On November 30, 2011, Mr. Justice Sigurdson of the Supreme Court of British Columbia released the following decision on the constitutionality of BC's impaired driving legislation: Sivia v. British Columbia (Superintendent of Motor Vehicles), 2011 BCSC 1639.
The challenged legislation was enacted on September 20, 2010, through the Motor Vehicle Amendment Act, 2010, S.B.C. 2012, c. 14 (Bill 14). It amended the Motor Vehicle Act, R.S.B.C. 1996, c. 318 by introducing ss. 215.41 to 215.51, which the petitioners refered to as the “automatic roadside prohibition” regime (ARP regime). The Province refered to these provisions as authorizing an “immediate roadside prohibition” (IRP).
Earlier court challenge - 1999
In an earlier challenge to provincial drinking and driving legislation in Buhlers v. British Columbia (Superintendent of Motor Vehicles), 1999 BCCA 114, the Court of Appeal ruled that the provisions of the Motor Vehicle Act that imposed an administrative driving prohibition (ADP) of 90 days based on an officer’s reasonable and probable grounds to believe a driver had over 0.08 alcohol in his system were a valid exercise of provincial jurisdiction over roads and highways, and not a colourable attempt to intrude on the federal jurisdiction over criminal law.
The Court of Appeal also decided that the ADP regime did not infringe the liberty interest protected by s. 7 of the Charter, as the right to drive did not fall within the scope of that liberty. The trial judge in Buhlers dismissed additional challenges under ss. 8-11 of the Charter and those issues were not advanced on appeal.
Violation of the Charter
The petitioners in Sivia, however, contended that the ARP regime was essentially criminal law invalidly enacted by the Province, and that, unlike the ADP regime in Buhlers, the ARP regime created an “offence” with a process that violates the presumption of innocence and relies on an unreasonable search power.
Justice Sigurdson concluded that the ARP regime is validly enacted provincial legislation and is not properly characterized as criminal law. Because it does not cross the threshold of creating an “offence”, it does not violate s. 11(d) of the Charter. Although the legislation prima facie violates the s. 10(b) right to counsel at the roadside screening stage, it is saved by s. 1 as it is a limit which is demonstrably justified in a free and democratic society. Insofar as the regime operates with respect to motorists who allegedly blow between 0.05 and 0.08, the ARP regime does not infringe s. 8 of the Charter.
However, the ARP legislation infringes s. 8 of the Charter in the limited circumstance where, on the basis of a search of breath by an approved roadside screening device, a 90-day license suspension as well as significant penalties and costs are imposed on motorists who allegedly blow over 0.08, without those persons being able to meaningfully challenge the results of the search. The infringement is not saved under s. 1 of the Charter. The Province failed to demonstrate that it constitutes a reasonable limit on the s. 8 Charter right to be free from unreasonable search and seizure.
On December 23, 2011, Mr. Justice Sigurdson ruled that his declaration will be delayed until June 30, 2012, stating that an immediate declaration of invalidity of parts of the IRP may pose a danger to the public.
In response to the ruling, the government brought in the Motor Vehicle Amendment Act, 2012, S.B.C. 2012, c. 26 (Bill 46), which came into force on June 15, 2012.
The amendments it makes to 215.41 to 215.5 of the Motor Vehicle Act are designed to address the court’s concerns about providing failing drivers with a way to meaningfully challenge the roadside breath-test results.
Therefore, effective June 15, 2012, IRPs resumed as an alternative to the full Criminal Code process for drivers found in excess of the legal limit of .08 per cent blood-alcohol content at the roadside– the default approach for police since the court ruling from November 2011.
The petitioners in Sivia appealed the decision with respect to the division of powers and s. 11(d) of the Charter, and the province cross-appealed with respect to s. 8 of the Charter. The Court of Appeal upheld Justice Sigurdson's decision, in Sivia v. British Columbia (Superintendent of Motor Vehicles), 2014 BCCA 79.