BILL NO. 83

(as amended)

1st Session, 57th General Assembly
Nova Scotia
47 Elizabeth II, 1998

Private Member's Bill

Motor Vehicle Act
(amended)

CHAPTER 32 OF THE ACTS OF 1998

John F. Hamm, M.D.
Pictou Centre

First Reading: November 19, 1998

Second Reading: November 23, 1998

Third Reading: December 2, 1998 (WITH COMMITTEE AMENDMENTS)

Royal Assent: December 3, 1998

Be it enacted by the Governor and Assembly as follows:

1 (1) Subsection 67(5) of Chapter 293 of the Revised Statutes, 1989, the Motor Vehicle Act, is amended by

(a) striking out "or for a violation of section 253 or 254 or subsection 255(1) of the Criminal Code, being Chapter C-46 of the Revised Statutes of Canada, 1985, that occurred on or after the fourth day of December, 1985" in the last five lines of clause (b);

(b) adding immediately after clause (b) the following clause:

(ba) one year in the case of a first revocation, three years in the case of a second revocation and indefinitely in the case of a third or subsequent revocation where the revocation was for a violation of section 253, 254, subsection 255(1) or subsection 259(4) of the Criminal Code, being Chapter C-46 of the Revised Statutes of Canada, 1985, that occurred on or after the coming into force of this clause;

(d) striking out "or subsection 259(4) of the Criminal Code, being Chapter C-46 of the Revised Statutes of Canada, 1985, that occurred on or after the fourth day of December, 1985," in the eighth, ninth, tenth and eleventh lines of clause (e).

(2) Section 67 of Chapter 293 is further amended by adding immediately after subsection (6) the following subsection:

(6A) For the purpose of clause (ba) of subsection (5), a revocation is a second or subsequent revocation where the driver's license or the privilege of obtaining a driver's license of the applicant was revoked for the same or any other offence mentioned in clause (ba) within the previous ten years.

(4) Subsection 67(19) of Chapter 293 is amended by striking out "three" in the fifth line and substituting "five".

(5) Subsection 67(21) of Chapter 293 is amended by

(a) striking out "and" in the third line and substituting a comma; and

(b) adding "and that the applicant has complied with the conditions for restoration of a driver's license prescribed by the Governor in Council by regulation" immediately after "license" in the fifth line.

(6) Section 67 of Chapter 293 is further amended by adding immediately after subsection (21) the following subsection:

(21A) Notwithstanding anything contained in this Section, where a driver's license is revoked for the fourth time for a violation of section 253, 254, subsection 255(1) or subsection 259(4) of the Criminal Code, no application may be made pursuant to this Section for the restoration of the driver's license and, for greater certainty, the revocation of the driver's license is permanent.

2 Chapter 293 is further amended by adding immediately after Section 100A the following Sections:

100B (1) In this Section,

(a) "provincially approved screening device" means a device prescribed by regulation for the purpose of this Section;

(b) "qualified technician" means a qualified technician as defined in subsection 254(1) of the Criminal Code.

(2) Subsection (3) applies and subsection (4) does not apply if a peace officer making a demand of a licensed learner or a newly licensed driver uses one screening device for the purpose of Section 279C and another screening device for the purpose of this Section, and subsection (4) applies and subsection (3) does not apply if the peace officer uses one screening device for the purpose of both Section 279C and this Section.

(3) A peace officer may request a licensed learner or a newly licensed driver to surrender the person's license if, upon demand of the officer made pursuant to Section 100A, the licensed learner or a newly licensed driver fails or refuses to provide a sample of breath or provides a sample of breath that, on analysis by a provincially approved screening device, produces a result indicating, in the manner prescribed by regulation, the presence of alcohol.

(4) A peace officer may request a licensed learner or a newly licensed driver to surrender the person's license if, upon demand made by the peace officer under subsection 254(2) of the Criminal Code, the driver

(a) fails or refuses to provide a sample of breath; or

(b) provides a sample of breath that, on analysis, produces a result indicating, in the manner prescribed by regulation, the presence of alcohol.

(5) A licensed learner or a newly licensed driver whose license has been requested pursuant to subsection (3) or (4) shall surrender the license to the peace officer requesting it forthwith and, whether or not the licensed learner or newly licensed driver is unable or fails to surrender the license to the peace officer, the license is revoked and the licensed learner's or newly licensed driver's driving privilege is suspended for a period of twenty-four hours from the time the request is made.

