Supreme Court weighs in on administrative drivers license suspensions

Most provinces, including Ontario and British Columbia, have administrative consequences that occur when the police discover a person to be drinking and driving (even if the driver’s blood alcohol concentration is below the legal limit for a criminal charge). An administrative act is something that the state can do without a hearing or weighing in on the merits. These can include immediate license suspensions and vehicle impoundments.

In Ontario, the immediate administrative consequences of drinking and driving are:

1. If a person registers a “warn” on a roadside approved screening device (which is between 50 and 100 mg of alcohol in 100 ml of blood), or later registers between 50 and 80 mg of alcohol in 100 ml of blood in an approved instrument (usually conducted at a police station), the person’s license is suspended for a period of 3 to 30 days, depending on how many times he or she has previously received a similar suspension.
2. If a person fails or refuses to provide to comply with a breath demand (or a blood demand, or a demand to do certain physical tests), the person’s license is suspended for a period of 90 days and the vehicle is impounded for seven days. (In addition, the person will probably be charged with a criminal offence.)
3. If a person registers a reading over 80 mg of alcohol in 100 ml of blood into an approved instrument (usually conducted at a police station), the person’s license is suspended for a period of 90 days and the vehicle is impounded for seven days. (In addition, the person will probably be charged with a criminal offence.)

The 90-day license suspension listed in #3 above has previously been upheld as constitutional.

British Columbia created a similar regime to Ontario’s. However, #3 was a bit different. Instead of it being based on the approved instrument reading (which is generally considered a reliable instrument), it was based on the roadside approved screening device (similar to what is used in #1, and is known to have the occasional false positive). (In 2012, British Columbia added more ability for a person to challenge the basis for the suspension.)

The Supreme Court of Canada was asked to review the constitutionality of British Columbia’s administrative suspension regime (as it existed before 2012).

On Friday, in Goodwin v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 46, the Supreme Court released their decision. In a 6-1 decision, the Court found:

1. The Province has the constitutional power to create these laws.
2. The laws do not violate the presumption of innocence, as the suspension is unrelated to being charged with an offence.
3. The 90-day suspension based on the roadside result without additional review protections (that were not in place before 2012) was an unreasonable search and seizure that could not be justified by the province. (The Court was not asked to comment on the lower suspensions or the effect of the 2012 amendments).

(Chief Justice McLachlin dissented on the third issue, finding that the search and seizure was reasonable.)

What does that result mean for Ontario? It means that our current regime is constitutional. The sole issue the Supreme Court had with British Columbia’s regime was that the 90-day suspension was based on the less accurate roadside screening device, rather than the more accurate approved instrument, and then not creating sufficient protection against false positives. Ontario bases the 90-day suspension on the approved instrument, which has previously been found to be constitutional.

Therefore, Ontario’s administrative license suspension regime for drinking and driving appears to be alive and well.

If you have been charged with a drinking and driving offence, and are facing a 90-day license suspension, contact Daniel Lerner today!