At a time when everyone was distracted by cannabis legalization and the impending changes to the Criminal Code to allow random breath testing, the BC Government quietly enacted some changes to the Motor Vehicle Act to make it harder to dispute a 24 hour for drugs.
These changes deserve attention and explanation. Because as a result of cannabis legalization, it is inevitable that more people will be facing 24 hour prohibitions from driving.
Up until these changes were introduced in October, 2018, a 24 hour prohibition for drugs could only be disputed in BC Supreme Court by way of a judicial review. I have successfully argued a number of these cases, alleging the officer did not have reasonable grounds to believe that a driver’s ability to drive was affected by a drug.
In the hearings on these matters, one thing that has always perplexed the judges is why there is no dispute process before the Superintendent of Motor Vehicles for a 24 Hour Prohibition for drugs. And, frankly, the judges have been right to be perplexed. It seems logical that they should create one. As one judge remarked, reasonable grounds do not involve a range of possible outcomes, they simple existed or they did not.
And so you would think that it would be easy for the government to create a fair review process. Simply take well established law about what constitutes reasonable grounds, give power to adjudicators to make that determination on the basis of a report the officer submits, and let ‘er rip. Prohibitions would be upheld or would fall on the strength of the evidence submitted.
But did they do that?
Of course not.
Instead, they created what is arguably one of the more absurd review schemes our government has yet to create involving the Superintendent of Motor Vehicles.
Instead of being able to argue about whether the officer had the grounds to issue the prohibition, or whether you were actually sober and had no drugs in your system, the driver who has been served the 24 hour prohibition for drugs can only dispute it with the Superintendent of Motor Vehicles if the following conditions are met:
Yes, that is the only dispute process available with the Superintendent of Motor Vehicles.
And it gets better: there is no obligation on the police to either do the SFST test roadside before issuing the prohibition. There is also no obligation on the police to tell the driver that they have the right to request an SFST test done.
That’s right. Your only dispute mechanism with the Superintendent of Motor Vehicles if you receive a 24 hour prohibition for dugs is that you asserted a right you did not know you had, that the police are not obligated to tell you that you had, and that the officer then denied you that right. How absurd and unfair is that?
The government had ample opportunity to make a fair review scheme for the 24 hour for drugs legislation. They had ample opportunity, knowing that cannabis legalization was on the horizon, to craft a law that would allow drivers to have something removed from their driving record that appears as a drug conviction. However, they did not do so.
And that’s hugely frustrating.
And while the addition of this review process does not eliminate the right of judicial review, meaning that drivers can still apply to BC Supreme Court, it adds a wrench in the process as now drivers are required to explain why they did not take advantage of a process that was really unavailable to them anyway.
So the next question becomes this: is the unavailability of a reasonable right of review a constitutional violation that may invalidate the 24 hour prohibition law? I believe it is. Just look at the IRP scheme. There are huge consequences there, but so too are there when it comes to having a 24 hour prohibition on your driving record. And in that example, the availability of some other avenue of redress in BC Supreme Court was not something the court viewed as an adequate substitute for a reasonable right of review.
So I’m looking for the right case to challenge this unjust law, and this insulting attempt at adding a review process when clearly the government had only at the forefront of its mind to pay lip service to a repeated concern expressed by the court.
Vancouver Criminal Lawyer with a focus on impaired driving, cannabis legalization and related issues, and immediate roadside prohibition defence.