(6) Where an analysis of the breath of a licensed learner or newly licensed driver is made under Section 100A or subsection (4) and produces a result indicating, in the manner prescribed by regulation, the presence of alcohol, the licensed learner or newly licensed driver may require a further analysis to be made by means of a provincially approved screening device, in which case the result obtained on the second analysis governs and any revocation and suspension resulting from an analysis under Section 100A or subsection (4) continues or terminates accordingly.

(7) Where an analysis of the breath of a licensed learner or newly licensed driver is made pursuant to Section 100A or subsection (4) and produces a test result indicating, in the manner prescribed by regulation, the presence of alcohol, the peace officer who made the demand for the sample of breath shall advise the licensed learner or newly licensed driver of the right under subsection (6) to a further analysis.

(8) The revocation of a license and the suspension of a driving privilege pursuant to this Section are in addition to and not in substitution for any other proceeding or penalty arising from the same circumstances.

(9) Every peace officer who requests the surrender of a license from a licensed learner or newly licensed driver pursuant to Section 279C or this Section shall

(a) keep a written record of the revocation and suspension with the name, address and license number of the licensed learner or newly licensed driver and the date and time of the revocation and suspension;

(b) provide the licensed learner or newly licensed driver with a written statement setting out the time at which the revocation and suspension take effect, the length of the period during which the license is revoked and privilege suspended and the place where the license may be recovered upon the termination of the revocation and suspension and acknowledging receipt of the license that is surrendered; and

(c) forward to the Registrar forthwith a written report setting out the name, address and license number of the licensed learner or newly licensed driver and such particulars respecting the taking of the sample of breath and the conduct and results of the analysis as the Registrar may require in relation to the matter.

(10) Where the motor vehicle driven by a licensed learner or a newly licensed driver whose license is revoked and whose driving privilege is suspended pursuant to this Section is in a location from which, in the opinion of a peace officer, it should be removed and there is no person easily available who may lawfully remove the vehicle with the consent of the licensed learner or a newly licensed driver, the peace officer may remove and store the vehicle or cause it to be removed and stored and shall notify the licensed learner or a newly licensed driver of its location.

(11) The costs and charges incurred in moving and storing a vehicle pursuant to subsection (10) shall be paid, before the vehicle is released, by the person to whom the vehicle is released.

(12) Every person who, without reasonable excuse, fails or refuses to comply with a demand made to the person by a peace officer pursuant to this Section, is guilty of an offence.

(13) Where an analysis of the sample of breath of a licensed learner or a newly licensed driver has been made for the purpose of Section 279C or this Section by means of any device prescribed by regulation for the purpose of this subsection and has produced a result indicating, in the manner prescribed by regulation, the presence of alcohol, that result shall be, in the absence of evidence to the contrary, proof that the licensed learner or newly licensed driver has breached a condition of a license referred to in Section 70 or 70A, as the case may be.

(14) Subsection (13) shall not be construed by any person, court, tribunal or other body to limit the generality of the nature of proof that a licensed learner or newly licensed driver has breached a condition of a license referred to in Section 70 or 70A, as the case may be.

(15) The Governor in Council may make regulations

(a) prescribing devices for the purpose of the definition "provincially approved screening device" in subsection(1);

(b) prescribing the manner in which the analysis results produced by provincially approved screening devices or other screening devices may indicate the presence of alcohol in samples of breath;

(c) prescribing devices for the purpose of subsection (13).

100C The revocation of a license or the suspension of a driving privilege resulting from a conviction of a breach of a condition of a license referred to in Section 70 or 70A or by reason of the operation of Section 100B is intended

(a) to ensure that the licensed learner or newly licensed driver acquire experience and develop or improve safe driving skills in controlled conditions; and

(b) to safeguard the holder of the license and the public.

279C (1) Where, upon demand of a peace officer made pursuant to subsection 254(2) of the Criminal Code, a person provides a sample of the person's breath which, on analysis by an approved screening device as defined in section 254 of the Criminal Code, registers "Warn", the peace officer may request the person to surrender the person's license.

(2) Where, upon demand of a peace officer made under subsection 254(2) of the Criminal Code, a person provides a sample of the person's breath which, on analysis by an approved instrument as defined in section 254 of the Criminal Code, indicates that the concentration of alcohol in the person's blood is fifty milligrams or more of alcohol in one hundred millilitres of blood, a peace officer may request the person to surrender the person's license.

