A new chapter begins Monday in the ongoing legal battle over British Columbia’s impaired driving laws.
The case at the B.C. Court of Appeals alleges that the impaired driving law is unconstitutional because it violates the charter rights of those who fail (or refuse to take) a field sobriety test by denying them a presumption of innocence.
“If the government wants to revise the way that it goes about drinking and driving, that’s fine,” Raji Magnat, a lawyer with the B.C. Civil Liberties Association (BCCLA), told Global News. “But it doesn’t do anyone any good to have laws in place that are not providing constitutional protection to citizens.”
“Our focus remains on public safety and reducing the number of alcohol-related driving fatalities and injuries on B.C.’s roads,” B.C. Justice Minister Shirley Bond told Global News. “With 104 lives saved in the past two years and a 46 per cent reduction in alcohol-related fatalities since our law came into force , it’s clear we’re doing just that.”
At the heart of the controversy is the province’s Immediate Roadside Probation, or IRP, program. The new law allows a police officer to issue a variety of penalties if, during a field sobriety test, the subject shows higher than 0.08 blood alcohol content (BAC) on an approved screening device (ASD), or refuses to conduct a field sobriety test.
Those who do face an immediate 90-day driving ban, a $500 fine, and will have their vehicle impounded for 30 days. In addition, drivers will be required to participate in the provincial Responsible Driver Program. They must also use an ignition interlock device, which tests a driver’s breath for alcohol every time they operate their vehicle, for up to one year.
According to the BCCLA, this violates a citizen’s charter right to the presumption of innocence until proven guilty.
“The way the legislation has been crafted has created a criminal regime without procedural or due process protections in place,” Mangat said. “We feel this is significant given the significant penalties that this law entails.”
An ongoing legal battle
The new impaired driving laws were first introduced in 2010 as a response to the death of Alexa Middelaer, a four-year-old girl struck and killed by a drunk driver two years prior. At the time, the province’s stated goal was to cut down on drunk driving deaths by 35 per cent.
“Despite increased enforcement and significant efforts to promote awareness, we’ve begun to see a rise in impaired driving across British Columbia,” said then-Solicitor General Michael de Jong. “That trend is unacceptable and that’s why we’re bringing in these new laws: to get impaired drivers off the road with clear, swift and severe penalties.”
But the new laws were subject to legal challenges right from the beginning.
On Nov. 30, 2011, B.C.’s Supreme Court ruled that the new law violated the Charter of Rights and Freedoms. While agreeing that the law as a whole did not violate a citizen’s charter rights, the court ruled that the IRP program was unconstitutional, because it imposed significant penalties on a citizen without the ability for those found guilty to meaningfully challenge the decision.
So the province amended the law in 2012, allowing for the right to a second field sobriety test with a different ASD, as well as mandating that police inform citizens of this right. The amended law has been in effect since June 15, 2012.
“The procedural changes for police – including advising drivers of the right to a second test on a second approved screening device – and the complementary changes strengthening the appeal process help to ensure a consistent, fair approach,” Bond said.
Walking a fine line
Still, those amendments don’t address what Magnat calls several “troubling” aspects of the new law, including the Approved Screening Devices used by the police during roadside sobriety tests.
The BCCLA is concerned over the different standards governing these devices versus traditional breathalyzer machines. According to Magnat, standard breathalyzers are re-calibrated before every use, whereas ASD’s are re-calibrated monthly.
Still, others believe the provisions contained in the amended law are more than adequate for protecting a driver’s right to be presumed “innocent until proven guilty.”
“This is a situation where you have something happening roadside with immediate criminal consequences,” Magnat said. “So even if it was a properly administered test, we don’t strip away the due process rights people have to challenge the accusations against them in court.”
Yet the controversy continues. B.C.’s Superintendent of Motor Vehicles last month refunded and reduced the sentence of 1,137 people ordered to participate in the Responsible Driver and Ignition Interlock programs after a review of their driving records found the punishments were not merited.
“When they structured the law, it wasn’t the best legal structure to put the law through,” said Murie, who supported the government’s decision to refund the 1,137 drivers found guilty under the pre-amended law. “But if the rules are clear and there’s an opportunity to challenge the findings, then we don’t see a problem.”
Yet for some, the ends don’t entirely justify the means.
“The government’s desire to cut down on drinking and driving is a good one. This isn’t a question of letting people get away with drinking and driving,” Magnat said. “But it’s a very slippery slope, very dangerous to fall into the trap of thinking there are times when we can just put the charter aside.”
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