The rationale for this argument against
has been put forth most eloquently by Judge Sigurdson of the Supreme
Court of British Columbia. Such a law grants police unreasonable powers
to issue roadside suspensions and vehicle impoundments which involve
fines and service charges adding up to a considerable amount. The
following comments are from the British Columbia's Civil Liberties
Association April 2013:
" However, as with all law-making, we need to be careful to strike the appropriate balance between the clear need to promote safety on the roads, and the legal requirement to respect people’s constitutional rights. The courts are currently considering the question: Should the Province’s law penalizing impaired driving come at the cost of losing our constitutional right to be presumed innocent until proven guilty? The BC Civil Liberties Association (“BCCLA”) says no.
In the BCCLA’s view, the impact of the law has true penal consequences for drivers and effectively creates a new provincial “crime” of drinking and driving. It does so without any of the protections that apply in the criminal law and that are guaranteed by the Charter, such as the presumption of innocence. On the contrary, the ARP presumes guilt. The only evidence is the roadside screening device, which is not nearly as reliable as a breathalyzer. The evidence from a roadside test is not seen as reliable enough for a conviction under the Criminal Code. Yet, it is the only evidence used in the ARP. Moreover, there is only a limited ability under the law to challenge that evidence.
The penalties are severe. The BCCLA has no objection to penalties for drinking and driving in general – but remember that these particular penalties are imposed without a conviction and without the normal fair procedures that accompany criminal penalties. Penalties include:
As noted above, we are opposed to drinking and driving and we think that law enforcement plays an important role in dealing with this problem that tragically cuts off lives and causes hardship and injury to many people. However, we think law enforcement should use the tools already at their disposal to combat the problem of impaired driving. Those tools include, in appropriate circumstances, criminal prosecution. We do not think that the government should be allowed to dress up a criminal offence in regulatory clothing and deny BC residents their constitutional right to due process for what is effectively being treated as a crime.
In 2011, Mr. Justice Sigurdson of the BC Supreme Court found that the ARP was unconstitutional only for people who blow a fail on the roadside device. Justice Sigurdson said that the law violated the Charter because there was no way for drivers to properly challenge the roadside breath test. In 2012, the government changed the law by requiring police officers to tell drivers that they can ask for a second test on a different roadside machine and that they can review the test through the Office of the Superintendent of Motor Vehicles. These changes still do not address the presumption of guilt underlying the law. The case was appealed to the BC Court of Appeal for a three-day hearing in March 2013. The BC Court of Appeal has not yet made a decision."
Clearly this is long overdue as an initiative which requires immediate rectification. As a right, license suspensions and extended vehicle impoundments must be taken out of the hands of police and relegated to the courts where these sanctions imposed as penalties for transgressions in contravention of the criminal code should have been all along. In a free society it is anathema to grant police the powers of detention, judge and jury. This never was intended to be their role.
" However, as with all law-making, we need to be careful to strike the appropriate balance between the clear need to promote safety on the roads, and the legal requirement to respect people’s constitutional rights. The courts are currently considering the question: Should the Province’s law penalizing impaired driving come at the cost of losing our constitutional right to be presumed innocent until proven guilty? The BC Civil Liberties Association (“BCCLA”) says no.
In the BCCLA’s view, the impact of the law has true penal consequences for drivers and effectively creates a new provincial “crime” of drinking and driving. It does so without any of the protections that apply in the criminal law and that are guaranteed by the Charter, such as the presumption of innocence. On the contrary, the ARP presumes guilt. The only evidence is the roadside screening device, which is not nearly as reliable as a breathalyzer. The evidence from a roadside test is not seen as reliable enough for a conviction under the Criminal Code. Yet, it is the only evidence used in the ARP. Moreover, there is only a limited ability under the law to challenge that evidence.
The penalties are severe. The BCCLA has no objection to penalties for drinking and driving in general – but remember that these particular penalties are imposed without a conviction and without the normal fair procedures that accompany criminal penalties. Penalties include:
- driving prohibitions for up to 90 days for a fail or refusing to provide a breath sample roadside;
- fines of up to $500 for a 90-day prohibition;
- paying for and attending a remedial driving program;
- impoundment of the vehicle;
- towing and storage costs and a fee to have the driver’s license reinstated; and
- paying for and installing the ignition interlock program.
As noted above, we are opposed to drinking and driving and we think that law enforcement plays an important role in dealing with this problem that tragically cuts off lives and causes hardship and injury to many people. However, we think law enforcement should use the tools already at their disposal to combat the problem of impaired driving. Those tools include, in appropriate circumstances, criminal prosecution. We do not think that the government should be allowed to dress up a criminal offence in regulatory clothing and deny BC residents their constitutional right to due process for what is effectively being treated as a crime.
In 2011, Mr. Justice Sigurdson of the BC Supreme Court found that the ARP was unconstitutional only for people who blow a fail on the roadside device. Justice Sigurdson said that the law violated the Charter because there was no way for drivers to properly challenge the roadside breath test. In 2012, the government changed the law by requiring police officers to tell drivers that they can ask for a second test on a different roadside machine and that they can review the test through the Office of the Superintendent of Motor Vehicles. These changes still do not address the presumption of guilt underlying the law. The case was appealed to the BC Court of Appeal for a three-day hearing in March 2013. The BC Court of Appeal has not yet made a decision."
Clearly this is long overdue as an initiative which requires immediate rectification. As a right, license suspensions and extended vehicle impoundments must be taken out of the hands of police and relegated to the courts where these sanctions imposed as penalties for transgressions in contravention of the criminal code should have been all along. In a free society it is anathema to grant police the powers of detention, judge and jury. This never was intended to be their role.
The question remains. Is there truly protection for the individual under section 11(d) of the charter? It is amazing what may be accomplished under section 1 of the Charter?
Though many people though this as violation of their freedom but if you ask me, this is done for well. I worked briefly with a DUI lawyer before moving to Canada and have seen it closely how a stupid drunk driver can put not only his but lives of so many people on road on stake.
ReplyDeletePlease reread the first lines on the quote by the BC Civil Liberties Assoc. I do appreciate the concern over the potential risk posed by a truly drunk driver on the roads. But just how far can you carry the imposition of sanctions. As in everything there is potential for error in issuing a charge. Believe it or not, some drivers have been charged with impaired driving and were subsequently proven innocent. The costs for them were substantial and no one offered to pay them back. This is why we have a charter of Rights and Freedoms. And it doesn't stop there. Another example is that , at present, there is considerable controversy over Bill C-51 and the lack of protections for potential abuse. Laws cannot be formulated in an atmosphere of emotion or moral relativism but must be formulated in an atmosphere of logic and morality where the principles of true democracy and concern for the rights of the individual not the agenda of any one special interest group or political party. It is true that a highway accident caused by a drunk driver can inspire feelings of loss and visions of unspeakable destruction which produce feelings of anger. But any law should never, I repeat, never be formulated based on this and I will protest against this any time it arises.
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