(3) Where a person is charged with an offence under section 254 of the Criminal Code, or any procedure is taken pending the laying of such charge to assure the person's attendance in court on the charge, a peace officer may request the person to surrender the person's license.

(4) Upon a request being made pursuant to subsection (1), (2) or (3), the person to whom the request is made shall forthwith surrender the person's license to the peace officer and, whether or not the person is unable or fails to surrender the person's license to the peace officer, the person's license is revoked and the person's driving privilege is suspended for a period of twenty-four hours from the time the request is made.

(5) The revocation of a license and the suspension of a driving privilege pursuant to this Section is in addition to and not in substitution for any proceeding or penalty arising from the same circumstances.

(6) Where an analysis of the breath of a person is made under subsection (1) and registers "Warn", the person may require a further analysis to be performed in the manner provided in subsection (2), in which case the result obtained on the second analysis governs and any revocation and suspension resulting from an analysis under subsection (1) continues or terminates accordingly.

(7) Where an analysis of the breath of a person is made under subsection (1) and registers "Warn", the peace officer who made the demand under subsection (1) shall advise the person of the person's right under subsection (6) to a further analysis.

(8) For the purpose of subsection (1), the approved screening device shall not be calibrated to register "Warn" when the concentration of alcohol in the blood of the person whose breath is being analyzed is less than fifty milligrams of alcohol in one hundred millilitres of blood.

(9) It shall be presumed, in the absence of evidence to the contrary, that any approved screening device used for the purpose of subsection (1) has been calibrated as required under subsection (8).

(10) Where a license is revoked and a driving privilege is suspended pursuant to this Section, the peace officer who requested the surrender of the license under subsection (1), (2) or (3), shall

(a) keep a written record of the revocation and suspension with the name and address of the person and the date and time of the revocation and suspension; and

(b) provide the person with a written statement of the time at which the revocation and suspension take effect, the length of the period during which the person's license is revoked and privilege suspended, the place where the license may be recovered upon the termination of the revocation and suspension and acknowledging receipt of the license that is surrendered.

(11) Where a license is revoked and a driving privilege is suspended pursuant to this Section, if the motor vehicle is in a location from which, in the opinion of a peace officer, it should be removed, and there is no person with a license easily available to remove the motor vehicle with the consent of the person whose license is revoked and privilege is suspended, the peace officer may remove and store the motor vehicle or cause it to be removed and stored and shall notify the person of its location.

(12) The costs and charges incurred in moving or storing a vehicle pursuant to subsection (11) shall be paid, before the vehicle is released, by the person to whom the vehicle is released.

IMPOUNDING OF VEHICLE

291A (1) In this Section, "impound" means remove a vehicle to a secure storage facility or immobilize the vehicle with an approved device.

(2) Where a peace officer is satisfied that a person was driving a motor vehicle on a highway while the person's driver's license or the privilege of obtaining a license is revoked pursuant to this Act for a violation of the Criminal Code, including an alcohol-related offence as defined in subsection (12) of Section 67, the peace officer shall

(a) notify the Registrar of the fact or cause the Registrar to be notified; and

(b) detain the motor vehicle that was being driven by the person whose driver's license or the privilege of obtaining a license is revoked until the Registrar issues an order pursuant to subsection (3).

(3) Upon notification pursuant to subsection (2), the Registrar may, without a hearing, issue an order to release the motor vehicle or issue an order to impound the motor vehicle that was being driven by the driver whose driver's license or privilege of obtaining a license is revoked, as follows:

(a) for ninety days, if an order to impound under this Section has not previously been made, within a prescribed period, with respect to any motor vehicle then owned by the owner of the vehicle currently being impounded;

(b) for one hundred and eighty days, if an order to impound under this Section has previously been made, within a prescribed period, with respect to any motor vehicle then owned by the owner of the vehicle currently being impounded.

(4) The order to impound issued pursuant to this Section is intended to promote compliance with this Act and to thereby safeguard the public and does not constitute an alternative to any proceeding or penalty arising from the same circumstances or around the same time.

(5) The Registrar shall notify a peace officer of an order made pursuant to subsection (3) and shall send notice of the order to the owner of the motor vehicle at the most recent address for the owner appearing in the records of the Registrar.

