R v Bushey, 2023 ABCJ 284

In the Alberta Court of Justice Citation: R v Bushey, 2023 ABCJ 284 Date: 20231220 Docket: 221142151P1 Registry: Calgary In the Matter of R v Bushey Between: His Majesty the King - and - Michelle Bushey Reasons for Decision of the Honourable Justice I.L.

Maharaj Introduction [ 1 ] Driving while under the influence of alcohol or drugs is an endemic problem in Canadian society. [ 2 ] Alberta’s SafeRoads Program was established in December 2020 to accomplish two goals: first, “remov[ing] from the road those who are operating a motor vehicle while their ability to drive is impaired by alcohol or drugs without engaging the Criminal Code ”, and second, reducing the burden on the Alberta courts with respect to less complex impaired driving offences. [1] [ 3 ] In discussing the fundamental nature of the SafeRoads Program, the Crown refers to the comments made by the Honourable Peter Singh, Member of the Legislative Assembly for Calgary-East, who stated, on July 14, 2020: Mr.

Singh: Our current system is causing major backlogs in our courts and also needs adjustments to effectively deter impaired driving. Prosecutors, judges, and lawyers have more extremely important trials that require their attention, and many noncriminal impaired driving cases could be better resolved through alternative methods such as administrative penalties. These new penalties are much stricter than before.

They include higher fines, longer licence suspension times, and impounding. [2] [ 4 ] The Crown also refers to comments made by the Honourable Kacey Madu, acting as Minister of Justice and Attorney General of Alberta, who stated: The SafeRoads Program does indeed differentiate between first-time and repeat offenders. A first-time offender may only receive administrative penalties and not criminal charges but repeat offenders can expect both administrative penalties and criminal charges . Let me be clear. A first-time offence is not a get-out-of-jail-free card.

Anyone causing bodily harm or death will be criminally charged in addition to administrative penalties. [3] [ 5 ] The case at Bar involves circumstances where the Accused was sanctioned pursuant to the SafeRoads Program and issued charges under the Criminal Code . The Accused has tendered the special plea of autrefois convict with respect to her criminal charges, arguing that she has already been convicted for the incident in question under the SafeRoads Program.

Relevant Legislation Provincial Legislation [ 6 ] Multiple pieces of legislation, or portions thereof, make up Alberta’s SafeRoads Program, including the Traffic Safety Act (“ TSA ”), the SafeRoads Alberta Regulation (“ SafeRoads Reg ”), and the Provincial Administrative Penalties Act (“ PAP Act ”) and the Provincial Administrative Penalties Regulation (“ PAP Reg ” ). [4] For the purposes of this decision, the coordinated operation of the relevant portions of these various pieces of legislation is referred to as the SafeRoads Program. [ 7 ]

Section 88.1 of the TSA forms the foundation of the SafeRoads Program.

Section 88.1(1) (

a) of the TSA states that a peace officer shall issue a Notice of Administrative Penalty (“NAP”) to a driver where the police officer has reasonable ground to believe that, inter alia , a driver operated a motor vehicle while “the driver’s ability to operate the motor vehicle was impaired to any degree by alcohol ...” or “that a driver has within 2 hours after ceasing to operate a motor vehicle a blood alcohol concentration that is equal to or exceeds 80 milligrams of alcohol in 100 millilitres of blood”. [ 8 ] The issuance of a NAP is governed further by the PAP Act .

Section 5 of the PAP Act states that “[a]n officer who has reasonable grounds to believe that a person has committed a contravention may issue a notice of administrative penalty to that person”. A person who is issued a NAP pursuant to s 88.1 of the TSA is also subject to immediate roadside sanctions (“IRS”) as set out in s 88.1(4) of the TSA . [ 9 ] The IRS for a first contravention of s 88.1 of the TSA , as set out in s 88.1(4) of the TSA , are: (

a) For a first contravention of this section, (

i) the driver is suspended (

A) For an immediate period of 90 days, and (

B) Following the expiration of the period in paragraph (A), for a further period of one year, (ii) the peace officer or a person authorized by the peace officer shall seize the driver’s vehicle for 30 days, (iii) the driver is liable to a fine as provided for under the Provincial Administrative Penalties Act for contravention of this

section for the first time, and (iv) in the case of a driver who holds an operator’s licence, the driver is subject to any additional conditions for reinstatement of the licence as set out in the regulations for contravention of this

section for the first time ... [ 10 ] The sanctions for second or subsequent contraventions are also set out in s 88.1(4) of the TSA but are not relevant to the case at Bar. [ 11 ] The Province of Alberta’s authority to issue financial penalties through the enactment of regulations is provided for under ss 35(2)(a) - (

e) of PAP Act . The PAP Reg sets out the penalties with respect to contraventions of s 88.1 of the TSA , at s 4(

d) as follows: 4 Where a contravention of

section 88.01 , 88.02 , 88.03 or 88.1 of the Traffic Safety Act is the subject of a notice of administrative penalty, the amount of the fine that may be imposed by the notice is ... (

d) in the case of a contravention of

section 88.1, (

i) If the contravention is the recipient’s first contravention of that section, $1000, or (ii) If the contravention is the recipient’s 2nd or any subsequent contravention of that section, $2000, plus the applicable surcharge. [ 12 ] The TSA does not specifically preclude a Criminal Code prosecution for impaired driving in the event of the issuance of a NAP and IRS pursuant to the SafeRoads Program. [ 13 ] In fact, there are aspects of the TSA that reflect that the parallel operation of the Criminal Code and the TSA was contemplated by the Legislature.

