May 7, 2015 by Canadian Underwriter
If the Supreme Court of Canada does not uphold the British Columbia government’s authority, under the Constitution, to impose immediate licence suspensions on drivers who fail roadside alcohol breathalyzer tests, there could be an increase in collisions and auto claims costs, Insurance Bureau of Canada suggested in a factum submitted to Canada’s highest court.
The Supreme Court of Canada announced this week it will hear, on May 19, an appeal from Richard James Goodwin and three other B.C. motorists who had been subject to 90-day roadside driving prohibitions – and had their vehicles impounded 30 days – after either failing to provide breath samples or failing the roadside breath tests ordered by police or peace officers.
In a ruling released March 3, 2014, the B.C. Court of Appeal found that the province’s automatic roadside prohibition (ARP) regime is not ultra vires, or beyond the power, of the province.
If the Supreme Court of Canada were to disagree with this, it “could have a broad impact,” due in part to proposed legislation in other provinces, suggests IBC, which has intervener status in the Goodwin appeal.
In B.C., Goodwin and five others (two of whom are not parties to the Supreme Court of Canada hearing scheduled May 19) had appealed lower court rulings on different grounds. They had argued “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.”
Sections of the B.C. Motor Vehicle Act, which was 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 2014.
The province’s ARP regime “is founded on an impaired driving investigation initiated under the Criminal Code,” Justice Ryan noted at the time. ” Section 254(2) of the Criminal Code 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 duration of a driving prohibition in B.C. depends on “whether the driver has registered a ‘warn,’ a ‘fail,’ or has refused to blow into the ASD,” Justice Ryan wrote at the time, noting that registering a fail leads 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.”
Court records indicate that drivers subject to prohibitions argued that a B.C. court erred in “failing to characterize the legislation as criminal in nature and thus within the exclusive jurisdiction” of the federal government.
B.C.’s appeal court disagreed.
Court records indicate that Goodwin was stopped in 2011 by a peace officer, who demanded he provide a breath sample. However Goodwin 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.
Other parties in Goodwin’s appeal before the Supreme Court of Canada include:
•Carol Marion Beam, who in 2010 failed a breath sample ordered by an officer who observed her in the driver’s seat of a vehicle in a parking lot outside a restaurant, was prohibited from driving for 90 days and had her vehicle impounded for 30 days;
•Jamie Allen Chisholm, who in 2010 was stopped by police in Nanaimo, failed a breath sample and was subject to the same penalties as Beam; and
•Scott Roberts, who in 2010 was involved in a collision in Metchosin , failed a breath sample, failed a second test on a different testing device and was subject to a 90-day driving prohibition, a $500 monetary penalty and a 30-day motor vehicle impoundment.
Among other things, Goodwin argues such a prohibition 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.”
He also suggested ARP is beyond the province’s powers under the 1867 Constitution Act (formerly known as the British North America Act), which gives the federal government exclusive power over criminal law.
As an intervener in Goodwin’s case, IBC’s says its submission is limited to the division of powers between the provinces and the federal government.
IBC contends that B.C.’s ARP regime “falls within the Province’s jurisdiction to legislate with respect to the regulation of driver licensing and highway safety.”
If the Supreme Court of were to rule that the ARP is not valid provincial legislation, 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,” IBC wrote, suggesting 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 a ruling striking down that ARP regime “would have the effect of increasing road collisions to a degree that is not reflected in current insurers’ historical claims records and premiums,” IBC added. “In effect, this would lead to greater unpredictability in assessing risk before underwriting an insurance policy.”
An “inevitable increase in motor vehicle collisions and injuries would increase IBC members’ exposure to accident benefit claims and tort claims under automobile insurance policies for injuries sustained in automobile collisions and pedestrian accidents, and consequently, would result in higher rates charged and premiums paid for such policies by policyholders,” IBC warned.
In 2014, the B.C. Court of Appeal found the power of provinces to issue driver’s licences “carries with it the authority to suspend or cancel them, upon the happening of certain conditions,” such a driving while intoxicated.
If the Supreme Court of Canada were to disagree, this “could have a broad impact,” IBC contends, suggesting “Saskatchewan has adopted amendments to its Traffic Safety Act that provide for immediate licence suspension for drivers who have a BAC level of .04% or more, immediate roadside vehicle impoundment, and i
ncreased penalties for new drivers found operating vehicles while having consumed alcohol or drugs.”
IBC also alluded to Ontario Bill 31, which proposes to “expand existing alcohol-impaired sanctions to drivers who are impaired by drugs,” Transportation Minister Steve Del Duca told the legislature earlier. Bill 31, the Transportation Statute Law Amendment Act (Making Ontario’s Roads Safer), is currently before the legislature on third reading.
In his argument on constitutional grounds, Goodwin cited a 1993 Supreme Court of Canada decision, in favour of Dr. Henry Morgentaler, who was charged with violating Nova Scotia’s Medical Services Act in 1989, a year after criminal prohibitions against abortion were ruled unconstitutional.
The highest court suggested in 1993 that the Nova Scotia regulation was in “pith and substance” a criminal law.
“The guiding principle is that the provinces may not invade the criminal field by attempting to stiffen, supplement or replace the criminal law,” Mr. Justice John Sopinka wrote at the time.