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A Victoria Police officer prepares to administer an Approved Screening Device (breathalyzer) to the driver of a vehicle during a check stop on Yates St. in downtown Victoria (Chad Hipolito For The Globe and Mail)
A Victoria Police officer prepares to administer an Approved Screening Device (breathalyzer) to the driver of a vehicle during a check stop on Yates St. in downtown Victoria (Chad Hipolito For The Globe and Mail)

Appeal court upholds roadside penalties in B.C.’s impaired-driving law Add to ...

British Columbia’s roadside prohibition regime will continue as is, after the province’s highest court rejected the claim that its impaired-driving legislation supplants the Criminal Code.

The B.C. Court of Appeal decision prompted the province’s Justice Minister to say it reinforces the view that the tough new drinking-and-driving penalties were within the province’s scope – though the fact part of the law was earlier struck down as unconstitutional and had to be amended made the lead-up to Monday’s ruling uncertain.

“Through its pronouncements and legislation the provincial government has expressed concern about the death and injury to its citizens caused by drinking and driving, concluding that criminal sanctions are an insufficient and ineffective way to deter it,” said Justice Catherine Anne Ryan, writing for the three-judge appeal court panel.

“In my view, it is open to the legislature, under the auspices of its licensing power, to require drivers who have been found to be operating a motor vehicle with risky amounts of alcohol in their system to employ the interlock device, to enlist in remedial programs and to be subjected to driving prohibitions to encourage them and other drivers to understand the dangers of drinking and driving so as to reduce their risk to others and make the highways safer.”

The province introduced the new impaired-driving law – which includes automatic penalties such as driving bans, vehicle seizures, or fines for people who receive a “warn” or “fail” reading on roadside breath test or refuse to provide a breath sample – in 2010.

The B.C. Supreme Court, in 2011, found part of the law unconstitutional. It said the fact those who blew a fail did not have an adequate means of appeal amounted to a Charter violation.

The province amended the law the following year, so drivers could request a second test on a different roadside screening device.

Six motorists who had received 90-day driving prohibitions under the 2010 legislation were behind the appeal. The motorists, who had either blown a fail or refused to provide a sample, argued the law was beyond the province’s scope.

The appeal court disagreed.

“The legislation does not supplant the Criminal Code, its purpose and effect is to regulate highways and enhance public safety,” the ruling said.

Suzanne Anton, the province’s Justice Minister, wrote in a statement that the appeal court “confirmed that the purpose of the immediate roadside prohibition program is to enhance public safety and does not supplant the Criminal Code, which has been our government’s ongoing intention.”

Ms. Anton said the legislation does deter people from drinking and driving, citing a 52 per cent reduction in alcohol-related motor vehicle fatalities. She said that amounts to 190 lives.

Raji Mangat, counsel for the B.C. Civil Liberties Association, which intervened in the case, said outside court that her organization was disappointed in the decision.

“In our view, it’s unfortunate because we do see that there are very true penal consequences to this regime and it effectively does make for people to be presumed guilty until they can go to the Office of the Superintendent of Motor Vehicles and attempt to prove themselves innocent,” she said.

Ms. Mangat noted the province’s cross-appeal of the B.C. Supreme Court ruling that found part of the legislation unconstitutional was also dismissed, confirming the invalidity of part of the 2010 law.

Howard Mickelson, a lawyer who represented one of the motorists, said in an interview that the province has diverted impaired-driving cases into an administrative process at the expense of Charter rights, and without the full protections of the criminal justice system.

Mr. Mickelson said he would have to meet with his client and digest the ruling before deciding whether to seek leave to the Supreme Court of Canada.

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