BC’s Latest Scheme to Deter Drinking and Driving Largely Upheld in Goodwin
For decades, provincial and federal governments have enacted schemes aimed at reducing fatalities related to impaired driving. British Columbia’s latest attempt to curb impaired driving was predominantly upheld in Goodwin v British Columbia (Superintendent of Motor Vehicles) 2015 SCC 46 [Goodwin] and its companion case, Wilson v British Columbia (Superintendent of Motor Vehicles), 2015 SCC 47.
In Goodwin, the petitioners alleged that the provincial Automatic Roadside Prohibition (“ARP”) was ultra vires, and infringed on ss. 8 and 11(d) of the Charter. The Supreme Court of Canada (“SCC”) held that the provincial ARP scheme was intra vires and did not create an offence within the ambit of s. 11(d). However, there was division within the bench on whether the seizure was reasonable, as guaranteed by s. 8 of the Charter. For the majority, Justice Karakatsanis held that only a part of the ARP scheme both infringed s. 8 and could not be saved under s. 1.
The ARP Scheme
The ARP scheme was enacted in 2010, replacing the Administrative Driving Prohibition (“ADP”). The scheme allows for sanctions on drivers that blow a “warn,” a “fail,” or refuse to provide a breath sample when asked to participate in a breathalyzer test. The sanctions include a suspension of licence, vehicle impoundment, and a monetary fine.
Several distinctions between the new ARP scheme and the previous ADP scheme came up in the case at bar. First, ARP requires drivers to submit to a roadside breathalyzer test, where an Approved Screening Devices (“ASD”) is used. Whereas, previously, the driver was directed to the local police station to provide a breath sample using a more reliable device.
The most contentious change was the narrowing of the scope of review before the Superintendent. Under the ARP, the Superintendent is limited to considering: (1) whether the applicant was a “driver”; and (2) whether the approved screening device registered a “warn” or a “fail”, or alternatively, whether the driver refused, without reasonable excuse, to provide a breathe sample. The previous ADP scheme had a broader scope, which allowed for the consideration of whether the driver’s blood alcohol concentration was above 0.08.
Is the ARP Scheme Ultra Vires?
The SCC unanimously held that the provincial scheme was intra vires. Once again, the Court was asked to determine whether legislation fell under the Criminal head of power – and thus exclusively within federal jurisdiction per s. 91(27) of the Constitution – or under one of the provincial heads of power, in this case either Property or Civil Rights, per s. 92(13).
The SCC correctly rejected the petitioners’ position that the provincial scheme was an exercise of criminal power. To determine the validity of the legislation, the Court considered the pith and substance of the scheme. The SCC found that the dominant characteristic was to reduce fatalities from drinking and driving. As such, the purpose of the ARP was found to be the deterrence of drinking and driving.
The petitioners alleged that the ARP scheme was a colourable attempt at invading the criminal law (Goodwin, para 23). Their most compelling argument was that police in British Columbia had chosen to enforce the ARP scheme instead of the existing federal criminal sanctions. Since police utilized the ARP process instead of the relevant provisions of the Criminal Code, RSC 1985, c C-46, drivers were limited to the procedural rights of the administrative ARP scheme, rather than the broader procedural rights afforded in criminal prosecutions (Goodwin, para 19). The SCC rejected the petitioners’ submission, holding that this choice of enforcement was consistent with the police’s discretionary powers (Goodwin, para 28).
While I concur with the SCC’s ruling that the legislation was and is intra vires, their reasoning was unsatisfactory.The Court too hastily dismissed the petitioners’ submission that the harsher ARP scheme had supplanted the use of Criminal Code provisions. The Chambers judge provided a more satisfactory response at the lower court, holding that “how the police choose to enforce an interlocking scheme of federal and provincial statutes does not determine the constitutional validity of the statutes enforced” (Sivia v British Columbia (Superintendent of Motor Vehicles) 2011 BCSC 1639, para 110).
After the pith and substance is determined, the court should typically classify the matter as falling within either ss. 91 or 92 of the Constitution. However, Justice Karakatsanis does not explicitly show how the scheme falls within s. 92. This minor deficiency is tempered with her reliance on long-standing jurisprudence where similar provincial schemes have been upheld. Since 1941, in Provincial Secretary of Prince Edward Island v Egan,  SCR 396, courts have consistently upheld provincial legislation that targets drinking and driving.
Does the ARP Scheme Create a Section 11 “Offence?”
The SCC rightly rejected the petitioners’ submission that the ARP infringes on s. 11 of the Charter. Section 11(d) states that, “Any person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal [emphasis added].”
There cannot be an infringement since the ARP scheme does not create an offence within the meaning of s. 11(d). In R v Wigglesworth,  2 SCR 541, Justice Wilson, writing for the majority, held that “proceedings undertaken to determine fitness to obtain or maintain a license” are not offences under s. 11 (Wigglesworth, 560). Since one of the main, and harshest, aspects of the ARP scheme is license suspension, the scheme does not create an offence. Section 11(d) was meant to protect individuals during a proceeding where “by its very nature it is a criminal proceeding” or when a conviction “may lead to a true penal consequence” (Wigglesworth, 559). Neither of these conditions were met in Goodwin.
Does the ARP Scheme Infringe Section 8?
While the SCC unanimously held that the roadside ASD test constituted a seizure, the Court was divided on whether the legislative scheme allowing seizure was reasonable. Section 8 states, “[e]veryone has the right to be secure against unreasonable search or seizure.” When a seizure occurs without a search warrant it is presumptively unreasonable, per Hunter et al v Southam Inc,  2 SCR 145 (161). Thus, both the reasons for the majority and the minority focus in on the reasonableness of the scheme permitting the seizure.
The SCC unanimously held that the ARP scheme authorizes the seizure of breath. In doing so, they correctly rejected the Province’s submission that the seizure of breath was authorized by s. 254(2) of the Criminal Code, and that s. 254(2) rather than provincial legislation should be subject to scrutiny. This narrow interpretation of s. 8 is inconsistent with the flexible and purposive interpretative lens that ought to be applied to the Charter per R v McKinlay Transport Ltd,  1 SCR 627. Furthermore, as Justice Karakatsanis notes, if the Province’s submissions were accepted, it would have the effect of insulating the provinces from s. 8 review for any use of a Criminal Code search power.
The majority found that the search was unreasonable in limited circumstances. Specifically, when a driver blows a “fail” and is unable to challenge the results before the Superintendent. They were particularly concerned given the possibility of a false “fail.” Thus, the majority found the search unreasonable because of the lack of procedural rights available to drivers. In their reasoning, the SCC confirmed that procedural rights are protected in s. 8 of the Charter.
While dissenting on this point, Chief Justice McLachlin conceded that the limited judicial review was problematic. Nonetheless, she did find the seizure reasonable. On the basis that first, the driver can request a subsequent test at the police station with a more reliable device. Second, the driver is entitled to a review before the Superintendent, and that review is subject to judicial review. And finally, if a police officer lacks reasonable grounds for believing that the driver is impaired, the officer shall not impose sanctions per s. 215.41(3) of the Motor Vehicle Act.
The SCC ruling will require British Columbia to tweak the existing ARP system. The primary change will be broadening the Superintendent’s scope of review. The division within the bench on whether the legislation, rather than the prickly issue of application, constituted a “reasonable” seizure demonstrates the need for further development of an analytical framework for defining what a reasonable search is.