A single mother, who lives in a rural area 20 minutes from the nearest grocery store and pharmacy, was prohibited from driving by the BC Superintendent of Motor Vehicles as a result of two distracted driving tickets she received last year.
On an appeal to the BC Supreme Court, a judge agreed with the Superintendent of Motor Vehicles that they were not required to consider either the circumstances of the tickets or the hardship that a four-month driving prohibition would cause.
Section 93 of the Motor Vehicle Act allows the Superintendent of Motor Vehicles to prohibit anyone from driving if they conclude that their driving record is “unsatisfactory”.
A judge is only permitted to overrule a decision of the Superintendent if they conclude that the decision demonstrated palpable and overriding error, absent a legal error in terms of how the decision was arrived at.
While the judge concluded that the decision to prohibit the single mother from driving was not the result of a palpable and overriding error, she urged the Superintendent to consider delaying the start of the driving prohibition because of the COVID-19 public health emergency. The judge found that, because of the need to maintain physical distancing, the driving prohibition could remove the single mother’s ability to get groceries for herself and her children, and could potentially put her, her family, and others in the community at risk.
While there may be no legal obligation to consider serious hardship, or medical risk, that could result from driving prohibitions, it would certainly be desirable for the government to take these things into account in light of the current circumstances.
Also discussed is a decision by the government of Quebec to have police stop drivers entering the province from Ontario. Police checkpoints have been set up on the Quebec side of bridges from Ottawa to Gatineau and in other locations.
Drivers who are not coming for an “essential” purpose are being denied entry into Quebec.
This sort of provincial checkpoint may be unconstitutional. Section 6 of the Charter permits every citizen of Canada, and every person who is a permanent resident of Canada, to “move and take up residence in any province” and to “pursue the gaining of a livelihood in any province”.
While Charter rights in Canada are subject to reasonable limits, prescribed by law, that can be “demonstrably justified in a free and democratic society”, that exception is not likely to authorize the kind of checkpoints that Quebec has established. Limits must be fair, not arbitrary, carefully designed, and rationally connected to achieve an objective, proportionate, and must impair a Charter right as little as possible.
An automated transcript of the April 2, 2020 episode of Legally Speaking with Michael Mulligan:
Legally Speaking April 2, 2020
Adam Stirling [00:00:00] It’s time for Michael Mulligan with Mulligan Defence Lawyers. Hey, Michael, how are you doing?
Michael T. Mulligan [00:00:04] I’m doing well. Hanging in there as best I can.
Adam Stirling [00:00:06] Absolutely.
Michael T. Mulligan [00:00:07] Keeping people out of trouble one at a time.
Adam Stirling [00:00:09] Absolutely. So, what is on the docket now? Because I would suspect that the courts are not functioning as, as efficiently as they otherwise would, given the COVID-19 restrictions that are in place.
Michael T. Mulligan [00:00:21] You’re quite right. The courts have all put in special protocols to try to address the emergency. They are dealing with emergent cases; applications can be made to a judge by in writing or by telephone. And so, they are dealing with cases which are an emergency and must be dealt with. We’re also starting to see some decisions released now that are taking into account the emergency circumstances in the province and how they might impact an actual decision. We saw an example of that, this Monday when there was a decision released dealing with a driving prohibition. In this driving prohibition was imposed on a lady by the name of Nadine, on the basis that she had an unsatisfactory driving record, and what that amounted to is that last year she wound up getting two tickets for holding an electronic device. She answered the telephone in her car the first time when her boss was calling repeatedly in a second time, about a month later to she said, hang up the phone and put it away. But she wound up getting these two tickets for using an electronic device. The result of that was that the Superintendent of Motor Vehicles issued her a driving prohibition for a period of four months. Now, that was a particular problem for her, even in the best of times as she was a… she’s a single mother and she lives in a rural area, a 20-minute drive from the nearest grocery store or pharmacy. She drives her children to medical appointments, to get food, this sort of thing. And so, she, she wrote a letter to the motor vehicle branch asking them not to prohibit her, setting out her personal circumstances, the hardship and the impact and the circumstances of the ticket. The Superintendent decided to uphold the driving prohibition, and that’s how the matter wound up in court. Now, the topical and interesting part of this is that the Superintendent of Motor Vehicles argued in court that they were not required to take into account and consider the hardship that this mother would face if she was not permitted to drive for a period of four months.
Adam Stirling [00:02:53] mmhmm.
