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Appealing your DUI IRP to Supreme Court?
December 9th, 2011 by gosal on

Law in a State of Flux for DUI Appeals in BC:  How it Affects You
Getting your License Back, and Filing a Review by a Supreme Court Judge in your case.

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There is a lot of hype and noise out there about what the law is, what it isn’t, what the remedies are, and what they are not.  Here are some salient sections of the Sivia v British Columbia (Office of Superintendent of Motor Vehicles) Decision. See our previous blog, for a summary of the decision.

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This Charter argument that protects Unreasonable Search and Seizure position has been taken consistently by D. Gosal Law Corporation.  Justice Sigurdson, of the BC Supreme Court, in Sivia v. BC (Supt. Of MV) 2011 BCSC 1639 agrees.
He has held, inter alia:

[16]         However, I find 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.  I also find that the infringement is not saved under s. 1 of the Charter.  The Province has failed to demonstrate that it constitutes a reasonable limit on the right to be free from unreasonable search and seizure.

And also, in particular reference to the Section 8 Argument, the court held a violation that was NOT saved by Section 1 of the Charter.

306]     Having reviewed the relevant aspects of the ARP regime which authorizes the search and seizure of breath, the issue is whether the petitioners have demonstrated a breach of s. 8 of the Charter.

[307]     As is apparent from my review of the ARP legislation, there are two distinct branches of the ARP regime which impose driving prohibitions and cost consequences to drivers, they are: driving prohibitions and associated penalties and costs for drivers in the “fail” range, and; driving prohibitions and associated penalties and costs for drivers in the “warn” range.  The prohibitions for drivers in the “fail” range are more substantial, being 90 days and related penalties and costs totalling upward of $4000.  The prohibitions, penalties and costs for drivers in the “warn” range are less substantial.  The prohibitions are much shorter at 3, 7, and 30 days (depending on the number of occurrences) and the cost implications are lower.

[308]     I will deal with each branch of the ARP regime in turn.

[309]     The pressing government objective and the social utility of removing impaired drivers promptly from the road are important with respect to prohibitions, penalties and costs in both categories.

[310]     In assessing whether the law that authorizes a search in a regulatory regime is reasonable for the purposes of s. 8 of the Charter I have considered the various factors discussed above which include two crucial factors: first, that the search by the screening device is part of a regulatory scheme focused on extremely important government objectives, and second, that drivers subject to the search under the ARP regime have a diminished expectation of privacy in their breath.

[311]     I intend to discuss the “fail” and the “warn” categories separately because I have reached separate conclusions about them.

[312]     With respect to the “fail” (over 0.08) branch of the regime, there are particular considerations that I think are significant in the s. 8 analysis.  It is fair to say that this part of the ARP regime approaches the realm of criminal law in terms of the impact on the driver and the nature of the regime.  The search power that is central to the regime is derived from a power given to the police under the Criminal Code as part of a criminal investigation, the suspensions that are imposed are lengthy and the costs that follow automatically from a prohibition are significant.

[313]     Under the criminal law a driver has a number of protections to ensure only properly compelled evidence can support a conviction, however under this provincial regime, the same protections do not exist.  The search under the ARP regime in this case results in consequences similar to those arising out of a criminal investigation, but provides a far less meaningful basis upon which to challenge the legitimacy of those consequences.   I conclude that this is a significant issue in terms of the reasonableness of the law.

[314]     Although the consequences to the driver are particularly significant in the event of a reading in the “fail” range, the driver does not have the opportunity, even after the prohibition comes into force, to challenge whether he or she was in fact over 0.08 or whether there were problems with the ASD that may have lead to an inaccurate reading.  The societal interest underlying the objective of removing impaired drivers from the roadway has been accomplished by the immediate prohibition, but the ARP legislation nevertheless provides an extremely limited review, particularly on the important question of whether the driver was in fact over 0.08 at the time the prohibition was issued.  The prohibition and significant consequences are based on a search of the driver but the driver has extremely limited grounds to challenge the accuracy of the results of the search.

[315]     A reasonable review regime in a regulatory setting such as this is a relevant consideration in balancing the state interest against the interest of individual motorists.

[316]     The balancing of an individual’s privacy interests and the state interest in the safety of highways involves consideration of all of the factors that I have set out.  In summary, I have considered: the minimal intrusiveness of the search; the lower expectation of privacy in a compelled breath sample at roadside; the fact that driving is a highly regulated activity and a privilege; and that I have found the objective of the legislation, to remove impaired drivers from the highway, to be a very compelling state purpose.

