on those points insufficient. In conclusion, the adjudicator said: …I have considered that despite experiencing a driving prohibition this intervention was not enough of a deterrent to prompt a change in your driving behaviour as you were issued a violation ticket for Use an Electronic Device While Driving.

This is one of the most dangerous driving actions a driver can engage in and poses a significant safety risk to other road users and yourself. As a GLP driver, you are aware of the conditions and restrictions of your Novice driver’s licence and your action demonstrates a lack of regard for public safety and a breach of those restrictions. When making my decision I must weigh your need for a driver's licence against the need to protect public safety. ...I cannot overlook the traffic offences on your driving record as they relate to public safety.

I am concerned that after you had experienced a prohibition term you did not improve your driving behaviour as you were issued another violation ticket for a high risk driving offence. I am also concerned that as a participant in the GLP you were aware of the conditions and restrictions of your Novice driver's licence and that you are not permitted to operate any type of hand-held electronic device white driving.

While I have considered your explanation and circumstances of the incident, I am not satisfied that you were unable to park safely off the roadway to respond to the notification. [ 16 ] Although this is a statutory appeal, rather than an application for judicial review, the parties agree that the proper standard of review is reasonableness: Withrow v.

British Columbia (Superintendent of Motor Vehicles) , 2013 BCSC 451 at paras. 14-17 . [ 17 ] Section 93(1) (a)(ii) of the Motor Vehicle Act allows the Superintendent to issue a driving prohibition if it is in the public interest, based on an unsatisfactory driving record. The purpose of the

section is to “keep potentially unsafe drivers off the highway”: Clozza v. British Columbia (Superintendent of Motor Vehicles) (6 March 1997), New Westminster S037027 (B.C.S.C.) at 6. In HMTQ v. Mason (6 November 2000) Vernon 35217 (B.C.S.C.), the Court accepted that the appellant driver and his family would suffer considerable hardship as a result of the prohibition but denied the appeal because “the driving safety of the public is what is at stake here.” In Clozza , the driver had accumulated more than 20 speeding violations in a six-year period.

Mason involved five speeding offences in 10 months. [ 18 ] In dealing with the circumstances put forward by Ms. Winthrope, the adjudicator said she “may” have had the opportunity to pull over before responding to the emergency notification. Referring to s. 214.4 (

b) of the Motor Vehicle Act , which permits a driver to use an electronic device to call the police, fire department or ambulance about an emergency, the adjudicator suggested that defence only applies to a situation of immediate danger to the driver’s own personal safety and does not extend to emergencies affecting others. That limitation is not found in the statute. Although I question whether the adjudicator’s

interpretation of the

section was reasonable, I do not need to decide this appeal on that basis. [ 19 ] The adjudicator was not being asked to set aside the ticket Ms. Winthrope had received or to determine whether there was a valid defence to it. Ms. Winthrope did not dispute the ticket, although she said she had intended to. In the absence of a filed dispute, the adjudicator was required to assume the ticket had been validly issued. I am required to make the same assumption. [ 20 ] The issue before the adjudicator was not the validity of a single ticket, but whether Ms. Winthrope’s driving record justified prohibition in the public interest pursuant to s. 93 . The

section requires a relationship between what the Superintendent considers to be an unsatisfactory driving record and the public interest that can be served by a prohibition. In other words, the Superintendent must consider whether the driving record reflects a pattern of conduct that may continue and pose a danger to the public.

[ 21 ] The adjudicator in this case therefore had to consider not only Ms. Winthrope’s driving record, but whether that record showed her to be a dangerous driver who might put the safety of the public at risk. [ 22 ] Ms. Winthrope had two violations on her driving record. The circumstances of the most recent violation were relevant in that, on her unchallenged evidence, they indicated that the violation had occurred in an exceptional situation. In order to determine whether Ms.

Winthrope’s driving record indicated a need to protect the public, the adjudicator had to consider the likelihood of that or similar conduct being repeated and whether a suspension was necessary to deter such conduct. [ 23 ] Rather than address that issue, the adjudicator simply relied on the fact of the violation as evidence that Ms. Winthrope had failed to improve her general “driving behaviour”.

In failing to address the fundamental issue to be addressed under the applicable legislation, the adjudicator made a decision that I find to be unreasonable. [ 24 ] I allow the appeal and order the Superintendent to terminate the prohibition. “N. Smith J.”