Media Advisory: Supreme Court of Canada rules BC’s drinking and driving law unconstitutional in some cases

October 16, 2015
For immediate release

Ottawa – Today, the Supreme Court of Canada released its decision in Goodwin, et al. v. British Columbia (Superintendent of Motor Vehicles). The Court ruled that changes to B.C.’s drinking and driving law do not violate the presumption of innocence protected by section 11 of the Canadian Charter of Rights and Freedoms, but do violate the right to be free from unreasonable search and seizure for drivers who blow a “fail” on a roadside screening device.

In 2010, the government changed B.C.’s drinking and driving law. Under the new law, a driver who blows a “warn” or a “fail” on the roadside screening device faces automatic penalties. Penalties will also apply if a driver does not give a breath sample. The penalties include a driving ban, seizure of the vehicle, fines, and fees to have the driver’s license returned, to tow the car and for storage.

Drivers who had either blown a “fail” or who had not given a breath sample challenged the law in 2011. The BC Supreme Court found that the law was unconstitutional only as it applied to drivers who blew a “fail.” The Court said that the law violated the Charter because there was no way for drivers to properly challenge the roadside breath test.

In May 2012, the government changed the law again. Now, police must tell drivers that they can ask for a second test on a different machine. The police must also tell drivers that they can ask for a review of the test through the Office of the Superintendent of Motor Vehicles.

The BCCLA intervened in this case to argue that the drinking and driving law has a penal impact on drivers and engages the presumption of innocence protected by s. 11 of the Charter. We argued that where the purpose of sanctions is punitive and aimed at redressing a wrong done to society at large, the protections of s. 11 of the Charter apply. Here, the BCCLA argued that the sanctions clearly include aspects aimed at punishment rather than mere compliance with traffic regulations, including a 90 day license suspension and significant fines and fees. The regime stigmatizes offenders and promotes specific deterrence of future conduct, as well as punishment of past conduct.

The Supreme Court disagreed, finding the regime to be administrative rather than criminal, and the consequences not to be true penal consequences. The Court upheld the BC Supreme Court’s decision that the regime is unconstitutional insofar as it applies to people who blow a “fail”. Given the serious consequences of registering a “fail” and the inability of drivers to challenge the basis on which those consequences are imposed, the Court found a violation of the right to be free from unreasonable search and seizure.

The BCCLA is represented by Claire Hunter and Eileen Patel of Hunter Litigation Chambers.

The BCCLA’s argument in this case is available here.

The SCC’s decision in this case is available here.