[317]     I have also considered, under the “fail” aspect of the regime: the closeness of the ARP regime to criminal law; the impact on the driver through the severity of the penalties and costs and the length of the prohibition; the fact that the search is based on suspicion rather than reasonable belief; and the extremely limited basis for the driver to challenge the prohibition.

[318]     As I have described earlier, I have concluded that s. 8 of the Charter applies to the ARP legislation.  Upon a consideration of all the factors I have discussed in connection with the prohibitions arising from the “fail” aspect of the ARP regime, I find that the ARP regime infringes s. 8 of the Charter, as it has been demonstrated to be an unreasonable law.

[319]     A key reason for my conclusion is the fact that while the consequences from the search are substantial and approach criminal law sanctions, there is no way under the impugned law for the driver to challenge the validity of the results.  As evidenced by the review process already in place under the ADP regime, it is possible to allow for a more meaningful review to be put in place without in any material way affecting the government’s objective of removing impaired drivers promptly and effectively from the road.  In my view, it is not reasonable to preclude a driver a more meaningful review of the grounds for a lengthy suspension, penalty and costs in the “fail” (over 0.08) part of the ARP regime.

[320]     This deficiency is not corrected by the administrative challenges available to the petitioners on judicial review because those challenges will not be able to address the concerns about the validity of the search results.

[321]     I recognize the pressing nature and importance of removing impaired drivers from the highway.  However, that government objective can be fully and efficiently realized while respecting the rights of the individual driver as well.  The ARP regime that imposes prohibitions for drivers who “fail” at the roadside does not appropriately balance the rights of individuals and society at large.  Relying on a search power derived from the criminal law that allows for a breath demand on suspicion but does not meaningfully allow the driver to challenge the suspension after the fact is not, in the entire context, reasonable.  I therefore find that there is an infringement of s. 8.

[322]     Let me turn to the branch of the ARP regime that deals with prohibitions, penalties and costs when the driver has a reading in the “warn” range upon a search by an ASD.  The question again is whether the law that authorizes the search with respect to the “warn” aspects of the ARP regime is reasonable with respect to s. 8 of the Charter or whether it infringes s. 8.

[323]     In considering and balancing all of the factors that I have described, I reach a different conclusion than I have reached with respect to the “fail” provisions of the ARP regime.

[324]     The petitioners have not established that the branch of the ARP regime dealing with ASD readings in the “warn” range is unreasonable.

[325]     To analyze this, I have considered the ARP regime in the “warn” range as if it were a stand-alone and separate legislative regime.

[326]     The government objective of removing impaired drivers from the road is a significant factor that applies to this aspect of the ARP regime as well as all aspects of the regime.

[327]     In connection with suspensions arising from the screening device registering in the “warn” range, the penalties for a driver are lighter and the suspensions are far shorter; starting at 3 and 7 days and increasing only as much as 30 days in the case of repeat offenders.  In the Summary of Consequences and Costs published by the Ministry of Public Safety and Solicitor General, the administrative consequences in the “warn range’ are described as starting with a 3 day suspension and costs totalling $600 made up of towing costs, the administrative penalty and the licence reinstatement fee.  Accordingly, with respect to prohibition length and associated costs, the ARP regime, in the case of a “warn” reading, does not approach criminal law in anywhere near the same manner as in the case of a “fail” reading.  Moreover, it is also significant that the area of concern for prohibitions in the “warn” range (between 0.05 and 0.08) is not in an area typically the subject of criminal law; that is, suspensions for driving over 0.08.

[328]     While recognizing the weakness of the statutory review process as it applies to the “warn” branch of the ARP, after considering and balancing all of the factors, I am not persuaded that the ARP law that authorizes a search resulting in consequences for persons who blow in the “warn” range is unreasonable.  Put another way, I am satisfied that in the case of prohibitions and related penalties and costs that are imposed on a driver in the “warn” range, the pressing government objective justifies the intrusion into personal privacy.

[329]     In connection with this part of the ARP regime, the petitioners have not established an infringement of s. 8 of the Charter. Accordingly, had the ARP regime been restricted to the consequences associated with a driver registering a “warn” on the ASD, I would not have found an infringement of s. 8 of the Charter.

[330]     Nevertheless, and to the extent that I have described above, I find that the petitioners have established a breach of s. 8.  I will discuss below whether the infringement is saved by s. 1.

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