The Supreme Court released its decision on October 16, 2015 in the case of Goodwin v. British Columbia (Superintendent of Motor Vehicles) dealing with the constitutionality of British Columbia's provincial roadside breathalyzer laws and related penalties and suspensions. One of the central issues in this case was whether or not mandatory driving prohibitions and fines, imposed by a province for drivers who fail or register a "warn" on roadside breathalyzer tests, are beyond the legislative jurisdiction of the provincial government under traditional division of powers constitutional arguments. The appellants argued that the regulatory scheme in question amounted to criminal law and therefore fell outside the Province's legislative authority. Whereas the Province of British Columbia asserted that the breathalyzer/suspension regime was a valid exercise of the Province's jurisdiction to legislate in the area of property and civil rights under the Constitution Act, 1867. Recognizing that the devastating consequences of impaired driving "reverberate through Canadian society", along with the important role provincial roadside breathalyzer laws play in enhancing highway safety, the Supreme Court of Canada affirmed the constitutionality of such laws.
This case arose from the September 2010 amendments to British Columbia's Motor Vehicle Act, R.S.B.C. 1996, c.318 ("MVA"). The amendments introduced sections 215.41 to 215.51, referenced to as the "automatic roadside prohibition" ("ARP") regime. The ARP regime marked a continuation of British Columbia's longstanding efforts to remove impaired drivers from the Province's roads.
The 2010 ARP regime provided for a mandatory driving prohibition when a motorist's ability to drive was affected by alcohol, as evidenced by an approved screening device ("ASD") that registered either a "warn" (0.05 or over) or "fail" (0.08 or over). A prohibition was also issued if a driver failed or refused to comply with a demand made under the Criminal Code to provide a breath sample for analysis. Registering a "fail" on an ASD automatically led to a 90-day driving prohibition (section 215.43(2)). Refusing to provide a breath sample also resulted in a 90-day driving prohibition (section 215.43(2)). Registering a "warn" led to a three-day suspension for a first prohibition, seven days for a second prohibition, or 30 days for a subsequent prohibition (section 215.43(1)). All persons who were issued a notice of driving prohibition were also liable to pay a monetary penalty. Other possible costs included the need to attend a remedial program, impoundment, towing and storage fees, license reinstatement fees and the use and installation of an ignition interlock device.
Six motorists, who had received 90-day roadside driving prohibitions under sections 215.41 to 215.51 of the MVA, challenged the constitutionality of the ARP regime on two separate and distinct grounds. Firstly, they challenged the provisions on the basis that the amendments constitute criminal law and are beyond the legislative jurisdiction of the provincial government under traditional division of powers constitutional arguments. Secondly, the motorists argued that the ARP regime violated the motorists' rights under the following sections of the Charter: section 8 (prohibits unreasonable search and seizure); section 10 (right to counsel upon arrest or detention); and section 11 (presumption of innocence for persons charged with an "offence").
The Decision of the British Columbia Supreme Court
The British Columbia Supreme Court held that the ARP regime falls within the legislative jurisdiction of the Province and does not represent an intrusion into the federal power over criminal law. The Chambers Judge dismissed the Charter challenges based on sections 10(b), 11(d) and 8 with the exception of penalties resulting from a "fail" reading, which were held to violate section 8 and were not saved by section 1 of the Charter. The motorists appealed the finding of the Chambers Judge with respect to the division of powers and subsection 11(d) of the Charter, while the Province cross-appealed with respect to section 8.
The Decision of the British Columbia Court of Appeal
The British Columbia Court of Appeal upheld the Chambers Judge's decision and dismissed the appeals and the cross-appeal. The Court of Appeal held that the purpose and effect of the ARP regime was to regulate the highways and to enhance public safety and it was open to the Province, under the auspices of its licensing power, to require drivers with risky levels of alcohol to be subjected to driving prohibitions to make roads safer. The Court of Appeal held that the legislation does not create a criminal or quasi-criminal proceeding, nor does it lead to true penal consequences, and therefore, does not create an "offence" within the meaning of subsection 11(d) of the Charter. In respect of the cross-appeal, the Court of Appeal held the ARP regime authorizes an unreasonable search when a "fail" reading is obtained due to the limited grounds available to challenge the results of the search, and that this violation of section 8 is not saved by section 1 of the Charter.