For example, s 98 allows for a person to be disqualified from driving a motor vehicle pursuant to both s 94 of the TSA and also s 320.24 of the Criminal Code . The

section further mandates that where both disqualifications apply they have consecutive effect. The inference that can be drawn from this type of language is that the provisions of the TSA with respect to driving offences are intended to operate independently of the Criminal Code , and not in place of the Criminal Code . That being said, there is no explicit provision in the TSA that speaks directly to whether s 88.1 of the TSA is intended to oust the jurisdiction of the Criminal Code provisions, through the availability of special pleas or otherwise.

Criminal Code Provisions [ 14 ] The Criminal Code ’s foundational principle is the maintenance of social order through the deterrence and denunciation of

criminal behaviour, including impaired driving, while seeking rehabilitation of offenders, or separation of offenders from the community, if warranted. [ 15 ] Sections 320.14(1) (

a) and 320.14(1) (

b) of the Criminal Code are the main provisions that address the criminal offences relating to driving while impaired by alcohol. Sections 320.14 (

c) and 320.14 (

d) apply to impairment by drugs, which follows the same structure as impairment by alcohol. In the case at Bar, the alleged impairment is conceded to be related to the consumption of alcohol by the Accused. [ 16 ] Sections 320.14(1)(

a) and 320.14(1)(

b) state: 320.14(1) Everyone commits an offence who (

a) operates a conveyance while the person’s ability to operate it is impaired to any degree by alcohol or a drug or by a combination of alcohol and a drug; (

b) subject to subsection (5), has, within two hours after ceasing to operate a conveyance, a blook alcohol concentration that is equal to or exceeds 80 mg of alcohol in 100 mL of blood ... [ 17 ]

Section 320.15 addresses circumstances where there are serious consequences, such as the causing of bodily harm or death, as a result of the impairment. [ 18 ] Sections 320.19 and 320.24 set out the penalties that arise upon conviction pursuant to s 320.14(1) as follows: Punishment 320.19

(1) Every person who commits an offence under subsection 320.14(1) or 320.15(1) is guilty of ... (

b) An offence punishable on

summary conviction and liable to a fine of not more than $5,000 or to imprisonment for a term of not more than two years less a day, or to both, and to a minimum punishment of, (

i) For a first offence, a fine of $1,000. (ii) For a second offence, imprisonment for a term of 30 days, and (iii) For each subsequent offence, imprisonment for a term of 120 days. Mandatory Prohibition Order 320.24(1) If an offender is found guilty of an offence under subsection 320.14(1) or 320.15(1), the court that sentences the offender shall, in addition to any other punishment that may be imposed for that offence, make an order prohibiting the offender from operating the type of conveyance in question during a period to be determined in accordance with subsection (2). Prohibition Period 320.24(2) The prohibition period is (

a) for a first offence, not less than one year and not more than three years, plus the entire period to which the offender is sentenced to imprisonment ... [ 19 ] The Criminal Code provisions that allow for the special pleas are ss 607 and 609, as follows: Special Pleas 607(1) An accused may plead the special pleas of (

a) autrefois acquit ; (

b) autrefois convict; (

c) pardon; and (

d) an expungement order under the Expungement of Historically Unjust Convictions Act . What determines identity 609(1) Where an issue on a plea of autrefois acquit or autrefois convict to a count is tried and it appears (

a) that the matter on which the accused was given in charge on the former trial is the same in whole or in part as that on which it is proposed to give him in charge, and

(

b) that on the former trial, if all proper amendments had been made that might then have been made, he might have be3en convicted on all of the offences of which he may be convicted on the count to which the plea of autrefois acquit or autrefois convict is pleaded, the judge shall give judgment discharging the accused in respect of that count. Circumstances at Bar [ 20 ] Michelle Bushey (the “Accused”) was stopped by police on November 20, 2022, for suspected impaired operation of a motor vehicle. [ 21 ] The Accused was asked to provide a breath sample using an approved breath sampling device.

The result of the breath sample was “Fail”. She was issued a NAP and IRS pursuant to s 88.1of the TSA . The sanctions were an immediate suspension of the Accused’s driver’s licence for 90 days, a fine of $1000, a victim fine surcharge of $200, and the impoundment of her vehicle for a period of 30 days.

She was issued a further 12-month prohibition on driving, which she could mitigate by participating in the ignition interlock program, at her own cost, if she was eligible. [ 22 ] The Accused did not seek to review the NAP within the seven-day review period set out in s 7 of the PAP Act . [ 23 ] The Accused was also charged with operating a conveyance while impaired and driving with a blood alcohol level greater than 80 mg/100 ml of blood pursuant to ss 320.14(1)(

a) and 320.14(1)(

b) of the Criminal Code . [5] [ 24 ] The Accused appeared in docket court on February 24, 2023, and entered a special plea of autrefois convict, pursuant to s 607(1)(

b) of the Criminal Code , to the Criminal Code charges against her . [ 25 ] The Accused applies to this Court for a judicial stay of the Criminal Code proceedings on the basis that she has already been convicted of the offence of impaired driving and issued IRS pursuant to the SafeRoads Program.

Issue [ 26 ] The issue before this Court is a discrete, but somewhat complex, legal question: is the special plea of autrefois convict applicable to a situation where the first of the proceedings occurs under the SafeRoads Program while the second proceeding is a Criminal Code prosecution with the result that a judicial stay of proceedings of the Criminal Code prosecution is warranted? Legal Analysis Jurisdiction [ 27 ] The TSA , the SafeRoads Reg , the PAP Act , and the PAP Reg are all within the constitutional jurisdiction of the Province of Alberta.

