Administrative law – Decisions of administrative tribunals – Superintendent of Motor Vehicles – Motor vehicles – Breathalyser test – Suspension of driver’s licence – Judicial review – Compliance with legislation – Statutory interpretation – Evidence – Standard of review – Reasonableness simpliciter – Legislation – Federal vs. provincial legislation
Wilson v. British Columbia (Superintendent of Motor Vehicles),  S.C.J. No. 47, 2015 SCC 47, Supreme Court of Canada, October 16, 2015, McLachlin C.J. and Cromwell, Moldaver, Karakatsanis, Wagner, Gascon and Cote JJ.
Wilson was stopped at a police road check in 2012. He provided two breath samples that registered a “Warn” on the approved screening device (“ASD”). A peace officer served him with a notice of a 72-hour driving prohibition. Wilson applied to the superintendent of motor vehicles but was not successful in having the notice revoked. Wilson applied for judicial review and the notice was set aside. On appeal, the British Columbia Court of Appeal found that the superintendent’s interpretation of s.215.41(3.1) of the Motor Vehicle Act was reasonable. In British Columbia, a regime called the automatic roadside prohibition (“ARP”) scheme was implemented under the Motor Vehicle Act. While the ARP regime is a provincial scheme, there is a roadside demand for a breath sample made under s.254 of the Criminal Code, as part of the scheme. ASDs are used to collect roadside samples. Under s.215.41(3.1) of the Act, when a driver registers either a warn or a fail on the ASD, an immediate prohibition from driving must be issued if the officer has “reasonable grounds to believe, as a result of the analysis, that the driver’s ability to drive is affected by alcohol”.
At the Supreme Court of Canada, Wilson argued that the ASD result must be backed up by some other evidence indicating that the driver is impaired, in order to meet the reasonable belief standard. For example, there must be evidence of erratic driving, slurred speech, glassy or bloodshot eyes, unsteady gait, or some other information leading the officer to believe that impairment is likely.
Drivers who blow a “warn” have a blood alcohol concentration of 50 mg of alcohol in 100 ml of blood or higher, and may be issued a notice of prohibition from driving for 3, 7 or 30 days, depending on their driving history.
In Wilson’s case, a prohibition was issued and he applied to the superintendent of motor vehicles for a review. He argued there that the officer lacked reasonable grounds to believe that his ability to drive was affected by alcohol. The superintendent’s adjudicator rejected this argument saying that the warn result on the ASD test alone was sufficient to provide the officer with grounds to issue the notice.
The Chambers judge found that there was no confirmatory evidence indicating that Mr. Wilson’s ability to drive was affected by alcohol, and therefore set aside the notice.
The Court of Appeal considered the context and purpose of the Motor Vehicle Act and concluded that the original adjudicator’s interpretation better fulfilled the legislative purpose than did Wilson’s interpretation. The notice was reinstated.
The only issue before the Supreme Court of Canada was whether the adjudicator’s interpretation of s.215.41(3.1) of the Motor Vehicle Act was reasonable. This was a question of statutory interpretation; there was no challenge to the constitutionality of the provision.
A reasonableness standard of review was applied, since an administrative decision maker’s interpretation of his or her home statute is presumptively owed deference. The burden of showing that the adjudicator’s interpretation was unreasonable rested with Wilson. The Supreme Court of Canada held that where there are two or more plausible readings and each is equally in accordance with the intensions of the statute, there is genuine ambiguity. Here, there is no ambiguity. There is only one reasonable interpretation of the section. That is, the plain meaning of the section links the officer’s belief to the result of the ASD analysis. The provision states that the officer must have reasonable grounds to believe, as a result of the analysis, that the driver’s ability to drive is affected by alcohol. The analysis itself is the yardstick against which the officer measures the reasonableness of their belief.
The court also rejected Wilson’s argument that because the ARP scheme was triggered by the Criminal Code it was subsidiary legislation and must therefore incorporate protections present under the Code. Although the Motor Vehicle Act and the Code are independent statutes enacted by different levels of government, neither is subordinate to the other. The demand for a breath sample triggers a different regulatory regime independent of the Code. “The fact that the MVA relies on a Criminal Code demand for a breath sample, does not render it subsidiary legislation.”
Roadside drinking prohibitions are intended to promote public safety, which is not the same purpose as the criminal law. The appeal was dismissed.
To stay current with the new case law and emerging legal issues in this area, subscribe here.