In a move that resembles what the Federal Government did with its overhaul of impaired driving laws, the Provincial Government has hidden some very disturbing changes to the alcohol-impaired driving provisions in the new law addressing cannabis-impaired driving.
Of course, the legislation was tabled with a variety of bills, all of which were designed to create a regulatory framework for cannabis legalization in British Columbia. So it was no surprise that the media did not notice or report on the surreptitious tweaks made to alcohol impaired driving provisions in the Motor Vehicle Act.
But I did. And I’m here to explain them, and why they are seriously problematic.
To understand these changes it is necessary to have a short primer on the Administrative Driving Prohibition provisions of the Motor Vehicle Act.
Currently, an Administrative Driving Prohibition, or ADP, can be served to a driver where the officer has reasonable and probable grounds to believe that the driver’s blood alcohol concentration exceeded 80 mg% within three hours of driving, or that the person failed or refused to provide a sample in response to a demand under the Criminal Code.
The prohibition does not commence immediately, but rather begins 21 days after the date that it is served on the driver. There is a seven-day limitation period to file for review, and in the review hearing the onus is on the officer to justify the prohibition on a balance of probabilities. The decision must be rendered within the 21 day grace period. The adjudicator may extend the time to render a decision but if they do so they must reinstate the driver’s license pending the outcome of the review hearing.
There’s much more to it than that, but those are the basic elements that are necessary to know in order to understand the creepy changes advanced in the legislation.
Changing the Start Date of the Prohibition
The first creepy and secret change is that the Government has inexplicably changed the start date of the prohibition. Gone is the grace period of twenty one days, which would allow a driver to continue to drive unpunished pending the outcome of a dispute. Now, the prohibition commences immediately and lasts until a full 90 days are complete.
Remember that this calculation of time does not include the first day of the prohibition.
There appears to be no justification for this. I have seen no data from the Government that suggests that drivers are re-offending in the twenty-one day grace period after the prohibition is served. Frankly, it is out of step with reality to conclude that there is an epidemic of impaired driving twenty one days after the first incident of impaired driving. And for what my anecdotal evidence is worth, it is incredibly rare in the hundreds of cases that I deal with every year that I see such an occurrence. In fact, I can recall fewer cases of this than I can count on one hand, over the whole course of my career.
Even though there is a twenty-one day period, the looming threat of the prohibition serves as a significant deterrent. There is no justification to eliminate this time period. It is also inexplicable in the face of the fact that the drug-impaired driving provisions have a seven-day grace period (also, why seven days?) that there is no such period for alcohol-impaired drivers. Like Bill C-46, we see more procedural rights afforded to those suspected or accused of drug-impaired driving than those accused of alcohol-impaired driving.
And besides, the Motor Vehicle Act already has the Immediate Roadside Prohibition scheme, which commences immediately and can be served on the basis of less evidence than is obtained in an Administrative Driving Prohibition review hearing.
But wait! That has changed too.
Lowering the Standard to Issue the Prohibition
The Motor Vehicle Act is being amended to eliminate the requirement that the officer have reasonable and probable grounds to believe the driver exceeded 80 mg% or refused to blow. Now, it only requires “grounds to believe.” But what standard those grounds are is undefined.
A suspicion is a ground to believe, and something between a suspicion and reasonable and probable grounds to believe is a ground to believe. The law on this is nuanced, but important. Look at the decision of Justice Kent in Shergill v. Vancouver (City) for a discussion of the difference in these standards, including:
the "reasonable grounds to believe" standard requires something more than suspicion; it is a standard of "reasonable probability". It is not equated with the standard of proof in criminal cases and indeed is less than that applicable in civil cases i.e., proof on the balance of probabilities. Still, "reasonability" of the belief envisions a practical, non-technical, common-sense assessment of the factual matrix and totality of circumstances existing at the time the decision was made;
While this change may appear to be only academic, it is by no means an academic choice. It is a calculated attempt by Government to prevent drivers from judicially reviewing the decision to issue the prohibition in BC Supreme Court, in the vein of what the Court of Appeal recently authorized in Gregory v. British Columbia (Superintendent of Motor Vehicles). By lowering the standard from “reasonable and probable grounds” to “grounds to believe” the Legislature has dipped the bar slightly for officers.
This means that it will be harder to challenge these decisions in court, and harder to convince the Superintendent to revoke the prohibition.
Speaking of revoking the prohibition, that too has changed.
Reversing the Onus of Proof
Under the earlier version of the legislation, the courts found that the onus was on the police to establish the grounds of review in order to have the prohibition confirmed. This is not so under the new provisions. My most recent blog post describes this in more detail, but the nub of it is that by changing what must be established to confirm the prohibition, versus what must be established to revoke the prohibition, the legislature is putting a burden on the driver to adduce evidence.
