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Alexa Middelaer. Family photo.

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Provinces can crack down on drunk drivers, but they still need to ensure that those drivers have a chance to defend themselves against strong penalties, the Supreme Court of Canada ruled on Friday.

Several drivers had challenged British Columbia's law, the toughest in Canada, which authorizes police to suspend driver's licences for 90 days based on a roadside breath test and provides financial penalties and costs of about $4,000.

The drivers argued that the rules were a criminal law in disguise, and therefore outside the authority of the province. Under Canada's 1867 Constitution, the federal government is responsible for criminal law.

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The drivers also said the rules denied them the right to the presumption of innocence and other rights found in the nation's courtrooms.

B.C. has largely stopped using the Criminal Code to charge drivers with more than 80 milligrams of alcohol per 100 millilitres of blood (a blood-alcohol content over .08). Except for repeat offenders or cases where someone is hurt or killed, the province has been using a law it drafted in 2010 to deliver immediate consequences to drivers, and reduce policing and justice-system costs.

Civil-liberties groups had intervened in the case to argue that, in punishing wrongdoers outside courtrooms, the province was denying full rights to alleged offenders. On the other side, several provinces had lined up behind B.C. to argue for the provinces' right to take their own actions against drunk drivers. And B.C. says its law has saved 260 lives.

The Supreme Court was unanimous that provinces have a right to use their licensing powers to try to deter drunk drivers and keep safe roads. But it also said it was wrong that innocent people could be punished under B.C.'s rules, which rely on a roadside test not as trustworthy as a breath analysis used in criminal cases; the roadside test may mistake mouthwash for alcohol.

And the rules gave drivers no meaningful chance to prove their innocence – only a hearing before a government official (reviewable by the courts) at which the only questions were whether the individual was a driver and what the test had found. (The province changed some of those rules in 2012, after a lower-court judge rejected them; the Supreme Court looked only at the earlier rules.)

"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 … scheme," wrote Justice Andromache Karakatsanis, a former deputy attorney-general in Ontario.

Chief Justice Beverley McLachlin was the lone judge to dissent from this part of the decision, saying B.C.'s system was reasonable.

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All provinces have their own rules and penalties for drinking and driving, beyond those in the Criminal Code. B.C.'s rules established immediate licence suspensions of three, seven or 30 days, depending on whether it is a first or subsequent offence, for drivers in the "warn" range of a blood-alcohol content of .05 to .08. Above .08, the 90-day suspension applies.

Shea Coulson, a Vancouver lawyer who represented several drivers in the case, said in an interview that he expects other provinces to move closer to B.C.'s system. "You'll probably see that kind of toughness being rolled out in the other provinces now."

Others said the court cleared the way for provinces to try to save money and time by punishing more Criminal Code offences through their own administrative laws.

"The Supreme Court is tacitly allowing the B.C. government to cherry-pick which provisions of the Criminal Code it will or will not enforce," said Shannon Prithipaul, an Edmonton lawyer who represented Alberta's Criminal Trial Lawyers Association, which intervened in the case.

B.C. Attorney-General Suzanne Anton said in a statement that she is pleased that the court accepted most of her government's argument. She said the government's plan is to "continue to have one of the toughest drinking-driving laws in the country and to continue to protect public safety by getting these drivers off our roads."

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