Michael T. Mulligan [00:02:53] And they also argued that there was no obligation to take into account the circumstances surrounding the tickets because the legislation that allows for driving prohibitions talks about a prohibition can be put in place if the Superintendent of Motor Vehicles considers somebodies driving record to be unsatisfactory. And so, they argue, look, we don’t need to even think about hardship for her or her children. And we are not required to consider the circumstances surrounding the tickets. We only have to look at her driving record. And the judge essentially agreed with those points, looking at the Motor Vehicle Act as a judge doesn’t make the law, they’re just applying it and interpreting it. And they said that’s correct, they’re not required to consider either of those things. But what the judge did is made reference to the fact that this woman was a single mother, lives 20 minutes away from the nearest grocery store, pharmacy, and then made reference to the current public health emergency and the need for individuals to maintain physical distancing, and if you remove this mother’s ability to drive at this point, that’s going to impact the judge said potentially on her ability to get groceries for herself and her children.
Adam Stirling [00:04:08] Yes.
Michael T. Mulligan [00:04:09] And could potentially put herself, her family and others in her community at risk. And in light of that, the judge, even though the judge found it as a matter of law, the Superintendent is not required to even think about any of those things. The judge urged the Superintendent to consider suspending or waiting to impose the four-month driving prohibition so that the effect wouldn’t be to deprive the mother of her ability to safely get food and medicine for her, herself and her children. And the judge has given the Superintendent until April the 20th to respond to that suggestion. But I do think the case raises an interesting issue, in the current circumstance. The judge urging the Superintendent, even though, not obliged to that, they should consider at least waiting. One thing that I think might need to be considered here is whether there should be some consideration, given in the current circumstance, to those sort of factors when deciding whether it’s appropriate to prohibit somebody from being able to drive at the moment. And there would certainly be cases where somebody is so dangerous that you have to immediately stop them from driving lest they kill somebody.
Adam Stirling [00:05:28] Yes
Michael T. Mulligan [00:05:28] But as many circumstances are much less urgent perhaps than that. And so, I would suggest that there should be some consideration given to those sorts of personal circumstances so that we’re not, in the bigger scheme of things, causing unnecessary risk and hardship in the current or really unusual circumstances. What currently happens is that there’s a guide that is put out for the adjudicators that are charged with deciding whether somebody is driving record is an unsatisfactory. And there are few among elements of that I think people should know about unless they wind up in the same position that this mother did. One of the things which people should be aware of, and this was a change made in to 2016, is that if an individual gets, even an experienced driver with no other tickets, which this woman was, if somebody receives any two of the following things ticket for excessive speeding, driving without due care and attention, using an electronic device while driving or emailing or texting. If you do any of those two things in a one-year period, you virtually will, by operation of this policy, be prohibited for a period of between three and twelve months.
Adam Stirling [00:06:51] wow.
Michael T. Mulligan [00:06:51] The caution people should be, people should be aware of is that you can very quickly wind up in a circumstance where you’re not allowed to drive. If you wind up with two tickets of those kinds, and in the current circumstance, that could be a life altering implications. People just need to be so careful. Well, the same time, I would hope that the Superintendent of Motor Vehicles does start taking into consideration the implication of those kind of driving prohibitions.
Adam Stirling [00:07:23] Now, the justice in this case invited the parties in paragraph 75 to consider an agreement to suspend the commencement of the driving prohibition at this time. The Judge writes if the parties cannot agree to this suspension, I request counsel provide written submissions. Is that an indication that this matter may yet be decided beyond simply an invitation?
Michael T. Mulligan [00:07:43] That’s possible. It’s an interesting thing, of course, because when you look at the in this case, spent a whole lot of time analyzing, you know, the standard of review.
Adam Stirling [00:07:54] yes.
Michael T. Mulligan [00:07:54] And when a judge is permitted to interfere with a decision. And broadly, the point that the judge makes when you read the whole judgement is that even though the Motor Vehicle Act allows for an appeal to a judge about whether somebody should be prohibited when you do that, it’s not the judge’s job to simply say, what do I think should happen. Right. The judge doesn’t just get to make their own decision. What they’re doing is they’re looking at the decision which was made by the Superintendent of Motor Vehicles, and they’re charged with determining whether it was something which had a palpable and overriding error apparent. So, the judge very much found that she was obliged to exercise restraint, and not interfere with this decision, because of that, the way, the appeal of this kind of a driving prohibition works. But she’s urging the Superintendent to at least consider waiting here. How the judge addresses that. If the Superintendent says no, we wish to proceed, we’ll be interesting because the Superintendent’s position has settled in. The judgement was this: It says “the Superintendent submits that it was not required to consider the appellant’s hardship in exercising its discretion. The Superintendents focus is not on the privilege of the licensee, but the protection of the road using public.” And so the Superintendent’s position, in this case, was not required to consider hardship at all and so it will be interesting to see how they respond to the judge’s urging and what the judge does if they don’t get the hint and not try to at the moment, at least, prohibit the single mother from being able to drive to get groceries and medicine.
