Govt. lawyers ask court to delay changes in B.C. drunk driving law

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A section of B.C.’s tough drunk driving law the B.C. Supreme Court ruled unconstitutional should stay in place until next June so provincial politicians can rewrite it, government lawyers argued in court Monday.

Crown attorney George Copley told Justice Jon Sigurdson legislators should also decide the fate of drivers already hit with an immediate 90-day license suspension and vehicle impoundment for blowing over the legal limit of 0.08 or refusing a breathalyser since the section came into force in September 2010.

That means an estimated 15,000 people punished through immediately enforced penalties would have to wait until June 30 to find out if they were getting their driving records wiped, licenses back and punishment-related costs refunded.

Sigurdson struck down the section in a Nov. 30 decision, and is hearing arguments on what that means for thousands already charged and when the ruling will kick in.

Penalties brought under the law for drivers who blow between 0.05 and 0.08 remain in place, as do Criminal Code provisions on drunk driving. Police have cut back on using formal impaired driving charges in favour of the new on-the-spot penalty regime.

Lawyers representing four drivers challenging the rules argued the section should be severed, or legally nullified, as soon as possible.

They said the court should order the government to reimburse drivers’ penalty fees and wipe their records clean of violations from the part of the law found to breach the Charter.

“If this unconstitutional law remains valid… for six months, and then the government does change the law and gets it right, that isn’t going to help the thousands of people charged under it,” lawyer Howard Mickelson said.

Mickelson said the Crown’s argument that legislators, not the court, should make retroactive charge decisions dodges the question of how to handle the plaintiiffs in the challenge and other drivers who have appealed through the Office of the Superintendent of Motor Vehicles or accepted punishment without a fight.

“That’s the government’s position: Too bad for you if you were caught in this.”

But Copley told Sigurdson the measure should remain in place, saying it has dropped the number of impaired drivers on B.C. roads as well as drunk driving deaths.

“There is a danger to the public if this legislation is not kept in force,” he said.

B.C.’s “effective impaired driving law” should not be touched, Copley added, until politicians can take time to carefully overhaul it in the wake of Sigurdson’s ruling.

“It’s better to freeze things right now in order to give the legislature an opportunity to respond to this court’s decision,” he said.

The court pegged fine and punishment-related costs stemming from the section's penalties at more than $4,000 per driver. The money is paid to the province and includes the initial $500 fine, the price of an interlock device and responsible driving classes, among other steps required.

That means the total cost of payments sought by the government from  B.C. drivers could be north of $50 million, if government statistics showing roughly 1,000 people charged for each of five months ending last January hold true for the rest of 2011.

The figure doesn’t include potential wages lost by workers who must drive to earn a paycheque but were unable do so after receiving a license suspension by police.

Such lost earnings, in addition to punishment costs, may be the subject of a class action lawsuit.

Lawyer Jeremy Carr, also representing one of the constitutional challengers, said he expects a class action lawsuit to be launched.

Solicitor-General Shirley Bond has said drivers blowing over 0.08 will be dealt with through penalties, such as a 24-hour driving suspension and possible Criminal Code charges, that were in place before the 2010 changes until the drunk driving law is brought in line with the court's ruling.

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Comments

So let me get this right, the

So let me get this right, the Gov want's to keep a law that is unconstitutional be left on the books to work it out. I agree on tough laws and zero tolerance but if they get away with this what is to stop them from bringing in other laws that violate rights whenever they need cash. All they would have to do is enact a law collect money then say sry we were wrong but we are going to keep the cash and fix the law

This type of thing happens all the time. The old addage about questioning authority applies. Municipal governments routinely and perhaps with the blessing of ignorance enact bylaws/ rules that infringe on provincial and on occasion federal legislation. Just ask a certain mayor of a large municipality on Vancouver island about ALR/ALC. He or apparently his staff and councillors enacted bylaws in direct contravention of the above rules. Stu did not like it when they told him this though and he then allegedly told them to get out of his office. He should run for premier.... Snip. As for this latest boondoggle, again. this is a good one, because the government gets the support of MADD and anyone else who might not partake in alcohol consumption. They enact a law that surely someone knew was against the charter. I certainly realized it, and I am not a lawyer. I did take business law about 18 years ago, which covered tort law and some other misc civil items like that with touching on the charter, etc. My other concern is that the police seem to support this law even after a supreme court judge has made a ruling that says it is unlawful and against citizen's charter to be free from unlawful search & seizure. ("this law essentially amount to unlawful search & seizure"). I am surprised that the police being as suppossedly highly trained and supposedly ethical as I used to think they were would have seen the illegal aspects of this law when it was imposed... Makes me wonder how many other of our charter rights are being stomped out on a daily basis in the so-called essence of safety as was initially the big sell on this law to get BCer's on board or on side. But maybe after all, it was about the cash, Apprx 50 million worth that the government does not wish to pay back after illegally gathering the money. This is why we as BCer's and Canadians should always question at the very least in our own minds when governments enact new laws.. To be clear I do not condone Drinking & Driving. However there are strong laws currenty in place which respect the charter, that the police have not been enforcing since this new easier, now illegal law was enacted. The police are governed by the province, do your job. Government, stop getting the police to be your cash grabbers. They have serious work to do... Essentially smarten up, HST, now this, what next??

Guilty Until Proven Innocent... June 30 tomorrow!

So... I have always agreed with the DUI laws and their enforcement. I have always empathised with the police and the job they have to do on this front and many others. They are the people at the end of the stick who are also the front line of defence... however!

The unconstitutional nature of the ADP and IRP is appalling. We supposedly live in a democratic and free society yet the government is continually trying to work on our behalf as a totalitarian government and stuff things down our throat regardless of protest..

Yes, I am currently facing the ramifications of a DUI. In my early 40's I have a clean driving record and no criminal record. I have a good job and a loving family, I pay my taxes and am nothing more than an average Joe. Did I make a mistake? A wise person at this point says: That remains to be proven. Do I feel remorse? Oh yes as well as guilt, anxiety, stress and depression, primarily because of a lack of judgement but also because of what may come down from the crown, perception from friends, family and colleagues, the social stigmatism involved etc….  Many of you will say good to all of that and you know what?  I say good as well but keep in mind, I am your neighbour, I am you and at first glance I made a monstrous mistake, the saving grace is no one was hurt. I support the laws outlined by our society and I will accept the consequences of my actions after they have ran their course through our judiciary system and look to our Charter of Rights and legislation to ensure a fair outcome for all parties…

Now ask me if I agree with being guilty until proven guilty or otherwise by the system and charter of rights that we all ‘think’ we live by?  Hell no!  Imagine some one calls the police and says you (I mean you) are guilty of a crime.  With very little evidence and you having NO recourse your are guilty and fines and punishment are immediate.  Regardless of the outcome of your dealings with crown council you are already out of pocket $4,000.00 plus and unable to conduct your daily life.  Everything is now in limbo… everything.

You can get on your soapbox and shout it from the hills that people like me get what we deserve but remember you are saying that you also get what you deserve.  One mistake, lapse in judgement, and you are now guilty, screw you and your life because just in case you are criminally negligent you lose all privileges that our charter of rights guarantees…. Where are we now Canada?

I look forward to next week and the ‘new’ legislation.  I look forward to it because I want to believe we live in a fair and democratic society… Do we?  We will find out.