Regulation and the Constitution: Goodwin v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 46

It is boom time in Canada for cases involving the constitutionality of regulatory regimes. Joining the recent decision in Guindon (see here) is last week’s judgment in Goodwin v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 46. At issue here was British Columbia’s regime of roadside breathtesting of drivers. Driving suspensions are imposed, with immediate effect subject to subsequent administrative review, on drivers who register a “FAIL” or “WARN” on the test. Some drivers’ vehicles will be impounded. Contesting a roadside prohibition can be quite expensive: the first-instance judge estimated the cost at around $4,000 for some drivers.

The Court decided two interesting questions at the intersection of constitutional and administrative law. First, as in Guindon, the applicant argued that the roadside prohibition scheme was a criminal “offence” to which heightened constitutional protections should apply. Karakatsanis J. rejected this argument, noting that the scheme “is not concerned with addressing the harm done to society in a public forum; instead, its focus is on the regulation of drivers and licensing, and the maintenance of highway safety.  Although it has a relationship with the criminal law, in the sense that it relies on Criminal Code seizure powers and is administered by police, the scheme is more accurately characterized as a proceeding of an administrative nature” (at para. 43). I wonder if this is simply a “relationship” with the criminal law: the average motorist stopped by a police officer doubtless considers the officer to be acting in his capacity as protector of law and order, not simply in a regulatory capacity. In any event, the consequences — suspension, impounding of the vehicle and associated costs — were held to be so directly tied to licensing violations as not to be penal in nature. The fact that the province’s regulatory scheme closely mirrored the impaired driving provisions of Criminal Code (at paras. 25-29) did not persuade Karakatanis J. that the roadside testing regime had a criminal character. The result is that instead of having a full trial with the usual battery of protections for the accused, drivers have to be content with an administrative review scheme.

The administrative review scheme was at the heart of the next question: whether the provision of a breath sample is an unreasonable search and seizure within the meaning of s. 8 of the Charter of Rights and Freedoms. For the majority, Karakatsansis J. recalled that “Where an impugned law’s purpose is regulatory and not criminal, it may be subject to less stringent standards” (at para. 60), but also recognized that this sort of scheme has both regulatory and criminal features:

Driving on highways is, of course, a highly regulated activity, and drivers expect that the rules of the road will be enforced.  This reality, combined with the scheme’s location within a broader regulatory framework targeting driving and highway safety, supports characterizing the regime as regulatory and applying a more flexible standard in assessing its reasonableness.  However, other features of the scheme suggest that closer scrutiny is required to ensure the state does not unreasonably interfere with a driver’s privacy interest.  First, while the breath seizure occurs for a regulatory purpose, it nonetheless has certain criminal-like features, such as its administration by a police officer pursuant to Criminal Code authorization.  Second, while the consequences that follow a “fail” reading or the failure to provide a sample are not criminal, they are immediate and serious, and arise without a further test using a (more reliable) breathalyser (at para. 63).

Karakatsanis J. did not come down clearly on the criminal or regulatory ‘side’. She acknowledged that the taking of a breath sample is a relatively minimally intrusive invasion of personal privacy (though nonetheless a seizure within the meaning of s. 8) but also noted some concerns about the accuracy of the testing equipment. Indeed, concerns about accuracy gave rise to a serious problem, because the administrative review provisions did not allow for the accuracy of the testing equipment to be contested in a meaningful way. This was directly relevant — “critical” (at para. 72) — to the reasonableness of the provisions requiring drivers to give breath samples: “Absent meaningful safeguards to ensure reliability, this factor raises serious concerns about the reasonableness of the law authorizing the seizure” (at para. 68). Here, “the absence of meaningful review of the accuracy of the result of the seizure, in light of the unreliability of the test, raises concerns about the reasonableness of the…scheme.  Absent such review, a driver could find herself facing serious administrative sanctions without the precondition for the sanctions being met, and without any mechanism for redress” (at para. 75). The province has since amended its legislation to provide a more meaningful review which, one imagines, will pass constitutional muster.

On the whole, Goodwin is further evidence of Canadian courts’ reluctance to use the constitution to invalidate schemes that can fairly be described as regulatory rather than penal in nature. Those of us who engage in highly regulated activities can expect to face heavy penalties for non-compliance and regular inspections without being able to invoke the rights available to persons accused of crimes. It is notable that Goodwin involved the regulation of an everyday activity, not a commercial activity, but the Court has long been reluctant to interfere with legislative choices in the area of road safety.

One last brief mention of another road safety case litigated recently: R. v. Michaud, 2015 ONCA 585. This was yet another ‘age of facts’ challenge based on s. 7 of the Charter. Here, a truck driver argued that the speed limiter he was required to install in his vehicle caused an unconstitutional risk of harm because he could not speed up to avoid dangerous situations. Léonid Sirota’s two posts (here and here) on this case are worth reading. Lauwers J.A. held, based on expert evidence that it is necessary to speed up in 2% of “traffic conflicts” (at para. 73), that the speed limiter interfered with M’s physical integrity. I would add only to Léonid’s analysis that in the Canadian law of torts a victim cannot be compensated for the ‘loss of a chance’. That is, a victim needs to demonstrate that it is more probable than not (more than 50%) that an injury would not have occurred but for the negligence of the defendant (see e.g. Da Silva v. Wong, 2010 ONSC 6428 for a particularly gruesome example). It is passing odd that a victim in an inter partes tort action has to pass the 50% threshold to recover damages for personal injury while an applicant in constitutional litigation need only show a 2% risk in order to justify a court in striking down legislation. In Michaud, Lauwers J.A. upheld the legislation as proportional under s. 1 of the Charter but in my view he never should have got that far.

This content has been updated on October 21, 2015 at 12:45.