Turner-Lienaux v. Nova Scotia (Registrar of Motor Vehicles), 2020 NSSC 292

SUPREME COURT OF Nova Scotia Citation: Turner-Lienaux v. Nova Scotia (Registrar of Motor Vehicles) , 2020 NSSC 292 Date: 20201021 Docket: Hfx No. 494797 Registry: Halifax Between: Karen Turner-Lienaux, of Bedford in the County of Halifax, Province of Nova Scotia Applicant v. Kevin Mitchell, Registrar of Motor Vehicles for Nova Scotia and the Attorney General of Nova Scotia Respondents DECISION Judge: The Honourable Justice Scott C.

Norton Heard: September 28, 29, and 30, 2020, in Halifax, Nova Scotia Corrected Decision: The text of the original decision has been corrected according to the attached erratum dated November 6, 2020. Decision: October 21, 2020 Counsel: Charles Lienaux, for the Applicant Jack Townsend, for the Respondents By the Court: Introduction [ 1 ] This decision responds to an Application in Court alleging that the respondents breached the applicant’s rights under ss. 11(

d) and (

h) of the Canadian Charter of Rights and Freedoms (the “ Charter ”); committed the tort of misfeasance in public office; and that there has been a re-litigation of her criminal charges, contrary to the doctrines of autrefois acquit , res judicata , and abuse of process. The applicant seeks declaratory relief, compensatory damages, punitive damages and costs. [ 2 ] The respondents say that the application should be dismissed, as

Section 11 of the Charter does not apply to (and is not engaged by) administrative proceedings ; autrefois acquit is a criminal plea, which is not available or relevant in civil or administrative proceedings; there was no re-litigation of the applicant’s criminal charge; the respondents acted in compliance with their legal duties and powers; and there is no evidence that any of their actions were motivated by bad faith, malice, ill will, or a desire to harm the applicant.

Rather, throughout their dealings with the applicant, they acted in good faith and in accordance with their understanding of their duties and powers. Accordingly, the applicant cannot satisfy either element of the test for misfeasance in public office. [ 3 ] Both parties filed extensive briefs and books of authorities. The applicant’s brief alone runs to 142 pages single spaced. The applicant has raised many arguments in support of the issues addressed by the pleadings. These arguments were often repetitive although made under separate headings. As a result, this decision is necessarily lengthy.

Background The Registry of Motor Vehicles [ 4 ] The issuance, suspension, and revocation of drivers’ licences in Nova Scotia is regulated under the Motor Vehicle Act , R.S.N.S. 1989, c. 293 (the “ MVA ”), as well as the regulations made under that statute. The Registry of Motor Vehicles (“RMV”) administers this regulatory regime, with many of the RMV’s day-to-day functions being carried out through Access Nova Scotia.

[ 5 ] The head of the RMV is the Registrar, appointed under s. 3 of the MVA . The respondent Mr. Mitchell has been the Registrar since 2017. [ 6 ] Stefanie Turner is one of two Deputy Registrars at the RMV’s Head Office in Halifax. She has been a Deputy Registrar since October 2015. As set out in s. 2 (ba) of the MVA , a reference to the Registrar in the statute includes the Deputy Registrar. Accordingly, a Deputy Registrar (like Ms. Turner) has the same authority as the Registrar under the MVA . Factual Events Leading to Suspension Order [ 7 ] The applicant was arrested on the evening of May 11, 2018.

A report prepared by the arresting officer, Cst. Brent Woodworth of the Halifax Regional Police, provides the following description of the events leading up to the applicant’s arrest: 2018-05-11 22:42 – Rosalee SAMPSON reported Remarks: WHT INFINITI OR LEXUS ALL OVER THE ROAD CROSSING OVER THE LANES… HITTING SIDE OF THE ROAD… CALLER CANNOT SEE PLATE SAMPSON was following the white Infinity on the Bedford Hwy and was headed towards Bedford. Upon hearing the call I travelled down Larry Uteck Blvd in the direction of the Bedford Hwy. 22:43 – I observed Cst. O’BRIEN following behind the white Infinity.

The white Infinity turned left from the Bedford Hwy onto Larry Uteck Blvd and Cst. O’BRIEN activated his emergency equipment and pulled the vehicle over on Larry Uteck Blvd about 200-300 meters from the Bedford Hwy. I attended the location of the traffic stop. I could now see that the white Infinity had a Nova Scotia license plate # CAN 140. As Cst. O’BRIEN and I approached the drivers side of the vehicle I noted that there were 2 occupants; a male passenger and a female driver. Cst. O’BRIEN started speaking with the female driver. He asked her for her drivers license.

The female (later identified via Nova Scotia Drivers License as Karen TURNER-LIENAUX) told Cst. O’BRIEN that she thought her drivers license was in the back seat of the vehicle. Karen asked Cst. O’BRIEN if she could exit the vehicle so that she could get her license. Cst. O’BRIEN told Karen that this would be fine. Karen exited the car and she had to keep both hands on the car while she walked towards the back seat to keep her balance. I saw Karen open up the back seat of the car and open her purse.

Inside of her purse I could see a bottle of wine, but I could not see from where I was standing if there was any liquid inside of the bottle. Karen took her large black wallet out of her purse. She then turned and faced Cst. O’BRIEN and myself. I could smell liquor coming directly from Karen’s breath while she spoke. When Karen opened her wallet I could see her drivers license in plain sight in one of the clear card holders. Despite this, Karen ran her hand up and down the card holders several times and then looked in the direction of Cst. O’BRIEN and myself.

I pointed to the card holder where Karen’s license was. After pointing this out, Karen then spent what I approximated to be over one minute trying to get her license out of the card holder before she was successful in doing so. While Karen was in the process of trying to get her card out, I asked her for her full name. It took Karen 3 attempts before she was able to say her name correctly. I noted that her speech was slurred when she spoke. [ 8 ] Cst. Woodworth then arrested the applicant and took her to the police station, where she was given a breathalyzer test.

The first sample of her breath, taken at 11:58 p.m. on May 11, registered a reading of 180 mg of alcohol in 100 ml of blood. A second sample, taken at 12:21 a.m. on May 12, registered a reading of 170 mg of alcohol in 100 ml of blood. [ 9 ] At 12:30 a.m. on May 12, 2018, Cst. Woodworth served the applicant with a Notice and Order of Suspension/Vehicle Detainment (“Suspension Order”). The Notice and Order contains in

Section A, “Driver Information” including the Nova Scotia Licence Master Number, Name, Address, Telephone Number, Date of Birth and “Vehicle Information” including Plate Number, Make/Model, VIN#, Vehicle Owner, and Vehicle Owner Address. All of this information was completed on the form.

Section A also contains information as to the “Location of Stop: Larry Uteck Blvd/Bedford Hwy, City/Town: Halifax, County: Halifax” and “This Notice is effective from: 2018-05-12 @00:30 hrs (the ‘Effective Date of Notice’)”. [ 10 ]

Section C of the Notice indicated that the basis for the suspension was s. 279A(1) (a)(

i) of the MVA (“Blood Alcohol Exceeds 80 mg”). It also explained that the applicant’s “valid Nova Scotia driver’s license is suspended for a period of 3 months, effective 7 days from the Effective Date of Notice” (listed as “2018-05-02 @ 00:30 hrs”).

It contained the words “See Reverse for Details”. [ 11 ] The reverse side of the standard Notice and Order of Suspension/Vehicle Detainment form that was served on the applicant also included the following information: … To the extent that any of the provisions on this page conflict with the provisions in the Motor Vehicle Act , the latter shall prevail. … A peace officer, who has reason to believe that a person who upon analysis has a blood alcohol level in excess of 80 milligrams of alcohol in 100 millilitres of blood… on behalf of the Registrar shall take possession of and suspend the person’s license… for a period of 3 months RE-INSTATEMENT REQUIREMENTS Attend and obtain a satisfactory report from the Alcohol Assessment Program with the division of the District Health Authority.

The fee

for the Alcohol Assessment Program can be paid at any Access Nova Scotia/RMV office in Nova Scotia. You must produce payment receipt before an appointment can be booked with Addiction/Drug Dependency Services. It is your responsibility to contact the District Health Authority’s regional office nearest you to make arrangements for attendance. Once the Assessment Program has been completed, you may make application for re-instatement of your driving privileges at any Access Nova Scotia/RMV office.