The Supreme Court of Canada agreed it would hear the appeal of Mr. Goodwin and three other motorists who had been subject to the 90-day road-side prohibition under the ARP regime. The main issues before the Court were whether the ARP regime falls within the legislative competence of the Province and whether the provincial regime offends section 8 and 11 of theCharter.
The Decision of the Supreme Court of Canada
The Supreme Court of Canada unanimously affirmed that, from a division of powers standpoint, the ARP regime is valid provincial legislation. The Court rejected the arguments of Mr. Goodwin that the purpose of the scheme is punitive and that the practical effects of the ARP regime are to "oust the criminal law."
Agreeing with the courts below, the Supreme Court held that the purpose in enacting the ARP regime was "not to oust the criminal law, but rather to prevent death and serious injury on public roads by removing drunk drivers and deterring impaired driving." Despite Mr. Goodwin's arguments that such statements "conceal the scheme's true purpose of removing drivers' procedural rights", the Court held that both the legislative history and statutory scheme support the conclusion that the ARP regime was enacted to enhance highway safety, and therefore, falls within the Province's proper legislative powers. The Court further held that the imposition of significant financial penalties and the loss of important privileges do not necessarily make legislation punitive or criminal in nature. While the ARP regime targets specific wrongful activity and imposes serious consequences, the Court emphasized that these consequences ultimately relate to the regulation of driving privileges and that the Chambers Judge was correct in characterizing the pith and substance of the ARP regime as "the licensing of drivers, the enhancement of highway traffic safety, and the deterrence of persons from driving on highways when their ability is impaired by alcohol."
The Court also unanimously agreed with the courts below that the protections of section 11 of the Charter are not engaged in this case. The Court held that, while a 90-day suspension is a meaningful consequence for a licensing violation, and that the various possible costs and penalties are significant, they are not sufficient to engage the fair-trial rights embodied by section 11.
With respect to the issue of whether or not the ARP regime offends section 8 of the Charter, the Court held that the demand to breathe into an ASD constitutes a seizure that infringes on an individual's reasonable expectation of privacy and engages the protection of section 8 of theCharter. The Majority of the Court agreed with the courts below that the serious consequences of a driver registering a "fail", combined with an inability to challenge the basis on which these consequences were imposed, render the ARP regime unreasonable. In brief dissenting reasons, McLachlin C.J. disagreed, stating that the search and seizure is reasonable. The Chief Justice emphasized that the review provisions of the ARP regime in this case offer reasonable protection against the abusive exercise of the state power to intrude on the individual's private sphere, having regard to the nature of the regime and the privacy interests at stake.
The ARP regime as enacted in 2010 depended entirely on the results of the roadside breathalyzer devices. The Majority of the Supreme Court reaffirmed the lower courts' rulings that the regime provided no meaningful opportunity to challenge a licence suspension issued under this regime on the basis that the result is unreliable, and therefore, infringes section 8 of the Charter. Amendments to the ARP regime were made in 2012 to address parts of the regime that were said to offend section 8 of the Charter, including but not limited to, providing a right to a second ASD test, and expanding the Superintendent's powers of review to include, among other thing things, whether or not a person was advised of their right to a second ADS test, and whether the result of the ADS analysis was reliable. In its ruling, the Supreme Court only addressed the 2010 ARP regime prior to any amendments; therefore, its decision only affects those cases that took place prior to the 2012 amendments set out above.
The decision of the Supreme Court recognizes the various social costs associated with impaired driving in Canada. As stated in the opening paragraph of its decision: "The devastating consequences of impaired driving reverberate throughout Canadian society. Impaired driving renders roads unsafe, destroys lives, and imposes costs throughout the health care system." For provinces that have been strengthening their laws on impaired driving and attempting to respond to the pressing dangers and social costs of impaired driving, the decision should provide a welcome affirmation that their ability to enact such laws is not hindered.