BCCA Finds That Demands for Roadside Alcohol Tests Satisfy Section 8


In Gregory v British Columbia (Superintendent of Motor Vehicles), British Columbia’s administrative system for impaired driving survives its latest Charter challenge.

Impaired driving laws have been challenged before, and struggle to balance between administrative efficiency and the rights of the accused. Before this case, the B.C. legislation had been found to infringe Section 8 of the Charter and amended to increase its procedural fairness. Here, Gregory argued that the legislature still had not fixed the constitutional issues.

Specifically, while the previous challenge addressed the reliability of a breathalyzer test – the new legislation allows a suspect to take a second test, and uses the lower of the two results – this challenge argued among other issues that making somebody take the test in the first place is an unconstitutional search.

The B.C. Court of Appeals found that these were addressed in the previous litigation, but considered them anyways. It emphasized that this is a regulatory context, and not a criminal prosecution. As well, the new procedural protections help to reduce the problem – one can challenge the original decision to demand a test, for example. Further, it found that even if the demand violates Section 8, it can be saved by Section 1 because of the important objective and apparent benefits to public safety.

This latest case indicates that, for now, courts are satisfied that B.C.’s impaired driving process is a fair one.

This blog post was written by a CCLA-PBSC RightsWatch student. Opinions expressed do not necessarily reflect the views of the CCLA or PBSC.