HEARING REVIEW PROCESS FOR NOTICE AND ORDER OF SUSPENSION A hearing for an Administrative Suspension Review can be made either in writing or in person. The form titled Application for Administrative Suspension Review can be obtained from any Access Nova Scotia Centre/RMV office in Nova Scotia. The Registrar will only consider relevant information concerning the care or control of the motor vehicle, blood alcohol content readings, and the failure or refusal to supply a breath or blood sample.

If you wish to file an application for review, or require further information on the review process, please contact a Driver Competency Representative at 1-902-424-4511. [Underline added] [ 12 ] The applicant stipulates in her brief (para. 83) that the question of whether the Suspension Order was lawfully issued to the applicant by Cst. Woodworth is not in issue in this proceeding. [ 13 ] Cst. Woodworth also charged the applicant with criminal offences under ss. 253(1) (

a) and (

b) of the Criminal Code . Judge Sakalauskas presided over the trial of these offences on May 8 and 14, 2019. An Agreed Statement of Facts was tendered in advance of the trial, which included the following information: 11. The Accused admits that she was operating her motor vehicle in an impaired state between approximately 10:40pm and 10:49pm on May 11th, 2018. At 10:40pm, the Accused was observed by a civilian driver stopped at the lights located on the corner of Windsor Street and the Bedford Highway in Halifax, N.S.

The civilian driver was behind the Accused and observed that the tail lights on the Accused’s vehicle were not lit and that the vehicle was partly in the lane to the right of its intended lane. The Accused’s car was in the lane to turn left onto the Bedford Highway from Windsor Street. As the light turned green the Accused’s vehicle proceeded, still occupying part of both lanes such that a bus driver had to move out of its lane slightly to avoid contact with the Accused’s car.

The civilian driver continued behind the Accused’s vehicle while travelling on the Bedford Highway and observed it to cross over the yellow line, as well as the white lines in the lane of travel. The Accused was travelling approximately 45-50km/hour. The civilian witness obtained the license plate and phoned 911. The Accused ended up turning left onto Larry Uteck Blvd, approximately 6km away from the first observed location, and was shortly thereafter stopped by Halifax Regional Police and arrested.

The Accused demonstrated significant signs of intoxication by alcohol including slurred speech, poor balance, confusion, and the smell of alcohol coming from her breath. … 15. The Accused admits all the essential elements of both offences for which she is charged, 253(1)(

a) and 253(1)(b), save and except for the mental element (mens rea) requirement for each of these offences. 16. In relation to the charge of 253(1)(

b) charge (sic), the Accused provided two samples of her breath pursuant to a valid breath demand with the samples being 170mg and 180mg. The Accused admits her blood alcohol content was 170mg in relation to this offence. [ 14 ] The applicant’s defence at trial was that she did not have the mens rea to commit offences under ss. 253(1)(

a) and (b), due to an interaction between alcohol and prescription medication. [ 15 ] Judge Sakalauskas delivered an oral decision on August 26, 2019 acquitting the applicant, on the basis that she was left in a reasonable doubt as to whether the applicant had the requisite mens rea to commit the criminal offences in question. Judge Sakalauskas concluded her reasons with the following comments: …Ms. Turner-Lienaux operated on the understanding that she could partake … could consume alcohol in moderation. And that’s what she did that night, as she usually did.

While it could be tempting to find she was reckless, taking the medications and the point there is taking them quickly after taking … taking alcohol quickly on the heels of late medication. That’s where the Crown focused their argument on this. I can’t do that in this situation on everything before me. Ms. Turner-Lienaux had never had adverse side effects before; she had never been directly warned at the pharmacy about alcohol. If there was warnings and an insert or other material, I accept that she didn’t remember that at the time.

It certainly wasn’t highlighted by stickers on the bottle, not that that necessarily would absolve an accused of responsibility in this situation. While it might have been more prudent to pause and consider the wine, I cannot, on all the evidence before me, find it was reckless and I do have reasonable doubt on the mens rea. So Ms. Turner-Lienaux is not guilty. I do have reasonable doubt on mens rea .

The Applicant’s Interactions with the Registrar [ 16 ] On September 3, 2019 (a few days after Judge Sakalauskas handed down her decision), the applicant attended at the Access Nova Scotia office in Bayers Lake, in an effort to renew her driver’s license. Access Nova Scotia staff advised the applicant that she would either have to complete an alcohol addiction rehabilitation program and pay a reinstatement fee or proceed with a review under s. 279B. [ 17 ] Mr. Mitchell and Ms.

Turner were not present for this interaction between the applicant and Access Nova Scotia staff, and they were not involved in this interaction or in directing staff as to how they should respond to the applicant’s inquiries. [ 18 ] The applicant elected to proceed with a review under s. 279B. She completed and signed a standard Application for Administrative Suspension Review form. The reverse side of the form provided the following information regarding the issues that

would be determined on the application: PLEASE READ THIS INFORMATION BEFORE COMPLETING APPLICATION ISSUES TO BE DETERMINED The (sole issue) before the Department during a review of an administrative suspension under

Section 279B of the Motor Vehicle Act is whether You operated or had care or control of a motor vehicle with an alcohol concentration which exceeded 80 milligrams of alcohol in 100 millilitres of blood or, You operated or had care or control of a motor vehicle and failed or refused to comply with a demand made by a peace officer to submit to testing in order to determine whether the concentration of alcohol in your blood exceeded 80 milligrams of alcohol in 100 millilitres of blood.

Please refer to the Motor Vehicle Act for exact wording of the issues to be determined . [ 19 ] The applicant provided the following information on the front page of the form, in response to the prompt “Describe any circumstances relating to the taking of the breathalyzer test or sample of blood, the circumstances relating to the incident, which you consider relevant for the purpose of this review”: Excessive alcohol consumption/amnesia were caused by prescription drug interaction with small amount of alcohol causing temporary blackout.

One time event. [ 20 ] She also provided the following information in response to the prompt, “Describe any additional circumstances or reasons why you believe the suspension of your driving privileges should be rescinded and your driving privileges should be reinstated”: Perfect driving record for 38 years.

No warning given to patient about adverse effect of alcohol on prescription drugs.* *Karen found not guilty for medical reasons by Judge Amy Sakalauskas Aug. 26/19 [ 21 ] Later that day, the applicant’s counsel (who is also the applicant’s husband) emailed Bruce Wambolt, a Driver Competency Coordinator with the Department of Transportation and Infrastructure Renewal. In this email, counsel argued ( inter alia ) that: On August 26, 2019 Judge Amy Sakalauskas of the Provincial Court found Mrs. Turner-Lienaux not guilty of the charges made by the Police officer under s. 279(A)(1)(a)(i) (sic) of the MVA .

Therefore as a matter of law the administrative suspension issued by the officer is vacated and is no longer of any force or effect. S. 279B does not confer any authority on your Registrar to review a not guilty decision of a Provincial Court Judge. The Judge’s decision automatically renders charges made by the Police officer null and void. The legal effect of the judge’s not guilty decision is to erase the charges under s. 278(A)(1)(a)(

i) by the Police officer. Therefore that suspension has been determined invalid as a point of law and your Registrar has no legal authority to revisit that legal issue. [ 22 ] The applicant’s counsel followed this email with a September 4, 2019 letter to Mr. Mitchell, stating: As a matter of law when the charges against my wife were dismissed by the Court the legal basis of the suspension of her licence ceased to operate. Since my wife was not convicted of the charges against her, her licence was never revoked. Accordingly there is no legal requirement for her licence to be reinstated.

As you will appreciate the procedure directed to be followed by DMV staff has no application to the facts of my wife’s case since it applies to a review of administrative suspensions. It does not provide for review of Court decisions where a person is acquitted. Therefore the only procedure that has to be completed by DMV is to have her licence “renewed” since it expired during the suspension period. In the circumstances I am writing to request that you direct DMV staff that the s. 279B review process directed by them is not required in this case.

Accordingly, I ask that you direct DMV staff to issue a renewal of my wife’s driver’s licence as soon as it is expedient to sort out this matter with staff and let us know when we can attend to have the licence renewed. [ 23 ] Prior to receiving this correspondence, Mr. Mitchell and Ms. Turner had had no knowledge of the applicant or her counsel. They had never met or spoken, and had had no dealings or interactions, with either of them. [ 24 ] Upon reviewing this correspondence, Mr. Mitchell and Ms.

