Focus On

Top court warns fairness a must in roadside driving suspensions

Thursday, October 29, 2015 @ 8:00 PM | By Cristin Schmitz

The Supreme Court has affirmed that provinces can move their main efforts to combat impaired driving away from costly court proceedings to automatic roadside driving suspension regimes which do not engage the Charter’s s. 11 fair trial guarantees applicable to criminal charges.

But the high court, in Goodwin v. British Columbia (Superintendent of Motor Vehicles) [2015] S.C.J. No. 46, indicated the provinces must be fair in any “administrative prohibition” schemes ahead, which are expected to encompass distracted driving and possibly other types of anti-social behaviour traditionally addressed by criminal prosecution.

Justice Andromache Karakatsanis’s 6-1 ruling Oct. 16 affirmed the conclusion of B.C. courts below that the lack of a meaningful review mechanism to enable challenges to the accuracy of the results of roadside alcohol screening devices (ASD) in the 2010 version of British Columbia’s Motor Vehicle Act violated the Charter’s s. 8 guarantee against unreasonable search and seizure.

The provincial law applied from Sept. 2010 to June 2012, when it was amended in response to the B.C. courts’ judgment. It authorizes police to mete out automatic roadside driving prohibitions (ARP) when drivers registered a “warn” or “fail” upon blowing (or refusing to blow) into a roadside ASD.

The Supreme Court affirmed that the 2010 law was constitutionally infirm in that the results of the ASD are sometimes wrong, yet drivers were not permitted to attack its reliability on subsequent review by the Superintendent of Motor Vehicles.

“While s. 8 is not primarily concerned with issues of procedural fairness and safeguards, the restrictive review of the basis and consequences of the breath demand was a central feature of the ARP scheme, particularly given the concerns about the reliability of the ASD, the lack of an intermediate step between the ASD analysis and the roadside suspension, and the immediacy of the penalties that ensue,” Justice Karakatsanis said. “A driver’s ability to challenge the accuracy of the ASD result is thus critical to the reasonableness of the ARP scheme.”

Four drivers launched the multi-pronged test case. They argued that provinces cannot use their constitutional powers over property and civil rights to create “Charter-free” administrative prohibition regimes with automatic penalties and restricted reviews. B.C. told the court that pre-ARP, 30 per cent of provincial court hours were devoted to such cases, “an ineffective and inefficient use of police and court resources.”

The top court rejected the drivers’ arguments that the provincial scheme impermissibly intrudes on the federal criminal law power, and creates an “offence” triggering the Charter’s s. 11(d) rights to be presumed innocent and obtain a fair trial.

However, the judges accepted the drivers’ contention that the roadside demand to breathe into an ASD amounts to a “seizure” that infringes a person’s reasonable expectation of privacy and engages the protection of s. 8 of the Charter.

Shea Coulson of Vancouver’s Gudmundseth Mickelson said the decision expands the scope of the s. 8 guarantee against unreasonable search and seizure.

“For the first time, we have a clear statement from the Supreme Court of Canada that s. 8 can be used to review not only the lawfulness of a search, not only the manner in which a search happens, but in some cases also the consequences of the search,” said Coulson, a lawyer for the drivers. “In some cases where it is not possible to properly challenge the consequences of a search, s. 8 can actually provide rights.

“They clearly recognized that innocent people could be captured by this regime and so they found a way of dealing with that under s. 8.”

While recognizing the cost and efficiency reasons for moving toward administrative decision-making in some areas of criminal activity, the judges are also “clearly signaling that s. 8, in the administrative context, actually provides procedural fairness rights in certain circumstances,” Coulson added.

Coulson’s co-counsel Howard Mickelson said the aim of the division of power and s. 11 constitutional arguments was to stop provinces creating hybrid regimes to supplant the criminal law and oust Charter protection for cost reasons.

“The bottom line seems to be that as long as the provincial regime, which essentially is designed to become the go-to regime targeting specific criminal activity, still essentially maintains the criminal law in place as an option to the officer, it will survive division-of-powers scrutiny,” Mickelson said. “It’s hard to imagine now a provincial regime that will target another area of criminal activity not surviving a challenge.”

The province did not comment on the decision.

“What I think is important here is that the court has said, even in a context where there may be a diminished expectation of privacy — a context where you’re not looking at your criminal law interests [being] engaged — you nonetheless have to have a meaningful mechanism to review the lawfulness of a seizure,” said Michael Lacy of Toronto’s Greenspan Partners, co-counsel for the intervener Criminal Lawyers’ Association of Ontario. Ultimately the issue involves protecting citizens from arbitrary state action even when its aim is laudable, such as curbing drinking and driving, he added.

Lawyer Claire Hunter said her client, the intervener B.C. Civil Liberties Association, hopes the provincial government will see the decision as limited to the particular legislative scheme.

“It would be a serious concern to BCCLA if governments in response to this decision were to look for other areas where expenses in enforcing criminal laws may be curtailed by imposing administrative regimes at the expense of Charter rights,” said Hunter, of Vancouver’s Hunter Litigation Chambers. “[Expense] alone should not be permitted to justify an erosion of those rights.”

Under the ARP regime, a “fail” reading (blood alcohol concentration of more than 80 milligrams of alcohol in 100 millilitres of blood) or a driver’s refusal or failure to provide a sample each result in a 90-day license suspension and penalties of over $4,000. A “warn” reading (a concentration of 50 to 80 mg) results in a shorter suspension of between three and 30 days. In addition, the vehicles of those subjected to a 30-day or 90-day suspension are impounded.

Thousands of drivers caught by the constitutionally defective law are expected to try to recover the penalties they paid.

The constitutionally defective review process for ARP limited the Superintendent of Motor Vehicles to considering whether the applicant seeking review was a “driver,” and whether the screening device registered a “fail,” “warn,” or the driver refused to provide a sample. “The absence of meaningful review of the accuracy of the result of the seizure, in light of the unreliability of the test, raises concerns about the reasonableness of the ARP scheme,” Justice Karakatsanis wrote. “Absent such review, a driver could find herself facing serious administrative sanctions without the precondition for the sanctions being met, and without any mechanism for redress.”

The infringement could not be upheld under s. 1 of the Charter as reasonable and demonstrably justified, Justice Karakatsanis held. Later amendments to the ARP scheme which enhanced the scope for review “demonstrate that there are less impairing measures that can feasibly be put into place without undermining the province’s objective,” Justice Karakatsanis said.

In rejecting the division-of-powers challenge, she said there was “no doubt” the provincial scheme does not impermissibly intrude on the federal criminal law power.

“The pith and substance of the ARP scheme is the licensing of drivers, the enhancement of traffic safety and the deterrence of persons from driving while impaired by alcohol,” Justice Karakatsanis held. “Provinces have an important role in ensuring highway safety, which includes regulating who is able to drive and removing dangerous drivers from the roads.”