October 14, 2015 by Canadian Underwriter
Insurance providers will learn this Friday whether British Columbia’s roadside license suspensions and vehicle impoundments, for drivers who fail breathalyzer tests, are unconstitutional.
The Supreme Court of Canada is scheduled to release Oct. 16 decisions in two separate cases that it heard May 19.
One is an appeal from Richard James Goodwin and four other B.C. motorists who had been subject to roadside driving prohibitions in the province.
Court records indicate that Goodwin did not provide a “suitable” breath sample after being stopped in 2011. A peace officer prohibited Goodwin from driving for 90 days and had his vehicle impounded for 30 days.
The province’s Motor Vehicle Act provides “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 its decision against Goodwin and five others, released March 3, 2014.
In that ruling, the court disagreed with Goodwin’s argument that B.C.’s automatic roadside prohibition (ARP) regime is ultra vires, or beyond the power, of provinces. The 1867 Constitution Act (formerly known as the British North America Act) essentially gives the federal government exclusive power over criminal law.
Insurance Bureau of Canada – which had intervener status in the Goodwin case – argued that B.C.’s ARP regime “is valid provincial legislation that falls within the Province’s jurisdiction to legislate with respect to the regulation of driver licensing and highway safety.”
IBC warned in its factum that overturning B.C.’s law “could have a broad impact” on traffic safety across Canada due to proposed legislation in other provinces.
In B.C., Goodwin and five other motorists had appealed lower court rulings on constitutional grounds. One motorist later withdrew his appeal.
The other decision scheduled for release Friday is on an appeal from Lee Michael Wilson, of a ruling from the B.C. Court of Appeal, arising from a driving prohibition.
Wilson was issued a three-day driving prohibition after blowing a “warn,” meaning the breathalyzer indicated he had a blood alcohol level of more than 0.05%.
A delegate of B.C.’s Superintendent of Motor Vehicles upheld Wilson’s three-day driving prohibition. That decision was quashed in 2013 by Mr. Justice Dev Dley of the Supreme Court of B.C. but restored on appeal. Justice Dley concluded that the adjudicator “failed to meet the standard of reasonableness and the decision is not defensible in respect of the facts and law.” Justice Dley found that the “only physical observation” of Wilson “was that he had an odour of liquor on his breath” and that unless his “ability to drive was affected by alcohol,” then the peace officer “had no basis upon which” to issue a three-day suspension.
In restoring the adjudicator’s ruling in Wilson, the appeal court ruled that a driver blowing a warn “can be a sufficient basis underlying a peace officer’s reasonable belief that a driver’s ability to drive is affected by alcohol.”
Wilson argued, in his factum to the Supreme Court of Canada, that his appeal is “about the interplay between a valid public purpose of legislation – the curtailment of the harm caused by drinking and driving – and the individual rights of citizens who have the reasonable expectation,” that their right under the Charter of Rights and Freedoms, to be protected “against unreasonable search and seizure will be respected by government.”
In his factum to the Supreme Court of Canada, Goodwin argued that B.C.’s Motor Vehicle Act regime “imposes significant penalties while presuming guilt” and that those penalties “are automatic, immediate and unchallengeable at the road-side.”
He also argued that B.C. is violating 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.”
IBC limited its arguments to the division of powers between the federal and provincial governments, and did not make arguments on the Charter of Rights issues.
IBC said in its factum that historical loss data used to set premiums “is presently based on the provincial administrative and civil impaired driving regimes and other comparable road safety schemes in place.”
So if Canada’s highest court agrees with Goodwin, 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 warned. “In effect, this would lead to greater unpredictability in assessing risk before underwriting an insurance policy.”