A tentative hearing date of May 19, 2015 has been set for the Supreme Court of Canada to hear the case of Goodwin et al. vs. British Columbia (Superintendent of Motor Vehicles).
This high profile case will decide whether the BC Supreme Court and the BC Court of Appeal got it right when they ruled that it was indeed constitutional for the BC Government to pass Motor Vehicle Act legislation that permits police to regulate impaired driving not through the traditional criminal law process but, rather, through an administrative process that effectively grants police the power to immediately issue 90 day driving prohibitions to drivers who fail a roadside breath screening test (“IRP”). Any challenge to the sanctions are not broght before a judge, but must be made to an adjudicator delegated by the Office of the Superintendent of Motor Vehicles
In the lower court cases, the consitutional challenges made by drivers focussed on four areas:
(a) The British Columbia legislation is unconstitutional because the IRP regime is actually criminal law. Under the “division of powers” as set out in the Constitution, only the federal government can pass laws that are designed to curb criminal behaviour. In essence, the argument is that the IRP regime is civil rights law (which is within the jurisdiction of the Provinces); it is not criminal law (which is within the jurisdiction of only the federal government).
(b) The IRP regime violates Section 8 of the Charter of Rights and Freedoms, which prohibits unreasonable search and seizure. In the criminal law context, a search and seizure can only legally occur if the police have reasonable and probable grounds. Under the IRP regime, police need have only a reasonable suspicion that the driver has “some alcohol in their body”.
(c) The IRP regime violates Section 11 of the Charter of Rights and Freedoms, which guarantees that individules will be presumed innocent until proven guilty beyond a reasoble doubt by an independent and impartial tribunal.
(d) The IRP regime violates Section 10 of the Charter of rights and Freedoms which guarantees that everyone whom is arrested or detained be provided with their right to obtain legal advice from counsel.
As litigating lawyer Howard Mickelson QC points out, the Goodwin case is about more than impaired driving. It is about the extent to which provincial legislation can impinge upon the criminal law powers of Parliament. It is about the extent to which provincial legislation can trench upon a driver’s Charter rights in order to create improved efficiencies for the administration of justice, including cost savings for police, Crown counsel and the courts. The supreme Court of Canada will be asked whether the provinces can replace the federal criminal law with civil, administrative regimes that target wrongful behaviour.
We believe that this case is hugely important for all Candians. Provinces across the land are increasingly creating legislation that deals with criminal behaviour. The BC Civil Forfeiture Act certainly comes to mind as another regime which impinges on the federal criminal law power. Under Civil Forfeture provisions, the Government of BC can seize “offence related property”, even where the owner of that property has not been charged with a Criminal Code or Controlled Drug and Substances Act offence, or even where they have been charged, tried and found not guilty. The reasons provinces are ennacting these regimes are varios, but include improved deterrence, improved efficiency and a chance to recover administrative costs from those alleged to have violated the law.
In our view, any efficiencies and cost savings gained by these provincial regimes are outweighed by the loss of protections afforded by the criminal law and the rights and freedoms guaranteed under the Charter. Under the IRP regime for example, a driver who blows a “fail” is immediately prohibited from driving for 90 days. This often results in the person losing his or her job and can impact severely upon the person’s family. While the driver has the right to challenge the prohibition, the legislation sets out that the hearing will be conducted by a delegate of the superintendent of Motor Vehicles, not a judge. The police officer needs only to submit a one page Report to Superintendent, in which ceratin boxes need to be checked and certain blanks filled out. Essentially this report “deems” that the breathalyzer machine was in working order and that it produced the stated result.There is no ability to cross examine the invetigating officer at all. We believe that the vast majority of drivers who have been prohibited by this regime face an extremely tough uphill battle in an effort to have the adjudicator revoke their driving prohibition.
These provincial regimes, as exemplified by the IRP law, represent a fundamental shift in Canadian criminal law. The Goodwin case is a hugely important case that addresses this shift in the provincial governments’ policy toward criminal law. Ultimately, the Supreme Court of Canada decision will determine the scope of a province’s power to ennact legislation that has traditionally been only within the federal government’s jurisdiction to enact criminal law. We hope that the Supreme Court of Canada will rule in Mr. Goodwin’s favour and strike down the IRP regime.