The B.C. Supreme Court struck a good balance in tossing part of the province’s new drinking-driving laws.
Justice Jon Sigurdson upheld the provisions that penalize people who blow between .05 and .08.
But he ruled that the use of the same approach to levy much tougher penalties for those who blow over .08 — the Criminal Code definition of impairment — is unconstitutional because it violates the Charter of Rights protection against “unreasonable search and seizure.”
The difference is the severity of the penalties. Sigurdson found that the Charter violation was tolerable in the case of the lesser penalties, given the importance of reducing impaired driving.
But the sanctions for blowing over .08 on a roadside screening device are much harsher. People have a right to a reasonable, independent appeal process when they face severe penalties, Sigurdson ruled, and the government has failed to provide one.
The fear that police officers effectively become judge and jury, without an adequate appeal process is well-founded.
It’s not a surprising ruling. The government’s aim — besides reducing impaired driving — was to save money by shifting impaired driving cases out of the courts.
Instead of laying a criminal charge, opening the door to a not guilty plea and trial, the government wanted to come up with similar penalties that could be imposed cheaply. Impaired cases make up about one-third of the caseload in provincial courts, in part because tougher penalties have given drivers a greater incentive to fight the charges.
The changes worked. The deaths linked to impaired driving fell 40 per cent in the year since the change was introduced, and the number of impaired driving charges fell by almost 75 per cent.
But the change, Sigurdson ruled, also violated British Columbians’ rights.
The courts have ruled that when a police officer has a “reasonable suspicion” a driver is impaired he could require a roadside breath test. But the test was simply an indicator that the driver should submit to a proper breathalyzer exam.
If he failed that, criminal charges could be laid. The driver would then have a chance to challenge the charge in court, cross-examine the officer and introduce evidence in his defence.
The provincial regulations skip all those steps. There is an appeal process, but it involves a strictly limited written appeal or hearing before a motor vehicle branch employee. Police don’t have to disclose evidence and there are no questions allowed.
Sigurdson found the province’s penalties for blowing over .08 were significant enough to require better safeguards to prevent innocent people from being wongly punished.
Drivers lose their licences for 90 days and face a $500 fine and the $880 cost of a remedial course. They are required to install ignition interlock devices once their licences are returned, which requires them to provide a clean breath sample before the car will start. Those cost more than $1,500. All in the total cost is more than $4,000, and some people, of course, lose their jobs. (Those who blow between .05 and .08 face a three-day suspension for a first offence, rising to seven days for a second infraction and 30 days for subsequent offences. They face fines of $200 to $400 and a $250 fee to have the licence reinstated. Repeat offenders also must take a course on drinking and driving, which costs $880, and have their cars impounded.)
The government has already been warned about problems with the regime. Earlier this year, a Supreme Court decision noted the appeal process was “fundamentally at odds with basic concepts of fairness and impartiality.”
There are easy fixes, at least going forward. The government can bring in a proper appeal process that respects Charter rights, or it can reduce the penalties.
It’s important to deter impaired driving. But it’s also important to respect basic principles — like innocence until proven guilty, and the right to a fair hearing before serious punishments are imposed.
Footnote: In the first 12 months, police imposed about 25,000 roadside suspensions. About 15,000 involved the more serious penalties for failing the roadside test or refusing to blow. It’s unclear whether drivers will challenge those penalties as a result of the ruling.