In September 2010, British Columbia introduced some of the country’s strictest impaired driving laws. Some of the changes to the impaired driving laws included:
- Drivers who provide a failing breath sample above 0.08 per cent blood-alcohol content (BAC) or refuse to provide a breath sample at the roadside will face an immediate, 90-day driving ban and a $500 fine. As well, they will have their vehicle impounded for 30 days as part of the automatic roadside prohibition (ARP). Criminal charges may also be laid.
- Drivers caught once in the “warn” range (between 0.05 and 0.08 per cent BAC) in a five-year period will face an immediate, three-day driving ban and a $200 fine; a second time, a seven-day ban and a $300 fine; and a third time, a 30-day ban and a $400 fine. Research shows a BAC in that range means a driver is seven times more likely to be in a fatal crash than if they have no alcohol in their body.
- In addition, drivers who blow once in the “fail” range, or three times within five years in the “warn” range, will be required to participate in the rehabilitative Responsible Driver Program. They must also use an ignition interlock device, which tests a driver’s breath for alcohol every time they operate their vehicle, for one year.
Now, a B.C. judge has declared part of the impaired driving law as unconstitutional for turning police into a roadside judge, jury and executioner.
In a decision released on November 30, Justice Jon Sigurdson wrote: “The ARP [automatic roadside prohibition] legislation infringes section 8 of the Charter insofar as it concerns the prohibition, penalty and costs arising from the screening device registering a “fail” reading over 0.08,” he said. “This infringement is not a reasonable limit which is demonstrably justified in a free and democratic society.”
“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,” Justice Sigurdson continued. “This is particularly so considering the Province has legislated to base the consequences of a “fail” reading entirely on the results of the screening device.”
The challenge stemmed from a petition filed by Aman Preet Sivia, who was stopped less than two weeks after the new law came into effect last fall. Sivia was found to be in excess of the .05 blood alcohol restriction and was issued a roadside prohibition by police. Sivia applied to the Superintendent of Motor Vehicles for a review of the decision but was denied.
Justice Sigurdson said the province is using the roadside screenings as evidence to pile “onerous fees and suspensions” onto a Criminal Code charge before that charge is even laid. He suggested drivers are being penalized as if there were Criminal Code charges – but without the required charter safeguards.
Total fees from the fine, impoundment and programs are estimated at $4,000.
“The 90-day licence suspension as well as significant penalties and costs are imposed on motorists who allegedly blow over .08, without those persons being able to meaningfully challenge the results,” he said.
Justice Sigurdson’s full ruling can be read online.
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