This summer has been unbelievably hot in British Columbia, and as a consequence of the heat there have been an inordinate number of forest fires. The Government has already spent over $100 Million fighting these fires, with over 200 still burning in the province. It has been costly and devastating.
But some politicians have been using forest fires as an argument to justify taking your car. That's right. The BC Government is currently considering whether they can impound your car because of forest fires. Now, if you're a rational British Columbian like me, you're probably wondering what the connection between forest fires and your vehicle is.
Let me tell you.
The Government thinks they can impound your car for flicking a cigarette butt or throwing a cigarette butt out the window of your vehicle. So even though your vehicle has nothing to do with the potential for forest fires, other than that it is the place where you happened to be when you were smoking, your car is subject to impound. Of course, we don't see any of these types of consequences proposed for those who flick cigarettes while not in a vehicle. Which leads me to believe it's just another way the Government thinks it can cash in by punishing drivers.
But this is unconstitutional!
You're now probably thinking that this is completely unconstitutional. The Government has no right to be taking your property away because you did something that created a risk of a fire while you just happened to be in the car. Think about other applications for this law? All littering could then be punished by a vehicle impound. Or all instances where people smoke in a car while there is a person under the age of 16 present.
Effectively, the Government is opening the door to an even worse form of temporary civil forfeiture. As if BC's civil forfeiture scheme were not bad enough, it's beginning to look like our Provincial Government is trying to mimic the way civil forfeiture operates in the United States. Currently, in British Columbia the Government can take your property if they believe it has been used to commit an offence, or has been obtained by proceeds of crime. But the goal is to take away the instrument of crime, not something collateral to crime.
Think about it this way: if a person shoplifts from a store with a "no shirt, no shoes, no service sign" the Government would be acting pretty stupidly to take away the shoplifter's shirt and shoes under the guise of civil forfeiture. Sure, they may have been denied entry into the store without a shirt or shoes, but that doesn't make the shirt or shoes an instrument of crime. Most people are typically wearing shoes and a shirt anyway.
It's the same with this proposal. If you take away someone's vehicle simply because they flicked a cigarette out the window, you're not taking an instrument of crime. You're taking someone's livelihood. I've written before on the problems with automatic vehicle seizures. And chances are that if the person is a smoker they are flicking their cigarette butts from places other than their vehicles. So it doesn't address the issue of preventing further offences.
And while seizing a person's vehicle for a period of time, then giving it back, isn't truly a civil forfeiture issue the rationale is the same. Look at the Immediate Roadside Prohibition regime, or excessive speeding offences, or the proposed changes to distracted driving legislation. The issue is an immediate impact on public safety and deterring future unlawful behaviour. The problem is that a vehicle seizure when dealing with flicking a cigarette or tossing a butt is not at all rationally connected to the conduct the punishment is aimed at addressing.
It's punitive. It's unnecessary. It lacks a rational connection (part of the test for the constitutional validity of a law that on its face violates the Charter). And it seems more aimed at lining Government coffers than it does solving the problem of forest fires.
But is it unconstitutional?
Maybe not. Unlike the United States, where the fourth, fifth, and fourteenth amendments provide the right to due process for life, liberty, and property, we have different constitutional rights in Canada. For example, while we have the right to be secure against unreasonable search and seizure (including search and seizure of our property) there are no due process rights and no specific creation of a constitutional right to property. In fact, the Government has many "outs" to Constitutional rights, including the option to "opt-out" of the Charter if they see fit.
Our right to life and liberty also includes security of the person, but does not include property. Which actually makes it a lot easier for the Government to justify taking your car based on something not at all connected to your car. When our Charter of Rights was drafted, the issue of property rights as a constitutional right in and of themselves was something that was the subject of great debate. The first drafts included the right to property. Ultimately, the Government thought that there were too many concerns that arose from property rights to justify their inclusion and they were eliminated.
Now, this is interesting from an international law perspective given that there is a right to property recognized in the Universal Declaration of Human Rights. But still no such Charter right in Canada.
What this means is that you do not have a constitutional right to your car. It does not necessarily mean, however, that the Government has the right to take your car from you. At least, not without a warrant or in a reasonable way for a reasonable purpose.
Warrantless seizure as a constitutional issue
The right to be secure against searches is also the right to be secure against seizures. And implicit in our understanding of a seizure is that it involves the government taking your property. So there is some basis for the protection of property rights, except that it does not enjoy as lofty a constitutional status as your bodily rights or your privacy.
Applying a constitutional analysis looks like this: the law taking a vehicle for throwing a cigarette out the window permits a warrantless seizure. The seizure done absent a warrant is, in Canadian law, presumptively unreasonable. In order to determine whether it is reasonable, and therefore justified by law, a reviewing court will need to apply a legal test from a case called Hunter v. Southam. The Court has to look at whether the seizure is authorized by law, whether the law itself is reasonable, and whether the seizure is carried out in a reasonable way.
If the court concludes that the law authorizing the seizure is unreasonable, the relevant argument that could be advanced against this law, then it has to apply the factors described in R. v. Oakes to determine whether the law is nonetheless constitutionally valid because it is a reasonable limitation on your rights, demonstrably justified, in a free and democratic society. The Court in Oakes concluded that the Government must prove three things in order to justify an otherwise unconstitutional law. They must prove that the law achieves a pressing and substantial objective, like preventing forest fires. They must also demonstrate that there is minimal impairment of your rights, a rational connection between the right violated and the government's objective, and proportionality between the means and the end.
In my opinion, any law justifying an automatic impound of a vehicle for littering a cigarette butt or flicking ash out the window would fail on the last three factors of the Oakes test. It is simply not rationally connected to the objective in any way, and achieves nothing. The impairment of somebody's right to not have their property seized unreasonably for an act that is often practically harmless (particularly in the eight rainy Vancouver months, or the deep snow in Northern BC in the winter) is in no way minimal. And it's certainly not proportional when considered with the consequences to families and drivers and businesses of a vehicle impound.
The whole thing seems to me to be yet another way the Government is thinking of how to extract money from drivers, rather than to deal with an issue that deserves careful consideration. Forest fires are devastating our province, but taking people's cars will not prevent forest fires and will not make a difference.
Vancouver Criminal Lawyer with a focus on impaired driving, cannabis legalization and related issues, and immediate roadside prohibition defence.