Judge quashes driving bans issued after law ruled unconstitutional

Louise Dickson / Times Colonist
August 27, 2014 10:14 PM

Drunk driving roadblock generic

Police look for drunk drivers at a roadblock.   Photograph By DARREN STONE, Times Colonist

 

The Superintendent of Motor Vehicles had no authority after June 2012 to confirm driving prohibitions against drivers who were given roadside prohibitions after the law had been ruled unconstitutional, the B.C. Supreme Court says.

The Aug. 22 judgment by Justice Peter Voith could affect a few thousand drivers who were given roadside prohibitions in November and December 2011, estimated the lawyer, from Jeremy Carr & Associates, on Wednesday.

In December 2011, Justice Jon Sigurdson ruled that the law concerning automatic roadside prohibitions for those who blew over .08 on a screening device was unconstitutional. Sigurdson gave the government six months to fix the legislation, delaying his declaration until June 30, 2012.

At a judicial review in B.C. Supreme Court held July 3-4, 2014, the Lawyer argued on behalf of five drivers who received roadside prohibitions in November and December 2011. All five applied for an internal review and were given review dates, which were adjourned several times by the superintendent.

“These drivers were essentially in limbo,” the lawyer said. “The superintendent knew the law was about to become unconstitutional at the time these people received these prohibitions. But he kept adjourning, adjourning and adjourning their reviews. And then, only after the law was long gone, did he decide to confirm the driving prohibitions.”

The lawyer argued that because the law no longer existed, the superintendent had no jurisdiction.

Voith agreed. He declared that after June 30, 2012, the superintendent had no authority to confirm the driving prohibitions. He made an order setting aside the decision of the adjudicators at the Office of the Superintendent of Motor Vehicles confirming the roadside prohibitions, monetary penalties and vehicle impoundment.

He also made an order quashing the petitioners’ immediate roadside prohibitions, monetary penalties, vehicle impoundments and referrals to remedial programs. The Superintendent of Motor Vehicles was ordered to pay costs to the petitioners.

On Wednesday, the lawyer said the decision shows how inappropriate it was for the superintendent to continue to work under and rely on legislation that had been struck down as unconstitutional.

Court heard that about 1,600 roadside prohibitions are served on people each month, the lawyer said.

It’s not clear how drivers who paid the penalties will be affected, she said.

“But in our opinion, every driver should be entitled to reimbursement,” she said, adding: “Some people just want it off their driving record.”

ldickson@timescolonist.com


© Copyright Times Colonist

- See more at: http://www.timescolonist.com/news/local/judge-quashes-driving-bans-issued-after-law-ruled-unconstitutional-1.1332050#sthash.h8UQpEqk.dpuf

Judge quashes driving bans issued after law ruled unconstitutional - See more at: http://www.timescolonist.com/news/local/judge-quashes-driving-bans-issued-after-law-ruled-unconstitutional-1.1332050#sthash.h8UQpEqk.dpuf

Judge quashes driving bans issued after law ruled unconstitutional

Louise Dickson / Times Colonist

- See more at: http://www.timescolonist.com/news/local/judge-quashes-driving-bans-issued-after-law-ruled-unconstitutional-1.1332050#sthash.h8UQpEqk.dpuf

Judge quashes driving bans issued after law ruled unconstitutional

Louise Dickson / Times Colonist
August 27, 2014 10:14 PM

Police look for drunk drivers at a roadblock.   Photograph By DARREN STONE, Times Colonist

The Superintendent of Motor Vehicles had no authority after June 2012 to confirm driving prohibitions against drivers who were given roadside prohibitions after the law had been ruled unconstitutional, the B.C. Supreme Court says.

The Aug. 22 judgment by Justice Peter Voith could affect a few thousand drivers who were given roadside prohibitions in November and December 2011, estimated the lawyer, from Jeremy Carr & Associates, on Wednesday.

In December 2011, Justice Jon Sigurdson ruled that the law concerning automatic roadside prohibitions for those who blew over .08 on a screening device was unconstitutional. Sigurdson gave the government six months to fix the legislation, delaying his declaration until June 30, 2012.