The jurisdiction of the Province of Alberta to enact the foregoing legislation and regulations has not been challenged. [ 28 ] The Criminal Code is federal legislation, applicable across Canada. The Criminal Code provisions at issue are acknowledged as being within the constitutional jurisdiction of the federal government. Elements of the Special Plea of Autrefois Convict [ 29 ] Historically, special pleas were developed to ensure that an individual was not prosecuted multiple times for the same incident and sentenced repeatedly for the same act of misconduct.

This concept is referred to as double jeopardy. [ 30 ] The special pleas of autrefois convict and autrefois acquit are refinements of the general concept prohibiting double jeopardy.

The ultimate result of a successful plea of autrefois convict or autrefois acquit is that subsequent charges are judicially stayed as being duplicative of the original concluded prosecution. [ 31 ] In the case of R v Boice , Judge Pepper (as she then was) of the Provincial Court of Alberta (as it then was) provided a clear description of the origin of the special pleas and the required elements for a special plea, at paras 12 and 18, as follows: [12] The special pleas of autrefois convict and autrefois acquit (French words meaning “previously acquitted or convicted”) are particular expressions of the doctrine of res judicata.

Res judicata is defined in Black’s Law Dictionary as “a thing adjudged.” The concept arises out of the common law and is based on the premise that a person cannot be placed in legal jeopardy of conviction for the same matter more than once. The concept is a fundamental aspect of our criminal law. The principle exists to ensure finality in litigation and fairness to an accused person from having to defend himself against the same allegations more than once. ... [18] There are specific rules that apply to the special pleas of autrefois convict or acquit .

An accused who wishes to plead autrefois must establish three elements. The Nova Scotia Court of Appeal in R. v. Bremner , 2007 NSCA 53 calls these elements the requirements of jeopardy, finality, and identity. To succeed on the special plea, the accused must have been in jeopardy in the previous proceeding, there must have been a final disposition of that proceeding and the jeopardy must have been with respect to the same matter that is now before the court (para 46) . [6]

[ 32 ] Additional support for the three-pronged test for a successful plea of autrefois convict may be found Eugene G. Ewaschuk’s, Criminal Pleadings & Practice in Canada at § 14:83, [7] and Penney, Rodinelli & Stribopoulos, Criminal Procedure in Canada at ¶ 14.26 and ¶ 14.28. [8] [ 33 ] I will discuss each element as it applies to the case at Bar. While identity and finality are critical elements of the three-pronged test for a successful plea of autrefois convict , in the case at Bar, determining whether the Accused faces the same jeopardy from the SafeRoads Program and the Criminal Code is key.

Answering this question involves determining whether the sanctions under the SafeRoads Program and the Criminal Code are the same and whether the SafeRoads Program results in a conviction from which flow truly penal consequences. Identity [ 34 ] The concept of identity relates to the event that is alleged to underpin both proceedings.

That event must be the same event in order for there to be a foundation for the argument that the special plea ought to apply to the second proceeding and result in a judicial stay of the second proceeding. [ 35 ] There is no dispute that the NAP and IRS, and the Criminal Code charges arise from the same event of alleged impaired driving which occurred on November 20, 2022. [ 36 ] Similarly, there is no dispute that the Accused was issued IRS under the SafeRoads Program and, additionally, was charged with offences pursuant to sections 320.14(1) (

a) and 320.14(1) (

b) of the Criminal Code . [ 37 ] Therefore, I find that the event in question is the same foundational event for both the SafeRoads Program sanctions and the Criminal Code prosecution. The threshold with respect to identity has been met for the purposes of this special plea application.

Finality [ 38 ] The concept of finality is described as the requirement that there is a final adjudication of the alleged first proceeding prior to the acceptance of the special plea with respect to the second proceeding. [9] [ 39 ] There is no dispute that the Accused was issued a NAP and IRS on November 22, 2022, as a result of a “Fail[ed]” roadside breath sample.

The Defence acknowledges that the Accused did not request a review of the IRS through the mechanism available in the PAP Act , or at all. [ 40 ] The Defence argues that the resolution of the NAP through the imposition of the IRS, and the expiration of the opportunity to request a review through the mechanism set out in the PAP Act , results in a final adjudication of the process commenced pursuant to the SafeRoads Program.

Thus, the Defence argues that the first proceeding has met the threshold of finality for the purposes of the special plea. [ 41 ] The Crown does not take issue with the Defence position in this regard. [ 42 ] I find that the issuance of the NAP, the imposition of IRS, and the subsequent expiry of the statutory review period, results in the final adjudication of the SafeRoads Program process. [ 43 ] Therefore, I find that the threshold has been met with respect to the issue of finality of the first proceeding for the purposes of the special plea.

Jeopardy [ 44 ] The concept of jeopardy is best understood as the consequences that the accused person faces if convicted of an offence. [ 45 ] For the purposes of arguing whether a special plea applies, resulting in a judicial stay of the second proceeding, the jeopardy faced by the accused person must be the same in both proceedings.

The essence of the special plea is that it would be unfair for an accused to be subject to punishment twice for the same event. [ 46 ] The Defence and the Crown diverge in their positions with respect to whether the jeopardy faced by the Accused by virtue of the IRS is the same as the sentence she would face if convicted following Criminal Code prosecution.

