Open bottles of alcohol found in a motorist's car sit on the vehicle as RCMP Cnst. Kim True conducts a breathalyzer test on the driver during a roadside check in Surrey, B.C., just before midnight on Friday September 24, 2010.DARRYL DYCK
The B.C. government's tough new drunk driving law is facing a setback after a court ruled that drivers who fail sobriety tests must have an opportunity to appeal the immediate roadside penalties.
On Wednesday, the B.C. Supreme Court ruled that part of B.C.'s year-old drunk-driving law violates Charter rights by depriving people accused of impaired driving of the right to appeal sanctions that can range from immediately losing their licence and the vehicle, to being required to install a device that prevents drunk drivers from starting a car's ignition.
"In my view, because of the significant prohibition, penalty and cost implications of a 'fail' reading, the province could easily have provided in the legislation a reasonable and meaningful review process where a driver subject to a lengthy automatic roadside prohibition could challenge the results of the screening device," Mr. Justice Jon Sigurdson wrote.
Until Wednesday, police were charging fewer people with drunk driving because they could use the roadside penalties instead.
Now, B.C. Solicitor-General Shirley Bond said any driver blowing over .08 will face the penalties that existed before the 2010 drunk driving law was enacted – typically a 24-hour driving suspension and the possibility of charges under the Criminal Code.
But drivers who blow in the "warn" range of 0.05 to 0.08 can still immediately lose their licence and their vehicle for up to 30 days and be required to install an ignition interlock device – the court accepted the penalties in that range as a reasonable infringement on Charter rights.
Ms. Bond said the roadside penalties for those who fail a screening test have only been suspended until she can amend the law to address the ruling. She expects to bring changes forward in the spring legislative session.
"We have the ability, with relative speed, to make an adjustment that will put the entire regime back in place very soon," she said. In the meantime, she added: "There will still be a significant regime in place that provides serious consequences if you choose to drink and drive in this province."
She said she will need more time to assess whether the ruling will affect the more than 15,000 drivers who were served immediate roadside suspensions after failing a breathalyzer test since B.C.'s Motor Vehicle Act came into effect on Sept. 20, 2010. "Our view is this is forward-looking," she said.
Judge Sigurdson delivered his judgment the same day Ms. Bond helped launch the annual CounterAttack program, which increases roadside checks throughout the month of December in a bid to discourage drunk driving.
Just last week, the provincial government staged a major news event to pronounce its new drunk driving law a success, saying the tougher provisions saved 45 lives in the first year compared with the five-year average. It's the first real drop in deaths associated with impaired driving in a decade, Ms. Bond said at the time.
But the court challenge, backed by pub owners who say the new law has hurt their trade, argued that the immediate roadside suspensions violated Charter rights.
"I recognize the pressing nature and importance of removing impaired drivers from the highway," Judge Sigurdson wrote. But he said the province must create an avenue of appeal for those who fail a breathalyzer test. Under the 2010 law, drivers who blow over .08 could lose their licence for 90 days, have their vehicle impounded for 30 days and be required to install an ignition interlock for a year. As well, penalties could add up to $4,060.
The judgment was cheered by the Alberta government, which is enacting similar legislation for impaired drivers in the 0.05 to 0.08 range, modeled largely after B.C.'s program. But Alberta stuck to criminal charges as the main consequence for drivers above 0.08.
"We're quite satisfied that it really has no impact on what we're doing. In fact, I think it reinforces what we've been doing," Alberta Justice Minister Verlyn Olson said.
With a report from Josh Wingrove in Edmonton
Justine Hunter