The public will be in danger if a B.C. Supreme Court judge doesn’t suspend a ruling that struck down the province’s drunk driving law, a government lawyer said.
George Copley told Mr. Justice Jon Sigurdson on Monday that the regulation that allowed automatic roadside suspensions has saved dozens of lives and more than halved injuries since it was implemented over a year ago.
He asked the court to suspend the declaration that the law is unconstitutional until June next year, giving the legislature the opportunity to create legislation in response to the ruling.
“There is a danger to the public if this legislation is not kept in force,” Mr. Copley said. “The public interest requires that there be an effective drunk-driving law.”
Earlier this month, Judge Sigurdson ruled that a portion of B.C.’s year-old laws to crack down on drunk driving violated Charter protections against unreasonable search and seizure.
Judge Sigurdson concluded that drivers who blew over .08 in a roadside screening test were subjected to having their vehicles impounded and forced to pay up to several thousand dollars in fines without recourse to a meaningful appeal process.
Mr. Copley also warned of “financial chaos” for the provincial government if the judge ruled that it had to pay back the thousands caught up in the scheme.
The government has said that more than 15,400 people either failed or refused a roadside test.
Each of those drivers paid about $4,000 in penalties, fees and other costs, which, Mr. Copley said, could add up to about $50-million.
“It’s pretty close to other cases where the courts have suspended the invalid law and allowed the legislature to act. There is fiscal chaos in this case,” he said.
When Judge Sigurdson asked what would happen if he did suspend the ruling, Mr. Copley replied that the drunk-driving regime would continue as it had before it was ruled unconstitutional.
If the judge doesn’t suspend his declaration, Mr. Copley said, he can rule that those who paid the fines and penalties don’t need to be reimbursed.
“Ordinarily, when a provision is struck down, that’s the end of the matter, there’s no retroactivity.”
And he added that anyone caught up in the law should have to apply to the Supervisor of Motor Vehicles to have their record expunged, instead of letting the court rule on the matter.
Lawyers representing the drivers have asked the court to order the government to refund the fines and penalties and wipe the drivers’ records of roadside suspensions clean.
Lawyer Howard Mickelson told Judge Sigurdson that because the law is unconstitutional, everything that flows from it needs to be declared invalid.
“The law was invalid from the outset and those caught up have a right to redress,” he told court.
Mr. Mickelson said the request by the Superintendent of Motor Vehicles to leave penalties and fines in place is “absurd,” saying all the punishments resulted from the bad law.
All those drivers should have their records cleared and the fines repaid. That shouldn’t only apply to those drivers who have signalled an intention to sue for remedy, he said.
“I believe all of them should enjoy the benefit of the declaration of invalidity and the same relief.”
Mr. Mickelson said the decision must be read to be retroactive to 2010 when the automatic roadside suspensions were launched.
Jeremy Carr, a lawyer for other people caught by the police roadside suspensions, told Judge Sigurdson that he has another 60 clients whose legal cases have been put on hold while the judge makes his decision.
While Judge Sigurdson struck down the law for those who blow over .08 as unconstitutional, he upheld most of the law, including new punishments for those who blow over .05.
B.C. Attorney-General Shirley Bond has said that for now, the government will require police to return to the previous system of having drivers who blow over .08 at the roadside escorted to a police station. There, they will be asked to blow into a more precise breath analysis machine, could be charged criminally and must be offered legal representation.
Ms. Bond has also said the government will take another look at the law to determine whether there is another way for drunk driving cases to be diverted from the courts without violating the rights of those accused.
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