Friday, 11 January 2013

Steering Charter Claims in the Right Direction

Williams v. British Columbia (Superintendent of Motor Vehicles), 2012 BCSC 1976 featured an unsuccessful argument that the respondent, the statutory decision-maker who follows up on road-side penalties administered by the provincial police force, had jurisdiction to grant Charter remedies.

The applicant complained that his right to counsel had been violated because he had not been allowed to contact a lawyer before the administration of a breathalyzer test. In fact, the applicant refused to give a breath sample. A penalty was imposed on this basis.

The first step in determining whether an administrative decision-maker has the authority to grant a Charter remedy is to ask if they have the express or implied authority to answer questions of law. This, as I have previously suggested, is an easy hurdle to scale for an applicant. Bracken J. accepted that the decision-maker did have such a power:
[17]        The Conway case therefore sets out a two-part analysis.  The first question is whether or not an adjudicator when reviewing a prohibition issued pursuant to s. 215.41 is a tribunal that has jurisdiction to decide questions of law.  To answer this threshold question I note that the provisions of ss. 215.48 and 215.49 set out the material to be placed before the adjudicator on a review and what the adjudicator must consider.  I recognize that for the most part, the decisions made by the adjudicator are questions of pure fact or mixed fact and law.  However, it seems to me that an adjudicator reviewing an immediate roadside prohibition may be called upon to decide some questions of law.  As an example, an adjudicator may be required to determine what constitutes a “reasonable excuse” under the legislation or whether someone is within the definition of “driver”. (My emphasis.)
Bracken J. went on to answer the more pressing question: would granting Charter remedies be inconsistent with the decision-maker's statutory mandate. His conclusion was that, given the limited remedial powers conferred by statute and the need for expedition in the resolution of cases involving driving offences, the respondent did not have the jurisdiction to grant any Charter remedies:
[21]        Upon my review of the scheme and language of the Act, I conclude that the Superintendent’s authority to grant remedies is a limited one.  The Superintendent’s delegate effectively has no discretionary authority whatsoever.  Section 215.5(c) directs that the adjudicator must confirm the driving prohibition and its consequences provided he or she is satisfied that a list of specific requirements has been met.  Clearly, the adjudicator was so satisfied in this case.  Likewise, in 215.5(4) the legislation provides the exact outcome that the adjudicator must impose if he or she is not satisfied that all of the requirements of the Act have been satisfied.
[22]        It is my view that given the restrictive scheme contemplated by the Act and the clear intent for an expeditious review process, it runs contrary to legislative intent to construe the Act as conferring broad remedial powers upon the Superintendent or his delegate.  The legislation is clear that the delegate only has the power to confirm, revoke or vary the prohibition when very specific criteria are met.  The clear intention of the Legislature is to keep the review process clean and quick, and to provide very clear directions to the adjudicator.  To open up the remedial discretion of the adjudicator, in my view, runs contrary to the very clear language used in the Act.  The scheme of the Act is an exhaustive one contemplating every possible finding that the adjudicator could make and directing an outcome in each case.  This places significant emphasis on the principle of highway safety.
[23]        Thus, I conclude that the mandate of the adjudicator is so restricted by the scheme of the Act that this competence is not intended to lead to the ability to grant the Charter remedy sought by Mr. Williams.  As I indicated above, the adjudicator’s remedial discretion is limited; any decision that is made is based on very specific criteria.  As the adjudicator found the criteria had been met in this case, the legislation deems that a broader remedy is unavailable. (My emphasis.)
Bad news for Mr. Williams, but probably a sensible result on the whole. Presumably nothing would prevent Mr. Williams from bringing subsequent judicial review proceedings against the respondent in order to assert his Charter rights.

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