Adam Stirling [00:09:47] Let’s take a quick break. Legally Speaking, we’ll continue Michael Mulligan for Mulligan Defence Lawyers as we continue to look at the interesting legal implications of recent judgments in the news. Up next. Stay with us.
[00:09:59] COMMERCIAL BREAK.
Adam Stirling [00:09:59] Legally Speaking, continues here on CFAX 1070 from Michael Mulligan with Mulligan Defence Lawyers. We’re going to be getting to what Quebec is doing in terms of checkpoints to limit travel to or from Ontario in just a few moments. Meanwhile, Premier Doug Ford is announcing as we speak, Michael, that Ontario will be releasing projection data tomorrow that he is warning the public is stark, but he has decided is necessary to justify the rather extreme measures being taken in central Canada, at this point, I think we have another story we want to get to before that, though, do we not?
Michael T. Mulligan [00:10:31] We do and it’s a follow up on a notorious murder case from a number of years ago in Victoria. And it’s the case involving the three high school students, who back I think it was 1991, one of them promised the other two, a portion of a $4 million inheritance to go and kill the contractors mother and grandmother, so that he could inherit money. All three were convicted and have been serving life sentences. The two individuals who were 17 at the time, who were convicted of committing the actual murder because they were youth at the time, even though they were sentenced as adults, were eligible to ask for parole after spending 10 years in custody. One of those individuals, Mr. Muir, applied for parole back in 2003, and he’s been on full parole for the last 17 years with no apparent difficulty at all. One of the other individuals, his last name was Muir sorry, last name is Lord, Derrick Lord, was eligible to apply for parole at the same time, but he has maintained his innocence, claiming that he was wrongly convicted. And as a result of that, he hasn’t been released on parole for the last 17 years. He was just granted the day parole, having now spent, I think, what does that amount to about 30 years or so in custody. And so, it’s an example of the effect it has when somebody maintains their innocence in terms of their ability to get parole. And the language used in the assessment of Mr. Lord was until such time as Mr. Lord takes accountability for his crime and is willing to discuss the details of his offence, any assessment of risk would be incomplete and lack confidence. And on that analysis, because he has maintained that he was wrongly convicted, he has spent an additional seventeen years in custody, in contrast to the other person who was released back in 2003. The individual who was an adult at the time, just barely, who hired his classmates to commit the murder. He remains in custody. He was eligible to apply for parole after having served 25 years. He applied for day passes a number of years ago and was denied. So, he remains in custody. Interestingly, that person managed to escape briefly from custody back in 1995 and was recaptured. And so the decision, the parole decision, I think, is both a local interest and also a points how that parole system works and it’s important for people to know that when somebody receives a life sentence and there’s some mention of parole ineligibility, that does not mean that you get out after that period of time. Mr. Lord, of course, he’s now 47 years of age. He was 17 at the time of the offence. And so, he has been in custody for a very extended period of time. Of course, for a very serious crime.
Adam Stirling [00:14:08] Yes.
Michael T. Mulligan [00:14:08] And it’s an interesting one and you’ve got somebody who insists that they didn’t do it. And when they would know full well that their insistence on innocence is going to mean that they are likely to spend this case an additional 17 years in custody, in contrast to the person who the other individual who admitted having done it and has been out on full parole since 2003. So, there we are.
[00:14:33] There we are, I want to move on to the next story, and I know Doug Ford’s currently giving a press conference as we speak. Michael, I see Glen McGregor was CTV News reporting. Premier Ford says officials will be reviewing Ontario projections tomorrow for COVID- 19 briefing, quote, will be a very will be, excuse me, a real wakeup call. And indeed, I just retweeted that for anybody following along on social media. Ontario’s numbers of a tracking, Michael, a lot higher than they should be if we want to aim for an ideal scenario, British Columbia’s numbers much more favourable for the moment. Everyone should be urged not to panic when they see those numbers tomorrow. Again, it’s one possible future that may be avoided with a change in collective action exhibited by the public’s subsequent to that warning. Meanwhile, the Quebec government has set up checkpoints in Ottawa, limiting the ability of people to come into Quebec from Ontario. Unlikely a coincidence. How does the law work with one province trying to essentially block travel from another province?
