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Old 12-01-2011, 01:23 AM   #1
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B.C.'s tough new impaired-driving rules declared almost completely constitutional

In a lengthy decision released the same day the holiday Counterattack program began, the veteran jurist said:

“Although I am fully satisfied of the importance of the objective of reducing the harms caused by impaired driving, I have found that the [constitutional] challenge succeeds in part, because in one respect the impugned legislation infringes the rights of individuals to be free from unreasonable search and seizure.”

Bond responded that the government will rewrite the law and introduce amendments this spring.

After deliberating for six months, Justice Sigurdson said Wednesday that given the stiff penalty for a “fail” under the new administrative program, he thought there needed to be a better, less limited appeal process.

He concluded: “The [Administrative Roadside Prohibition] legislation infringes section 8 of the Charter [of Rights and Freedoms] insofar as it concerns the prohibition, penalty and costs arising from the screening device registering a ‘fail’ reading over 0.08. This infringement is not a reasonable limit which is demonstrably justified in a free and democratic society.”

Lawyer Howard Mickelson, who participated in the case, said he thought the frailties of the law articulated in the decision would make the province’s job of trying to salvage it much more difficult than the attorney-general suggested.

He said the province’s planned response and the judge’s final order in the case will all be discussed at the imminent hearing. No date has been set for it.

Robert Holmes of the B.C. Civil Liberties Association said: “Thank goodness we have an independent judiciary that isn’t afraid to stand up to government when it goes too far.”

The most draconian impaired driving regime in the country allows police to issue immediate roadside suspensions, impound cars and levy fines on drivers who refuse a breath test or blow a blood-alcohol level of .05 or higher.

It costs drivers who cross the .08 “fail” threshold a three-month suspension and nearly $5,000 in penalties, towing bills, stowage fees and other costs — they are forced to complete a pricey safe-driving program and install interlock ignition devices on any motorized vehicle they operate.

Defence lawyers savaged the law for infringing rights while the hospitality industry complained it scared away customers.

The Alliance of Beverage Licensees of British Columbia said it would have been happier if Justice Sigurdson entirely denounced the legislation.

“We have believed from day one that this law is unfair and conceptually flawed, and our businesses have suffered as a result,” said president Matt MacNeil.

The new rules “amounted to a scare tactic that kept people from being able to even enjoy one drink after work or with dinner,” he added.

“We’re pleased that the Supreme Court has agreed that provisions of this law are unconstitutional, and we look forward to working with the B.C. government to come up with better solutions to stop impaired driving.”

Gordon Cartwright, owner of Woody’s on Brunette Pub in Coquitlam, also welcomed the ruling because his business dropped by 20 per cent.

“It’s a great Christmas present for the people of B.C. who want to drive responsibly and want to enjoy a few cocktails with their friends,” said Cartwright.

“We had some very aggressive policemen who were just sitting outside in the parking lot and pulling people over when they left. People were just scared to even drive out of the parking lot here.”

While not binding outside B.C., the decision will prod other provinces such as Alberta, which last week introduced similar legislation, to review plans to emulate B.C.’s approach to avoid similar problems.

Justice Sigurdson embarked on a constitutional examination of the law as a result of issues raised by a representative group of drivers who were subjected to the most severe penalties of the law that came into effect in September 2010.

Read more: B.C.'s tough new impaired-driving rules declared unconstitutional in part, judge rules
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Old 12-01-2011, 01:34 AM   #2
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so does this have retrospective effect?
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Old 12-01-2011, 01:42 AM   #3
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I hope they lower the fines.
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Old 12-01-2011, 02:06 AM   #4
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someone explain this in simple english please.
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Old 12-01-2011, 02:19 AM   #5
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The Constiution is composed of the highest supreme laws in the legal hierachy... To render certain provisions unconstituitonal would mean that lower level acts/regulations/ordinances whatever you call them regarding the provsion void aka no more... unless it gets appealed to higher court levels, to see if it is in line with the Consitution.

nevermind I doubt there is retrospective effect since Canada follows common law
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Old 12-01-2011, 02:38 AM   #6
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nothings been officially decided yet due to the "imminent hearing" which has no date set yet


and if the province wanted they can enact the notwithstanding clause of the charter which will allow them to keep the impaired driving laws regardless; very rare for a province to use it 7/10 provinces 2/3 territories have never used it and federally its never been used but its there if the govt. really wants to enforce this

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Old 12-01-2011, 02:59 AM   #7
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someone explain this in simple english please.
"Justice Jon Sigurdson said sections of the Motor Vehicle Act trample on the rights of drivers who blow over .08 on a roadside-screening device because the law does not provide a proper appeal process and relies on what amounts to an illegal search-and-seizure."

