This case raises significant issues about due process and limitations on the Province’s ability to legislate penal or criminal law-like sanctions in addressing regulatory or administrative concerns. It is a constitutional challenge to the “Automatic Roadside Prohibition” (ARP) regime in BC’s Motor Vehicle Act. The petitioners each received 90-day automatic roadside prohibitions after either allegedly registering a “fail” on a roadside screening device (RSD), or refusing to provide a breath sample. They challenged the validity of the ARP regime on the basis that: (1) it constitutes criminal law and is ultra vires provincial jurisdiction; and (2) it violates their rights under ss. 8, 10(b) and 11(d) of the Charter.
The chambers judge found that the ARP was within the jurisdiction of the province, and dismissed nearly all of the petitioners’ Charter challenges. The ARP was found unconstitutional only in respect to individuals who blow over 0.08 on the RSD resulting in a “fail”. The chambers judge held that those individuals’ rights under section 8 of the Charter were violated as they were unable to meaningfully challenge the results of the search. Section 8 protects individuals from unreasonable search and seizure.
The law was amended in 2012 to allow people to make a limited challenge to the evidence from the results of the RSD. The decision of the chambers judge was appealed to the BC Court of Appeal. The case was heard by the BC Court of Appeal over three days in March 2013.
The BCCLA was an intervener in this case. As an intervener, the BCCLA was given permission by the Court to make arguments about a limited aspect of the law. The BCCLA argued that the ARP violates the constitutionally-protected presumption of innocence. In the BCCLA’s view, the law has true penal consequences for drivers and effectively creates a new provincial “crime” of impaired driving. It does so without the protections that apply in the criminal law and are guaranteed by the Canadian Charter of Rights and Freedoms.
On March 3, 2014, the Court of Appeal released its judgment in the appeal, upholding the decision of the chambers judge. The BC Court of Appeal decided that the ARP regime is within the jurisdiction of the province to create. The Court of Appeal also found that the law does not create an “offence” and therefore certain rights under the Charter do not apply, such as the right to be presumed innocent until proven guilty. The Court affirmed the chambers judge’s ruling that the original law (as enacted in 2010) violated search and seizure laws under the Charter.
The BC Court of Appeal judgment can be found here
The decision was appealed to the Supreme Court of Canada. The BCCLA intervened to argue that where the purpose of sanctions is punitive and aimed at redressing a wrong done to society at large, the protections of s. 11 apply. In our submission, the bundle of sanctions clearly includes aspects aimed at punishment rather than mere compliance with traffic regulations. 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.