Judge strikes down part of B.C. drunk driving law

Vancouver— The Canadian Press  Published Wednesday, Nov. 30, 2011 2:21PM EST

The B.C. Supreme Court says the high costs and lengthy roadside suspensions imposed on some drivers who fail a blood-alcohol test are unconstitutional. Justice Jon Sigurdson found British Columbia's new laws aimed at cracking down on drunk driving go too far by allowing an automatic 90-day driving suspension when someone blows over .08 on a breathalyzer test.The law also allows for penalties that could cost the suspended driver over $4,000 and Sigurdson says those are significant without any opportunity for a driver to appeal. He says the province could have easily provided a way for drivers to challenge the results of the screening device. However, Judge Sigurdson upheld provisions of the law that allow for suspension of up to 30 days for anyone that blows between .05 and .08.
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J.       SUMMARY OF DECISION

[382]     My decision is as follows:

(a)            The ARP legislation is not ultra vires the Province on a division of powers basis.  The impugned legislation is within the Province’s jurisdiction to legislate with respect to the licensing of drivers and the enhancement of highway traffic safety.

(b)            The ARP legislation does not create an “offence” as that term is used in section 11(d) of the Charter.  Therefore, the legislation does not trigger the application of s. 11(d) of the Charter and it is not necessary to address whether the ARP regime violates the presumption of innocence.

(c)            The ARP legislation infringes s. 10(b) of the Charter but the infringement is saved by s. 1 as it is a reasonable limit, prescribed by law and demonstrably justified in a free and democratic society.

(d)            The ARP legislation infringes s. 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.  This infringement is not a reasonable limit which is demonstrably justified in a free and democratic society.

(e)            The ARP legislation does not infringe s. 8 of the Charter insofar as it concerns the prohibition, penalty and cost consequences arising from the screening device registering a reading in the “warn” range of between 0.05 and 0.08.