Automatic roadside prohibitions place cost cutting above Charter rights, appeal says

B.C.'s controversial drunk-driving legislation is a novel unconstitutional attempt by provinces to use civil and administrative laws to regulate criminal behaviour and the Supreme Court of Canada has been asked to toss it.

In a written brief to the country's highest bench, Vancouver lawyers Howard Mickelson and Shea Coulson say the automatic roadside prohibitions (ARPs) place government cost cutting above the Charter of Rights and Freedoms.

"It is of immense public importance for the Supreme Court of Canada to consider whether the province has jurisdiction to enact the ARP regime as an unprecedented civil/criminal hybrid piece of legislation that practically impacts the Charter rights of thousands of Canadians," the application for leave to appeal says.

"If leave is granted the applicant will raise the following issue of public importance: how far can the Province go in drafting legislation designed to save money by circumventing the Criminal Code and the Charter?"

The lawyers are acting for Richard James Goodwin, who was given a 90-day roadside prohibition and had his car impounded for 30 days Jan. 9, 2011, shortly after the law came into effect.

The stiff penalty for failing to provide a breath sample was upheld May 25, 2012 by the B.C. Supreme Court and on March 3 by the B.C. Court of Appeal, which found the law constitutional.

But the Vancouver lawyers say the law violates the presumption of innocence and imposes sanctions that are so severe that police and Crown Counsel now prefer to use that process because it saves the government money.

They say impaired driving reports to Crown have declined 75 per cent and most drivers have been diverted out of the criminal courts and into an administrative system with a limited review mechanism that presumes guilt.

"Both courts failed to address the fact that a piece of legislation may be designed to create significant incentives for the police and Crown to prefer using a provincial law to the exclusion of a federal one," the application states.

"Unlike former legislation, the ARP regime represents a fundamental shift toward hybrid civil/criminal laws unlike anything that has come before."

The central feature of the legislation, dubbed the nation's "toughest impaired driving laws," according to the brief, is replacing the Criminal Code and Charter with immediate, police-imposed sanctions using "an unreliable hand-held device."

The ARP regime is part of a sea change in social and legislative context that represents the forefront of "a new frontier" by provinces to use civil and administrative law to regulate criminal behaviour, the brief says.

"The Province touts the ARP regime as saving lives," it adds.

"However, it fails to acknowledge that it is possible to draft tough, effective legislation to combat impaired driving that respects Charter rights and does not usurp the protections of the criminal law. The reality is that the Province can achieve its goal of reducing the harm and death caused by impaired driving while also respecting the fundamental rights of its citizens. What it prefers to do is cut corners and erode rights to effect a financial imperative."

The provincial government has not yet filed a response to the application defending its law.

However, in the lower courts, Victoria has defended the legislation as a response to highway safety and drunk-driving-related deaths, which have declined significantly since its introduction.

It argued, and the B.C. Court of Appeal agreed, that the law was within the province's jurisdiction as the law had different aims than the Criminal Code provisions and it did not impose "true penal consequences."

Source: The Vancouver Sun


Last updated on: 2014-05-08 | Link to this post