Is a British Columbia drunk driving law unconstitutional? It depends on whom you ask.
The law in question is the ARP – the automatic roadside prohibition. If you are arrested in B.C. for drunk driving and you refuse a breathalyzer test, your licence is immediately revoked for 90 days. The penalty was upheld by the B.C. Supreme Court in 2012, and by the B.C. Court of Appeal in 2014. Now some B.C. lawyers and motorists are challenging the law again. The appeal has just been heard, and the decision is being awaited.
What opponents say: that the law violates the presumption of innocence. The system has limited possibilities for review or challenge, and is a money-saving but liberty-infringing process. It bypasses the Criminal Code of Canada and uses civil processes to regulate criminal activity. The Canadian Charter of Rights and Freedoms stipulates that Canadians are innocent until proven guilty, and that any punishment, including licence suspension, must happen in a “fair and public hearing” – hardly the same a roadside arrest.
What supporters say: automatic licence suspension has resulted in fewer drunk driving deaths. It is within the power of the province, since revoking a licence is not a true punishment, just an administrative process. Insurance companies claim that repealing the law would make assessing the risk of certain drunk drivers more difficult and increase road collisions, raising insurance rates overall.
Do the opponents have a leg to stand on? After all, the B.C Court of Appeal contended that the power of a province to issue a licence includes the power to revoke them. That means that revocation is not unconstitutional overreach.
Nevertheless, B.C. and Canada have a strong tradition of not allowing civil laws to intrude in the criminal arena, and drunk driving is most definitely a criminal act. It will be interesting to see which side wins, and what effect this will have on road safety in British Columbia.