At a judicial review in B.C. Supreme Court held July 3-4, 2014, Roudette argued on behalf of five drivers who received roadside prohibitions in November and December 2011. All five applied for an internal review and were given review dates, which were adjourned several times by the superintendent.

“These drivers were essentially in limbo,” Roudette said. “The superintendent knew the law was about to become unconstitutional at the time these people received these prohibitions. But he kept adjourning, adjourning and adjourning their reviews. And then, only after the law was long gone, did he decide to confirm the driving prohibitions.”

Roudette argued that because the law no longer existed, the superintendent had no jurisdiction.

Voith agreed. He declared that after June 30, 2012, the superintendent had no authority to confirm the driving prohibitions. He made an order setting aside the decision of the adjudicators at the Office of the Superintendent of Motor Vehicles confirming the roadside prohibitions, monetary penalties and vehicle impoundment.

He also made an order quashing the petitioners’ immediate roadside prohibitions, monetary penalties, vehicle impoundments and referrals to remedial programs. The Superintendent of Motor Vehicles was ordered to pay costs to the petitioners.

On Wednesday, Roudette said the decision shows how inappropriate it was for the superintendent to continue to work under and rely on legislation that had been struck down as unconstitutional.

Court heard that about 1,600 roadside prohibitions are served on people each month, Roudette said.

It’s not clear how drivers who paid the penalties will be affected, she said.

“But in our opinion, every driver should be entitled to reimbursement,” she said, adding: “Some people just want it off their driving record.”

ldickson@timescolonist.com


© Copyright Times Colonist

- See more at: http://www.timescolonist.com/news/local/judge-quashes-driving-bans-issued-after-law-ruled-unconstitutional-1.1332050#sthash.h8UQpEqk.dpuf

Judge quashes driving bans issued after law ruled unconstitutional

Louise Dickson / Times Colonist
August 27, 2014 10:14 PM

Police look for drunk drivers at a roadblock.   Photograph By DARREN STONE, Times Colonist

The Superintendent of Motor Vehicles had no authority after June 2012 to confirm driving prohibitions against drivers who were given roadside prohibitions after the law had been ruled unconstitutional, the B.C. Supreme Court says.

The Aug. 22 judgment by Justice Peter Voith could affect a few thousand drivers who were given roadside prohibitions in November and December 2011, estimated the lawyer, from Jeremy Carr & Associates, on Wednesday.

In December 2011, Justice Jon Sigurdson ruled that the law concerning automatic roadside prohibitions for those who blew over .08 on a screening device was unconstitutional. Sigurdson gave the government six months to fix the legislation, delaying his declaration until June 30, 2012.

At a judicial review in B.C. Supreme Court held July 3-4, 2014, Roudette argued on behalf of five drivers who received roadside prohibitions in November and December 2011. All five applied for an internal review and were given review dates, which were adjourned several times by the superintendent.

“These drivers were essentially in limbo,” Roudette said. “The superintendent knew the law was about to become unconstitutional at the time these people received these prohibitions. But he kept adjourning, adjourning and adjourning their reviews. And then, only after the law was long gone, did he decide to confirm the driving prohibitions.”

Roudette argued that because the law no longer existed, the superintendent had no jurisdiction.

Voith agreed. He declared that after June 30, 2012, the superintendent had no authority to confirm the driving prohibitions. He made an order setting aside the decision of the adjudicators at the Office of the Superintendent of Motor Vehicles confirming the roadside prohibitions, monetary penalties and vehicle impoundment.

He also made an order quashing the petitioners’ immediate roadside prohibitions, monetary penalties, vehicle impoundments and referrals to remedial programs. The Superintendent of Motor Vehicles was ordered to pay costs to the petitioners.

On Wednesday, Roudette said the decision shows how inappropriate it was for the superintendent to continue to work under and rely on legislation that had been struck down as unconstitutional.

Court heard that about 1,600 roadside prohibitions are served on people each month, Roudette said.