Turner formed the impression that the applicant’s counsel misunderstood the effect of the applicant’s acquittal, as well as the powers of the Registrar under the MVA regarding a s. 279A suspension. According to their affidavit evidence, they formed this impression in light of: 1. Their understanding of the Court of Appeal’s decision in Selig , which was that being acquitted of related criminal charges does not terminate or invalidate an administrative suspension under s. 279A. 2.

Their reading of the MVA as a whole, which was that the only way to rescind a suspension under s. 279A is on a review under s. 279B (or, if that review is unsuccessful, on a further appeal to the MVA B under s. 279BA). 3. Their

interpretation of s. 279A(7), which was that a person whose license is the subject of an un-rescinded s. 279A suspension must apply to have their license reinstated.

4. Their

interpretation of s. 279A(8), which was that the Registrar may not grant an application for reinstatement unless the driver has satisfied any and all applicable requirements for reinstatement under the MVA . [ 25 ] Their

interpretation of s. 67(11), which was that the Registrar may not grant an application for reinstatement unless the driver participates in the DWI Program, and that the Registrar has no discretion to waive this requirement. [ 26 ] Mr. Mitchell and Ms. Turner decided that Ms. Turner would prepare a response to the correspondence, but that Mr. Mitchell would sign the response, since the September 4, 2019 letter was addressed to him. Accordingly, Ms. Turner prepared the following response, which was approved by Mr.

Mitchell and sent to the applicant’s counsel on September 17, 2019: I am responding to your letter dated September 4th, 2019, and your email to Bruce Wambolt dated September 3th (sic), 2019, respecting the process for a s. 279B administrative review. Ms. Turner-Lienaux’s administrative suspension proceedings are separate from her criminal law proceedings. Ms. Turner-Lienaux was not criminally charged under the Motor Vehicle Act . She was issued an Order of Suspension pursuant to s. 279A(1) (a)(

i) of the MVA . The impaired driving charges were laid under the Criminal Code (Canada) . The judge rendered a decision on the criminal matter, not on the Order of Suspension under the Motor Vehicle Act . These are two distinct processes. The issuance of suspensions is consistent with the principles of administrative law and the public safety purposes of the Motor Vehicle Act . The MVA contains specific restoration requirements associated with the suspension under s. 279A. There are two options. The first is to complete the Driving While Impaired (DWI) program offered by the Nova Scotia Health Authority.

Section 67(11) of the MVA states, “The Registrar shall require that a person whose driver’s license or privilege of obtaining a driver’s license has been revoked for an alcohol related driving offence or suspended pursuant to

Section 279A participate in such alcohol rehabilitation program as may be prescribed by regulation made by the Governor in Council before he is entitled to reinstatement of his license.” By way of receipt of the Application for Administrative Suspension Review, it appears you wish to proceed with the second option of a review of the suspension pursuant to s. 279B of the MVA . If successful, completion of the DWI program is not required. [ 27 ] The applicant’s counsel replied by way of a September 23, 2019 facsimile. Although it was addressed to Mr. Mitchell, it was received by Ms.

Turner, as it was sent to her facsimile number within the RMV. [ 28 ] Further, Mr. Mitchell was out of the office at the time due to an illness in his family. Accordingly, and as s. 279B applications fell within her area of responsibility within the RMV, Ms. Turner attended to preparing a response to this correspondence. [ 29 ] In his September 23, 2019 correspondence, the applicant’s counsel advised that he was raising four “preliminary” legal objections “to the Review process which you propose to perform pursuant to s. 279B of the MVA ”: issue estoppel, autrefois acquit ; s. 11(

h) of the Charter ; and “that s. 279B(7) unlawfully fetters your quasi-judicial discretion to carry out this Review in accordance with the principles of natural justice”. He phrased his objection under s.11(

h) of the Charter in the following terms: S. 11(

h) of the Charter provides as follows: 11. Any person charged with an offence has the right (

h) if finally acquitted of the offence, not to be tried … or punished for it again; As shown above the impaired driving legal issue which the Registrar proposes to consider in my wife’s 279B ‘appeal’ is identical to the impaired driving legal issue she was acquitted of by Judge Sakalauskas. This MVA 279B Review violates s. 11(

h) of the Charter in two ways: (

i) as stated in s. 278B(7) it proposes to retry the impaired driving legal issue defined by the Criminal Code dismissed by Judge Sakalauskas; and (ii) in addition to the 16 month administrative suspension imposed on my wife it proposes to add the further punishments of taking a rehabilitation course which costs approximately $500 and to charge her a penalty fee to have her licence ‘reinstated’ instead of allowing her to just pay the usual fee to have her licence ‘renewed’. The Supreme Court of Canada in Van Rassel confirmed that s. 11(

h) of the Charter is violated in circumstances where a party has been acquitted of an offence which is the same offence which is proposed to be prosecuted by another authority. S. 11(

h) of the Charter therefore bars your office from conducting this Review, or imposing further penalties upon my wife arising from the impaired driving incident of May 11, 2018. This is because my wife has already been acquitted by Judge Sakalauskas of the impaired driving legal issue defined by the Criminal Code proposed to be ruled upon in this Review. [ 30 ] For context,

Section 10 of the Constitutional Questions Act , R.S.N.S. 1989, c. 89 , provides as follows: Notice to Attorney General 10

(1) In this Section, (a) “court” means the Supreme Court of Nova Scotia, the Family Court, a judge of either of those courts, a judge of the provincial court or an administrative tribunal; (b) “law” includes

an Act of the Parliament of Canada or of the Legislature and includes a proclamation, regulation or order in council made pursuant to any such Act;

… (d) “remedy” means a remedy provided pursuant to

section 24 of the Canadian Charter of Rights and Freedoms but does not include a remedy of exclusion of evidence or a remedy consequential on exclusion of evidence.

(2) Where, in a court in the Province, in a proceeding other than a proceeding where the Attorney General for the Province is a party, is represented by counsel or has appointed counsel, (

a) the constitutional validity or constitutional applicability of any law is brought into question; or (

b) an application is made to obtain a remedy, the court shall not adjudge the law to be invalid nor shall it grant the remedy until after notice is served on the Attorney General in accordance with this Section. [ 31 ] Ms. Turner read the applicant’s s. 11 (

h) argument as questioning the constitutional validity or applicability of s. 279B , or as raising a request for a remedy under the Charter . Accordingly, she determined that the applicant should give notice of that argument to the Attorney General under the Constitutional Questions Act . She therefore prepared the following response to the above-mentioned September 23, 2019 correspondence: I am in receipt of your correspondence dated September 23, 2019. In your correspondence you raise a question regarding my jurisdiction to hear the suspension review and cite s. 11(

h) of the Canadian Charter of Rights and Freedoms . Please consult the Nova Scotia Constitutional Questions Act and address the issue of giving notice to the Nova Scotia Attorney General. Please copy me on any such documentation. I will address the other matters you raise in due course. [ 32 ] This response, dated September 27, 2019, was prepared under Mr. Mitchell’s letterhead. Given Mr. Mitchell’s absence from the office, Ms. Turner did not ask him to approve or sign the response before she sent it to the applicant’s counsel. She instead used Mr.

Mitchell’s signature stamp to sign the response on his behalf. [ 33 ] The applicant’s counsel responded by way of an October 2, 2019 facsimile, which read as follows: This is to acknowledge receipt of your letter dated September 27 in which you make reference to the Constitutional Questions Act . I assume that you have not read the Act and are relying on someone in the AG’s legal department for advice. If you take a minute to read the Act you will see clearly that it has no application to administrative matters such as this in-house review before you.

There is ample authority in my letter nullifying your authority in this case without touching upon s. 11 (h). As stated in my letter it is subversive of the court process. This is also to put you on notice that your action of delaying the renewal of my wife’s driver’s licence is tortious and therefore actionable in damages. This is because the departmental procedure which you have argued provides you with lawful authority, in the facts of this case, is unlawful.

That is because s. 279B(7) of the MVA ceases to be enforceable in any case where an Applicant has already been tried and acquitted by a court of law of a charge of impaired driving “as defined in the Criminal Code ” – which

section of the MVA you have argued wrongly vests you with authority to retry that charge pursuant to the MVA . This is further to give you notice that failure to renew my wife’s driver’s licence is causing us monetary damages because I have to driver her places which takes up time which I could use to earn income.

