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Charter of rights - Constitutional law - Division of powers - Property and civil rights - Right to a fair hearing - Search and seizure - Impaired driving - Automatic roadside prohibitions - Whether ss. 215.41-215.51 of the Motor Vehicle Act are ultra vires the province of British Columbia - Whether ss. 215.41-215.51 of the Motor Vehicle Act infringe s. 11(d) of the Charter and if so, whether the infringement is saved by s. 1 - Whether ss. 215.41-215.51 of the Motor Vehicle Act infringe s. 8 of the Charter for drivers with “fail” results on an approved screening device and if so, whether the infringement is saved by s. 1 - Motor Vehicle Act, R.S.B.C. 1996, c. 318.

In September, 2010, the British Columbia legislature enacted amendments to the Motor Vehicle Act, R.S.B.C. 1996, c. 318 (“MVA”). The amendments introduced ss. 215.41 to 215.51, referenced to as the “automatic roadside prohibition” regime (“ARP”) and sometimes referred to as the “immediate roadside prohibition” regime (“IRP”).

A number of motorists, who had received 90-day roadside driving prohibitions under ss. 215.41 to 215.51 of the MVA, challenged the constitutionality of the ARP. They challenged the provisions on the basis that the amendments constitute criminal law and are beyond the legislative jurisdiction of the provincial government and that the amendments violate the motorists’ rights under ss. 8, 10(b) and 11(d) of the Charter. The motorists had each been given driving prohibitions by peace officers after they had either refused to supply a sample of breath, or having supplied a sample, registered a “fail” on an “approved screening device” (“ASD”) as described in the Criminal Code and the MVA.

The ARP regime provides for a mandatory driving prohibition when a motorist’s ability to drive is affected by alcohol, as evidenced by an analysis of breath by means of an ASD that registers either a “warn” (0.05 or over) or “fail” (0.08 or over). A prohibition is also issued if a driver fails or refuses to comply with a demand made under the Criminal Code to provide a breath sample for analysis. Registering a “fail” on an ASD automatically leads to 90-day driving prohibition (s. 215.43(2)). Refusing to provide a breath sample also results in a 90-day driving prohibition (s. 215.43(2)). Registering a “warn” leads to a 3-day suspension for a first prohibition, 7 days for a second prohibition, or 30 days for a subsequent prohibition (s. 215.43(1)). The number of prohibitions a driver has been subject to in the previous five years determines whether it is a first, second or subsequent prohibition (s. 215.43(4)). All persons that are issued a notice of driving prohibition are also liable to pay a monetary penalty. Other possible costs are to attend a remedial program, impoundment, towing and storage fees, licence reinstatement fees and the use and installation of an ignition interlock device. The estimated costs of a reading in the “fail” range, exclusive of legal costs, is $4,060. A person who has been issued a driving prohibition under s. 215.41 may apply for a review of the prohibition under s. 215.48 within seven days of being served. The adjudicator has very limited grounds in which to reverse the prohibition.

Mr. Justice Sigurdson heard the petitions of Mr. Sivia, Ms. Beam, Mr. Chisholm and Mr. Roberts together. Ms. Beam, Mr. Chisholm and Mr. Roberts all registered a “fail” on the ASD. Mr. Sivia was issued an ARP for failing to provide a breath sample. Sigurdson J. found the challenged legislation to be constitutionally sound except for the prohibitions and penalties resulting from a “fail” reading on an ASD. He found that this part of the provincial legislation violated s. 8 of the Charter and was not saved by s. 1. The declaration of invalidity was stayed to June 30, 2012. On June 15, 2012, Bill 46, the Motor Vehicle Amendment Act, 2012 S.B.C. c. 26 came into force which was intended to correct the constitutional defect in the legislation identified by Sigurdson J.

The petition of Mr. Goodwin who had been prohibited from driving for failing to provide breath samples into an ASD, was heard separately by Mr. Justice Dley who dismissed the petition. Dley J. relied on the reasons given by Sigurdson J. in the Sivia case. Mr. Sivia and Mr. Goodwin lost their cases, however Ms. Beam, Mr. Chisholm and Mr. Roberts were successful in obtaining an order that the part of the legislation upon which their prohibitions were based was of no force and effect.

The petitioners appealed on different grounds, some of which were common to all appeals in one way or another. The Attorney General and British Columbia (Superintendent of Motor Vehicles) filed cross-appeals with respect to the part of the legislation that had been declared of no force and effect. The Court of Appeal dismissed the appeals and the cross-appeals.