(6) Upon notification of the Registrar's order to release the motor vehicle, a peace officer shall forthwith release the motor vehicle to its owner.

(7) Service of the order, or notice of it, on the driver of the motor vehicle is deemed to be service on and sufficient notice to the owner of the vehicle and the operator of the vehicle, if there is an operator.

(8) If the motor vehicle that is the subject of the order to impound contains goods, the peace officer may require the driver and any other person present who is in charge of the motor vehicle to surrender all documents in that person's possession or in the vehicle that relate to the operation of the vehicle or to the carriage of the goods and to furnish all information within that person's knowledge relating to the details of the current trip and the ownership of the goods.

(9) Upon being served, or being deemed to have been served, with the order to impound or notice of it, the operator of the motor vehicle, or if there is no operator, the owner, shall forthwith remove any vehicle drawn by the motor vehicle and any load from the motor vehicle.

(10) If the goods are dangerous goods within the meaning of the Dangerous Goods Transportation Act, the operator, or if there is no operator, the owner, shall remove the goods in accordance with that Act.

(11) If, in the opinion of the peace officer, the operator or owner fails to remove a drawn vehicle or load as required by subsection (9) within a reasonable time after being served or being deemed to have been served with the order to impound, the peace officer may cause the drawn vehicle or load to be removed and stored or disposed of at the cost and risk of the operator, or if there is no operator, the owner.

(12) If a peace officer is of the opinion that the operator or owner has not made appropriate arrangements for the removal of a drawn vehicle or load, having regard to the nature of the goods, including the fact that they are or appear to be dangerous goods, within the meaning of the Dangerous Goods Transportation Act, or are perishable, the peace officer may cause the drawn vehicle or load to be removed, stored or otherwise disposed of at the cost and risk of the operator, or if there is no operator, the owner.

(13) Upon service or deemed service of the order to impound or notice of it being effected, or, if the motor vehicle that is subject to the order was drawing a vehicle or had a load, once the drawn vehicle and load have been removed, the motor vehicle shall, at the cost of and risk to the owner, be

(a) removed to an impound facility as directed by the peace officer; and

(b) impounded for the period set out in the order to impound or until ordered to be released by the Registrar pursuant to Section 291B.

(14) Any personal property that is left in the impounded motor vehicle and that is not attached to or used in connection with its operation shall, upon request and proof of ownership, be made available, at reasonable times, to the owner of the property.

(15) Upon the expiry of the period of impoundment, the Registrar shall order that the motor vehicle be released to its owner from the impound facility.

(16) Notwithstanding being served with an order pursuant to subsection (15) by the owner of the motor vehicle, the person who operates the impound facility is not required to release the motor vehicle to the owner until the owner pays the removal and impound costs related to the Registrar's order to impound.

(17) The costs incurred by the person who operates the impound facility in respect of an order to impound pursuant to this Section constitute a lien on the motor vehicle.

(18) The costs incurred by the Crown in removing, storing or disposing of a drawn vehicle or load from a motor vehicle pursuant to subsection (9) or (12) are a debt due to the Crown and may be recovered by the Crown in any court of competent jurisdiction.

(19) Persons who provide removal services or load removal services or who operate impound facilities, and their subcontractors, are independent contractors and not agents of the Department for the purpose of this Section and such persons shall not charge more for their services in connection with this Section than is permitted by regulation.

(20) The owner of a motor vehicle that is subject to an order to impound pursuant to this Section may bring an action against the driver of the motor vehicle at the time the order was made to recover any costs or other losses incurred by the owner in connection with the order.

(21) No action or other proceeding for damages shall be instituted against the Registrar, any employee of the Department or any peace officer for any act done in good faith in the execution or intended execution of the person's duty under this Section or for any alleged neglect or default in the execution in good faith of that duty.

(22) Subsection (21) does not relieve the Crown of liability in respect of a tort committed by a person mentioned in that subsection to which it would otherwise be subject.

(23) Every person who fails to comply with subsection (9) or with a requirement of a peace officer under subsection (8) is guilty of an offence and is liable to a fine of not less than two hundred dollars and not more than twenty thousand dollars.

(24) Every person who drives or operates or removes a motor vehicle that is subject to an order to impound pursuant to this Section and every person who causes or permits such a motor vehicle to be driven, operated or removed is guilty of an offence and liable to a fine of not less than two hundred and not more than twenty thousand dollars.

