Human rights implications of new provincial impaired driving laws.

• Author: McKay-Panos, Linda
• Position: Human Rights Law

Like many other Canadians, I am not terribly sympathetic towards people who drive while impaired, through alcohol, drugs (prescribed or illegal), while texting, or experiencing extreme fatigue. We have a set of laws under the federal Criminal Code of Canada, RS 1985 c C-46, that address impaired driving. These include: operating a motor vehicle while impaired (section 253); driving while blood alcohol is over the legal limit (.08) (section 253(1)(b)); and failing to provide a breath sample (section 254(5)), among others.

The provinces also have a role in regulating impaired driving. The Constitution Act, 1867, provides that the provinces have jurisdiction over the administration of criminal justice. With respect to driving offences, provinces have the authority to suspend or revoke driver's licences. Early constitutional cases dealt with situations where there was an apparent conflict between prohibitions under the criminal law and provincial suspensions.

In addition to the division of powers concerns about provincial impaired driving laws, since 1982, the Canadian Charter of Rights and Freedoms ("Charter") has applied to all laws, whether provincial or federal. While licence suspensions have been in place for a long time, some provinces have decided to try to address their impaired driving issues with new and stricter provincial laws. For example, after learning that Prince Edward Island had more impaired driving incidents per capita than any other Atlantic province, officials recently proposed requiring convicted impaired drivers to use specially marked licence plates.

British Columbia and Alberta have introduced new measures that have attracted court challenges. In 2010, British Columbia enacted stricter impaired driving laws that provided for automatic 90-day licence suspensions of drivers who recorded over .08 on a roadside screening device, and a shorter suspension of 3, 7 or 30 days if the driver registered a "warn" on the device (between .05 and .08). In addition to the automatic suspension of 90 days from driving, drivers who registered over .08 were required to pay penalties and enroll in a responsible driver program, together with using an ignition interlock device for one year. Taken together, the cost of these penalties to the driver could amount to over $4,000.

In Sivia v British Columbia (Superintendent of Motor Vehicles) (2011), BCSC 1639 (CanLII) ("S/V/'a"), a number of drivers challenged the new provincial suspension...