Therefore if renewal of her licence is not forthcoming without any further undue delay my wife will seeks (sic) damages from you in Small Claims Court of $50.00 per day for each day renewal of her licence is unlawfully withheld by you. [Emphasis in original.] [ 34 ] Although this correspondence was addressed to Mr. Mitchell, it came through Ms. Turner’s facsimile number within the RMV. Further, as Mr. Mitchell was still out of the office due to a family illness, Ms. Turner attended to preparing a response to the correspondence. [ 35 ] Ms.

Turner re-reviewed the Constitutional Questions Act , and disagreed with counsel’s suggestion that it does not apply to administrative review proceedings under s. 279B, as a “court” is defined for purposes of

Section 10 of the Act as including an “administrative tribunal”, and as she considered the Registrar or Deputy Registrar to be an “administrative tribunal” when adjudicating a s. 279B application. [ 36 ] Further, Ms. Turner was confused by counsel’s suggestion that “(t)here is ample authority in my letter nullifying your authority in this case without touching upon s. 11 (h).” Specifically, she was not certain whether this was intended to convey that the applicant was withdrawing her objection under s. 11(

h) of the Charter , or whether she continued to intend to advance that argument. [ 37 ] Ms. Turner therefore prepared the following response to counsel’s October 2 correspondence: I am in receipt of your correspondence dated October 2, 2019. It is unclear whether you are withdrawing your constitutional challenge. If you intend to rely on it, notice to the Attorney General is required pursuant to the Nova Scotia Constitutional Questions Act . Please see

section 10 of the Act. If you are no longer advancing arguments about the constitutionality of the Motor Vehicle Act , I will proceed with the application for a written administrative suspension review. Otherwise, I must wait for at least 14 days from the date your notice is given to the Attorney

General, pursuant to the Constitutional Questions Act , to hold the hearing, be it by paper or in person. Please advise how you wish to proceed. [ 38 ] As counsel’s October 2 correspondence was addressed to Mr. Mitchell, Ms. Turner prepared the response under Mr. Mitchell’s letterhead. She used his signature stamp and sent the response to the applicant’s counsel on October 15, 2019. [ 39 ] Shortly after Ms. Turner sent this response, the RMV received further correspondence from the applicant’s counsel, dated October 15, 2019. This correspondence, directed to Mr.

Mitchell, read in part as follows: This follows my letter to you dated October 2, 2019. I am writing on the record to document that as of this date my wife is still being prevented by you from renewing her Driver’s Licence. Attached is a Statement of Claim to be filed with the Small Claims Court which I have prepared for a damages claim against you for your illegal actions in this matter. [ 40 ] This was followed by further correspondence from the applicant’s counsel, dated October 21, 2019. Although it was addressed to Mr. Mitchell, it was received through Ms. Turner’s facsimile number at the RMV. As Mr.

Mitchell was still out of the office due to an illness (and, ultimately, a death) in his family, and as s. 279B applications fall within Ms. Turner’s area of responsibility at the RMV, she attended to preparing a response. [ 41 ] Ms. Turner reviewed counsel’s October 2, 2019 correspondence, and noted that counsel agreed, for the sole purpose of the applicant’s s. 279B review application, to withdraw his s. 11(

h) Charter objection. Accordingly, Ms. Turner was satisfied that there was no longer any need for the applicant to provide notice to the Attorney General under s. 10 of the Constitutional Questions Act before the Registrar or Deputy Registrar heard her application. [ 42 ] Ms. Turner also noted that the applicant’s counsel stated that, “ before you proceed with any review , I hereby request that you consider and make a quasi-judicial determination regarding the preliminary objections which I submitted to you in writing on September 23.” [ 43 ] Ms.

Turner considered this issue, and ultimately determined that the Registrar or Deputy Registrar did not need to decide the applicant’s preliminary objections before adjudicating the merits of her s. 279B application, but could instead address them at the same time as the application itself. The following considerations led Ms. Turner to this conclusion: 1.

Her understanding that subject to the provisions of the MVA and the bounds of natural justice and administrative fairness, the Registrar or Deputy Registrar retains discretion to set the process and procedure that they will follow in adjudicating a s. 279B application. 2. Her understanding that the MVA does not contain any provisions that require the Registrar or Deputy Registrar to decide a preliminary objection before adjudicating a s. 279B application on its merits. 3.

Her view that it was more efficient for the Registrar or Deputy Registrar to consider the applicant’s preliminary objections at the same time as the merits of her application. 4. Her view that fairness could be achieved by giving the applicant an opportunity to make written submissions on her preliminary objections before her s. 279B application was adjudicated, particularly as she had requested that her application proceed by way of a written review as opposed to an oral hearing. [ 44 ] Accordingly, Ms.

Turner prepared the following response, dated October 28, 2019: I have your letter of October 21, 2019 in which you confirm you are withdrawing your Charter-based challenge to the Motor Vehicle Act and to my jurisdiction under that statute. I am therefore no longer required to wait for you to comply with the requirement in the Nova Scotia Constitutional Questions Act that the Attorney General for Nova Scotia be given 14 days’ notice of the challenge. As such, we may proceed to set a review date. I am not required to hear what you term as “pre-liminary objections” before the hearing itself.

As an administrative decision-maker, I set my own process and procedure, within the bounds of natural justice and administrative fairness. I will hear all matters you wish to address on the date of the review. You have chosen a paper hearing on behalf of your client. Please submit all written materials you wish to be considered in the above file. The date of the review will be November 12, 2019 and you have until that date to submit your materials. [ 45 ] As counsel’s October 21, 2019 correspondence was addressed to Mr. Mitchell, Ms. Turner prepared this response under his name. Again, as Mr.

Mitchell was out of the office due to an illness (and ultimately a death) in his family, she signed the response on his behalf. [ 46 ] On November 7, 2019, Ms. Turner received additional submissions and materials from the applicant’s counsel in support of her s. 279B application. [ 47 ] Ms. Turner assumed responsibility for deciding the applicant’s application, as she had availability to do so, and as doing so fell within her area of responsibility at the RMV. Mr. Mitchell did not direct or order that Ms. Turner decide the applicant’s application. [ 48 ] As Ms.

Turner reviewed the applicant’s submissions (including her arguments that she was bound by Judge Sakalauskas’s decision and that the s. 279B review could amount to a re-trial of her criminal charges), she continued to be of the view that these submissions were based upon a misunderstanding of the Registrar or Deputy Registrar’s role and powers. Ms. Turner based this view

upon, inter alia : 1. Her understanding that the processes under ss. 279A and 279B are civil, administrative matters, separate and distinct from any related criminal proceedings. 2. Her understanding that being acquitted of related criminal charges does not rescind a suspension under s. 279A, and that the only way to rescind the suspension is by a review under s. 279B (or, if that review is unsuccessful, a further appeal to the MVA B under s. 279BA). 3. Her

interpretation of s. 279B(7)(a), which was that the sole issue before her was (

a) whether the applicant operated or had care or control of a motor vehicle, as defined in the Criminal Code , and (

b) whether the applicant did do while having a blood alcohol concentration in excess of 80 mg of alcohol in 100 ml of blood; and that whether the applicant had the mens rea to commit a criminal offence under s. 253 of the Criminal Code was not an issue that should be considered on a s. 279B application. 4. Her

interpretation of s. 279B(9), which was that where the evidence before the Registrar or Deputy Registrar supports an affirmative determination on the sole issue under s. 279B(7)(a), the Registrar or Deputy Registrar must sustain the suspension. [ 49 ] Ms. Turner also noted that there did not appear to be any dispute that the applicant had operated or had care or control of a motor vehicle at the relevant time, and that her blood alcohol concentration at that time was at least 170 mg of alcohol in 100 ml of blood. Accordingly, in light of all the evidence, as well as her understanding and

interpretation of s. 279B, she determined that the sole issue under s. 279B(7)(

a) had to be answered in the affirmative, and that she was required to sustain the applicant’s suspension. The Registrar’s Decision [ 50 ] Ms. Turner prepared written reasons detailing her decision, which provided in part as follows: [28] This proceeding is an administrative hearing in which the standard of proof is based on a balance of probabilities. It is not a criminal proceeding. I am not bound by decisions of a criminal court regarding the guilt or innocence of an individual based on the criminal standard.

The review process does not operate under the Criminal Code (Canada) and determining mens rea is not considered in my statutory task under s.279B of the MVA . Whether the applicant subjectively intended to operate while in excess of 80 mg% is not an issue for me to consider. My task is to determine, as a finding of fact, whether the applicant operated or had care or control of a motor vehicle as defined in the Criminal Code (Canada) and, if so, having consumed alcohol in such a quantity that the concentration thereof in the person’s blood exceeded 80 milligrams of alcohol in 100 millilitres of blood.