(25) Every person who provides removal services or who operates an impound facility and who charges fees for services provided in connection with this Section in excess of those permitted by regulation is guilty of an offence and liable to a fine of not less than one hundred dollars and not more than one thousand dollars.

(26) Every person who obstructs or interferes with a peace officer in the performance of the peace officer's duties under this Section is guilty of an offence and liable to a fine of not less than two hundred and not more than twenty thousand dollars or to imprisonment for a term of not more than six months, or to both.

(27) The Governor in Council may make regulations

(a) prescribing the period for the purpose of subsection (3);

(b) prescribing a schedule of fees that may be charged by independent contractors for services in connection with this Section;

(c) prescribing the manner in which orders may be issued and notification of them given pursuant to this Section;

(d) prescribing methods for and rules of service for any notices or orders required to be served pursuant to this Section;

(e) classifying persons and motor vehicles and exempting any class of person or any class of motor vehicle from any provision of this Section or any regulation made pursuant to this Section and prescribing conditions for any such exemptions;

(f) prescribing fees for the administration of this Section;

(g) deemed necessary or advisable to carry out effectively the intent and purpose of this Section.

291B (1) The owner of a motor vehicle that is subject to an order to impound pursuant to Section 291A may, upon paying the prescribed fee, appeal the order to the Registrar.

(2) The only grounds on which an owner may appeal pursuant to subsection (1) and the only grounds on which the Registrar may set aside the order to impound are that

(a) the motor vehicle that is subject to the order was taken without the consent of the owner at the time in respect of which the order was made;

(b) the driver's license of the driver of the motor vehicle at the time in respect of which the order was made was not then under suspension;

(c) the owner of the motor vehicle exercised due diligence in attempting to determine that the driver's license of the driver of the motor vehicle at the time in respect of which the order was made was not then under suspension;

(d) the order will result in exceptional hardship; or

(e) another ground of appeal prescribed in the regulations applies to the owner.

(3) Clause (d) of subsection (3) does not apply if an order to impound under Section 291A was previously made with respect to any motor vehicle then owned by the same owner.

(4) The Registrar may confirm or set aside an order to impound.

(5) The Registrar shall give written notice of the Registrar's decision to the owner.

(6) If the Registrar sets aside the order, the Registrar shall issue an order to release the vehicle.

(7) The decision of the Registrar under this Section is final and binding.

(8) The filing of an appeal pursuant to this Section does not suspend or terminate the order to impound pursuant to Section 291A.

291C (1) The owner of a commercial motor vehicle or trailer that is subject to an order to impound under Section 291A may, upon paying the prescribed fee, appeal the order to the Registrar.

(2) The only grounds on which an owner may appeal pursuant to subsection (1) and the only grounds on which the Registrar may set aside the order to impound are that

(a) the motor vehicle that is subject to the order was taken without the consent of the owner at the time in respect of which the order was made;

(b) the driver's license of the driver of the motor vehicle at the time in respect of which the order was made was not then under suspension;

(c) the owner of the motor vehicle exercised due diligence in attempting to determine that the driver's license of the driver of the motor vehicle at the time in respect of which the order was made was not then under suspension;

(d) the order will result in exceptional hardship; or

(e) another ground of appeal prescribed in the regulations applies to the owner.

(3) Clause (d) of subsection (3) does not apply if an order to impound under Section 291A was previously made with respect to any motor vehicle then owned by the same owner.

(4) The Registrar may confirm or set aside the order to impound.

(5) The Registrar shall give written notice of the Registrar's decision to the owner.

(6) If the Registrar sets aside the order, the Registrar shall issue an order to release the vehicle.

(7) The decision of the Registrar pursuant to this Section is final and binding.

(8) The filing of an appeal pursuant to this Section does not suspend or terminate the order to impound under Section 291A.

291D (1) The Governor in Council may make regulations

(a) prescribing periods for the purpose of subsection 291A(3);

(b) respecting devices that may be required to be installed in or attached to vehicles to prevent the operation of the vehicle in certain circumstances.

(2) The exercise by the Governor in Council of the authority contained in subsection (1) is regulations within the meaning of the Regulations Act.

5 This Act comes into force on and not before such day as the Governor in Council orders and declares by proclamation.