Tight­en­ing up tech­ni­cal­i­ties

The Compass - - EDITORIAL - Rus­sell Wanger­sky Rus­sell Wanger­sky is TC Me­dia’s At­lantic re­gional colum­nist. He can be reached at rus­sell.wanger­sky@tc.tc Twit­ter @Wanger­sky

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.

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