October 16, 2015 by Canadian Underwriter
British Columbia has the power under Canada’s constitution, to impose roadside prohibitions on drivers who fail breathalyzer tests, the Supreme Court of Canada has ruled.
Canada’s highest court announced Friday it dismissed an appeal, on constitutional grounds, of four motorists who had been subject to roadside driving prohibitions in B.C. The court did find that part of the administrative roadside prohibition (ARP) scheme — in place from 2010 through 2012 — violated motorists’ rights to be protected against unreasonable search and seizure.
Sections of the B.C. Motor Vehicle Act, which were still in force in 2014, “provide for a prohibition against driving for a period of 90 days when a driver provides a sample in compliance with a demand for breath or a sample of blood under the Criminal Code and obtains a result of ‘over .08’ or, if the driver refuses, without a reasonable excuse, to provide a sample of breath or blood,” wrote Madam Justice Catherine Anne Ryan, of the B.C. Court of Appeal, in background to a decision released March 3, 2014. In that decision, B.C.’s appeal court dismissed appeals by Richard James Goodwin and four other B.C. motorists who had been subject to roadside driving prohibitions.
Goodwin and three of those appellants appealed to the Supreme Court of Canada, which heard the case May 19.
Under B.C.’s ARP scheme, the duration of a driving prohibition depends on “whether the driver has registered a “warn”, a “fail”, or has refused to blow into the ASD,” B.C.’s appeal court noted, adding that a driver who fails is subject to a 90-day prohibition, while registering a warn “leads to a 3-day suspension for a first prohibition, 7 days for a second prohibition, or 30 days for a subsequent prohibition.”
One of Goodwin’s arguments was “that the ARP regime was beyond the competence of the province to legislate as it is, in effect, criminal law, a head of power reserved to the federal government” under the 1867 Constitution Act, formerly known as the British North America Act.
Canada’s highest court disagreed.
“No doubt the ARP scheme has incidental impacts on criminal law,” Madam Justice Andromache Karakatsanis wrote on behalf of six of the seven judges who heard the case. “No doubt it targets, in part, specific criminal activity and imposes serious consequences, without the protections attendant on criminal investigations and prosecutions. However, the consequences relate to the regulation of driving privileges.”
Goodwin also argued that the ARP regime violates Section 11 (d) of the Canadian Charter of Rights and Freedoms, which gives Canadians charged with an offence the right “to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.”
The Supreme Court of Canada noted Friday that B.C.’s Motor Vehicle Act “imposes a driving prohibition coupled with a monetary penalty.”
However, the ARP scheme “is not concerned with addressing the harm done to society in a public forum,” Justice Karakatsanis wrote. “Instead, its focus is on the regulation of drivers and licensing, and the maintenance of highway safety. Although it has a relationship with the criminal law, in the sense that it relies on Criminal Code seizure powers and is administered by police, the scheme is more accurately characterized as a proceeding of an administrative nature.”
Chief Justice Beverley McLachlin dissented in part, but not on the issue of the division of powers between the province and the federal government.
Court records indicate that Goodwin was stopped in 2011 by a peace officer, who demanded he provide a breath sample but had not provided a “suitable” sample. In accordance with B.C.’s Motor Vehicle Act, the officer issued a driving prohibition for 90 days and had Goodwin’s vehicle impounded for 30 days.
Another motorist who was a party to the case was Scott Roberts. In 2010, Roberts was involved in a collision, failed a breath sample and failed a second test on a different testing device. He was subject to a 90-day driving prohibition, a $500 monetary penalty and a 30-day motor vehicle impoundment.
The same year, Carol Marion Beam failed a breath sample ordered by an officer. Beam was observed in the driver’s seat of a vehicle in a parking lot outside a restaurant. She was prohibited from driving for 90 days and had her vehicle impounded for 30 days.
The fourth appellant was Jamie Allen Chisholm. In 2010, Chisholm failed a breath sample and was subject to the same penalties as Beam.
The majority of Supreme Court of Canada judges hearing the appeal ruled that the portions of the ARP scheme applying to drivers who fail breathalyzer tests – as it existed in 2010 – violate the Charter of Rights and Freedoms. Essentially the court agreed with the B.C. Supreme court that “the serious consequences of a driver registering a ‘fail,’ combined with an inability to challenge the basis on which these consequences are imposed, rendered the ARP scheme” as it existed before 2012 is “unreasonable.”
However, the B.C. government made several changes to the law in 2012. Those amendments were not challenged in the Goodwin case.
The law was changed in 2012 to require “that a police officer inform a driver of her right to request and be provided” a second breathalyzer test, “and, where two samples are provided, the lower of the two results is the basis for a driving prohibition.”
The new law “also expands the grounds on which a driver may challenge a prohibition,” so that now, “the police officer’s report to the Superintendent must be sworn, and police must now provide the Superintendent with information relating to the calibration” of the screening device.
Chief Justice McLachlin dissented on the issue of unreasonable search and seizure.
“The state’s purpose – to prevent death and serious injury on the highway from impaired driving – is important and capable of justifying intrusion into the private sphere of the individual’s bodily substances,” Justice McLachlin wrote. “At this stage, the biggest challenge to the state is that the scheme takes breath samples without reasonable grounds or even suspicion to believe the driver is impaired to the point of affecting driving. However, the Province has produced compelling evidence that requiring such grounds would subvert the goal of preventing death and injury caused by impaired driving, and that routine tests are required to achieve the administrative scheme’s purpose.”
Insurance Bureau of Canada had intervener status in Goodwin’s appeal. IBC warned in its factum that if Goodwin’s appeal had been allowed, this would “potentially have an impact on the enforcement of provincial safe driving laws, and in turn, adverse consequences for both automobile insurers and the driving public.”
Had B.C.’s ARP scheme been struck down, this “would have the effect of increasing road collisions to a degree that is not reflected in current insurers’ historical claims records and premiums,” IBC said in its factum. “In effect, this would lead to greater unpredictability in assessing risk before underwriting an insurance policy.”