Immediate Roadside Prohibitions

The constitutional challenge saga

Immediate Roadside Prohibitions

On September 20, 2010, to address drinking and driving, the provincial government brought into force sections 215.41-215.51 of the Motor Vehicle Act. These sections created an additional regulatory process now referred to as the immediate roadside prohibition or IRP scheme. Unlike the “administrative driving prohibition” scheme (sections 94.1-94.6), the IRP scheme authorizes officers to serve 90-day driving prohibitions, which take effect immediately, on drivers who register a “fail” on an Approved Screening Device (ASD), meaning their blood alcohol content is more than .08, or on drivers who refuse to provide a breath sample. Drivers must also pay a monetary penalty and their vehicle is impounded for 30 days. Drivers can also be required to take a remedial course and install an interlock device on their vehicle. Also, unlike the “administrative driving prohibition” scheme, the IRP scheme applies to drivers who register “warns” on an ASD, meaning their blood alcohol content is between .05 and .08. These drivers are subject to increasing penalties beginning with an immediate 3-day driving prohibition.

Similar to the “administrative driving prohibition” scheme, the IRP scheme establishes an administrative review process that allows prohibited drivers to apply to the Superintendent of Motor Vehicles to have an IRP revoked on limited grounds.

Immediately, drivers receiving IRPs challenged the constitutionality of the IRP scheme on division of powers and Charter grounds. Drivers argued the IRP scheme was in pith and substance criminal law, and that it infringed section 8 of the Charter [unreasonable search and seizure], section 10(b) [right to counsel], and section 11(d) [presumption of innocence when charged with an offence].

Only the section 8 Charter challenge was successful and only for drivers who blew “fails”: Sivia, 2011 BCSC 1639; Sivia, 2014 BCCA 79; Goodwin, 2015 SCC 46 (the “warn” provisions and the section 10(b) Charter challenge were not argued on appeal). In finding a section 8 Charter breach, the courts considered the regulatory purpose of the seizure of breath, its criminal-like features, its consequences, its reliability, and the scope and availability of a review.

Portions of the scheme were declared invalid but since the courts found the declaration operated prospectively, drivers were not entitled to any other remedy: Sivia, 2012 BCSC 1030; Jaswal, 2016 BCCA 245 (applications seeking leave to appeal were filed in August 2016).

Following the declaration of invalidity, in June 2012, the provincial government amended the legislation. The amendments expanded the grounds of review, which now include the reliability of the ASD result, and require officers to inform drivers of their right to a second ASD test, issue the prohibition on the basis of the lower result, swear a Report to Superintendent and provide the Superintendent with ASD calibration information.

New constitutional challenges followed shortly after these amendments came into force. In Bro, 2014 BCSC 1682, Justice Macaulay determined that with its amendments, the IRP scheme did not contravene section 8 of the Charter or, if it did, was saved by section 1.

The petitioners from Bro filed appeals but, after the decision in Goodwin was released, did not pursue them. However, in August 2016, the petitioner in Gregory (2016 BCSC 1192), who also advanced section 8 and 10(b) Charter arguments, filed a Notice of Appeal.

Additionally, new constitutional challenges have sprung from further amendments to the IRP scheme that give the Superintendent the power to obtain “technical materials” to assist him in determining a review and that clarify the burden of proof at the review is on the applicant. And so, the saga continues…