Automatic Roadside Prohibition regime violates s. 8 of Charter and not saved by s. 1

LIMITATION OF RIGHTS AND FREEDOMS

Automatic Roadside Prohibition regime violates s. 8 of Charter and not saved by s. 1

Petitioners challenged validity of provincial legislation providing for licence suspensions and monetary penalties for drivers who register “fail” or “warn” on roadside approved screening device (ASD) test. Automatic Roadside Prohibition (ARP) regime provided for 90-day suspension for drivers registering “fail” (over .08 blood-alcohol) and lesser penalties for “warn” (.05 to .08) result. Petitioners argued that ARP regime resulted in detention of drivers subject to ASD demands without access to counsel and authorized unreasonable searches. Petitioners also argued that ARP regime created offence while permitting no procedural protections and infringing presumption of innocence. Chambers judge found that ARP regime did not infringe s. 11(d) of Charter, but that ARP regime infringed s. 8 of Charter and violation was not saved by s. 1. Chambers judge also found that provisions were valid provincial legislation. Court of Appeal upheld ruling of Chambers judge. Appeal dismissed. Legislation did not create “offence” within meaning of s. 11(d). No true penal consequences can be imposed under regime. ARP regime was by its nature traffic safety regulation and not criminal law. Consequences of “fail” result to drivers were too severe in light of legislation’s lack of any mechanism by which drivers could challenge ASD results.
Goodwin v. British Columbia (Superintendent of Motor Vehicles) (Oct. 16, 2015, S.C.C., McLachlin C.J.C., Cromwell J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., and Côté J., File No. 35864) Decision at 112 W.C.B. (2d) 337 was affirmed.  126 W.C.B. (2d) 540.