Kyla Lee

Back in 1975, the Supreme Court of Canada made a groundbreaking decision on drunk driving. The decision was about the admissibility of breathalyzer test results presented in court. In this decision, the Court held that breathalyzer results, even absent evidence the breath sample was lawfully obtained, could still be used in court to convict a driver for being over the blood alcohol limit, with this caveat: as long as the driver did in fact provide a breath sample, and a certificate of analysis was admitted into evidence.

In plain English, what the court was saying is that if you provided a breath sample, even if the demand for the breath sample was unlawful, the results of that breath test could be used against you in court.

Since then, courts across the country have gone back and forth about whether that decision remains good law or whether it’s absolutely bonkers that unlawfully obtained evidence is somehow still admissible in court.

The Provincial Government clearly had good intentions when it made changes to the Motor Vehicle Act in 2010 to prohibit the use of personal electronic devices while operating a motor vehicle.

Barely 20 months after the legislation was introduced, Government had already tallied more than 46,000 tickets issued for distracted driving. Despite criticism from drivers, cell phone use while driving soon became a priority for law enforcement and legislators alike. It wasn’t entirely surprising. After all, distracted driving is a serious offence and can be a factor in crashes causing severe injury and death.
ICBC reports that approximately 78 people are killed each year in crashes “where driver inattention or distraction is a factor.” And as Government struggled to figure out how to get drivers to leave their phones alone, police conducted more and more enforcement blitzes with increasing vigilance.

Penalties have also doubled since the legislation was introduced. Initially, drivers caught using an electronic device were subject to a $167 ticket and three penalty points. Changes made in June last year increased the fine to $368 and added an additional penalty point.

This means a driver given a distracted driving ticket will now end up paying $543 in total for a first offence, when factoring in the increased premium for the extra penalty point.

It’s troubling when the Government has to issue a public statement defending a law before the bill is event tabled for debate. When the proposed legislation is so flagrantly and blatantly unconstitutional, the Government is clearly scrambling to justify its existence before it is even passed. And so that brings us to the big drunk driving law news of the week: Jodi Wilson’s Charter Statement on Bill C-46. My summary opinion is this: it’s a stinking pile of nonsense.

Or, as one lawyer interviewed put it, “if a first year student wrote this, they would fail.”

On Thursday, the Liberal Government revealed its plan for marijuana legalization. Surprising to many was the fact that the Liberals introduced this as part of an omnibus bill that makes amendments to other parts of the Criminal Code, including the impaired driving legislation. Omnibus bills were commonly criticized by them as tactics used by their predecessor to pass bad legislation. These proposed changes also hide some of the more disturbing aspects the Government has introduced in furtherance of its stated goal to legalize marijuana.
 
I am deeply disturbed by changes that the Government has proposed, in particular the proposal to conduct random breath tests of drivers.
 
Over the next few blog posts, I am going to share some of my views on this proposed legislation and why I believe it to be constitutionally deficient.

It almost feels like a bad joke at this point. Just when we adjust to a ridiculous policy change made by RoadSafetyBC and the Superintendent of Motor Vehicles, they roll out another one. The frequency with which their policy changes happen really does make it seem as though the Government actors at RoadSafetyBC are slowly trying to eliminate all of your procedural rights. The plan being that if each right is chipped away at one at a time, they won’t suffer the same blow they did when the courts declared the IRP law unconstitutional after it was first introduced.

And so now we have another disturbing policy change to deal with.

I’m curious about how many people who have been through BC’s Administrative Justice process with the Immediate Roadside Prohibition scheme feel they’ve been given a fair shake at the hearing. I’m curious to know how many people felt they had a proper opportunity to tell their story, and have their arguments considered by the adjudicator.

The BC Government measures the success of the IRP scheme in terms of tax dollars saved on the cost of court, and in terms of the number of people who didn’t die this year (without discussing really why). But how is administrative justice measured by those who had to access it? Do these people think that this system is as successful as the BC Government believes it to be? Is the system effective for more reasons than saving money? Do the ends justify the means?

Below the link, you’ll find a survey. If you’ve been through the IRP process and you’ve been given a decision then I want to know how you felt your case was handled by the Superintendent of Motor Vehicles. Do you think you got a fair hearing? Do you think you had enough time to prepare? Do you think you had the right ways to challenge the evidence?

Police officers in British Columbia have significant obligations when they come across someone who appears to have committed an offence, but generally speaking they have broad discretion in how to proceed when it comes to traffic offences. When it comes to police discretion in issuing traffic tickets, it’s important to keep in mind that the officer giving you the ticket has a great deal of personal authority. Consequently, how you behave after the fact can have major consequences for the outcome of your case.

Right or wrong, the cop who pulls you over for a Motor Vehicle Act offence is likely to issue you a ticket. Imagine for a moment that your job is to be a traffic officer.

I recently wrote about entrapment and what counts as entrapment in traffic cases. I’ve been thinking a lot lately about entrapment as the Creep Catchers have bee present in several news stories.
 
It gets me wondering whether Creep Catchers cases may give rise to a defence of entrapment. I believe it might.
 
The theory behind entrapment is rooted in an abuse of process. Essentially, it is wrong for the state to coerce citizens into committing crimes, or to set out a plan by which they wind up committing an offence. As I described earlier, a morality test constitutes entrapment.
 
But where do groups like Creep Catchers fall on the issue?