Are the sanctions under the SafeRoads Program the same as the sentence under the Criminal Code prosecution? [ 47 ] The Defence argues that the IRS under the SafeRoads Program and the consequences of a conviction under the Criminal Code provisions pertaining to impaired driving are duplicative and create a situation where an accused person is subject to the same penalties twice for the same event. [ 48 ] The Crown argues that even though the IRS bear similarities to the sanctions that could be imposed by a trial judge after a Criminal Code conviction pursuant to ss 320.14(1)(

a) or 320.14(1)(b), the consequences available to a trial judge adjudicating a Criminal Code prosecution exceed the sanctions which are specified in the PAP Reg with respect to breaches of s 88.1 of the TSA . Therefore, the Crown argues that the penalties are not the same. [ 49 ] Having reviewed the sanctions that are specified in the PAP Reg as IRS and the mandatory minimum sentence that a trial judge must issue upon conviction pursuant to ss 320.14(1)(

a) or 320.14(1)(

b) of the Criminal Code for first time offenders, I note that, while there are marked similarities, there are also distinct points of departure between the IRS and the available Criminal Code sentencing options. For example:

a) A fine in the amount of $1000 – this amount is stipulated as part of the IRS for a first offence in the PAP Reg but is only a minimum fine for a first offence, pursuant to s 320.19(1) of the Criminal Code . For a first-time offender, upon conviction of a

summary conviction offence, the trial judge has the discretion to issue a fine of up to $5000 in lieu of imprisonment or, in the event of an indictable offence, a minimum fine of $1000 and a term of imprisonment of up to 10 years; and

b) A mandatory prohibition from operating the type of conveyance in question – the PAP Reg stipulates a duration of 12 months for a first offence while s 320.24(1) of the Criminal Code describes a duration of “not less than one year and not more than three years ...”. [ 50 ] There are additional sanctions that are mandatory pursuant to s 88.1(4) of the TSA that are not found in the Criminal Code , distinguishing the SafeRoads Program from the Criminal Code prosecution. Those sanctions are the following:

a) Imposition of the victim fine surcharge – this is stipulated in s 4 of the PAP Reg as being the “applicable surcharge”. Imposition of a victim surcharge for impaired driving offences is discretionary under the Criminal Code ;

b) Surrender of driver’s licence – s 88.1(2) of the TSA requires the peace officer with reasonable grounds pursuant to s 88.1(1) to “require the driver to surrender to the peace officer the operator’s licence”. Additional conditions can be imposed on the reinstatement of the driver’s operator’s licence as set out in s 11 of the SafeRoads Reg . This sanction is not present in the Criminal Code .

c) Suspension of the driver’s licence – The TSA requires suspension of the driver from driving for a period of 90 days, commencing immediately upon the issuance of the IRS pursuant to s 88.1(4)(a)(1)(

A) and, pursuant to s 88.1(4)(a)(1)(B), for a further period of one year after the expiry of the 90 day period reflected in s 88.1(4)(a)(1)(A). This sanction is not present in the Criminal Code .

d) Seizure of the vehicle – Pursuant to s 88.1(4)(a)(ii) of the TSA , the vehicle shall be seized for 30 days. This sanction is not present in the Criminal Code . [ 51 ] While the scope of the sanctions for a first-time offender could be the similar under the SafeRoads Program and the Criminal Code , a trial judge is not limited to the penalties described as IRS when imposing a sentence on an offender pursuant to s 320.19 and 320.24 of the Criminal Code .

Further, some of the sanctions that are required to be imposed pursuant to the TSA and the PAP Reg are not available to a trial judge pursuant to the Criminal Code . Accordingly, the sanctions under the SafeRoads Program are not the same as the sentence available under the Criminal Code .

Are the SafeRoads proceedings and the Criminal Code prosecution the same type of process, such that the processes can be determined to be duplicative and the subject of the special plea? [ 52 ] The Defence argues that the SafeRoads Program and the Criminal Code prosecution are the same type of proceeding because the end result is the same. A person determined to have breached s 88.1 of the TSA is issued IRS which are, in the Defence’s argument, the same as the consequences that a trial judge would issue after a conviction pursuant to ss 320.14(1)(

a) or 320.14(1)(

b) of the Criminal Code .

Therefore, the Defence argues that the proceedings are duplicative as they end up with the same result and the accused person would be penalized twice for the same event. [ 53 ] The Crown argues that the SafeRoads Program and the Criminal Code prosecution are two distinct types of proceedings: the SafeRoads Program being an administrative proceeding with administrative penalties that flow from it, and the Criminal Code prosecution attracting truly penal consequences, such as a criminal conviction and criminal record, in addition to any other available penalties. [ 54 ] The pertinent question becomes: what characteristics must the two proceedings in question share in order for a special plea to result in a judicial stay of the second proceeding? [ 55 ] It is clear that the result of a breach of s 88.1 of the TSA results in a series of stipulated sanctions, some of which are the same as the mandatory minimum sentences required upon conviction of an accused pursuant to s 320.19 and 320.24 of the Criminal Code . [ 56 ] However, one must examine the fundamental nature of the two proceedings to determine whether the proceedings are duplicative.

When both proceedings are charges under the Criminal Code , this question is simple to answer. When one of the proceedings is an administrative proceeding pursuant to provincially enacted legislation and the other is a criminal proceeding pursuant to federally enacted legislation, the question becomes more complicated. Is the breach of s 88.1 of the TSA a “conviction” with respect to an “offence” resulting in a “truly penal consequence”? [ 57 ] It is not disputed that a Criminal Code prosecution can result in a “conviction” with respect to an “offence”, the result of which is a “truly penal consequence”.

The judicial

interpretation of these terms arose in the criminal law. [ 58 ] In order to succeed in arguing that the Criminal Code prosecution is duplicative of the SafeRoads proceeding, the Defence must show that the issuance the NAP is a “conviction” with respect to an “offence”, resulting in the IRS which amounts to a “truly penal consequence”. [ 59 ] The determinative case in this matter is Goodwin v British Columbia (Superintendent of Motor Vehicles) . [10] British Columbia was an early adopter of administrative schemes for the management of individuals operating motor vehicles while impaired by alcohol.