Michael T. Mulligan [00:15:33] Yeah, this is, I think, a troubling approach to it. What’s been reported is that Quebec has deployed police to the five bridges that connect Ottawa to Gatineau, and police and other entrances to Quebec. And they are stopping people trying to drive from Ottawa into or from Ontario into Quebec. And they are asking them why they’re coming there and they’re permitting some people to continue and other people they are refusing to permit into the province of Quebec. There was some suggestion they wanted to stop people, for example, driving to their remote cabin or cabins.
Adam Stirling [00:16:18] Yes.
Michael T. Mulligan [00:16:19] In Quebec. But they’re allowing people in for medical appointments or they describe as humanitarian reasons. Now, the reason the interprovincial and I should say in the reverse, Ontario is not doing anything they’re not deploying police on the Ontario side of the bridge. And the reason that sort of a provincial blockade or checkpoint may not be lawful is that there are some constitutional provisions that would need to be considered, in particular Section 6 of the Charter. That section provides, and this has other relevance in the current emergency, that section provides, first of all, that every citizen of Canada has the right to enter, remain in and leave Canada. And so that’s an important thing to bear in mind in the current context of restricting travel. And I must say that leaving Canada is also, even in ordinary times, an important one. Some countries, of course, when you want to leave, you have to show up and ask, kind permission, of the state to be able to get out of the country.
Adam Stirling [00:17:22] Precisely. The Berlin Wall. Yeah, yeah. The Berlin Wall was to keep people out. It was to hold people in.
Michael T. Mulligan [00:17:27] Yes. So, it’s important we have a constitutional right to leave and to come back. But there are other protections there, Section 6(2), says that every citizen of Canada and every person who has the status of a permanent resident of Canada has the right to move to and take up residence in any province and to pursue the gaining of livelihood in any province. Now, all the constitutional rights in Canada are, not all, this constitutional right in Canada, I should say, is subject to Section 1, which provides for reasonable limits to be imposed on charter rights; like this right to take up residence in another province. However, the Supreme Court of Canada back in 1986, in the case told Oakes, set out how those sorts of limits are to be assessed. And importantly, one of the first things to look at is whether a measure would be fair and not arbitrary, and whether it is carefully designed to achieve the objective in question and is rationally connected to that objective. And then there is an obligation that any restriction on a constitutional right impair the Charter right as little as possible. And when you consider even for a few moments, the idea of setting up a checkpoint to try to stop people from Ontario coming into Quebec, I don’t think that’s getting very far in terms of whether it is not arbitrary, whether it’s fair or whether it’s carefully designed to achieve an objective. There’s naturally, in times of trouble and worry, an inclination to think that all risk is external.
Adam Stirling [00:19:12] Yes.
Michael T. Mulligan [00:19:13] Right. You know, we must stop people from coming here. The others are the problem. Right. And you saw that with, you know, Donald Trump originally referring to this or referring to this pretty recently as the Chinese virus. You know, everyone wants to view problems and risks as being external. But this is clearly not an issue, which is, from Ontario coming into Quebec, there are serious problems in both locations there now. And so, I think we need to restrain ourselves from doing things like trying to set up interprovincial checkpoints to stop the movement of people across borders. And while, there may well be important and legitimate things to be done to ensure people are complying with health orders and not doing unnecessary, risky things that would put the public in jeopardy. Connecting those to stopping people from other provinces crossing a provincial boundary, to my mind, is not the sort of careful fair and rational approach to these things. If you want to have checks to make sure that people are complying with medical orders, you know, fine. That may be a thing to be done. But we shouldn’t use this as an excuse to put in place provisions that are at odds with some of our fundamental Canadian values. One of those as enshrined in the Constitution is that people are free to cross provincial borders and we ought not to be putting in place provisions that would run counter to those fundamental values in our country.
Adam Stirling [00:20:57] Michael Mulligan, we appreciate your knowledge and your insight. Helping us better understand the legal system under which all of us have obligations, where we must at all times fulfil. Thank you as always. Stay safe, physically distance and we look forward to our next segment.
Michael T. Mulligan [00:21:11] Thank you very much, talk to you then.
Adam Stirling [00:21:12] Take care. Have a great day. Michael Mulligan with Mulligan Defence Lawyers during the second half of our second hour. Ordinarily in studio lately physically distancing over the phone as we all do our part every Thursday here on CFAX 1070.
Automatically Transcribed on April 2, 2020 – MULLIGAN DEFENCE LAWYERS