The applicant’s

interpretation of s. 67(11) is incorrect. With respect, the applicant has conflated the criminal and administrative proceedings; the criminal and administrative standards of proof; and the impact of the decision in the Provincial Court on this proceeding. [29] On the matter of operation or care or control, I am satisfied the applicant operated or had care or control of a motor vehicle as defined in the Criminal Code (Canada) based on: (

a) Cst. W’s evidence that when Cst. O and Cst. W approached the driver’s side of the vehicle, Cst. W noted the applicant as the female driver; and (

b) Item 11 in the Agreed Statement of Facts where the applicant admits she was operating her motor vehicle in an impaired state between approximately 10:40 pm and 10:49 pm on May 11, 2018; [30] On the matter of her BAC, I am satisfied, on a balance of probabilities, that the applicant’s blood alcohol concentration exceeded 80 milligrams of alcohol in 100 millilitres of blood based on the Intox EC/IR II Subject Test results and the Certificate of a Qualified Technician signed by Daniel M Roache on May 12, 2018 indicating the applicant had a blood alcohol concentration of 180 milligrams of alcohol in 100 millilitres of blood at 23:58 hours and 170 milligrams of alcohol in 100 millilitres of blood at 00:21 hours, respectively. [31] I reviewed the letter dated March 27, 2019 from Greg Johnstone of PharmaTox Inc to Charles Lienaux.

The letter states it is an addendum to a previous letter dated Oct 25, 2019. The applicant submitted the letter as evidence to support involuntary impairment and therefore a lack of intent.

As stated above, determining mens rea is not considered in my statutory task and as a result, I did not give this letter any weight. [32] Based on the evidence before me, I am satisfied, on a balance of probabilities the applicant operated or had care or control of a motor vehicle as defined in the Criminal Code (Canada) having consumed alcohol in such a quantity that the concentration thereof in her blood exceeded 80 milligrams of alcohol in 100 millilitres of blood. DECISION [33] I hereby uphold the driver’s license suspension. Mr. Mitchell did not influence (or attempt to influence) Ms.

Turner’s decision in any way. Rather, Ms. Turner’s decision was based upon how she viewed the evidence that was before her, in light of her understanding and

interpretation of the MVA . Ms. Turner sent her written decision to the applicant by letter dated November 18, 2019, in which she noted as follows: I am responding to you with the decision of the Administrative Suspension Review (decision attached).

In accordance with

Section 279B of the Motor Vehicle Act , having reached an affirmative determination on the issue before me, the order of suspension is sustained and remains in full force and effect. Please note that your suspension period expired on August 19, 2018. There are restoration requirements to be met before your privileges to obtain a driver’s license can be reinstated. You must attend an alcohol assessment/intervention program with Addiction Services, a division of the Nova Scotia Health Authority. The fee for the assessment must be paid at any Access Nova Scotia offering Registry of Motor Vehicle services or any full service Registry of Motor Vehicles Office before you can

schedule an appointment with addiction services in your area. A list of Addiction Services contact numbers will be given to you when you pay your assessment fee. The department must receive a report from Addiction Services concerning your assessment before we can consider reinstatement of your driver’s license. The fee for restoration of your driving privileges can be paid at the same location that you paid for the alcohol assessment program once you are eligible.

If you would like to appeal this decision, you may apply for a review with the Motor Vehicle Appeal Board within thirty days of the date of this correspondence. For further information on the appeal process, please contact the Motor Vehicle Appeal Board at (902) 424-4256 or toll free at 1-855-424-4256. You may also visit the website at: accessns.ca/driver/motor-vehicle-appeal-board.asp Should you require more information on the procedures to follow for reinstatement of your driver’s license, you can contact the Driver Compliance

Section at (902) 424-5587 , or toll free at 1-800-898-7668 . [Emphasis in original] [ 51 ] The applicant’s counsel responded to the receipt of the decision by facsimile correspondence dated December 2, 2019, in which he stated as follows: This will acknowledge receipt of the decision issued by your Department on November 18, 2019 finding my wife guilty of impaired driving as defined s. 253(1) (

b) of the Criminal Code . This is to advise that in the near future I shall be filing documents for an Application in Court in the Supreme Court seeking inter alia the following relief: (

i) a number of declaratory judgements against you for misfeasance of public office; (ii) compensatory damages payable to my wife of $20,000; (iii) punitive damages payable to my wife of $20,000; (iv) punitive damages payable to the Halifax County Provincial Court of $100,000.00. [ 52 ] Although this correspondence was directed to Mr. Mitchell, it arrived through Ms. Turner’s facsimile at the RMV. She therefore prepared a response, doing so under Mr. Mitchell’s signature. This response read in part as follows: I am in receipt of your letter dated December 2, 2019.

As indicated in correspondence sent to you on November 18, 2019, an appeal of the decision is made to the Motor Vehicle Appeal Board within 30 days of the date of the decision. Please refer to s.279BA(1) of the Motor Vehicle Act regarding statutory appeals of decisions of the Registrar made under s.279B . Appeals are made to the Motor Vehicle Appeal Board and must be made within 30 days of the date of the Registrar’s decision… [ 53 ] The applicant did not appeal Ms. Turner’s decision to the MVA B under s. 279BA.

Similarly, the applicant has not taken the steps required under the MVA to have her license reinstated, despite the statutory period of suspension having expired in 2018. The Legislative History [ 54 ] One of the provisions of the MVA by which a driver’s license can be suspended is s. 279A. At the time of the applicant’s suspension, ss. 279A(1) and (2) provided in relevant part as follows:

(1) Where (

a) a peace officer (

i) by reason of an analysis of the breath or blood of a person, has reason to believe that the person has consumed alcohol in such a quantity that the concentration thereof in the person’s blood exceeds 80 milligrams of alcohol in 100 millilitres of blood, or (ii) …; and (

b) the occurrence is in relation to the operation of or having care or control of a motor vehicle as defined in the Criminal Code (Canada) , the peace officer on behalf of the Registrar shall (

c) where the person holds a valid driver’s license issued pursuant to this Act to operate the motor vehicle… (

i) take possession of the person’s driver’s license and shall, subject to subsection (2) issue a temporary driver’s license that expires seven days from the effective date… and

(ii) suspend the person’s driver’s license by serving on the person a notice of intention to suspend and order of suspension effective seven days from the date of the notice and order… …

(2) A peace officer who serves a notice and order pursuant to subsection (1) shall, without delay, forward to the Registrar (

a) the person’s driver’s license, if one has been surrendered, (

b) a copy of the temporary driver’s license, if one has been issued, (

c) a copy of the completed notice and order, (

d) a report signed by the peace officer, and (

e) a copy of any certificate of analysis under

section 258 of the Criminal Code (Canada) with respect to the person referred to in subsection (1). [ 55 ] As set out in s. 279A(1) (c)(ii), a suspension under s. 279A is effected when a peace officer (a term defined in s. 2 of the MVA as including a police officer) serves a driver with an associated notice and order, and the suspension begins to run seven days after the date of the notice and order. The driver’s license is then suspended for a period of three months, in accordance with s. 279A(5) , which provides as follows: Unless otherwise ordered in a review pursuant to

Section 279B , a driver’s license is suspended pursuant to this

Section and a person without a driver’s license is disqualified pursuant to this

Section from applying for or holding a driver’s license or operating a motor vehicle for three months from the effective date of the suspension. [ 56 ] S. 279A was originally inserted into the MVA by s. 15 of

An Act to Amend

Chapter 293 of the Revised Statutes, 1989, the Motor Vehicle Act, S.N.S. 1994-95, c. 12 (also known as “Bill 119”). During the second reading of Bill 119 in the Legislature, the Honourable Richard Mann, the then-Minister of Transportation and Communications, noted as follows: …The police officer will immediately suspend the driving privileges of an individual for doing one of two things; for failing the breathalyzer or for having a blood alcohol content, determined by a breath or a blood sample, in excess of the legal limit, or for refusing the breathalyzer.

If one of these two events takes place then the police officer will immediately suspend the driving privileges and will report that to the Registrar of Motor Vehicles. Where possible, the police officer will physically confiscate the driver’s license. … I have heard some comments about the ability of the province to proceed in that measure and how a challenge might be. I have done some research and I would briefly like to enter into the record here this similar type of legislation as it affects Manitoba and, of course, has been challenged in the Queen’s Court.

