How long can police detain you at a traffic stop before it infringes upon your Charter rights? It’s a valid question.
A recent judicial review of a 90-day driving prohibition raised some constitutional issues. Unfortunately for British Columbians, they were left unanswered.
Tyler Grant Borradaile sought the review after a Superintendent of Motor Vehicles adjudicator dismissed his appeal of a 90-day driving prohibition. A police officer had stopped Mr. Borradaile at a sobriety check stop. The officer asked whether he had consumed any alcohol that evening, he replied: “ a beer… an hour ago”.
When the officer asked Mr. Borradaile again when his last beverage was, he said: “recently”. The officer then told him that he would need to wait 15 minutes to allow any residual mouth alcohol to dissipate.
Mr. Borradaile blew a “fail” on an approved screening device (ASD) and declined an opportunity to provide a second breath sample. When he appealed to the Superintendent of Motor Vehicles, the adjudicator upheld the prohibition.
When a RoadSafetyBC decision doesn’t go your way, you have the option of a judicial review, which Mr. Borradaile took in this case. He argued that the delay the officer took in administering the ASD test amounted to a breach of his s. 9 Charter right to freedom from arbitrary detention. Furthermore, he argued, that his improper detention consequently led to a breach of his s. 8 right to freedom from unreasonable search and seizure.
Mr. Borradaile asserted that because he said he had had a beer an hour ago the officer had no basis to form the conclusion that his last drink may have been more recently. The officer should have, therefore, administered the AD test immediately rather than waiting 15 minutes. As such, this amounted to arbitrary detention, he said.
It’s an interesting argument, but unfortunately for Mr. Borradaile, and for all BC drivers, 90-day driving prohibitions are administrative matters, not criminal. As such, the RoadSafetyBC adjudicator was not required to decide whether this amounted to a Charter breach.
While the judge presiding over the BC Supreme Court judicial review, said Charter values “need to be taken into account”, RoadSafetyBC adjudicators lack the necessary power to exclude evidence because of a Charter breach anyway.
Adjudicators cannot cross-examine witnesses or hear testimony. The police officer’s role, in this case, ended with their report. The review process for administrative driving matters consists of a 30-minute oral hearing on technical, legal issues only. A criminal court, on the other hand, would be able to decide whether evidence was in breach of the Charter and, therefore, inadmissible.
The BC Supreme Court judge said:
“The adjudicator was obligated to consider Charter values in making her decision. However, the focus of the analysis of Charter values before the Superintendent’s delegate is whether the evidence is relevant and reliable as opposed to whether the evidence would be admissible in a criminal case.”
Since the adjudicator could not exclude evidence, they had to weigh the evidence in front of them and make a decision on the standard of reasonableness.
While the issue of unlawful detention in administrative driving prohibition reviews is a genuine concern, the BC Supreme Court was unable to adequately address the issue in this case. The limits of the adjudicator’s review process meant the question of what is and what is not improper detention is still unclear. More judges should be urging police officers not to breach Charter rights at a traffic stop.
My question is: how can courts ever possibly address this question? It is an area in desperate need of clarification or else we risk police detaining whomever they wish for however long with impunity.