It’s not clear how drivers who paid the penalties will be affected, she said.

“But in our opinion, every driver should be entitled to reimbursement,” she said, adding: “Some people just want it off their driving record.”

ldickson@timescolonist.com


© Copyright Times Colonist

- See more at: http://www.timescolonist.com/news/local/judge-quashes-driving-bans-issued-after-law-ruled-unconstitutional-1.1332050#sthash.h8UQpEqk.dpuf

 

 

 

UPDATE 

 

February 9, 2014

Constitutional Challenge of the Immediate Roadside Prohibition Legislation

 

    1. Original Legislation (in force from 20 September 2010 to 15 June 2012)

       

      B.C. Supreme Court

       

      On 30 November 2011, the IRP legislation was held by the B.C. Supreme Court to be in violation of the constitutional right to be secure from unreasonable search and seizure as guaranteed under section 8 of the Charter insofar as it concerns the prohibition, penalty and costs arising from the screening device registering a “fail” reading over 0.08. 

       

      The IRP legislation was then declared unconstitutional and was struck down.

       

      B.C. Court of Appeal

       

      The government appealed the B.C. Supreme Court decision to the B.C. Court of Appeal, which is the highest court in the province. We argued that the B.C. Supreme Court was correct in its finding that the IRP legislation was unconstitutional. 

       

      The B.C. Court of Appeal released their decision on 3 March 2014.  The Court held that they agree with the B.C. Supreme Court decision that the IRP legislation was unconstitutional. 

       

      Therefore, the highest court in the province agrees that the original IRP legislation is unconstitutional

       

      We also argued some broader constitutional issues that, if successful, would have resulted in a finding that both the original and amended IRP legislation was unconstitutional.  These arguments had to do with the province having unlawfully legislated in the criminal field, which is only the federal government’s jurisdiction.  Also, the B.C. Civil Liberties Association helped us out and argued that the IRP legislation violates section 11(d) of the Charter – the right to be presumed innocent.  

       

      Neither of these arguments was successful, however, because the B.C. Court of Appeal agreed that the B.C. Supreme Court was correct about the section 8 Charter violations, the original IRP legislation remains unconstitutional.

       

      For further information about the recent B.C. Court of Appeal decision, we suggest you read the following news article, written by Ian Mulgrew, and published in the Vancouver Sun:

       

      B.C. appeal court dismisses challenge to tough drunk driving laws

       

       

      By Ian Mulgrew, Vancouver SunMarch 3, 2014

       

       

      http://www.vancouversun.com/cms/binary/9510973.jpg

       

      File photo of Mounties operating a CounterAttack Roadblock in Langley. A B.C. Supreme Court judge has dismissed a constitutional challenge to the province’s tough drinking and driving laws.

      Photograph by: PNG, 00017189A 00017189A

      VANCOUVER - The B.C. government's controversial 2010 anti-drunk driving scheme with its Immediate Roadside suspensions was originally unconstitutional, the province's highest court agreed Monday.

      But the unanimous decision by the Court of Appeal means the status quo continues because the province amended the law in 2012 and the new version remains to be tested.

      "The court dismissed the appeals and cross-appeals, which means the several decisions that were subject of the judgment stand," lawyer Jeremy Carr said.

      "Nothing has changed, until we have challenged the new law."

      The appellate bench said the B.C. Supreme Court got it right, and it added that the sections governing motorists who refuse to provide a breath sample were constitutional.

      With the support of fellow recent retiree from the appeal bench, Justice Christopher Hinkson and now-former colleague Anne MacKenzie, Justice Catherine Anne Ryan also said the legislation did not infringe on federal jurisdiction.

      (Justice Hinkson now is Chief Justice of the B.C. Supreme Court.)

      The law does not supplant the Criminal Code; its purpose and effect is to regulate highways and enhance public safety, Justice Ryan concluded.

      Though hailed by Victoria as "Canada's toughest impaired driving laws," the legislation did not create a criminal or quasi-criminal proceeding nor lead to true penal consequences, she explained in the 66-page decision.

