B.C.'s tough provincial laws to combat impaired driving have survived a challenge in the B.C. Court of Appeal. In summary, the judgment says:
Motorists who received 90-day automatic roadside driving prohibitions under the Motor Vehicle Act of British Columbia challenged the constitutional validity of ss. 215.41-215.51 of the Act. The Chambers judge upheld the legislation as within the legislative jurisdiction of the Province. He also dismissed the Charter challenges based on ss. 10(b), 11(d) and 8 with the exception of penalties resulting from a “fail” reading, which were held to violate s. 8 and were not saved by s. 1.
The motorists appeal the finding of the Chambers judge with respect to the division of powers and s. 11(d) of the Charter, the Province cross appeals with respect to s. 8.
Held: appeals dismissed, cross appeals dismissed. The legislation does not supplant the Criminal Code, its purpose and effect is to regulate highways and enhance public safety. The legislation does not create a criminal or quasi-criminal proceeding nor does it lead to true penal consequences and therefore, does not create an “offence” within the meaning of s. 11(d). The legislation authorizes a search that is unreasonable when a “fail” reading is obtained due to the limited grounds available to challenge the results of the search. This violation of s. 8 is not saved by s. 1.
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