This appeal was one of a set of representative appeals challenging the constitutionality of Alberta’s Administrative Licence Suspension Program under the Traffic Safety Act, R.S.A. 2000, c. T-6.4. The appellants argued that driving a vehicle should constitute a liberty interest falling within the scope of the “life, liberty or security of the person” phrase used in section 7 of the Canadian Charter of Rights and Freedoms. The Alberta Court of Appeal dismissed the appeal, and in so doing they reviewed the law of reconsideration.

Administrative law – Motor vehicles – Suspension of driver’s licence – Charter of Rights – Life liberty or security of the person – Law of reconsideration

Thomson v. Alberta (Transportation and Safety Board), [2003] A.J. No. 420, Alberta Court of Appeal, April 11, 2003, Fraser C.J.A., Picard and Paperny JJ.A.

As a general proposition, leave to reconsider binding precedent will only be given in very limited circumstances: Barrett v. Krebs, [1995] A.J. No. 753:

In principle, leave will only be granted where the Court is persuaded that there is something fundamentally flawed with the statement of law we are being asked to reconsider.

The court reviewed the criteria set out in the decision of R. v. Oliver, [1996] A.J. No. 732, which are:

(1)  the age of the decision;

(2)  the treatment of the issue by other appeal courts;

(3)  whether there was ‘some simple, obvious, demonstrable flaw’ in the previous decision;

(4)  whether some binding statute or authority had been overlooked;

(5)  where the earlier decision has created settled expectations, or resulted in other cases being settled or decided in a particular way; and

(6)  whether the earlier decision was a ‘Memorandum of Judgment Delivered from the Bench’, or a reserved circulated judgment.

The Court of Appeal was being asked to reconsider specifically their prior decisions in R. v. Neale (1986), 28 C.C.C. (3d) 345 (Alta. C.A.) and Yehia v. Alberta (Solicitor General) (1992), 40 M.V.R. (2d) 57 (Alta. C.A.). The court held that the age of the previous decisions did not militate in favour of changing the existing law. Specifically, the court stated that automobiles occupied substantially the same place in Canadian society today as they did in 1986, and that as a result the Neale case should not be reconsidered on this basis.

In considering whether there was some simple obvious demonstrable flaw in the previous decisions, the Court of Appeal held that since the Supreme Court of Canada had never found that driving is a liberty as that term is used in section 7 of the Charter, there was no flaw needing correcting.

However, the court recognised that since the Neale case, the scope of the section 7 liberty interest had expanded:

Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307; B.(R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315; R. v. Whyte, [1999] 2 S.C.R. 417. It is now understood to extend far beyond freedom from physical restraint and to protect a number of fundamental personal life choices. However, we see nothing in the subsequent decisions of the Supreme Court of Canada that would lead to the conclusion that driving a car on a public highway constitutes a fundamental life choice sufficient to engage s.7.

The court also noted that subsequent Appeal Court rulings in British Columbia and Ontario had expressly followed the Neale decision, and that the Neale decision had been used to pass administrative licence suspension programs in Alberta and elsewhere. The court did note that where a Charter breach is alleged, one cannot use the passage of time as an excuse for failing to right any continuing wrong, and that the passage of time should be used to deny leave to reconsider a previous decision. However, in this case, given that the judgment in Neale was a reserved circulated judgment of the court and therefore given greater deference than a memorandum from the Bench, and in considering the other factors from the Oliver case, the court declined to grant leave to reconsider the court’s decisions in Neale and Yehia.

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