Surrey Youth, A.J. acquitted of Surrey Indictment Robbery Charges under section 344 Criminal Code Canada stemming from Kwantlen Park incident, in BC Provincial Court Holden at Surrey, after problematic Photo Line Up, and irregularities with eyewitness Identification. 

The veteran Jurist and learned Judge Raven, PCJ held on Feb. 17, 2012, that although the Crown case was close, there was a doubt remaining with respect to identification of the accused A.J. The complainant had not seen the Accused before the incident, or after the incident.  The description was one of an Asian male with blonde hair tips, but the Accused was in fact Aboriginal (Native/First Nations). 

The officer testified he was not aware of the Thomas Sophonow case or Sophonow Inquiry Recommendations, nor had he received any formal training in Line Up Identification.   Instead of generating a photo pack with the descriptors given by the complainant, the officer, gathered images relating to the photos of the accused that he had obtained through a Prisoner Database.  No Asian were in the photo pack.  There were other issues of concern, including age disparity of the accused and other images.  Inconsistent evidence of the Complainant. 

In addition, the Complainant, through the assistance of a friend, searched the social media website of Facebook, and likely obtained images of the Accused after searching for his name (which was given by a witness to the Robbery, that Crown did not call), thereby reinforcing his in court identification, but an identification that was necessarily tainted. 

The photo line up was also thought to be audio and video recorded, but no disclosure was provided, as there were server problems with the RCMP Detachment, and it may have been that it was either lost or destroyed, or that each officer though the other was going to do the recording.  This was even more problematic as one of the officer’s had made no notes regarding the procedure of identification, and evidence existed from that on another ID, the officer neglected to read some of the instructions, despite ticking off the box that he had.  Officers were not acting in bad faith, but were mistaken.

Reference was given by the Crown in submissions to Regina v. Doyle, 2007 BCCA 587, Justice Hall granting leave, but declining the appeal on conviction of Robbery, on the basis that the Learned Trial Judge erred in attaching any weight to witness Identification evidence from a photo line up, as it was not done in accordance with the Sophonow Inquiry.   Doyle court held that the Sohponow recommendations were in fact, sound sensible and considered criteria, but that they were recommendations and did not carry the force of law, requiring binding legal dictates.   

D. Gosal, Barrister, surrey criminal lawyer, litigated the case for the Accused for two days, and the result was an acquittal.  For more information on Commissioner Cory’s Sophonow Inquiry, click here: Manitoba Link.

Visit the other blogs for previous discussion of Sivia v. British Columbia (Superintendent of Motor Vehicles) 2011 BCSC 1639.  This note is about the newest part of the Decision, litigiated December 19, 2011, and decision rendered December 23, 2011, of Sivia v. British Columbia (Superintendent of Motor Vehicles) 2011 BCSC 1783.

We are currently taking screenings for certain candidates to file a Petition for Judicial Review (Appeals to BC Supreme Court). We can apply to have your driver license suspension put on pause, and also the requirements for RDP Responsible Driving Program, and Ignitition Interlock.

Fill out a Case Inqiry on our website, or email WABCLawyers@aol.com to discuss your ADP, IRP, or Criminal DUI Case, if you received a Notice of Prohibition, or DUI Promise to Appear for Court, or Fingerprints.

-Remember, the issue of retrospectivity is still to be litigated in that specific case. 
-Remember, Sivia II has held that Refusal charges DO NOT form part of the affected potential group.
-Remember, you could of course have issues, affecting the decision in a Refusal, on non-Sivia grounds; ie. that the Adjudicator acted Patently Unreasonable in your decision.

-Be Careful of General Cookie Cutter Appeals.  Trust D. Gosal Law Corp., the Law Firm that dedicates itself to YOUR SPECIFIC CASE, encompassing all arguments, specific and general.

The Court held:

[1]           This is an application to settle the form of order that I made in my reasons for judgment dated November 30, 2011 [2011 BCSC 1639]. 

[2]           The issues include: the scope or extent of the Charter infringement by the provisions of the ARP regime; the precise form of the order declaring parts of the ARP legislation invalid; the effective date of the declaration of invalidity; and the appropriate order to be made at this point concerning the petitioners’ claims for various forms of relief, including the return of license fees, hearing fees, impoundment costs and penalties, and remedial program and interlock costs.  I will deal with each of these issues in turn.

