What do I say when I go through a roadblock?
It’s a tough question to answer because it lacks a lot of context.
There is a distinction to this very fraught question that needs to be made at the outset. That distinction is between what a person is obligated to say anytime they are lawfully stopped by police, and what a person is entitled to say (or not say.) There are certain burdens placed on drivers by operation of law.
For example, if a police officer demands that you produce your license or insurance you are required under Section 33 of the Motor Vehicle Act to do so. And if a police officer demands that you provide your name and address, you are required to do so. You are also required to correctly state the name and address of the registered owner of the vehicle. This obligation is codified in Section 73 of the Motor Vehicle Act.
What becomes a little less clear is whether a driver is obligated to state this information orally. The term “state” is not defined in the Motor Vehicle Act. Meaning the question of whether a person must orally state their name and address becomes less clear. The definition of “state” includes making a statement in writing, which would suggest that a driver has no obligation to verbally state their name and address. It may be sufficient to comply with Section 73 of the Motor Vehicle Act to only state one’s name and address in writing if asked to state the name and address.
Why is this important?
Well, in impaired driving investigations the police will use observations of your speech to form grounds to believe a driver has been drinking. So slow speech, slurring, mistakes in speech, or other difficulty may give an officer all or part of their grounds to demand a sample. Similarly, physically speaking also allows an officer to smell the driver’s breath as it is expelled from the body. This can permit the officer to form other grounds for a demand for breath samples. By not verbally stating the name and address, a driver could avoid allowing an officer to detect these symptoms.
Absent that information as required under the Act, a person is under no legal obligation to provide information to the police.
This is where the situation becomes a little more tricky. While there are certain obligations at the roadside, the police inevitably will ask questions of a driver beyond what they are obligated to answer. So the question becomes how to respond to those questions.
A driver is under no legal obligation to provide information to police at any stage of an investigation. Under the criminal law in Canada, roadside statements that are made without the benefit of access to counsel or legal advice are not admissible in a criminal trial for the truth of their contents. They are only admissible to give an officer grounds to ask a driver to provide a sample. Moreover, the Ontario Court of Appeal very recently confirmed that an accused does not have to provide information to the police in a statement, and can be permitted to leave some information out without having it affect his credibility.
Now, at first blush when understanding that failing to provide information to police is not a factor that can be used against a person it might seem like there is no danger in telling the police that you have had nothing to drink, when you’ve been drinking. And that used to be the case.
Unfortunately, several years ago the law in this area started to shift from these well-settled norms in British Columbia. As usual, you can blame the Immediate Roadside Prohibition scheme for this. In its process of credibility assessment, the Superintendent of Motor Vehicles started using false statements at the roadside as a basis to reject a person’s credibility related to their drinking pattern.
This shift started subtly. First, the Superintendent got away with it in a case called Brown v. British Columbia (Superintendent of Motor Vehicles). And that was generally not so terrible, as the argument against the practice advanced in that case did not fully expand on the issue. But the Superintendent continued its practice, and most recently the BC Supreme Court outright authorized the making of a false statement at the roadside as a standalone basis to completely reject a person’s credibility.
The judge said this:
[22] I do not agree that the adjudicator failed to consider the issue of mouth alcohol. The reasons as a whole indicate that the adjudicator did not accept the petitioner’s evidence, including his evidence about using breath spray. Among the reasons the adjudicator gave for not believing the petitioner was the fact that he falsely told the police officer he had not been drinking at all. In my view, that evidence in itself could have formed the basis of an adverse finding on the petitioner’s overall credibility. The adjudicator was also entitled to consider that initial false statement to be more significant and going to a more crucial issue than the police officer’s error about the direction of travel.
This is particularly troubling in light of how officer evidence is treated. Routinely, the Superintendent excuses the police for failing to provide all relevant information where there is no obligation in the legislation to do so. And this practice has been upheld in BC Supreme Court as reasonable.
Despite the fact that the Courts have been clear that an officer’s evidence is not to be treated with any different level of scrutiny than an applicant’s evidence, when it comes to telling the truth, the whole truth, and nothing but the truth, the standards applied to each and the authorized application of those standards are not the same.
Essentially, the mechanism of assessing credibility is applied differently. If an officer does not provide information that he is not obligated to provide in law, the failure to provide it is not relevant to his credibility. If a driver does not provide information that they are also not obligated to provide in law, it is relevant where the information that has been provided is either incomplete or inaccurate.
This is particularly troubling when there is case law that says the following:
[33] Moreover, in effect the reasoning of the adjudicator would require the alleged driver to adequately articulate his or her evidence to the police at the scene, or be barred from relying on it on the very limited review provided by statute. There is no such requirement in the legislation. Even in the context of an administrative scheme this would simply be unfair, and in my view, it cannot have been the intention of the legislature in enacting the legislation to require it. In a case such as this it all but eliminates the utility of the review.
It sure does to me.
So while it may be the case in the rest of the country that making a statement to the officer that you have had nothing to drink, or providing less information about what you have had to drink, or stretching the time period between driving and when you last drank can have no negative consequences in law, that is not the case in British Columbia.
The playing field here is uneven. The law as it has developed in this area has created that uneven playing field. It is a shame.
So what’s the best approach to level the playing field?
As near as I can tell, the Superintendent and any other court or tribunal cannot use total silence as a factor that undermines credibility. The law simply cannot operate to compel drivers to provide information against themselves in this context. The right to silence is too fundamental a legal right to be eroded by a credibility assessment that requires drivers not only to state their name and address but also their pattern of consumption.
So the best and only answer I can give at this point in time is this:
Say nothing.
Literally nothing.
Do not shake your head. Do not tell the officer you do not want to answer. Do not nod your head. Do not say anything at all. When you are at a roadblock the best thing to say is nothing at all, other than to comply with your legal obligation to state your name and address.
That is the only way to protect your privacy rights, your ability to bring arguments in an Immediate Roadside Prohibition review hearing, and to lawfully keep the police from being able to gather grounds for demands in their investigation. You cannot obstruct the police, but you are not obligated to assist them in their quest to build a case against you either. Remaining silent when asked about alcohol consumption is not obstruction.
The only way to best protect your rights and your ability to fight a potentially unjust prohibition is to remain silent when asked about drinking and when asked other questions that you are not obligated to answer at the roadside.
It may be that the law will change for the better in this area. It may be that the pendulum will swing back in the direction of recognizing the right to silence, and that people at the roadside are subject to a power imbalance that prevents them from knowing the jeopardy associated with providing inaccurate information about drinking roadside. But that is not the state of the law today.
The state of the law today is unbalanced and drivers are at a disadvantage. Silence is the only way to level that playing field.
