Canadian Underwriter

Supreme Court of Canada upholds B.C. roadside suspension for motorist blowing warn on breath test

October 20, 2015   by Canadian Underwriter

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A British Columbia law giving police the power to issue driving suspensions of up to 30 days, to motorists who blow a “warn” in breathalyzer tests, does not require the same protections as those provided by the Criminal Code of Canada, Canada’s highest court has suggested.

The court noted that B.C.'s Motor Vehicle Act and the Criminal Code "are two independent statutes, with two distinct purposes."

“Roadside driving prohibitions are a tool to promote public safety,” Mr. Justice Michael Moldaver of the Supreme Court of Canada wrote in a unanimous decision released this past Friday. “As such, the legislation necessarily places greater weight on this goal. Unlike the criminal law regime, persons who register a ‘Warn’ or ‘Fail’ under the regulatory regime do not end up with a criminal record, nor are they exposed to the more onerous sanctions under the criminal law, including the risk of incarceration.”

Justice Moldaver wrote the decision on behalf of himself and six other judges who dismissed an appeal from Lee Michael Wilson.

The court noted that B.C.’s Motor Vehicle Act and the Criminal Code “are two independent statutes, with two distinct purposes.”

It is a Criminal Code offence to drive with a blood alcohol level of 0.08% or more. In September, 2012, Wilson had been issued a three-day driving prohibition, in B.C. He blew a “warn” on tests on two different screening devices at a roadside stop near Coombs. The breathalyzer readings indicated he had a blood alcohol level of more than 0.05%. In B.C., police have the power to suspend a licence – for three, seven or 30 days (depending on the driver’s history) – to a driver who blows a warn. There is also a corresponding fine of $200, $300 or $400.

Wilson’s prohibition was upheld by an adjudicator with B.C.’s Superintendent of Motor Vehicles. The adjudicator’s decision was quashed in 2013 by the B.C. Supreme Court but later restored by the B.C. Court of Appeal.

Wilson’s appeal was heard May 19, the same day the Supreme Court of Canada heard a different appeal pertaining to B.C.’s automatic roadside prohibition (ARP) system.

The other appeal was from Richard James Goodwin and three other motorists, who had either failed breathalyzer tests or failed to provide suitable breath samples, in B.C. In a 6-1 decision (with Chief Justice Beverly McLachlin dissenting in part), the Supreme Court of Canada found that part of the ARP scheme, in place from 2010 through 2012, violated motorists’ rights to be protected against unreasonable search and seizure. But the highest court still dismissed Goodwin’s appeal.

The court essentially found that B.C. does have the power, under the 1867 Constitution Act, to give police the power to impose roadside licence suspensions and vehicle impoundments, in order to regulate driving privileges. On this issue, the Supreme Court of Canada sided with Insurance Bureau of Canada, which had intervener status in the Goodwin case. IBC rebutted Goodwin’s argument that the ARP scheme is ultra vires – or beyond the power – of a province. IBC had warned that if B.C.’s ARP scheme were to be 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” and would “lead to greater unpredictability in assessing risk before underwriting an insurance policy.”

The Supreme Court of Canada also rejected Goodwin’s argument that the ARP regime violates motorists right to presumption of innocence under the Canadian Charter of Rights and Freedoms. The court found that with its ARP scheme, the B.C. government is not creating an “offence” for the purpose of section 11 (9) of the Charter (which gives Canadians the right to a fair trial). Instead, the court essentially found that the ARP scheme is an administrative proceeding that focusses on highway safety and the regulation of drivers and licensing, and that the prohibitions and monetary penalties imposed under the scheme are not true penal consequences.

The rules that were in place before 2012 – for drivers whose breath samples indicated a fail – violate motorists’ Charter rights to protection against unreasonable search and seizure, the Supreme Court of Canada ruled. However, B.C. amended the ARP scheme in 2012 and the new scheme was not before the Supreme Court of Canada.

The Supreme Court Canada released its decisions in both Goodwin and Wilson on Oct. 16.

Related: Supreme Court of Canada rules in favour of roadside suspensions for drivers failing breathalyzer tests in B.C.

In Wilson’s appeal, he argued that the Criminal Code roadside screening regime contains “various safeguards,” to protect motorists’ Charter rights, but that those safeguards are not in place under B.C.’s ARP scheme.

Section 215.41 (3.1) of the B.C. Motor Vehicle Act stipulates that a peace officer must take possession of a driver permit, and serve on the driver a notice of driving prohibition, if the driver blows a warn or fail, and if that officer “has reasonable grounds to believe, as a result of the analysis, that the driver’s ability to drive is affected by alcohol.”

Wilson argued that the peace officer’s “belief must be based not only on the (approved screening device) result, but also on confirmatory evidence showing that the driver’s ability to drive is affected by alcohol.”

The Supreme Court of Canada disagreed.

Wilson’s argument “is not supported by the text” of the law “and it requires the court to read in words that are simply not there,” Justice Moldaver wrote.

Wilson had argued, 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, to be protected “against unreasonable search and seizure will be respected by government.”

Wilson claimed that the Motor Vehicle Act is ambiguous and therefore that values from the Charter of Rights must be applied in order to resolve that ambiguity.

However, the issue before the Supreme Court of Canada of was whether the interpretation of the Motor Vehicle Act – made by the adjudicator of the B.C. Superintendent of Motor Vehicles in confirming Wilson’s driving prohibition – was reasonable.

The Supreme Court of Canada found the Motor Vehicle Act is unambiguous.

“When read in light of its text, context, and legislative objective, it admits of only one reasonable interpretation – the one arrived at by the adjudicator,” Justice Moldaver wrote. “The provision states that the peace officer must have reasonable grounds to believe, as a result of the analysis, that the driver’s ability to drive is affected by alcohol. The wording could not be clearer. The ASD analysis is the yardstick against which to measure the reasonableness of the officer’s belief.”

In rejecting Wilson’s appeal, the Supreme Court of Canada noted: “Roadside driving prohibitions are an important tool for confronting and reducing the devastating effects of impaired driving. Courts have repeatedly held that driving prohibitions serve the twin purposes of increasing highway safety and deterring impaired driving.”