[3]           In my reasons, I summarized my conclusion on infringement at para. 382(d) as follows:

The ARP legislation infringes s. 8 of the Charter insofar as it concerns the prohibition, penalty and costs arising from the screening device registering a “fail” reading over 0.08.  This infringement is not a reasonable limit which is demonstrably justified in a free and democratic society.

[4]           The first question involves the extent to which the decision finds the ARP regime to be unconstitutional; in particular, the constitutionality of the provisions of the ARP regime pertaining to persons who “failed or refused, without reasonable excuse” to provide a breath sample. I think that is clear from my reasons, particularly at para. 382(d), that the unconstitutionality of the legislation arises “from the screening device registering a “fail” reading over 0.08”, and not from a refusal to provide a sample of breath in the first place.

[5]           This conclusion is supported by the fact, as Mr. Copley points out, that the ARP regime provides a more meaningful avenue of review for persons who do not provide breath samples than it does for persons who register a “fail” reading on an approved screening device (ASD).  In fact, the review for persons who do not provide a breath sample is similar to the review process under the ADP regime: see Helgesen v. British Columbia (Superintendent of Motor Vehicles), 2002 BCSC 1391.  Accordingly, the aspects of the ARP regime dealing with an allegation of a driver failing or refusing, without reasonable excuse, to provide a breath sample, do not fall within my finding of an infringement of s. 8 and the entered order will reflect this point. 

[6]           The next issue is the precise form of order.  In my earlier decision I found that only part of the ARP regime under the Motor Vehicle Act (MVA) offends the Charter.  Having reviewed the helpful submissions of Mr. Mickelson and Mr. Copley, I find that the offensive provisions of the ARP regime are severable from the remainder of the regime and the remainder of the MVA in general.  The formal order will therefore declare the offending provisions of the regime to be invalid.  The proposed order tendered by Mr. Copley, with some changes as pointed out by Mr. Mickelson, generally properly reflects the specific declaration of invalidity, and the order will be entered in terms that I will discuss at the end of these reasons. 

[7]           The next issue is the more difficult and more urgent matter relating to the timing of the declaration of invalidity.  The question is whether I should make that declaration now or suspend the declaration of invalidity, as proposed by Mr. Copley, for a period of six months.  Mr. Copley suggests that the declaration of invalidity of the part of the legislation found to be unconstitutional should be suspended until June 30, 2012.  In his submissions he referred to a press release issued by the Minister of Public Safety and Solicitor General on November 30, 2011:

Obviously, we are going to take time to study the decision in depth so we can determine specific next steps and impacts.  The Government will, however, make a change to the Motor Vehicle Act to address the judge’s concerns.  The ability to challenge the approved screening device reading will be added to the current grounds for appeal.

[8]           The leading case on the question of a delayed or suspended declaration of invalidity is Schachter v. Canada, [1992] 2 S.C.R. 679.  In Schachter, the Supreme Court of Canada was concerned with defining an appropriate constitutional remedy for a breach of s. 15 due to an under-inclusive provision of the Unemployment Insurance Act, 1971, S.C. 1970-71-72, c. 48, as amended by S.C. 1980-81-82-83, c. 150, s. 4.  The Court discussed the appropriate application of various constitutional remedies, including declarations of invalidity, and outlined the circumstances in which it would be appropriate to suspend such declarations  (at para. 79):

A court may strike down legislation or a legislative provision but suspend the effect of that declaration until Parliament or the provincial legislature has had an opportunity to fill the void. This approach is clearly appropriate where the striking down of a provision poses a potential danger to the public (R. v. Swain, supra) or otherwise threatens the rule of law (Reference Re Manitoba Language Rights, [1985] 1 S.C.R. 721).

[emphasis added]

[9]           However, the Court also emphasised the constitutional implications of suspending such declarations.  The point articulated in Schachter that there are serious concerns from the point of view of the Charter  when suspending a declaration of invalidity, was recently reaffirmed by the Supreme Court in Canada (Attorney General) v. Hislop, 2007 SCC 10, where the Court said (at para. 121):

As Lamer C.J. noted in Schachter, at p. 716, such suspensions are “serious matter[s] from the point of view of the enforcement of the Charter” because they allow an unconstitutional state of affairs to persist.  Suspensions should only be used where striking down the legislation without enacting something in its place would pose a danger to the public, threaten the rule of law or where it would result in the deprivation of benefits from deserving persons without benefiting the rights claimant (p. 719).