I will just read a couple of excerpts from the decision; “The province has the absolute right to manage the roads, and particularly to issue and revoke driver licenses. The court furthermore characterized the procedure of s.263.1 as purely administrative, and not criminal.”. It also found that the administrative suspension was not a penalty imposed by the Legislature but, instead, a civil consequence of one of two acts committed by the individual refusing or failing the breathalyzer test.

It was found that the role of the police officer was administrative and again, found that the action taken by the province in the roadside suspension, if you will, was certainly justified and completely within the authority of the provincial government. [ 57 ] The Minister went on to note as follows in closing the debate on Bill 119: The member for Kings West raised the question about impaired driving. I point out that the bill, I do not believe, makes reference to impaired driving.

The bill cites two specific incidents, whereby your license will be suspended: failing the breathalyzer or refusing the breathalyzer. It does not talk about impaired driving and I would like to make that very clear. The suspension of license is not, again, tied to a Criminal Code decision, it is an administrative decision. The police officer is making that suspension in the name of the Registrar of Motor Vehicles. The Registrar of Motor Vehicles has the authority to suspend license. [ 58 ] The Court of Appeal considered these provisions soon after they were added to the MVA , in Nova Scotia (Attorney General) v.

Selig , 1996 NSCA 187 . Mr. Selig was charged under ss. 253 (a)-(

b) of the Criminal Code . His driver’s licene was also suspended under s. 279A for the statutory period of three months, running from September 25, 1995 and expiring on December 25, 1995. [ 59 ] In January 1996, Mr. Selig’s criminal charges were dismissed in Provincial Court. Following his acquittal, Mr. Selig attempted to have the Registrar remove the three-month suspension from his driving record. The Registrar refused, and took the position that there were requirements to be fulfilled by Mr.

Selig before he could get his license back – namely, the completion of an application to have his license reinstated, the payment of an associated fee, and an interview with a Driver Improvement Officer. [ 60 ] Mr. Selig applied to the Supreme Court for an order declaring the suspension null and void. The chambers judge did not grant Mr. Selig this relief (nor an order removing the suspension from his driving record), but did order that the suspension be terminated without conditions, on the basis that:

(1) Mr. Selig had been acquitted of his criminal charges; and (2) the suspension was time-limited, and the legislation did not give the Registrar authority to extend the suspension beyond the mandated three months. The Crown appealed, on the basis that the chambers judge had erred by restoring Mr. Selig’s license, and by finding that the suspension terminated upon his acquittal. The Crown phrased its submissions on this latter issue in the following manner in its factum: The fact that the two legislative schemes may give rise to apparently conflicting results, a criminal acquittal and an administrative

suspension, or an administrative restoration of license and a criminal conviction, is irrelevant. That is simply a potential consequence of afederal constitution which permits federal and provincial legislation to separately govern the same conduct. [61] The Court of Appeal agreed with the Crown’s position, and noted as follows: 37 In White v. Nova Scotia (Registrar of Motor Vehicles) (1996), (NS SC), 147 N.S.R. (2d) 259 (S.C.) (affirmedwithout reasons – N.S. C.A.

May 27th, 1996) MacAdam J. in reviewing these amendments to the Act, for the purpose of determiningwhether the driver’s Charter rights were violated, referred to the act of suspension and the act of review as administrative acts and notpenal proceedings.

He said at p. 281: …the administrative act of suspension and the Registrar’s review are civil and not criminal matters. 38 The lawful act of the police officer, in suspending the respondent’s driver’s license under s. 279A of the Act, does not suddenlybecome unlawful, or wrong, simply because the respondent was subsequently acquitted of charges under the Federal Criminal Codearising out of the same circumstances. 39 I agree with the submission of the Crown on this issue.

In my opinion, and with respect, the Chambers judge was in error indeciding that the acquittal of the respondent, on the criminal charges, should, of itself, cause the suspension of the respondent’s driver’slicense to be terminated, without conditions. [62] However, the Court of Appeal dismissed the Crown’s appeal, on the basis that the Registrar did not have authority under theMVA to impose requirements for reinstatement, in addition to the three-month suspension.

In this regard, the Court of Appeal noted thatalthough various provisions in the MVA (like, for example, s. 67(11)) spoke to the reinstatement of a license that had been revoked, therewas no such provision for a license that had been suspended, and the terms “revocation” and “suspension” were not synonymous. [63] Shortly after the Court of Appeal issued its decision in Selig, the Lieutenant Governor assented to

An Act to Amend

Chapter 293of the Revised Statutes, 1989, the Motor Vehicle Act, S.N.S. 1996, c. 34 (also known as “Bill 28”). Bill 28 added provisions to the MVAwhich imposed requirements for the reinstatement of a license suspended under s. 279A, notwithstanding the expiry of the three-monthsuspension period. Specifically, s. 5 of Bill 28 added the following provisions as subsections (7) and (8) to s. 279A:

(7) A person whose driver’s license or privilege of obtaining a driver’s license has been suspended pursuant to this

Section shall, to havethe driver’s license or privilege of obtaining a driver’s license reinstated, apply to the Registrar in the form and manner required by theRegistrar.

(8) The Registrar shall not reinstate a driver’s license or the privilege of obtaining a driver’s license pursuant to subsection (7) until theRegistrar is satisfied that all requirements pursuant to this Act have been completed by the Applicant. [64] Bill 28 also amended s. 67(11) of the MVA. As indicated, at the time of the Court of Appeal’s decision in Selig, s. 67(11) spoketo requirements for reinstatement of a license that had been revoked, but did not refer to a license that had been suspended. Bill 28amended s. 67(11) so that it read as follows: The Registrar may require that a person whose driver’s license has been revoked for an alcohol related driving offence or suspendedpursuant to

Section 279A participate in such alcohol rehabilitation program as may be prescribed by regulation made by the Governorin Council before he is entitled to reinstatement of his license. [Bolding to show words added by Bill 28.] [65] Accordingly, Bill 28 amended the MVA to require that a person apply for reinstatement of a license suspended under s. 279A;to prohibit the Registrar from reinstating their license until they satisfied all requirements for reinstatement under the statute; and to givethe Registrar authority to require that person to “participate in such alcohol rehabilitation program as may be prescribed by regulation” asa pre-condition to reinstatement. [66] Due to the use of the word “may” (i.e. “The Registrar may…”) in s. 67(11), the effect of Bill 28 was to give the Registrardiscretion in deciding whether to require a driver to complete the above-mentioned alcohol rehabilitation program as a requirement forreinstatement of their license.

In order words, the Registrar could – but was not required – to impose this as a pre-condition forreinstatement. [67] The Legislature removed this discretion by enacting

An Act to Amend

Chapter 293 of the Revised Statutes, 1989, the MotorVehicle Act, S.N.S. 1998, c. 32 (also known as “Bill 83”). Bill 83 amended s. 67(11) so that it read as follows: The Registrar may shall require that a person whose driver’s license has been revoked for an alcohol related driving offence orsuspended pursuant to

Section 279A participate in such alcohol rehabilitation program as may be prescribed by regulation made by theGovernor in Council before he is entitled to reinstatement of his license. [Bolding to show words added by Bill 28; strike-through and underlining to show amendments by Bill 83.] [68] Accordingly, the effect of Bill 83 is that a driver whose license has been suspended under s. 279A cannot have their licensereinstated until they complete the above-mentioned alcohol rehabilitation program.

Due to the deletion of the word “may”, and itsreplacement with the word “shall”, the Registrar has no discretion to reinstate a license that has been suspended under s. 279A if thedriver refuses to complete this program. [69] S. 67(11) underwent a further amendment (albeit one which is not relevant on the facts of this case) in 2002, such that itultimately provided as follows when the applicant’s license was suspended in May 2018:

The Registrar shall require that a person whose driver’s license or privilege of obtaining a driver’s license has been revoked for an alcohol related driving offence or suspended pursuant to

Section 279A participate in such alcohol rehabilitation program as may be prescribed by regulation made by the Governor in Council before he is entitled to reinstatement of his license . [Emphasis Added] [ 70 ] To summarize, by the time the applicant’s license was suspended in May 2018, the net effect of the original version of s. 279A (as discussed in the Legislature during second reading), the Court of Appeal’s

interpretation of those provisions in Selig , the addition of ss. 279A(7)-(8) through Bill 28, and the various amendments to s. 67(11), was as follows: 1. Where a police officer has reason to believe (e.g. through a breathalyzer test) that a driver had a blood alcohol concentration in excess of 80 mg of alcohol in 100 ml of blood while operating (or having care or control of) a motor vehicle, they are required to administratively suspend the driver’s license under s. 279A(1) . 2.

