BC expected to block possible constitutional challenge to roadside drug testing

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If the BC government amends the Immediate Roadside Prohibition (“IRP”) scheme to include drug impairment, a constitutional challenge cannot be brought against the proposed anti-drugged-driving federal legislation. BC is unlike many provinces in Canada, because police officers proceed through the IRP when dealing with suspected impaired drivers. So if a driver is subject to the regulatory measures of the IRP and wants to challenge them, the complainant must go through an administrative system rather than the courts. There is an expectation that BC will add drug impairment procedures to the IRP to head off potential court challenges to the drugged-driving Criminal Code amendment.

The proposed federal law includes the rule that a police officer reasonably suspect a driver has drugs in their system in order to demand a roadside drug test. Tucked into the proposed amendments is also the removal of the “reasonable suspicion” standard for demanding a breathalyzer test. The change would mean that a police officer can request a mandatory breathalyzer test without any suspicion that the driver has alcohol in their system. Arguments against this lower standard would be couched in the right against unreasonable search and seizure, s. 8 of the Charter. The Liberal government proposed this new standard and the rules for roadside drug testing in anticipation of the legalization of marijuana coming next year.

By incorporating drug impairment into the BC IRP, a potential Charter challenge to the federal amendments to the Criminal Code is side-stepped. When a driver is discovered to be impaired by the police, they issue the driver an IRP driving prohibition, and depending on the severity of their impairment, impoundment and monetary penalties. By following the IRP procedure rather than a criminal sanction, a complainant can only challenge the IRP prohibition, not the criminal legislation. The IRP has a built in review process where complaints go to an adjudicator rather than a court, which has been lauded for removing many cases from the over-clogged court system. The BC approach of treating some offences in a “regulatory” manner rather than a “criminal” manner is therefore expected to extend to drug impaired driving.

This blog post was written by a CCLA summer law student. Views expressed do not necessarily reflect the view of the CCLA.