[10]        On the topic of the “suspension” guidelines articulated in Schachter, Peter Hogg, in Constitutional Law of Canada [Peter Hogg, Constitutional law of Canada, 5^th ed  ) (Toronto: Thomson Reuters, 2007) at 40-9 - 40-10], states:

… the guidelines “have largely been ignored in subsequent cases”.  That is because a new rationale, which can be captured by the notion of “dialogue”, has developed for the suspended declaration of invalidity.  That new rationale is simply that, in many cases where the Court has found a law to be unconstitutional, the Court would prefer the legislature to design the appropriate remedy.  “The suspended declaration of invalidity can be viewed as a form of legislative remand, whereby unconstitutional legislation is sent back for reconsideration in light of the court’s judgment.”  This is not an abdication of responsibility by the Court, because, if the legislature chooses to take no action during the period of suspension, the Court’s declaration of invalidity will take effect.  But the period of suspension gives to the legislature the first opportunity to remedy the constitutional wrong. 

[11]        Mr. Copley argues that the failure to suspend the declaration of invalidity will lead to financial chaos, give rise to the risk of acquired rights during the interim period, and create a danger to the public.

[12]        I think the issue that warrants consideration is whether there will be a gap left by the declaration invalidating part of the ARP regime, and whether that gap will create a situation that could “pose a danger to the public”.

[13]        The ARP regime was designed by the Province as an effective means to combat the serious problem of drinking driving and the personal tragedy and emotional costs it causes.  In my ruling, I largely upheld the regime, finding it to be within the legislative jurisdiction of the Province.  My ruling was that the ARP regime, with its automatic roadside prohibitions, is unconstitutional as it applies to drivers allegedly blowing over 0.08. 

[14]        Beyond the ARP regime, with respect to drivers blowing over 0.08, the tools available to the police are: a criminal prosecution after taking the driver to the police station for a breathalyser test; and/or, a 90 day Automatic Driving Prohibition (ADP) effective after 21 days’ notice; and/or, an immediate 24 hour driving suspension.  Mr. Mickelson says that there is no gap created by declaring the “fail” or “over 0.08” part of the ARP legislation invalid because the ARP regime is still valid and effective with respect to drivers blowing between 0.05 and 0.08, and because the criminal law and ADP regime are available for drivers blowing over 0.08.

[15]        However, Mr. Copley’s argument, as I understand it, is that the ARP regime is a complete regime in and of itself.  It efficiently removes impaired drivers from the roads and deters repeat impaired drivers in a manner which is more effective than the criminal law or the ADP regime.  In his submission, although there may be other regimes available to the police, to declare the impugned portions of the ARP regime invalid would be to create a gap which poses a danger to the public by denying the police the tools necessary to efficiently combat the problem of impaired drivers. 

[16]        Mr. Copley argues that the danger must be assessed in light of my findings as to the pressing and substantial objective of the government in adopting the ARP regime.  He points to paras. 1 and 61 of my reasons as follows (see also paras. 268-271 of my earlier reasons):

The death and injury caused by drinking and driving is of great concern in our society, and reducing it is an indisputably important goal.  This litigation involves a challenge to certain legislative measures taken by the British Columbia government in pursuit of that goal.  The challenge requires determining whether the legislative measures are within the Province’s constitutional jurisdiction and whether they are consistent with the rights of individuals protected in the Canadian Charter of Rights and Freedoms [Charter].  Such an assessment occurs in the context of tension between individual rights and societal objectives. 

…

As Mr. Justice Cory said in an oft-cited quote from R. v. Bernshaw, [1995] 1 S.C.R. 254 (at para. 16):

Every year, drunk driving leaves a terrible trail of death, injury, heartbreak and destruction.  From the point of view of numbers alone, it has a far greater impact on Canadian society than any other crime.  In terms of the deaths and serious injuries resulting in hospitalization, drunk driving is clearly the crime which causes the most significant social loss to the country.

[17]        Mr. Copley refers to the evidence of the Superintendent of Motor Vehicles outlining the statistical evidence suggesting a significant drop in alcohol-related fatalities during the period following the introduction of the ARP regime. 

