Alan D'Silva and Alexandra Urbanski were successful in obtaining leave to intervene on behalf of the Canadian insurers, through the Insurance Bureau of Canada, in the highly anticipated Supreme Court of Canada case of Goodwin, et al. v. British Columbia (Superintendent of Motor Vehicles), et al. dealing with the constitutionality of provincial roadside breathalyzer laws. The appeal will be heard on May 19, 2015.

Goodwin involves the legality of amendments to a British Columbia provincial law, which provide for a mandatory driving prohibition and fines when drivers register a "warn" or "fail" reading upon blowing (or refusing to blow) into an alcohol screening device. The issues before the Supreme Court of Canada will include whether the breathalyzer scheme falls within the legislative jurisdiction of the provincial government and whether the law offends certain sections of the Canadian Charter of Rights and Freedoms. The case is of national importance as it could have implications for provinces that have already instituted similar legislation, or are considering adopting comparable legislation aimed at keeping impaired drivers off the roads.

Case Summary:  Sivia v. British Columbia (Superintendent of Motor Vehicles), 2014 BCCA 79

This case arises 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" regime ("ARP").

The 2010 ARP regime provides for a mandatory driving prohibition when a motorist's ability to drive is affected by alcohol, as evidenced by an approved screening device ("ASD") that registers either a "warn" (0.05 or over) or "fail" (0.08 or over). A prohibition is also issued if a driver fails or refuses to comply with a demand made under the Criminal Code to provide a breath sample for analysis. Registering a "fail" on an ASD automatically leads to a 90-day driving prohibition (section 215.43(2)). Refusing to provide a breath sample also results in a 90-day driving prohibition (section 215.43(2)). Registering a "warn" leads to a 3-day suspension for a first prohibition, 7 days for a second prohibition, or 30 days for a subsequent prohibition (section 215.43(1)). All persons that are issued a notice of driving prohibition are also liable to pay a monetary penalty. Other possible costs are 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 also 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 British Columbia Supreme Court held that the ARP regime is within the legislative jurisdiction of the Province, as it concerns the licensing of drivers and the enhancement of highway traffic safety, and therefore, it 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 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 severity of the consequences of a failed test did not move the ARP regime into the federal sphere of criminal law. 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 a search that is unreasonable 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.