Like many other Canadians, I am not terribly sympathetic towards people who drive while impaired, through alcohol, drugs (prescribed or illegal), while texting, or experiencing extreme fatigue. We have a set of laws under the federal Criminal Code of Canada, RSC 1985 c C-46, that address impaired driving. These include: operating a motor vehicle while impaired (section 253); driving while blood alcohol is over the legal limit (.08) (section 253(1)(b)); and failing to provide a breath sample (section 254(5)), among others.
The provinces also have a role in regulating impaired driving. The Constitution Act, 1867, provides that the provinces have jurisdiction over the administration of criminal justice. With respect to driving offences, provinces have the authority to suspend or revoke driver’s licences. Early constitutional cases dealt with situations where there was an apparent conflict between prohibitions under the criminal law and provincial suspensions.
In addition to the division of powers concerns about provincial impaired driving laws, since 1982, the Canadian Charter of Rights and Freedoms (“Charter”) has applied to all laws, whether provincial or federal. While licence suspensions have been in place for a long time, some provinces have decided to try to address their impaired driving issues with new and stricter provincial laws. For example, after learning that Prince Edward Island had more impaired driving incidents per capita than any other Atlantic province, officials recently proposed requiring convicted impaired drivers to use specially marked licence plates.
British Columbia and Alberta have introduced new measures that have attracted court challenges. In 2010, British Columbia enacted stricter impaired driving laws that provided for automatic 90-day licence suspensions of drivers who recorded over .08 on a roadside screening device, and a shorter suspension of 3, 7 or 30 days if the driver registered a “warn” on the device (between .05 and .08). In addition to the automatic suspension of 90 days from driving, drivers who registered over .08 were required to pay penalties and enroll in a responsible driver program, together with using an ignition interlock device for one year. Taken together, the cost of these penalties to the driver could amount to over $4,000.
In Sivia v British Columbia (Superintendent of Motor Vehicles) (2011), BCSC 1639 (CanLII) (“Sivia”), a number of drivers challenged the new provincial suspension provisions. They argued in this case that that the new regime is essentially criminal law and thus should be passed only by the federal government. They argued that the new legislation created an “offence” that violated the presumption of innocence and also relied on an unreasonable power of search and seizure.
The drivers argued against the new provincial impaired driving law because:
(a) in the case of drivers who are allegedly over .08 and first time offenders where there is no bodily injury or property damage, the new regime substitutes for the criminal law process, but does not provide protections that are available under the criminal process;
(b) the new regime imposes severe financial penalties that were not imposed under the previous system;
(c) the breath sample taken at the roadside is no longer simply for screening purposes to support the officer’s reasonable belief that a breath sample is needed; it is now the evidence upon which the driving prohibition is based;
(d) there is no longer a meaningful review process in place to challenge the prohibition based on the screening device, and the reviewer has almost no jurisdiction to review the automatic roadside prohibition; and
(e) the new regime differs from automatic suspension programs across Canada, particularly those in Alberta (2011) and Ontario where the suspension follows a failed test by an approved instrument at the police station, not by a roadside screening device.
The drivers argued that the new impaired driving law is outside the jurisdiction of the province as it is criminal law. The British Columbia Supreme Court (“BCSC”) held that while it is close to criminal law, it is legislation that relates to the licensing of drivers and the enhancement of traffic safety, and thus it is validly enacted provincial legislation.
The BCSC (Justice Sigurdson) held that the new regime did not offend Charter section 11(d) (“anyone charged with an offence has the right to be presumed innocent”) because it is not an offence and it does not impose true penal consequences.
Next, the BCSC held that although the new regime offended Charter section 10(b) (right to counsel at the roadside screening stage) it is saved by Charter section 1 as being a limit which is demonstrably justified in a free and democratic society.
Insofar as the regime operates with respect to motorists who blow between .05 and .08, Justice Sigurdson found that the regime did not infringe the Charter section 8 (“right to protection from unreasonable search and seizure”). However, when the motorist receives a 90-day suspension on the basis of blowing over .08 on a roadside screening device, and is unable to challenge the suspension and associated costs in a meaningful way, this infringes Charter section 8 and is not saved by Charter section 1.
In May 2012, the B.C. government amended its impaired driving law to allow people to challenge the roadside screening test and to appeal the immediate roadside prohibition.
In a further decision Justice Sigurdson suspended the declaration of invalidity until June 2012, in order to give the Province time to amend the law. In May 2012, the B.C. government amended its impaired driving law to allow people to challenge the roadside screening test and to appeal the immediate roadside prohibition. Police are required to inform drivers of their right to challenge the first roadside screening test by requesting a second test on a different machine. Accused drivers can also appeal and seek reviews through the office of the Superintendent of Motor Vehicles.
Alberta has followed a similar, although not identical, course. The Traffic Safety Act, RSA 2000 c T-6, was amended so that as of July 1, 2012, Alberta drivers with a blood alcohol content of over .08 will face an immediate, indefinite licence suspension, which will remain in effect at least until the criminal trial is complete. Repeat offenders will receive prolonged licence suspensions. A person who is found guilty of impaired driving (criminally) must also install a device in his/her car that tests the driver’s breath and prevents the car from starting if it detects the presence of alcohol. Drivers accused of impaired driving can appeal these penalties to the Alberta Transport Safety Board before the criminal trial. However, their licence will remain suspended during any appeal process.
A second set of provisions took effect on September 1, 2012. These apply to those whose roadside tests read between .05 and .08. These drivers will now receive a three-day licence suspension and a three-day vehicle seizure for the first offence, a 15-day suspension and a seven-day vehicle seizure for the second offence, plus a mandatory remedial course, and a 30-day suspension and seven-day vehicle seizure for third and subsequent offences, plus a mandatory review by the Alberta Transportation Safety Board (“ATSB”) and a remedial course. A roadside suspension can be appealed through the ATSB if it is issued for more than three days. Second, third and subsequent vehicle seizures can also be appealed.
Currently, there are Alberta drivers who are arguing that these provisions are unconstitutional in that the new provisions presume guilt and violate their rights by suspending their licences indefinitely. They assert that while other provinces do have similar laws, these all specify a fixed period of time for the licence suspension. The indefinite licence suspension means that more people will plead guilty right away so that they can get their licence back sooner. Also, drivers are receiving an immediate licence suspension before they have been found guilty. Transportation Minister Ric McIvor believes that Alberta’s law will not have the same problems as in British Columbia because two of the concerns with the B.C. law are addressed in Alberta; the lack of an appeal process and the inability to request a second roadside test. However, these safeguards will not necessarily stop the challenges.
At the bottom of this discussion is whether the legislative regime, which may force us to give up some of our Charter rights, is worth it. When the government provides direct and fair proof that it is saving lives, we may decide that the potentially significant violation of our liberties is justifiable. To date, I believe the evidence provided by the government is premature and incomplete, and thus we cannot draw that conclusion.