In 2010, British Columbia enacted its Automatic Roadside Prohibition scheme (“ARP”). The ARP scheme permits the issuance of administrative sanctions at the roadside if an individual is found, by breath sample, to have a blood alcohol level that exceeds the allowable limit.

The sanctions that can be given at the roadside are a fine, a licence suspension, and impoundment of the driver’s vehicle. [ 60 ] In Goodwin , the Supreme Court of Canada held that British Columbia’s ARP regime was administrative in nature and that the sanctions given under it did not amount to offences that engaged s 11 of the Charter or give rise to “truly penal consequences”. [11]

These findings are set out at paras 38, 40, 42 to 45, and 47: [38] For its part, the Province submits that this Court’s decision in R. v. Wigglesworth, (SCC), [1987] 2 S.C.R.541 hasalready established that “proceedings undertaken to determine fitness to obtain or maintain a licence” are not offences under s. 11 [of theCharter]: p. 560. In its view, this is dispositive of the s. 11 issue.

The ARP scheme is not by nature a penal or criminal proceeding anddoes not impose truly penal consequences. ... [40] This Court recently reviewed and reaffirmed the s. 11 analytical framework developed in Wigglesworth and Martineau: seeGuindon v. Canada, 2015 SCC 41, [2015] 3 S.C.R. 3. In Wigglesworth, this Court concluded that s. 11 protections only apply to persons“prosecuted by the State for public offences involving punitive sanctions, i.e., criminal, quasi-criminal and regulatory offences, eitherfederally or provincially enacted”: p. 554.

Writing for the majority, Wilson J. stated that a matter falls within s. 11 where “by its verynature it is a criminal proceeding” or where a conviction “may lead to a true penal consequence”: p. 559. By contrast, administrativematters “instituted for the protection of the public in accordance with the policy of a statute” do not attract s. 11 protections: p. 560. ... [42] In my view, the chambers judge properly applied the Wigglesworth and Martineau considerations.

While I agree that an offence isdefined by both procedural and substantive elements, I cannot view a proceeding under the ARP as “by its very nature ... a criminalproceeding”. [43] The ARP imposes a driving prohibition coupled with a monetary penalty.

It is not concerned with addressing the harm done tosociety in a public forum; instead, its focus is on the regulation of drivers and licensing, and the maintenance of highway safety.Although it has a relationship with the criminal law, in the sense that it relies on the Criminal Code seizure powers and is administeredby police, the scheme is more accurately characterized as a proceeding of an administrative nature. As the chambers judge noted, theproceedings arising under the ARP scheme do not take the form of prosecutions. No criminal records result. The proceedings areinitiated by the drivers themselves.

It is evident that the process is not criminal in the manner contemplated in Martineau: para. 45; seealso Guindon, at paras. 63-65. [44] Administrative regimes do not attract s. 11 protections: Martineau, at paras. 22-23. ... [45] Nor are the consequences truly penal. While a 90-day suspension is a meaningful consequence for a licensing violation, and theapproximately $4,000 in possible costs and penalties are significant, they are not sufficient to engage the fair-trial rights embodied by s.11 — rights that, after all, are some of the most fundamental in our legal system.

I note that financial penalties considerably more severethan those at issue here have been found to not constitute true penal consequences: see, e.g., Rowan v. Ontario Securities Commission,2012 ONCA 208, 110 O.R. (3d) 492; Canada (Attorney General) v. United States Steel Corp., 2011 FCA 176, 333 D.L.R. (4th) 1;Lavallee v. Alberta Securities Commission, 2010 ABCA 48, 474 A.R. 295. ... [47] In

summary, the ARP scheme does not create an “offence” within the meaning of s. 11 of the Charter. Thus, the protections of s. 11are not engaged in this case.[12] [61] Further support of the proposition is found in the Alberta Court of Appeal decision in R v Sohal.[13] The issue in Sohal waswhether the time an offender was suspended pursuant to a provincial licence suspension could be credited towards the one-yearmandatory minimum sentence on an impaired driving conviction under the Criminal Code.

The Alberta Court of Appeal held that therewas no mechanism for credit to be applied, as the provincial licence suspensions were “administrative, not penal”.[14] The Courtaddressed the interplay between the provincial regime and the Criminal Code, as follows: [10] It is a well established aspect of Canadian constitutional law that both the federal government and the provincial governments havejurisdiction over driving. The Criminal Code provisions on impaired and dangerous driving are valid criminal legislation.

Provinciallegislation granting and refusing the right to drive is valid legislation in support of highway safety: Goodwin v. British Columbia(Superintendent of Motor Vehicles), 2015 SCC 46 at paras. 31-4, [2015] 3 SCR 250; Sahaluk at paras. 68-9. [11] It has also long been recognized that provincial and federal licence suspensions can overlap, and to some extent contradict eachother. Provincially imposed licence suspensions may be longer or shorter than the driving prohibitions imposed by the Criminal Codearising out of the same facts.

Sometimes the accused will be entitled to drive under one regime, but not under the other. In thesecircumstances, the law is clear that the accused must comply with both regimes, except in the rare circumstances where compliance withprovincial legislation would undermine the very purpose of the federal legislation: Chatterjee v Ontario (Attorney General), 2009 SCC19 at para. 11, [2009] 1 SCR 624.

To a considerable extent, however, it has repeatedly been found that the provincial and federal regimescan operate together: Sahaluk at paras. 72-4.[15] [62] The Alberta Court of Appeal relied upon the findings in Goodwin for the proposition that “[p]rovincial licence suspensionsare administrative, not penal”.[16] [63] The Defence admits that Goodwin presents a challenge to its position that the special plea of autrefois convict applies to thecase at Bar.

