Tightening up technicalities
It all comes down to driving being a privilege, not a right.
Last month, the Supreme Court of Canada issued a ruling on British Columbia’s roadside breath testing legislation.
That appeal reinforced the position that provinces can require drivers, under their own highways legislation, to submit to a breath test. (The ruling also found that when provinces immediately suspend drivers’ privileges after a roadside test, they have to offer a reasonable process to appeal that decision.)
In the Atlantic region, all four provinces have legislation over and above the Criminal Code of Canada for drinking drivers.
The argument against that kind of legislation, as made by several B.C. parties, was that provinces were essentially short-circuiting their way around the Criminal Code, that drivers could be forced to give breath samples and be given immediate administrative penalties without Charter of Rights protections against illegal search and seizure.
The Supreme Court clearly disagreed.
According to the majority decision of the judges, “Provinces have an important role in ensuring highway safety, which includes regulating who is able to drive and removing dangerous drivers from the roads. Provincial drunk driving programs and the criminal law will often be interrelated. A provincial statute will not invade the federal power over criminal law merely because its purpose is to target conduct that is also captured by the Criminal Code. …
“There can be no doubt that the matter falls within the provincial power over property and civil rights in the province.”
You can read the full decision here: http://bit.ly/1k9TQLH.
Now, while the judges upheld the ability of provinces to get breath samples and hand out penalties, they did raise a particular concern that getting the samples is an infringement of Charter rights if drivers can’t meaningfully appeal the validity of the tests.
That’s understandable; their concern that roadside breathtesting devices can give a false reading (especially if a driver still has alcohol in his mouth from a recent drink) means the driver should have some re- course to counter the significant penalties involved. (The British Columbia law that was being challenged was amended to address that concern when it was originally raised in B.C. courts.)
But the fundamental question has been answered pretty clearly: provinces can legally bring in administrative standards and penalties to deal with impaired driving, and peace officers can demand breath samples as a matter of course, even if their suspicions about a person’s impairment don’t meet the standards necessary to take you to a police station for a formal breathalyzer test administered by a breathalyzer technician.
The judgment has gotten a lot of press, particularly in legal and insurance publications. You can understand why: the verdict substantially shrinks the ways drinking drivers can slip sideways out of responsibility for their actions.
That can make our roads safer, but it can do something else as well. Right now, our courts hear a surprisingly large proportion of cases where drivers are challenging impaired charges. If people who are caught drinking and driving have fewer technicalities to hang their hats on, well, maybe we can look forward to fewer of those hanging hats taking up valuable court resources.
Right now, our courts hear a surprisingly large proportion of cases where drivers are challenging impaired charges.