"Drivers who ask for a review are prohibited from questioning the reliability of the screening device and their grounds of appeal are severely restricted, the justice said, so the charter breach can’t be sanctioned given the heavy penalties they face."

“This is particularly so considering the province has legislated to base the consequences of a ‘fail’ reading entirely on the results of the screening device.”
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Old 12-01-2011, 03:02 AM   #8
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nothings been officially decided yet due to the "imminent hearing" which has no date set yet


and if the province wanted they can enact the notwithstanding clause of the charter which will allow them to keep the impaired driving laws regardless; very rare for a province to use it 7/10 provinces 2/3 territories have never used it and federally its never been used but its there if the govt. really wants to enforce this
Would you know why this is the case? I asked my TA why provinces just don't slap the notwithstanding clause on every statute it can be applied to so it can't be challenged (I understand if doing so would be politically damaging but in this case it is not) but she didn't know and it didn't explain it in my text either.
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Old 12-01-2011, 05:02 AM   #9
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mainly its because politicians are pussies and such a move is heavily considered a re-election killer and to some extent its considered to be against canadian values (since its very authoritarian)

its not always successful either, Alberta used it to define marriage as between a man and woman (no homosexuals) and the supreme court simply ruled its not for the province to decide what marriage is/isnt but a federal issue; so not only would you be risking your re-election your use may fail anyway
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Old 12-01-2011, 06:08 AM   #10
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There will be no retrospective effect, and the police will be free to keep enforcing this law for some time. Whenever a law gets struck down by the courts, it is allowed to be kept temporarily until the re-drafted version is approved etc. sooooooooooo.......still be careful and wise about how much you have to drink before getting behind the wheel.
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Old 12-01-2011, 08:05 AM   #11
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^ but it sets a basis for chanllenge in court if pursued
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Old 12-01-2011, 08:22 AM   #12
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I was surprised by this. I have not been an advocate for this law. It is difficult to say that, because the first thing another person says is, "so you support drinking and driving?"

I thought the warn portion was going to be the part that would be ruled unconstitutional. Is it illegal or not? If it is, then here's the penalties, if its not than I truly get a "warn". Even with the police saying, we can't let you drive tonight because you blew a warn, either someone needs to come and drive you and your car home or we tow it and hold it for 24 hours. I'm ok with that being done road-side.

I'm ok with anything being done road-side where waiting negates the purpose. Yeah, we can take you to court in the morning, but you are already, hopefully, sober.

I really don't like the idea that this much power is handed to police. So in a way, I guess its not a huge surprise that that part was ruled unconstitutional afterall.

I don't see them needing to do anything like use the notwithstanding clause, because its so easy to get around the problem with the law. They'll take the car until court, and a judge will impose the same thing as the police did road-side.

I do think that layer is important, as for that possible rare case where the reading was wrong, at least we can stop the penalty before its imposed. Yeah, we can re-imberse costs, but how do you put a price on being without a car for 3 months?

It is good to see that the law is working. It's worked for me...not that I drunk large at the best of times, but at max now I'll have one beer at the beginning of dinner. It's not even worth having to risk being checked at a road check. And for me, its not even a big deal. Could tell me I could never drink again, and it wouldn't be an issue.

So in that regard, the restaurants are right...its costing them big time.
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Old 12-01-2011, 09:26 AM   #13
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someone explain this in simple english please.
The law for 0.05-0.079 stands.

Quote:
The court ruled Wednesday that B.C. was within its jurisdiction in putting in place the laws that target drivers with a blood alcohol content over 0.05 per cent, because the province should be allowed to regulate licensing of drivers and put in measures to enhance highway safety

Sigurdson ruled that in the case of those who blow in the 0.05-0.08 warning range, B.C.'s law isn't as big a problem because the consequences are much lighter.
---

The law for 0.08+ needs to be revised. The impound and suspension were found to be too long and those convicted should have a chance to challenge these punishments in court.