However, the Defence argues that Goodwin can be distinguished on the basis that the Court in Goodwin was not faced witha question of double jeopardy but instead a question of the constitutionality of the ARP regime, which was amended by the Province ofBritish Columbia in 2012 to ensure that it was compliant with the Charter. Hence, a significant amount of the Goodwin reasoning isdevoted to establishing whether proceedings under the BC ARP attract s 11 Charter protection.

Here, the Defence argues that theapplicability of Goodwin ought to be limited to the issue of the constitutionality of schemes like the ARP. [64] As an alternative to Goodwin, the Defence tendered the unreported case of R v Tanner, a decision of Judge Brandt (as he then

was) of the Alberta Provincial Court (as it then was) in support of its position. [17] [ 65 ] In that case, Judge Brandt found that the fine issued under the s 88.1(4) TSA was a “penal consequence”, as follows: Here Mr. Tanner was indeed charged with an offence under

section 88.1 of the Traffic Safety Act and upon his finding of guilt according to the mechanism of that Act became liable to a fine which had the same punitive aspects as would a fine levied under the Criminal Code . The allegations upon which Mr. Tanner was charged pursuant to the TSA and which led to him becoming liable for a fine surcharge and prohibition were at most certainly a charge. Likewise, the Crown says that because the stated purpose of the IRS scheme is not to punish. [sic] The penalties that it prescribes are not punishment and are indeed administrative penalties.

The stated nature of the administrate [sic] penalty is not definitive. A review of its words, structure, and function reveal that the administrative penalty could be a fine with an intended penal consequence . The similarity of the penalties under the Provincial Administrative Procedures Act and those under the Criminal Code point to its purpose as an alternative to the Criminal Code procedures and not an addition to it. [18] [ 66 ] Judge Brant continued as follows: The principle underlying the plea of autrefois convict is a straightforward one: that a person shall not be tried twice for the same offence.

The Crown could have proceeded according to the TSA or under the Criminal Code . The Crown proceeded to proceed [sic] first pursuant to the TSA . Mr. Tanner was found guilty pursuant to the TSA scheme. He became liable for a fine, surcharge, and driving suspension. The penalty he received can only be described as a penalty. His jeopardy was the same during the former occasion as the latter. The subject matter of the two matters was no different . Accordingly, the plea of autrefois convict is appropriate and that plea is accepted and the Information against Mr.

Tanner is dismissed. [19] [ 67 ] In oral argument before me, the Defence, whose law firm was involved in the Tanner case, confirmed that the Crown appealed the decision of Judge Brandt. Mr.

Tanner conceded the appeal, and the matter was remitted for sentencing back to the Alberta Provincial Court (as it was then known). [ 68 ] With the greatest of respect to my brother, Justice Brandt (as he is now), I disagree with his rationale for finding that the administrative regime set out in the SafeRoads Program creates offences, as contemplated by s 11 of the Charter , the determination of which results in convictions with truly penal consequences as defined and elucidated in Goodwin . His decision does not address the Goodwin case which is binding authority on this Court.

As already discussed, Goodwin finds that the BC ARP program, a program that is accepted to be fundamentally similar to the SafeRoads Program, is an administrative regime that cannot displace the operation of the Criminal Code . [ 69 ] The Crown tendered the unreported case of R v Miller , a decision of Judge Tibbitt (as she then was) of the Alberta Provincial Court (as it then was). [20] The facts in Miller are essentially similar to those at Bar.

In that case, Judge Tibbitt stated the following: The outcomes flowing from the immediate administrative penalties and the criminal charges arise out of the same series of events, but that is not sufficient for autrefois convict . At bar, autrefois convict requires the accused faced [sic] a charge that is at least very similar to the charge before the Court; in this case, blood alcohol over the legal limit.

Salhany’s Criminal Procedure, 6 th edition, at 6:38 states: (as read) To succeed on the defence of autrefois acquit or autrefois convict , the accused must establish two things: the first is that there was a final verdict on the first charge, the second is that the matter in both charges is the same in whole or in part, and the charge before the court is the same, or implicitly included in the earlier charge, either in law or on the evidence presented if it had been legally possible at the time to make the necessary amendments.

This means a Criminal Code conviction for driving with blood alcohol over the legal limit would have to be a legally possible outcome of [sic] immediate administrative penalty regime . Clearly, neither the peace officer who served the notice of immediate penalty, nor the SafeRoads tribunal could impose a Criminal Code conviction. The Traffic Safety Act creates many offences and uses the word offence when it does so; however, there is no offence for driving with a blood alcohol over the legal limit.

A person cannot be charged under the Traffic Safety Act , or convicted under that Act for driving with blood alcohol over the limit. [21] [ 70 ] Judge Tibbitt also referred to the purpose of NAPs in general, and the SafeRoads Program in particular, finding that in drafting the SafeRoads Program the legislature did not intend for it to result in criminal consequences, as follows: The Provincial Administrative Penalties Act refers to the process as “administratively enforcing contraventions.” One stated legislative purpose is to provide procedural safeguards proportionate to the “regulatory nature of the contravention.” It also clarifies that consequences cannot include imprisonment, which is a hallmark of a criminal offence .

The plain language of the legislation could not be clear in conveying the legislative intent to create administrative consequences, rather than criminal or quasi-criminal charges. [22] [ 71 ] Judge Tibbitt found that the SafeRoads Program did not create an offence, and that the IRS issued to the accused, in that case, resulted in neither a trial nor a conviction. Accordingly, the special plea of autrefois convict failed.

