Supreme Court


Criminal Law

Breathalyzer
Automatic Roadside Prohibition scheme not minimally impairing right of driver to be free of unreasonable search and seizure

Automatic Roadside Prohibition (ARP) scheme calling for roadside analysis of drivers’ breath samples using approved screening device (ASD). “Fail” reading and driver’s refusal to provide sample result in 90-day licence suspension. Process for review only permits Superintendent of Motor Vehicles to consider whether applicant was “driver” and whether ASD registered “fail”, “warn” or driver refused to provide sample. Drivers’ samples registered “fail” except G who refused to provide sample. Chambers judge found ARP scheme intra vires and that s. 11(d) of Canadian Charter of Rights and Freedoms not infringed but concluded ARP scheme violates s. 8 only where ASD registers “fail”. Court of Appeal upheld decision. Appeals dismissed. Pith and substance of ARP scheme is licensing of drivers, enhancement of traffic safety and deterrence of impaired driving. Provinces’ role of ensuring highway safety includes regulating who is able to drive. Provincial drunk driving programs do not invade federal power over criminal law merely because they target conduct also captured by Criminal Code. ARP scheme falling within provincial power over property and civil rights in province. ARP scheme does not create “offence” within meaning of Charter s. 11(d). Scheme concerns licensing drivers, enhancement of traffic safety and deterrence of impaired driving. Nor does scheme impose true penal consequences. While costs and penalties are significant and 90-day licence suspension is meaningful, they do not engage fair-trial rights. While demand to provide breath sample constitutes seizure that infringes individual’s reasonable expectation of privacy and engages s. 8, purpose and consequences of seizure are established by ARP scheme. Breath demand is critical component. While it has certain criminal-like features, consequences of “fail” reading or failure to provide sample are not criminal. Given concerns whether ASD accurately reflects blood-alcohol readings, driver’s ability to challenge accuracy of ASD result is critical to reasonableness of ARP regime. Absence of meaningful review of accuracy of result of seizure render ARP scheme unreasonable; ARP scheme not minimally impairing right of driver to be free of unreasonable search and seizure.

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 237 A.C.W.S. (3d) 511 was affirmed.  259 A.C.W.S. (3d) 683.

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