September 18, 2019 by Greg Meckbach
Despite a “poorly-worded” section of the British Columbia Motor Vehicle Act, a 24-hour driving prohibition against a suspected impaired driver has been restored in a recent appeal court ruling.
In July of 2017, Patrick George Franlin Evans was told by a New Westminster Police officer that Evans would be prohibited from driving for 24 hours.
That notice was quashed the following year after a judicial review by Justice Emily Burke of the B.C. Supreme Court but restored by the B.C. Court of Appeal in a ruling released Sept. 11, 2019.
The province’s Motor Vehicle Act gives police the power to prohibit a driver from driving for 24 hours if that officer ” has reasonable grounds to believe that a driver’s ability to drive a motor vehicle is affected by a drug, other than alcohol.” The same goes if the motorist is suspected of being drunk.
In order to get a roadside driving prohibition – which is not a criminal penalty – the officer must “request the driver to drive the motor vehicle, under the direction of the peace officer, to the nearest place off the travelled portion of the highway or industrial road” and then serve notice of the suspension.
But Evans got his notice a couple of hours later at the police station, not by the roadside.
In quashing that roadside prohibition in 2018, Justice Burke found there is no express or implied authority in the Motor Vehicle Act for police to issue a prohibition anywhere but the roadside.
“The section has been set up for safety reasons and is largely an administrative process to be dealt with roadside. The purpose is to provide a rapid response to someone who is driving while impaired,” she wrote.
On appeal, the crown province’s Attorney General ministry argued that although the section of the Motor Vehicle Act “is poorly written,” a strict interpretation would undermine its context and purpose.
The three appeal court judges agreed with the crown.
“There are many circumstances in which an impaired driver may be approached somewhere other than a highway or industrial road, but should nevertheless be served with a notice to protect public safety,” Justice Elizabeth Bennett wrote for the appeal court.
“For example, if an officer directs an impaired driver to drive their motor vehicle completely off of the highway because there is no safe place to stop on the highway, the officer should still be able to serve them with a notice. The same is true where an impaired driver flees and pulls into a private driveway, or where an impaired driver is taken to a hospital before the officer can complete the necessary paperwork.”
The case arose about 11:30 in the morning on July 12, 2017 after New Westminster police were called to an accident scene. Officers found Evans at the driver’s seat of a rental car. They did a field sobriety test and suspected he was impaired.
Evans told the officers he was a heroin user and they found a used needle, metal tin and a damp cotton ball in his pocket. He was detained and examined by a police drug recognition expert, and taken to the station.
It was shortly after 2 pm when Evans was served with a notice of driving prohibition for 24 hours, beginning at noon on July 12. He was released shortly after 2:30.
In addition to arguing the police can only yank his licence at the roadside, Evans also argued on appeal there were insufficient grounds for police to believe that his ability to drive was affected by a drug other than alcohol.
The appeal court disagreed.
“As a matter of common sense, when peace officers arrive on the scene of a collision and find an intoxicated individual with drug paraphernalia, including a still-moist cotton ball, in his pocket, they will be justified in concluding that they have reasonable grounds to believe that the individual is intoxicated by a drug other than alcohol,” Justice Bennett wrote.