Where before it was incumbent on the officer to show that alcohol was not consumed after driving and before the samples were taken, now the driver must establish that it was. And where before the driver could rely on post-driving consumption to invalidate the prohibition in any case, now the legislature has limited the ability to argue post-driving consumption to cases where the driver did not have any reason to believe that they would be asked to give a breath sample.
This is similar to the prohibition on arguing post-driving consumption that we see in the Criminal Code amendments in Bill C-46.
But as I mentioned in my last post, reversing this burden effectively places an obligation on drivers to testify. While that may or may not withstand constitutional scrutiny in the context of a licensing regime it is nevertheless problematic when the realities of how an ADP is issued are understood.
Unlike the Immediate Roadside Prohibition scheme, an ADP is usually issued in conjunction with a criminal charge. And so putting a burden on a driver to provide evidence to challenge the prohibition risks the driver’s corresponding Charter rights in the criminal investigation. A driver can be cross-examined on their affidavit or statements to the Superintendent if they take the stand in the criminal trial. Similarly, the affidavit evidence could be used by the prosecution as part of its case to establish that the driver did not engage in bolus drinking or consumption of alcohol in the half hour prior to driving.
That evidence could then assist the Crown in proving the criminal charge against the driver. And further, because of certain exceptions to the Motor Vehicle Act, it is arguable that evidence submitted in an ADP review hearing in support of revocation can be admitted for the truth of its contents as an exception to the hearsay rule, and relied on by the Crown to prove a fact at trial including a drinking pattern or a time of collision or when alcohol was last consumed.
The risks of this in a criminal prosecution are untold, and there was good reason why the burden always remained on the officer to establish these facts. The legislature did not want to be seen as interfering in the fairness or integrity of a criminal trial by placing an implicit penalty on those who wished to exercise their right to silence in that realm.
Reinstatement of Licenses Pending Decision
The time period to render a decision has not changed. That remains at twenty one days. But where before the legislation made it mandatory to put the driving prohibition on pause until the decision was rendered, now that provision is purely discretionary.
I get that it coincides with the Immediate Roadside Prohibition scheme, and I appreciate that the prohibition is now starting immediately so a stay might be pointless in circumstances where the decision is only extended a few days, but history has told us that lengthy extensions are common. And history has told us that there are no reasons given for extensions, a fact that is not changing under the legislation. So does it not make sense to require that it be done?
Having no license is particularly prejudicial. Having the inability to work, or take your children to school, or leave you house and go grocery shopping is problematic for many British Columbians. And in a process that goes hand-in-hand with a criminal process whereby the driver enjoys the presumption of innocence, is it not reasonable treat these prohibitions in a manner that reflects those values, although does not completely espouse them?
Did the Supreme Court of Canada not say that administrative tribunals are to act in accordance with the Charter and its values?
Failing to require that the Superintendent reinstate the license pending the outcome of a review, which might well be delayed until after completion of the prohibition, shows a presumption of guilt and a desire to treat individuals in an unfair and unjust manner.
What Hasn’t Changed
And despite all these changes, what hasn’t changed is also equally disturbing. The Government had in this instance an opportunity to amend the Motor Vehicle Act to address concerns it raised — I’m looking at you Mike Farnworth — when in opposition. The Government had the opportunity to allow for extensions of the time to apply for review of an IRP in certain circumstances, or to require reasons be provided for extensions.
None of this was done.
There are so many deficiencies in the review procedures in the Motor Vehicle Act and rather than address those at the same time as crafting this, it appears that the Government did a rush job of coming up with a drug-impaired driving scheme and tried to sneak in some negative changes to alcohol-impaired driving laws at the same time.
I would have expected this type of underhanded behaviour from the BC Liberal Party, but not from the NDP. Yet again, I am disappointed and discouraged by the senseless positions on impaired driving taken by our government.
The cynic in me believes that the Government has done this deliberately. So that, knowing the drug-impaired driving prohibitions will be challenged in court, it can stand up and say “But we have always done it this way. The ADP scheme was ruled constitutionally valid. There is no problem here.” So that the court will look at what is in the legislation and in the hopes that lawyers challenging it will not be clever enough to say “But it is not the same.” And in the mistaken and troubling belief espoused in their position on the most recent IRP Constitutional Challenge — that changing something fundamentally is not changing it at all.
Part of me hopes the cynic in me is wrong. But history keeps proving that cynic to be accurate.
Vancouver Criminal Lawyer with a focus on impaired driving, cannabis legalization and related issues, and immediate roadside prohibition defence.