      Still, she agreed the law was initially faulty, as the lower court judge said, for authorizing an illegal search when a "fail" reading occurred because of the restricted appeal mechanisms.

      That constitutional violation was not saved by section one of the Charter of Rights and Freedoms, Ryan concurred, as a reasonable transgression by government for the better good.

      The decision was complicated because there were several cases before the court that had different dispositions, but in the end none of those was disturbed.

      "The (2010) legislation does not provide a meaningful review of the results of the test on which the sanctions are based," Justice Ryan said, quoting Supreme Court Justice Jon Sigurdson's reasoning.

      "I agree with the Chambers judge and would add nothing to his analysis."

      Under the law, a driver who blows a "warn" or a "fail" on a roadside screening device faces severe automatic penalties.

      Those penalties — which include a driving ban, seizure of the vehicle, fines and fees that can total thousands of dollars — also apply if a driver does not blow.

      In 2011, this handful of drivers who had either blown a "fail" or who had not given a breath sample challenged the law for various reasons.

      Sigurdson found that the law as passed was unconstitutional only as it applied to drivers who blew a "fail," and the government amended those provisions.

      Now, police must tell drivers they can have a second test on a different device. They must also tell motorists that they can ask for a review.

      "We still don't think they have gone far enough," Carr said, so further legal wrangling over this law is in the offing.

      Lawyer Howard Mickelsen, who represented another driver in the case, noted, however, that this decision concerned constitutional challenges that were common to both versions of the law.

      "The overarching arguments that the law old or amended was a supplanting of the criminal law and a removal of charter rights for a process that was simply more efficient for the government but carried with it all of the deterrents of the criminal law," Mickelsen said, "they're common to both sets of legislation and that's why that appeal continued in light of the amendment. Likewise the question of whether or not the presumption of innocence under section 11 of the charter was engaged, which is common to both the old and the new legislation. We lost on those issues."

      He didn't know whether there might be an appeal to the Supreme Court of Canada because it would take time for his client and others involved to digest the decision.

      An homage to drunk-driving casualty, four-year-old Alexa Middelaer, who was killed in 2008, Justice Minister Suzanne Anton says the law has reduced road carnage — saving 190 lives in the last three years, a reduction of 52 per cent, to 54 fatalities annually from 112.

      "The B.C. Court of Appeal has confirmed that the purpose of the Immediate Roadside Prohibition program is to enhance public safety and does not supplant the criminal code, which has been our government's ongoing intention," she said.

      "B.C.'s Immediate Roadside Prohibition Program remains in place and continues to remove drinking drivers from the road."

      Lawyer Kyla Lee responded by noting that the high bench said the effect of the law had no impact on its constitutionality.

      "The fact that the law is working great doesn't save it if it is unconstitutional," she said.

      (The decision is available on the court website www.courts.gov.bc.ca/jbd-txt/CA/14/00/2014BCCA0079.htm)

      imulgrew@vancouversun.com

      © Copyright (c) The Vancouver Sun


       

       

      Our next step will be to go back to the B.C. Court of Appeal to apply for compensation for our clients who were served IRPs under the original unconstitutional legislation.

      Supreme Court of Canada

       

      We are also currently seeking instructions to appeal the B.C. Court of Appeal’s decision that the province did not legislate in the criminal field.  We hope to proceed with our appeal to the Supreme Court of Canada, which is our nation’s highest court.

       

      Amended Legislation (in force from 15 June 2012 to present)

       

      B.C. Supreme Court

       

      We are also currently preparing submissions to challenge the constitutionality of the amended legislation.  It is our position that the post 15 June 2012 amendments to the IRP legislation do not withstand Charter scrutiny.  We will be arguing that the amended legislation violates the constitutional right to be secure from unreasonable search and seizure as guaranteed under section 8 of the Charter, and that the legislation also violates the right to counsel as guaranteed by section 10 of the Charter.  We are currently in the process of fixing a date for this challenge.

       

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