In reaching this conclusion, she stated: The language of the autrefois convict provisions of the Criminal Code , which are found in sections 607 and 609 , reference a charge for an offence, a trial, and a conviction. Mr. Miller was not subject to any charge, there was no trial, and he has not been convicted by a court of competent jurisdiction. Mr. Miller faced provincial consequences for the same conduct upon which the Criminal Code charge is based, but this is insufficient to

meet his burden. I reject the plea of autrefois convict and direct Mr. Miller to enter a plea of guilty or not guilty. [23] [ 72 ] The Supreme Court of Canada provided additional clarity with respect to this question in Guindon v Canada , where it states: [75] Administrative monetary penalties are designed as sanctions to be imposed through an administrative process. They are not imposed in a criminal proceeding.

Thus, the issue of whether a person who is the subject of an ostensibly administrative regime is in reality “charged with an offence” is addressed by the second Wigglesworth/Martineau test: Does the sanction impose a true penal consequence ? Wigglesworth teaches that a true penal consequence is imprisonment or a fine which, having regard to its magnitude and other relevant factors, imposed to redress the wrong done to society at large rather than simply to secure compliance: see p. 561. [76] Imprisonment is always a true penal consequence .

A provision that includes the possibility of imprisonment will be criminal no matter the actual sanction imposed: see Wigglesworth , at p. 562. A monetary penalty may or may not be a true penal consequence . It will be so when it is, in purpose or effect, punitive. Whether this is the case is assessed by looking at considerations such as the magnitude of the fine, to whom it is paid, whether its magnitude is determined by regulatory considerations rather than principles of criminal sentencing, and whether stigma is associated with the penalty : see, e.g., Canada (Attorney General) v.

United States Steel Corp ., 2011 FCA 176 , 333 D.L.R. (4th) 1, at paras. 76-77 . [77] The magnitude of the sanction on its own is not determinative. However, if the amount at issue is out of proportion to the amount required to achieve regulatory purposes, this consideration suggests that it will constitute a true penal consequence and that the provision will attract the protection of s. 11 of the Charter . This is not to say that very large penalties cannot be imposed under administrative monetary penalty regimes.

Sometimes significant penalties are necessary in order to deter non-compliance with an administrative scheme: see Rowan v. Ontario Securities Commission , 2012 ONCA 208 , 110 O.R. (3d) 492, at para. 49 . The amount of the penalty should reflect the objective of deterring non-compliance with the administrative or regulatory scheme. [24] [ 73 ] The Guindon case was about the issuance of penalties arising from statements the appellant made on charitable tax receipts which she knew or ought to have known could be used by the recipients claim improper tax credits.

Though its subject matter is markedly different than the case at Bar, the Supreme Court of Canada's comments regarding the distinction between administrative monetary penalties and monetary penalties that give rise to true penal consequences are highly informative. [ 74 ] With respect to the law specifically in Alberta, limited though it might be, I find the reasoning in the Miller case to be more developed and compelling than that of the Tanner case. [ 75 ] I am particularly mindful of the language found in ss 607 and 609 of the Criminal Code which refers to a conviction, on an offence, after a trial, which is set out above in para 19 of these Reasons for Decision. [ 76 ] I have read the submissions counsel for the Crown and the Defence and reviewed the oral arguments made before me on September 17, 2023. [ 77 ] I am satisfied that the foundation for the SafeRoads Program is to regulate and govern the licencing and privileges associated with valid operation of a vehicle for individuals who are sanctioned for breaching the TSA .

The foundation of the criminal law is ensuring that criminal behaviour is sanctioned and, through sentencing after a conviction and that general and specific deterrence, denunciation, and the rehabilitation of offenders, are effected for the benefit of the public at large. [ 78 ] I am persuaded that the SafeRoads Program is an administrative regime designed to address public safety through control of licencing of drivers and the immediate removal of impaired drivers from the roadways. [ 79 ] In Goodwin , the Supreme Court of Canada held that the pith and substance of the BC ARP was “the licensing of drivers, the enhancement of highway traffic safety, and the deterrence of persons from driving on highways when their ability is impaired by alcohol”. [25] [ 80 ] If a driver is found to have breached s 88.1 of the TSA by failing a breath sample test, then that driver’s licence is suspended at the roadside and his vehicle is impounded for a period of time.

A fine is also levied. The fact that those penalties are similar to the minimum penalties issued to a first-time offender upon conviction pursuant to s 320.14, does not change the fact that a sentencing justice retains the discretion to issue a greater fine than allowed under the SafeRoads Program, and may sentence even a first-time offender to imprisonment. [ 81 ] Further, and more importantly, the SafeRoads Program and the IRS lacks a critical element that is present in a criminal prosecution: a criminal conviction and a criminal record.

SafeRoads Program proceedings do not involve a prosecution of the allegations by or on behalf of the Crown.

These aspects of a criminal proceeding render the criminal consequences distinct from the administrative sanctions. [ 82 ] I accept the argument by the Crown that the fundamental nature of a penal consequence is found in the criminal conviction and criminal record that results from a prosecution pursuant to the Criminal Code but not from an administrative process set out in a provincially enacted statute, regardless of how closely the stipulated penalties seek to mimic the typical sentence imposed by a trial judge following a criminal conviction.

In fact, there are many administrative regimes in Alberta and Canada, particularly in the environmental protection and securities sectors, that impose penalties for infractions that do not rise to the level of truly penal consequences even though they may be much higher and more severe than the levels set out in the SafeRoads Program. [26] The true nature of a penal consequence is that it results in a criminal conviction and criminal record, not that an administrative penalty is similar to or greater than a corresponding fine imposed as part of a Criminal Code sentence. [ 83 ] The consequences of a conviction of an offence under the Criminal Code are truly penal in nature.

The consequences of IRS under the SafeRoads Program are not. Accordingly, the consequences of the two proceedings at issue are not the same and cannot form the foundation of a special plea of autrefois convict .