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However, the judge also found that B.C.'s laws do violate the Charter when a driver is screened and found to fail a breathalyzer test by blowing above 0.08 per cent, as it gives the police power to impose criminal-like consequences with no opportunity given to the motorist to challenge the decision



Part of B.C.'s drunk-driving law violates Charter, judge rules - British Columbia - CBC News
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Old 12-01-2011, 09:30 AM   #14
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Anyone that thinks this is a "win" please consider this:

The range the police uses is actually 0.06-0.099 for WARN and 0.10+ for FAIL, thus anyone blowing a FAIL is drunk by any standard. That's not a couple beers or glass of win, that's drunk. This ruling now allows these drunks to keep driving until their court case, the automatic suspension and impound will be severely reduced in the rewritten law.

For those worried about having a couple beers or glass of wine while out, the same punishments for WARN still apply. This decision has done nothing to help the common person who enjoys a few drinks, it only helps truly drunk drivers which is a shame as those are the people we should be targeting.
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Old 12-01-2011, 09:38 AM   #15
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I thought the warn portion was going to be the part that would be ruled unconstitutional. Is it illegal or not? If it is, then here's the penalties, if its not than I truly get a "warn". Even with the police saying, we can't let you drive tonight because you blew a warn, either someone needs to come and drive you and your car home or we tow it and hold it for 24 hours. I'm ok with that being done road-side.
I guess because 0.08 falls into Criminal code, so the charter protects the right to appeal for criminal offences...

But I agree that it makes no sense for the 0.05, and I agree with Taylor that it seems to be counterintuitive in that it's targetting the wrong people.
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Old 12-01-2011, 11:49 AM   #16
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For all those that say the laws are still in effect is not true, once struck down as unconstitutional, they don't have a "temp" period where they can still issue it. It's invalid now for 0.08. So the OLD OLD laws apply:

As noted on Globe and Mail:


Quote:
"Now, B.C. Solicitor-General Shirley Bond said any driver blowing over .08 will face the penalties that existed before the 2010 drunk driving law was enacted – typically a 24-hour driving suspension and the possibility of charges under the Criminal Code.
But drivers who blow in the “warn” range of 0.05 to 0.08 can still immediately lose their licence and their vehicle for up to 30 days and be required to install an ignition interlock device – the court accepted the penalties in that range as a reasonable infringement on Charter rights

Unconstitutional mean it doesn't stand up to our constitution. It's like saying if there was a law saying that killing is okay, but the courts say it is unconstitutional. There is a temporary time where it still is legal....and you can keep killing even if the courts struck it down and the government is trying to redraft.

No..it means it is invalid right now.


Edit: These laws are also provincial laws, so BC supreme court is the highest it can go, if they struck it down provincially (don't quote me) I think the government can't go any higher.
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Old 12-01-2011, 11:59 AM   #17
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"Now, B.C. Solicitor-General Shirley Bond said any driver blowing over .08 will face the penalties that existed before the 2010 drunk driving law was enacted – typically a 24-hour driving suspension and the possibility of charges under the Criminal Code.
But drivers who blow in the “warn” range of 0.05 to 0.08 can still immediately lose their licence and their vehicle for up to 30 days and be required to install an ignition interlock device – the court accepted the penalties in that range as a reasonable infringement on Charter rights
So right now... its less punishment to blow a FAIL than blow a WARN?
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Old 12-01-2011, 12:06 PM   #18
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For all those that say the laws are still in effect is not true, once struck down as unconstitutional, they don't have a "temp" period where they can still issue it.
It all depends on how it is struck down, yet in this case you are correct the old law now takes affect.

To add to this is not a "win":

For those who FAIL the crown has the option of pursuing criminal charges or not. Under the struck down law those who FAIL are immediately punished, 90 day suspension, 30 day impound. Thus the crown may not decide to pursue first time offenders seeing as how they've been punished already. Instead now the crown should (and I suspect will) pursue all criminal drunk drivers.

