This decision is on the heels of another decision pertaining to traffic law and the province's powers to enact that legislation. This was the constitutional challenge to BC's controversial impaired driving law in Goodwin v. British Columbia (Superintendent of Motor Vehicles). The Court there found that it was within the legislative competence of British Columbia to enact a provincial scheme to deal with impaired driving, even if there were incidental effects on criminal prosecutions.
I've been thinking a lot about these two decisions and what they mean for BC's traffic ticket tribunal. It's early to tell, but it is certain that they will have an impact to our office's inevitable challenge to the legislation.
A Quick Review of the Traffic Ticket Tribunal Law
For those that do not remember, the proposed legislation in British Columbia will do away with traffic court for all people who are BC Driver's License holders, or those who have ever held a BC Driver's License, or those who are eligible for BC Driver's Licenses. People will no longer be issued with traffic tickets, but instead will be served with an electronically-created driving enforcement notice.
In order to dispute a driving enforcement notice, a person will have to apply before a tribunal and jump through a series of hoops designed t encourage them to plead guilty. They will be offered incentives for early guilty pleas, and the right to cross-examine, to argue Charter violations, and to present their case in a fulsome manner will be truncated by the internal process created by Government. In my view, it is an abhorrent piece of legislation designed to separate people from their money, and eliminate access to justice in this province.
The Problems with the Proposed Law
My main critiques of this law are rooted in the fact that they take something that was once an "offence" (and which carries with it all of the Charter-protected rights that are triggered when a person is charged with an offence) and removes that designation. So there are no arguments about delay. There are no arguments about whether the officer failed to advise the driver of the reason for the vehicle stop. And there is no presumption of innocence or right to not be compelled to testify.
The new law will also be enacted under British Columbia's Administrative Tribunals Act, which strips away Charter protection and argument completely. An officer could stop a person arbitrarily, assault them based on a racialized motive, and then issue them a ticket and the tribunal not only has no power to do anything about it, but is not even allowed to hear about it in the first place. In a day and age when we are finally starting to pay better attention to the difference between how many police officers treat Aboriginal people vis a vis non-Aboriginal people, this is a significant concern.
Finally, there are significant concerns about mobility rights and the way that the legislation effectively creates second-class citizens out of British Columbia residents. Although a person has the right to move freely between the provinces, and although the law should apply equally regardless of province of residence, BC's traffic ticket law allows the regular dispute process for traffic tickets for those who are out-of-province license holders, who are non-eligible for BC licenses, and who have never had such a license.
The Impact of the Two Recent Cases
The two recent cases raise interesting issues in the challenge to the traffic ticket tribunal as they pertain to federalism principles and to the province's right to enact legislation that deals with road and highway safety.
Defining What is an Offence
The Goodwin case gave the province a wide margin in enacting provincial laws to deal with issues related to drinking and driving. The analysis of whether the Immediate Roadside Prohibition law creates an offence will be very relevant to this challenge. If a province is allowed to set up a regulatory system in the interest of road and highway safety, and can create this scheme with significant but non-penal consequences, then it seems that it may well be within the power of the province to create this scheme. The question that will ultimately arise as it pertains to this legislation is whether the Province has the power to un-create an offence. If speeding is an offence, can the province create identical consequences, identical essential elements, and rely on the exact same provisions of the Motor Vehicle Act for a non-offence?
It is possible that a collateral or contemporaneous challenge to the Administrative Tribunals Act, or to the application of that section of the Act that limits Charter rights will be necessary. Can the ATA apply to the actions of peace officers against private citizens? Or is it inconsistent with Charter rights to allow a province to opt-out for the purposes of a regulatory scheme involving policing? If the tribunal is entitled to deal with traffic ticket cases, is there a legitimate expectation that Charter rights are engaged with police contact and private citizens, such that there is a violation of procedural fairness by eliminating Charter rights through this avenue?
As it stands, the Goodwin case presents an interesting problem for both the province and us in challenging the law. Its analysis of the law will have a significant impact on any challenge to the traffic ticket tribunal.
Federalism, Equality, and Mobility Rights
The Caron case also raises issues related to federalism. The provinces have a wide latitude to develop their own societies within their boundaries, as a principle of federalism. But federalism also recognizes that the provinces and the nation must cooperate in order to solve common problems. So, under the IRP law the issue of drinking and driving is a federal criminal law issue. The approved screening device and the demand for a sample come from the criminal law. Which means that there is a consistency between provinces insofar as the mechanism by which the objective is achieved, albeit with a different outcome in British Columbia.
But cooperative federalism is hindered where people from another province are treated differently (and in my opinion, better) than people from British Columbia. The provinces are no longer working cooperatively toward a goal of road and highway safety which is something that each province has as a common problem. So will the large measure of autonomy that is afforded provinces allow British Columbia to define a class of people that are treated differently under its laws? Or does this violate the principle of cooperative federalism, create second-class citizens, and allow for discrimination on the basis of an identifiable class of people, contrary to Section 15 of the Charter?
These are big questions, and the recent case law from the Supreme Court of Canada will assist in answering them, but also opens the door for bigger questions to be brought before our courts. It is likely that our challenge to BC's Traffic Ticket Tribunal will be lengthy and will end up in front of the Supreme Court of Canada in order to bring a harmonious answer to the questions raised by it in light of this new jurisprudence.
Only time will tell. In the meantime, the Government is forging ahead with its implementation of this new law. Provisions of the Motor Vehicle Act that will allow for its implementation have already been enacted, and some are already in force and effect. We are steps away from new days in British Columbia, and I will be at the front lines defending citizens from our Government.