Application of the Charter in Written and Oral Reviews of Immediate Roadside Prohibitions

By Bryan Fitzpatrick
Categories: Blog, Criminal Law

In Bates v Superintendent of Motor Vehicles, 2018 BCSC 1211, we recently succeeded in having the decision of an adjudicator confirming an immediate roadside driving prohibition set aside.

The Bates decision is significant because it confirms that the Charter of Rights and Freedoms must be considered by an adjudicator when conducting a written or oral review of an Immediate Roadside Prohibition (IRP) pursuant to the Motor Vehicle Act, R.S.B.C. 1996, c. 318.

The Court in Bates, ibid, cited Tsogas v. British Columbia (Superintendent of Motor Vehicles), 2016 BCSC 1742, and held as follows:

[18] … In the Tsogas decision, Mr. Justice Johnston makes some observations:

[…]

[20]     The Court in Goodwin held that “the demand to breathe into a roadside screening device constitutes a seizure that infringes on an individual’s reasonable expectation of privacy,” invoking the protection of s. 8 of the Charter (at para. 51). Further, although the demand is made under s. 254(2) of the Criminal Code, for the purposes of s. 8, the provincial legislative scheme authorizes the seizure and thus the provincial legislation is open to Charter scrutiny (Goodwin at para. 54).

[21]     Charter scrutiny of a search or seizure requires a court to determine if the search or seizure was reasonable. The requirements are that: (1) the search or seizure must be authorized by law; (2) the authorizing law must be reasonable; and (3) the search or seizure must be carried out in a reasonable manner (Goodwin at para. 48, citing R. v. Caslake, [1998] 1 S.C.R. 51 at para. 10 and R. v. Collins, [1987] 1 S.C.R. 265 at 278).

Clearly, driving prohibitions issued pursuant to the provisions of the Motor Vehicle Act concerning Immediate Roadside Prohibitions (IRP) are open to Charter scrutiny.

Thus, when reviewing the circumstances surrounding the issuance of an Immediate Roadside Prohibition (IRP) by a peace officer in British Columbia one must always determine whether there has been a breach of an individual’s Charter rights. Any such breach must be raised in the written or oral review hearing in order to ensure that both the hearing and the outcome of the hearing are consistent with principles of fairness.

In order to do this effectively one should seek the advice of legal counsel who has experience challenging Immediate Roadside Prohibitions.