[ 84 ] I find that the sanctions pursuant to the SafeRoads Program are not convictions with respect to an offence, as contemplated by s 11 of the Charter . Further, the consequences of an infraction of s 88.1 of the TSA which are addressed through the SafeRoads Program, are not comparable to a criminal conviction pursuant to ss 320.14(1)(

a) and 320.14(1)(

b) of the Criminal Code . [ 85 ] The reasoning of the Supreme Court of Canada in Goodwin and Guindon is not only persuasive but binding on this Court. Therefore, applying the reasoning in these two cases, I find that the SafeRoads Program is administrative in nature, does not create offences which attract s 11 Charter protections, and does not result in convictions or consequences of a truly penal nature. [ 86 ] I find that there is no duplication of jeopardy despite the similarity of sanctions for a first-time offender pursuant to the SafeRoads Program and a criminal conviction pursuant to the Criminal Code .

The accused is not being convicted twice for the same incident as the sanctioning regimes are not the same. One is administrative and the other is criminal. Only prosecution pursuant to the Criminal Code results in an offence giving rise to criminal conviction with truly penal consequences. [ 87 ] Thus, the third required element for a special plea to be applicable, that the jeopardy faced by the accused is the same in both proceedings, is not present.

Summary of Findings on the Required Elements of the Special Plea [ 88 ] As set out above, all three elements of the special plea must be present in order for the Criminal Code proceeding to be found sufficiently duplicative of the SafeRoads Program proceeding as to merit a judicial stay of proceedings based on the applicability of either the special plea of autrefois acquit or autrefois convict . [ 89 ] The three required elements are identity, finality, and jeopardy. [ 90 ] With respect to identity, I have determined that, in the case at Bar, the incident upon which the NAP and IRS were issued and the informations sworn with respect to the Criminal Code prosecution are the same event.

The element of identity is satisfied. [ 91 ] With respect to finality, I have determined that, in the case at Bar, the SafeRoads Program process has been fully adjudicated as all relevant review periods have expired. The result for the Accused is that the IRS process has been completed.

The element of finality is satisfied. [ 92 ] With respect to jeopardy, I have determined that, in the case at Bar, the jeopardy faced by the Accused as a result of the IRS is not the same as the jeopardy faced by her as a result of the Criminal Code prosecution by reason, inter alia , that a conviction following a Criminal Code prosecution results in a criminal conviction and a criminal record whereas sanctions pursuant to the SafeRoads Program do not.

The breach of the TSA is not an “offence” in the same context as a breach of the Criminal Code ; sanctions under the SafeRoads Program do not result in a “conviction” in the same context as a breach of the Criminal Code ; and the IRS are not “truly penal consequences” as is a criminal conviction and criminal record following a Criminal Code prosecution. Conclusion [ 93 ] For the reasons set out above, I find that the special plea of autrefois convict does not apply in these circumstances.

Accordingly, the special plea of autrefois convict is rejected and the Accused is directed to enter a plea of guilty or not guilty on her Criminal Code charges. Heard on the 21 st day of September, 2023.

Dated at the City of Calgary, Alberta this 20 th day of December, 2023. I.L. Maharaj A Justice of the Alberta Court of Justice Appearances: G. Atanase for the Crown B. Hurley for the Accused [7] Eugene G Ewaschuk, Criminal Pleadings & Practice in Canada , 3 rd ed (Toronto: Thomson Reuters, 2022) at § 14:83: In determining whether the accused was in jeopardy of conviction at the first trial for the offence with which he is charged at the subsequent trial, the test is: could the accused have been convicted at the first trial of the offence with which he is now charged?

The prior charge must have been substantially the same, both factually and legally, as the present charge and must not have been difference in nature. Thus s 609 imposes an “identity” test for the plea of autrefois acquit or convict to succeed ... [8] Steven Penney, Vincenzo Rodinelli & James Stribopoulos, Criminal Procedure in Canada, 3d ed (Toronto: LexisNexis Canada Inc, 2022): ¶14.26 The special pleas of autrefois acquit and autrefois convict can be raised in respect of both indictable and

summary conviction proceedings, but not at a preliminary inquiry. In pleading autrefois acquit or autrefois convict , the accused must: (

i) state that he or she has been lawfully acquitted, convicted or discharged of the offence charged in the count to which the plea relates; and (ii) indicate the time and place of the acquittal, conviction or discharge. Further, the accused must show that: (

i) there was a final adjudication on the prior charge on its merits; and (ii) the matter is the same, in whole or in part, and the new count must be the same as the first trial, or be implicitly included in that of the first trial, either in law or on account of the evidence presented if it had been legally possible at that time to make the necessary amendments. ¶14.28

Section 609 of the Code sets out an “identity” test that must be met in order to establish that the “matter” in both charges is the same, thereby triggering the operation of autrefois acquit or autrefois convict . In R. v. Van Rassel , Justice McLachlin (as she then was) explained the test as follows: … [C]ould the accused have been convicted at the first trial of the offence with which he is now charged? If the differences between the charges at the first and second trials are such that it must be concluded that the charges are different in nature, the plea of autrefois acquit is not appropriate.

On the other hand, the plea will apply if, despite the differences between the earlier and the present charges, the offences are the same. Further,

section 610 provides for the application of a special plea where “an indictment charges substantially the same offence as that charged in an indictment on which an accused was previously convicted or acquitted, but adds a statement of intention or circumstances

of aggravation tending, if proved, to increase the punishment” or where a person previously convicted of one type of homicide (first degree murder, second degree murder, manslaughter or infanticide) is charged with another type for the same homicide." [Notes omitted]