The police officer exercises their authority under s. 279A on behalf of the Registrar, who (as outlined previously) is the head of the entity that regulates driver licensing in Nova Scotia. Accordingly, a suspension under s. 279A is a purely administrative action, and a civil consequence of the conduct described in s. 279A(1) (a)-(b). A suspension issued under s. 279A is not a penal or criminal matter; it does not result in an offence, and it is not tied to criminal charges or proceedings arising out of the same conduct.

Accordingly, a suspension issued under s. 279A does not become unlawful or wrong (and does not terminate or become invalidated) simply where the driver is acquitted of criminal charges arising out of the same circumstances. The possibility of conflicting results (e.g. a criminal acquittal and an administrative suspension) is a consequence of a federal constitution which permits federal and provincial legislation to separately govern the same conduct. 3.

An administrative suspension under s. 279A lasts three months from its effective date, unless the suspension is rescinded on a review under s. 279B (a process described in greater detail below). 4. If the suspension is not rescinded on review, the driver’s license is not automatically reinstated after the three-month suspension period expires. Rather, s. 279A(7) requires that the driver apply to the Registrar to have their license reinstated.

In turn, s. 279A(8) prohibits the Registrar from reinstating the license until they are satisfied that the driver has satisfied all the applicable requirements for reinstatement under the MVA . 5. Due to the inclusion of the word “shall” in ss. 297A(7)-(8) (i.e. “A person whose driver’s license… has been suspended pursuant to this

Section shall… apply to the Registrar”; The Registrar shall not reinstate a driver’s license… until…” (emphasis added)), there is no discretion or authority for the Registrar to reinstate a license that has been suspended under s. 279A unless the driver has submitted the required application and completed any applicable requirements for reinstatement. 6.

One such requirement for reinstatement is set out in s. 67(11), which provides that the Registrar shall require that a person whose driver’s license has been suspended under s. 279A participate in “such alcohol rehabilitation program as may be prescribed by regulation” before the driver is entitled to reinstatement of their license.

Due to the inclusion of the word “shall” in s. 67(11), participation in this program is mandatory, and the Registrar does not have any discretion to waive this requirement. [ 71 ] The “alcohol rehabilitation program” referred to in s. 67(11) is set out in greater detail in the Alcohol Rehabilitation Program Regulations , N.S. Reg. 99/2001 (the “ ARP Regulations ”).

Pursuant to s. 2 of the version of the ARP Regulations that was in force at the time the applicant’s license was suspended, an “alcohol rehabilitation program” for purposes of s. 67 of the MVA is a program conducted, directed, or promoted by a district health authority under the Health Authorities Act for a person whose license has been, inter alia , suspended under s. 279A of the MVA . [ 72 ] In 2015, Nova Scotia’s district health authorities were merged to create the Nova Scotia Health Authority (or “NSHA”).

Since that time, the NSHA has conducted the alcohol rehabilitation program referred to in s. 67(11) of the MVA and the ARP Regulations , which is known as the Driving While Impaired (or “DWI”) Program. [ 73 ] The DWI Program is delivered to participants through NSHA Mental Health and Addictions Services counsellors. It has two mandatory components: 1. An educational component, which is usually delivered in a group setting.

This component is a half day in length, and its ultimate goals are to provide participants with information about the effects of alcohol and other drugs upon driving, to provide participants with education on the harms associated with such substances, to assist clients in reviewing factors involved in impaired driving, and to develop a plan or strategy to avoid future occurrences. 2.

An assessment component, during which a counsellor will assess the participant’s risk for alcohol or drug problems. [ 74 ] As set out in s. 4 of the ARP Regulations , a participant in the DWI Program must pay costs in the amount of $455.00.

These costs must be paid to the RMV before a driver can contact NSHA Mental Health and Addictions Services to secure an appointment to start the DWI Program. [ 75 ] As indicated, if a s. 279A administrative suspension is not rescinded on review under s. 279B , a driver must follow the above- described process to have their license reinstated. [ 76 ] A review under s. 279B is carried out by the Registrar (or, in light of the definition of “Registrar” in s. 2 of the MVA , a Deputy Registrar). As s. 279B applications fall within Ms.

Turner’s area of responsibility within the RMV, she adjudicates most of these applications, with Mr. Mitchell and another Deputy Registrar filling in as needed. [ 77 ] The procedure that the Registrar or a Deputy Registrar should follow in adjudicating a s. 279B review application can arise through prescribed rules, or under the common law duty of fairness. See, for example, the following comments by Sara Blake at pp. 9-12 of Administrative Law in Canada , 6th ed.:

The procedure followed by a tribunal may be found in a statute or regulation, or in rules, guidelines, or directives issued by the tribunal. It may be set out in a notice issued for a particular proceeding. It may be a matter of unwritten tribunal policy and practice. … In the absence of prescribed procedural rules, the courts require that a statutory decision that affects the rights of an individual person be made following fair procedures. This requirement is called the “doctrine of fairness” or the “duty to act fairly”.

At a minimum, the duty to act fairly requires that, before a decision adverse to a person’s interests is made, the person should be told the case to be met and be given an opportunity to respond. The purpose is twofold. First, it gives the person to be affected an opportunity to influence the decision. Second, the information received from that person may assist the decision maker to make a rational and informed decision. A person is more willing to accept an adverse decision if the process has been fair.

The right to be heard is not a right to the most advantageous procedure, nor a right to have one’s views accepted nor a right to be granted the remedy sought. It is only a right to have one’s views heard and considered by the decision maker. [ 78 ] Subject to any prescribed procedural rules and the bounds of the duty of procedural fairness, the Registrar or Deputy Registrar retains discretion in determining the process to follow in adjudicating a s. 279B review application.

See, for example, the following comments by Blake at p. 24 of Administrative Law in Canada, supra: Tribunals are given latitude in setting their own procedure. The courts are careful not to place decision makers in a procedural straightjacket. As long as the procedure adopted by a tribunal treats those who come before it fairly, a court will not intervene. [ 79 ] Although the RMV does not currently have any policy-type documents in place regarding s. 279B review applications, several procedural rules are prescribed by s. 279B itself.

Under s. 279B, a driver can elect to proceed by way of a written review or an oral hearing. If the driver elects to proceed by way of a written review, the following provisions apply:

(1) A person may apply for review of an order of suspension pursuant to

Section 279A by: (

a) filing an application for review with the Registrar; (

b) paying the prescribed fee… …

(2) The application for review shall be in the form, contain the information and be completed in the manner required by the Registrar.

(3) The application for review may be accompanied by sworn statements or other evidence that the person wishes the Registrar to consider.

(4) An application does not stay the suspension.

(5) The Registrar is not required to hold an oral hearing unless the applicant requests an oral hearing at the time of filing the application and pays the prescribed fees.

(6) In a review pursuant to this Section, the Registrar shall consider (

a) any relevant sworn or solemnly affirmed statements and any other relevant information; (

b) the report of the peace officer; (

c) a copy of any certificate of analysis under

section 258 of the Criminal Code (Canada) without proof of the identity and official character of the person appearing to have signed the certificate or that the copy is a true copy… …

(8) The Registrar shall (

a) where no oral hearing is requested, consider the application within ten days of compliance with clauses (1)(a), (

b) and (d)… …

(12) The decision of the Registrar shall be in writing and a copy of the decision shall be sent within seven days of the date the application was considered… by registered mail to the person at the person’s last known address as shown in the records maintained by the Registrar and to the address shown in the application, if that address is different from the address of record. [ 80 ] The substantive scope of a s. 279B review is circumscribed by s. 279B (7), which (at the material times) provided that: The sole issue before the Registrar in a review pursuant to this

Section is whether it is established to the Registrar’s satisfaction that (

a) the person operated or had care or control of a motor vehicle as defined in the Criminal Code (Canada) having consumed alcohol in such a quantity that the concentration thereof in the person’s blood exceeded 80 milligrams of alcohol in 100 millilitres of blood… [ 81 ] The Registrar’s powers flowing from their determination on this sole issue are similarly circumscribed by ss. 279B(9)-(10), which (at the material times) provided as follows:

(9) Where the evidence before the Registrar supports an affirmative determination on the issue referred to in subsection (7), the Registrar shall sustain the order of suspension.

