B.C. appeal court upholds driving suspensions for those refusing to provide breath sample

The Province of British Columbia is not violating the Canadian Charter of Rights and Freedoms when it imposes driver’s licence suspensions and other penalties on suspected drunk drivers who refuse to provide breath samples and on those whose breath sample results indicate a blood alcohol level of between .05 and .08%, the provincial court of appeal suggested in a recent ruling.

Six motorists in B.C. who had been subject to 90-day licence suspensions challenged the constitutional validity of the province’s Motor Vehicle Act.

In a ruling released in November 2011, Mr. Justice Jon Sigurdson of the B.C. Supreme Court “found the challenged legislation to be constitutionally sound except for the prohibitions and penalties resulting from a ‘fail’ reading on an” authorized screening device, according to background information provided in a March 3 court of appeal ruling.

The appeal court dismissed appeals from the motorists, and a cross-appeal from the provincial government, of Justice Sigurdson’s ruling. His ruling was made before Bill 46 amended the Motor Vehicle Act in 2012.

That amendment gives motorists, who register a warn or a fail, the right to be provided with a second analysis, and to have the lower of the two results stand. A fail means the device indicates a blood alcohol level of more than 0.08%, which is specifically prohibited by Section 253 (1 (b)) of the Criminal Code of Canada.

The B.C. Motor Vehicle Act requires that when a motorist provides a breath sample and it registers a warn or fail — or if the motorist, “without reasonable excuse,” fails to provide a breath sample — the peace officer must serve a notice of driving prohibition. The province also imposes monetary penalties and the length of suspension varies depending in part on the driver’s record.

The March 3 unanimous appeal court ruling is not on the constitutional validity of the amended Motor Vehicle Act.  However, Madam Justice Catherine Anne Ryan, writing on behalf of the appeal court, noted that Bill 46 was “intended to correct the constitutional defect in the legislation identified by Mr. Justice Sigurdson.”

In his 2011 ruling, Justice Sigurdon addressed the argument from motorists who contended that the automatic roadside prohibition regime (ARP) in place at the time violated sections 10 (b), 11 (d) and 8 of the Canadian Charter of Rights and Freedoms.

Section 10 (b) provides that everyone has the right, on arrest or detention, to retain and instruct counsel without delay and to be informed of that right. Section 11 (d) stipulates that anyone charged with an offence has the right to be presumed innocent until proven guilty ” in a fair and public hearing by an independent and impartial tribunal.” Section 8 protects against unreasonable search or seizure.

The motorists had argued “that the ARP regime was beyond the competence of the province to legislate as it is, in effect, criminal law, a power reserved to the federal government,” court records indicate.

But in its ruling March 3, the B.C. court of appeal noted that ARP regime “is founded on an impaired driving investigation initiated under the Criminal Code,” which allows a peace officer “who has reasonable grounds to suspect that a driver has alcohol in their body to demand a sample of breath into an ‘approved screening device.'”

The court of appeal disagreed with motorists who held that the ARP imposes “true penal consequences.”

Justice Sigurdson had found that the “administrative consequences, while not insignificant, are not true penal consequences as that term has been interpreted in the authorities.”

He wrote at the time: “Suspension of a driver’s license is the withdrawal of a privilege, and not a punitive sanction. Penalties that are imposed to deter behaviour cannot strictly be said to be true penal consequences. This is particularly so in the case of a reading in the ‘warn’ range where the penalties and cost consequences are less significant.”

Justice Sigurdson had ruled against the province when he noted that review process provided by the Motor Vehicle Act, as of 2011, did not “permit the driver to attempt to demonstrate that he or she did not have a blood-alcohol reading over 0.08 or to challenge the accuracy or functioning of the ASD.” Before Bill 46 became law, a driver who was prohibited from driving, on the basis of a “fail” or “warn” reading, was allowed to apply to the Superintendent of Motor Vehicles for a review of the driving prohibition.

Justice Sigurdson ruled in 2011 that the AMP at that time was unconstitutional “as it relates to drivers who register a ‘fail’ on the ASD.”

In its ruling March 3, the Court of Appeal agreed with Justice Sigurdson and did not add to his analysis.  Madam Justice Ann MacKenzie and Mr. Justice Christopher Hinkson concurred with Justice Ryan’s ruling.