[18]        Mr. Mickelson says that the statistical evidence can be misleading and, while granting that even one alcohol-related fatality is too many, suggests that any recent reduction in deaths may equally be the result of the introduction in the ARP regime of suspensions at the 0.05-0.08 range.

[19]        In considering the issue of danger, I think I should be mindful of the fact that the Legislature has established a regime which it views as not only effective, but more effective than other tools which are available to counter a serious and pressing danger in our society. 

[20]        The concern, of course, with a suspended declaration of invalidity is the fact that until the law is changed there will continue to be Charter infringements.  This is a serious consideration.  Courts in some cases have made orders where they establish terms to protect those whose constitutional rights might be violated by the operation of an unconstitutional law.  See for example R. v. Swain, [1991] 1 S.C.R. 933; R. v. Hoeppner (1999), 134 Man.R. (2d) 163 (C.A.).

[21]        I have considered the possibility of making a provision in the order that as a condition of the delayed declaration of invalidity I would require drivers receiving ARPs in the “fail” zone to have more robust review rights.  However, I think this is properly a matter for the Legislature, and even as an interim measure would require this Court to intrude too heavily into the legislative realm.   As Dickson J. (as he then was), stated in  Hunter et al. v. Southam Inc., [1984] 2 S.C.R. 145 (at p. 169):

While the courts are guardians of the Constitution and of individuals’ rights under it, it is the legislature’s responsibility to enact legislation that embodies appropriate safeguards to comply with the Constitution’s requirements. It should not fall to the courts to fill in the details that will render legislative lacunae constitutional.

[emphasis added]

[22]        Accordingly, I have concluded that an immediate declaration of invalidity of part of the ARP regime may pose a danger to the public.  I have decided that in the circumstances, after weighing all relevant factors, it is appropriate to grant a delayed declaration of invalidity such that the order that I make will not be effective until June 30, 2012.  In suspending this declaration of invalidity it is not my intention that the fact of the suspension itself will affect any rights that may have accrued or vested up to the present date.

[23]        The final issue relates to the personal remedies of the petitioners.  The position of the petitioners on this point is that any reference to the issuance of an IRP (ARP) in the petitioners’ driving records should be expunged, and they should be reimbursed for all penalties and other related costs such as the payment in connection with the remedial program, the payment in connection with the impoundment of the motor vehicle, the payment of a hearing fee, and the driver’s licence reinstatement fee. 

[24]        As the Court pointed out in Hislop (at para. 86):

Because courts are adjudicative bodies that, in the usual course of things, are called upon to decide the legal consequences of past happenings, they generally grant remedies that are retroactive to the extent necessary to ensure that successful litigants will have the benefit of the ruling.

[25]        I agree that it is important that the petitioners (other than to the extent that any of the petitioners received an ARP on the basis of an alleged failure to blow[1]) benefit from this ruling.  However, I am concerned that issues such as the retroactivity of the ruling, whether I can grant personal remedies under s. 24(1) of the Charter in addition to broader s. 52 Charter remedies, and whether certain monies are recoverable by the petitioners in this case are complicated matters, and I did not receive full argument on all of these points.  In order to give proper consideration to these complex issues, it is my view that further submissions by counsel are necessary.

[26]        Accordingly, the part of this application specifically with respect to possible personal remedies of the petitioners is adjourned and may be brought on at any time convenient to counsel.

[27]        Finally, I return to the specifics of the formal order.  The entered order should provide that the declaration of invalidity will be suspended until June 30, 2012.  The formal order should also set out the infringing parts of the legislation which are severed and which do not include references to the “failure to blow” provisions of the legislation.  Counsel should settle the form of the order as soon as is reasonably practicable based on my clarification in these reasons of the scope of the infringement.  If there is any issue between counsel on the form of the order, they may make written submissions with a draft form of order.

[28]        Therefore, in summary:

1.            The “failure to blow” aspects of the ARP regime do not infringe the Charter;

2.            The formal order will be settled in accordance with these reasons; 

3.            There will be a declaration of invalidity of the infringing parts of the ARP regime, but the declaration of invalidity shall be suspended until June 30, 2012; and

4.            The claim of the petitioners for personal remedies will be adjourned pending further argument.

“J.S. Sigurdson J.”

The Honourable Mr. Justice J.S. Sigurdson