(10) Where the evidence supports a negative determination on the issue referred to in subsection (7), the Registrar shall (

a) rescind the order of suspension; (

b) return any driver’s license surrendered to the Registrar; and (

c) direct that the fees paid for the application for review be refunded. [ 82 ] Like s. 279A, s. 279B was originally inserted into the MVA through Bill 119.

Minister Mann noted as follows regarding s. 279B in closing the second reading debate regarding Bill 119: …When you are talking about what weight will be attached to the decision, the Registrar, if you look at the bill, it predetermines, for example, exactly what the Registrar’s job is in dealing with this review and it is solely to determine what he will take into consideration, is whether or not the individual was operating a motor vehicle while having consumed alcohol in such a quantity that the concentration thereof in the person’s blood exceeded .80 mg. That is failing the breathalyzer, or they have refused.

I do not think that you are going to see as many appeals or requests for review as one might think at first glance here. Clearly what you are going to do is go and have to satisfy the Registrar of Motor Vehicles that one of those conditions did not apply. If you fail the breathalyzer or had a blood sample taken that was in excess of what is described in the Criminal Code of Canada , then you know you have to convince the Registrar of this. I do not think it is something that is going to be taken lightly and bandied about easily. [Emphasis added.] [ 83 ] To summarize: 1.

The only mechanism for rescinding a s. 279A suspension under the MVA is by way of a s. 279B review application. 2. A s. 279B review application can be adjudicated by the Registrar or a Deputy Registrar. 3. The Registrar or Deputy Registrar retains discretion in determining the procedure to follow in adjudicating a s. 279B review application, subject to ss. 279B(1), (2), (3), (5), (5), (6), (8), (11), and (12), and the common law duty of procedural fairness. 4.

Under s. 279B(7), the sole substantive issue for the Registrar or Deputy Registrar to determine in circumstances like those involving the applicant is whether they are satisfied that the driver was operating (or had care or control of) a motor vehicle having consumed alcohol in such a quantity that their blood alcohol concentration exceeded 80 mg of alcohol in 100 ml of blood. The Registrar or Deputy Registrar does not determine, for example, whether the driver is guilty of the criminal offence of impaired driving, or whether they had the requisite mens rea to commit a criminal offence. 5.

If the Registrar or Deputy Registrar is satisfied that the sole issue in s.279B(7) should be answered in the affirmative (that is, if they are satisfied that the driver operated a motor vehicle with a blood alcohol concentration in excess of 80 mg of alcohol in 100 ml of blood), the Registrar or Deputy Registrar must sustain the suspension under s.279B(9).

Due to the inclusion of the word “shall” in s. 279B(9) (i.e. “…the Registrar shall sustain the order of suspension” (emphasis added)), the Registrar or Deputy Registrar has no discretion to rescind the driver’s suspension if they are satisfied that the sole issue in s. 279B(7) should be answered in the affirmative. 6. If a driver’s review application under s. 279B is unsuccessful, they may appeal the Registrar or Deputy Registrar’s decision to the MVA B under s. 279BA of the MVA . 7.

Alternatively, or if their appeal to the MVA B is also unsuccessful, the driver still has the option of completing the necessary requirements to have their license reinstated, including participating in the DWI Program. Issues: [ 84 ] The applicant’s Amended Notice of Application in Court raises the following issues: 1. Were the applicant’s s. 11 Charter rights engaged by the suspension under s. 279A and the review process under s. 279B? 2. If so, is the applicant entitled to compensatory damages and in what amount? 3.

Was there re-litigation of an issue that was before Judge Sakalauskas, in a manner contrary to the doctrines of autrefois acquit, res judicata , or abuse of process? 4. If so, is the applicant entitled to compensatory damages and in what amount? 5. Should the court order punitive damages? 6. If so, to whom are they payable and in what amount? 7. Has the applicant satisfied the legal test for establishing that Mr. Mitchell and/or Ms. Turner committed the tort of

misfeasance in public office? 8. If so, is the applicant entitled to compensatory damages and in what amount? Were the applicant’s s. 11 Charter rights engaged by the suspension under s. 279A and the review process under s. 279B? [85] The applicant claims that her Charter rights under s. 11 (

d) and (

h) were intentionally violated by the respondents inconducting the review of the suspension of her license. At paragraph 57 of her pre trial brief she states: 57 Where Mitchell and Turner violated the Applicant’s Charter rights - - by disregarding the Charter when they enforced NovaScotia’s impaired driving punitive sanctions against her - - is that when Nova Scotia grounded the enforcement of the Province’simpaired driving punitive sanctions upon a person being charged with the Criminal Code offence of impaired driving this made the“processes” being enforced by Mitchell “criminal in nature”.

This made these “processes” subject to the protections provided to theApplicant by s. 11 of the Charter. This fact was not considered by either Court in White or Selig. 58 The provisions of the MVA prescribed by law provide by s. 279A(1)(

b) that an unlawful BAC level reading must be related to theoffence of impaired driving “as defined in the Criminal Code” as grounds for issuing a Suspension Order. Once an unlawful BAClevel is proven, s. 279A(1)(c)(ii) mandatorily requires a peace officer to suspend a person’s driver’s licence. The only way a CriminalCode offence can ground the issue of a Suspension Order pursuant to s. 279A(1)(c)(ii) of the MVA is by charging a person with theoffence alleged. If a person is not so charged an unlawful BAC level does not relate to the commission of the offence of impaired driving“as defined in the Criminal Code”.

Absent a Criminal Code charge Nova Scotia’s impaired driving punitive sanctions are notenforceable. [86] She says that her Charter rights were violated when the respondents conducted the review as that amounted to second hearingof a charge that she had been acquitted of in Provincial Court. Further, that the respondents applied the wrong (civil) burden of proof;did not inquire into whether she had the mens rea to be guilty of the criminal charge and erred by not having regard to exculpatory expertevidence that established that she was involuntarily intoxicated. [87]

Section 11 of the Charter provides as follows: 11. Any person charged with an offence has the right: … (

d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal; … (

h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried orpunished for it again… [88]

Section 11 of the Charter is engaged where a person is “charged with an offence”. The corollary of this is that s. 11 is notengaged, and does not apply, in proceedings where a person is not “charged with an offence”. [89] The applicant cannot succeed unless she can establish that a suspension under s. 279A or a review application under s. 279Bresult in her being “charged with an offence”. If she cannot cross this threshold, s. 11 has no application to this matter, and (in turn)nothing done by Mr. Mitchell or Ms.

Turner could have resulted in a breach of s. 11. [90] The foundational Supreme Court of Canada decision on the scope of s. 11 is R. v. Wigglesworth, (SCC),[1987] 2 S.C.R. 541.

Justice Wilson (for the majority) concluded (at para. 25) that the “rights guaranteed by s. 11 … are available topersons prosecuted by the state for public offences involving punitive sanctions, i.e., criminal, quasi-criminal and regulatory offences,either federally or provincially enacted.” She went on to elaborate as follows at para. 23: In my view, if a particular matter is of a public nature, intended to promote public order and welfare within a public sphere of activity,then that matter is the kind of matter which falls within s. 11. It falls within the

section because of the kind of matter it is. This is to bedistinguished from private, domestic, or disciplinary matters which are regulatory, protective or corrective and which are primarilyintended to maintain discipline, professional integrity and professional standards or to regulate conduct within a limited sphere ofactivity… There is also a fundamental distinction between proceedings undertaken to promote public order and welfare within a publicsphere of activity and proceedings undertaken to determine fitness to obtain or maintain a license.

Where disqualifications are imposed aspart of a scheme for regulating an activity in order to protect the public, disqualification proceedings are not the sort of “offence”proceedings to which s. 11 is applicable. Proceedings of an administrative nature instituted for the protection of the public in accordancewith the policy of a statute are also not the sort of “offence” proceedings to which s. 11 is applicable. But all prosecutions for criminaloffences under the Criminal Code and for quasi-criminal offences under provincial legislation are automatically subject to s. 11.

Theyare the very kind of offences to which s. 11 was intended to apply. [Emphasis added.] [91] Justice Wilson added (at para. 24): This is not to say that if a person is charged with a private, domestic or disciplinary matter which is primarily intended to maintaindiscipline, integrity or to regulate conduct within a limited private sphere of activity, he

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