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No refunds for people caught by drunk driving law that was ruled unconstitutional

Jul 13 2012
Island police set up a roadblock on the Trans-Canada near Victoria to check for drunk drivers. 

Island police set up a roadblock on the Trans-Canada near Victoria to check for drunk drivers.

Photograph by: Darren Stone, Victoria Times Colonist , timescolonist.com fileVANCOUVER — A decision by a British Columbia court spares the government from paying an estimated $50 million in compensation, but forces people caught up in drunk driving laws ruled unconstitutional to swallow their losses.

The judgment affects thousands of individuals who were issued the penalties between September 2010 when the tough laws were enacted and December 2011 when one part of the legislation was ruled unconstitutional.

B.C. Supreme Court Justice Jon Sigurdson ruled in December that penalties for a part of the new laws were too harsh for people who blew over the alcohol level of .08, but he upheld the penalties for those who blew in the warning range between the .05 and .08 level.

Those who were dinged with fines and lost their licences came back to court seeking financial compensation for penalties and other costs related to their roadside suspensions but were denied.

In his ruling issued Thursday involving the case of three people subjected to the penalties, Sigurdson said the part of the law he ruled unconstitutional is not retroactive, meaning the penalties stand.

“The petitions are not entitled to the monetary and personal remedies that they seek as the law was valid at the time it applied to the petitions,” said Sigurdson.

Jeremy Carr, the lawyer representing those who successfully challenged the legislation said the judgement “doesn’t seem right.”

“In my opinion what the court has decided isn’t fair,” said Carr. “Not to people that have had all these penalties suspended and after it’s been found unconstitutional, now they’re told they’ve got to go (pay the fines).”

Carr said he didn’t think his clients would be on the hook for the penalties.

“I didn’t expect the court would go as far as we were asking, but I thought there would be a reasonable compromise — because we won,” he said.

“Now (clients) are told, ’yeah you won, good stuff, now you’ve got to go pay the penalties and give us your licence.”’

Lawyers for those who were issued the immediate roadside suspensions argued that if the government knew of a potential constitutional challenge its only options were to either forego passing the legislation or refer it to the courts for a constitutional reference.

But Sigurdson said that would lead to the “absurd result” that every time a government wanted to pass controversial legislation it would first have to consult the courts.

During an earlier court hearing debating the compensation claim, government lawyer George Copley said the cost of compensating drivers would come to about $50 million and would send the province into “financial chaos.”

Sigurdson noted in his initial decision when striking down the law that the cost for people issued an automatic roadside suspension for blowing over the legal limit came to about $4,000.

Drivers had to pay administrative penalties, $250 to have their drivers licence reinstated, $880 for a responsible driver program, and were forced to pay for an interlock device to be installed in their vehicle once their licence was returned.

Sigurdson said in his ruling that there was no misconduct or bad faith in the passing of the legislation and the petitioners aren’t entitled to damages under the Charter of Rights.

“For these reasons, I have concluded that the petitions are not entitled to the personal and monetary remedies they seek,” Sigurdson said.

B.C. Attorney General Shirley Bond said the decision of the court is welcome news.

“We know our groundbreaking approach deters people from drinking and driving and enables police to remove alcohol-impaired drivers from our roads immediately, thereby enhancing public safety,” Bond said in a statement.

The government said there has been a 44 per cent reduction in alcohol-related fatalities since the new law came into force.

The province has now adjusted its legislation and, on June 15, enacted changes to allow drivers who blow above .08 to meaningfully challenge the roadside breath-test results.

Carr worries the ruling will actually discourage people from challenging laws that could be considered unjust because they will be subject to penalties even if they do win.

“Why would you fight it?” he asked. “You can be victorious, but what are you going to get out of it?”

Carr said the next step in his case is to pursue the province for the legal costs of challenging the case, which he said will amount to thousands of dollars.


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