That's my opinion, not fact - yet I really hope they throw the book at them in court. They challenged this law to get around the harsh roadside punishments, which I thought were reasonable for people blowing > 0.1 BAC, so lets show them how harsh the criminal punishment is instead.
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Old 12-01-2011, 12:14 PM   #19
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I think it would be funny to go to ubc and ask 50 people what the constitution is/purpose of it and see what you get in response.
They are already taking away constitutional rights in the states canada is next in line.
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Old 12-01-2011, 01:32 PM   #20
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That's not a couple beers or glass of win,


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Old 12-01-2011, 05:03 PM   #21
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Well, all they really did was make the legal limit .05. You can call it a warn all you want, but a "warning" to me is just that. As I said, take the car for the night if you want...whats that a $50 tow, and a $30 impound fee and some inconvenience?

[apparently I need to read more on some subjects that piss me off]

And as I said, I don't drink a huge amount...I couldn't tell you off hand where I'd blow after one beer...two. I have no idea where the cut off is.

So I don't. I need my car and can't risk it. I can't handle liquor anyway, so god knows what I'd blow.

Sucks for the restaurants, because I can only have a drink if dino is with me(tee totaler=constant dd)

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Old 12-01-2011, 06:56 PM   #22
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But instead, because I may have had one too many at dinner, or too soon before driving, I'm treated like a criminal. Boom! 30 day suspension, interlock and I can't remember what else. That's a hell of a lesson to learn.
Dude, you really need to do your homework before ranting:

ICBC | Immediate roadside prohibition

Your first WARN offence in 5 years will result in a 3 day suspension and impound. Only after 3 WARN offences will you receive a 30 day suspension, impound, and require an interlock.

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And as I said, I don't drink a huge amount...I couldn't tell you off hand where I'd blow after one beer...two. I have no idea where the cut off is.
Have you tried to find out? I know that if I drink 3 beers in an hour I'll blow under 0.05. I've also had the pleasure of having the roadside test several times, most recently at 2am crossing the border back into Canada. I have never blown more than 0.035, well under the 0.06 limit police use... and I bet I enjoy my beers as much as you

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Sucks for the restaurants, because I can only have a drink if dino is with me(tee totaler=constant dd)
Lives > profits

Besides it should only be temporary loss, people will find a way. They said the same when smoking was banned, and revenues returned to normal quickly.
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Old 12-01-2011, 07:57 PM   #23
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One down. Seizing cars for "excessive" speeding and "street racing" is next.
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Old 12-01-2011, 08:34 PM   #24
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Dude, you really need to do your homework before ranting:

ICBC | Immediate roadside prohibition

Your first WARN offence in 5 years will result in a 3 day suspension and impound. Only after 3 WARN offences will you receive a 30 day suspension, impound, and require an interlock.


Have you tried to find out? I know that if I drink 3 beers in an hour I'll blow under 0.05. I've also had the pleasure of having the roadside test several times, most recently at 2am crossing the border back into Canada. I have never blown more than 0.035, well under the 0.06 limit police use... and I bet I enjoy my beers as much as you


Lives > profits

Besides it should only be temporary loss, people will find a way. They said the same when smoking was banned, and revenues returned to normal quickly.
Thanks for this tidbit, that means a guy I know through a few friends actually rolled 3 warns or one fail to get the interlock that's now in his car?

Can someone toss up a quick comparison of the actual penalties you can receive now? I've never followed it much because I don't drink at all if I need to drive, I want there to be as little chance as possible for some lot monkey to be trashing my car.
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Old 12-01-2011, 09:31 PM   #25
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Dude, you really need to do your homework before ranting:

ICBC | Immediate roadside prohibition

Your first WARN offence in 5 years will result in a 3 day suspension and impound. Only after 3 WARN offences will you receive a 30 day suspension, impound, and require an interlock.


Have you tried to find out? I know that if I drink 3 beers in an hour I'll blow under 0.05. I've also had the pleasure of having the roadside test several times, most recently at 2am crossing the border back into Canada. I have never blown more than 0.035, well under the 0.06 limit police use... and I bet I enjoy my beers as much as you


Lives > profits

Besides it should only be temporary loss, people will find a way. They said the same when smoking was banned, and revenues returned to normal quickly.
You know what, 'dude' you are totally right. I'm going to edit it out.

Honestly for me though, the drinking while driving thing is a personal choice for me to completely abstain if I'm driving. I had a very close call once with a road block, while minutes before saying that I should not be driving, and then went through a road block. Didn't get busted, or even have to blow but I made a deal that I was not having that particular shitty feeling ever again.

Occasionally I'll have like one beer, but it still feels bad.
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