Wednesday, November 30, 2011

It's Nice Being Right, It's Even Nicer When the B.C. Supreme Court Says So, Too!

I posted a note on Facebook a little over a year ago. The Province of Newfoundland and Labrador had enacted new drunk driving legislation. My first reaction was a facepalm. My second was express why.

Here is my original post:

New Motor Vehicle Legislation Is Bad
on Friday, 1 October 2010 at 16:10

The greatest sanctions the state can take against an individual are criminal sanctions. The state can seize property (fine you or take property you have acquired because of the crime), restrict liberty (lock you up), and give you a criminal record (make the record of the action public). In some jurisdictions, the state can even take life.

We have developed a series of rules the state must abide by when it wishes to sanction an individual in such a manner. The state MUST be subservient to these rules. That is the rule of law. It guarantees justice for everyone. It lets us know where we stand. The rules are detailed and tough because the sanctions the state can take are so great.

One of these rules, relating to evidence, is probable cause. If the state wishes to search and detain you, they must have a rational reason. This prevents such things as being detained and searched for being seen with someone who may be a known criminal. There are many other examples of fundamental rights as well. Read the constitution.

Recently, the provincial government took away the requirement of probable cause when it relates to detaining an individual for a vehicle check.

This is fine in the context of taking away someone's privilege to drive FOR A SHORT PERIOD to reduce risk to the public, eg., a seven day suspension of one's drivers licence. The power the state is exercising, here, isn't very great while the value of public safety is much greater. Also, driving isn't a guaranteed right.

The problem arises when criminal charges are laid against an individual because of knowledge gained by this detention and search.

Because driving under the influence is a criminal matter which could infringe the basic rights of the individual, I have a feeling due process will be required by the courts if the state wishes to do more then just suspend a license. The courts will make this finding simply because criminal punishments are so great.

If the police charge an individual who is found to be intoxicated AFTER search and detention WITHOUT due process, chances are, a court somewhere along the way will insist due process should have been followed and it will dismiss the matter. They will insist in due process because, again, the sanctions can be so great.

The new legislation, which removes the requirement by the police to exercise a facet of due process, may actually end up setting drunk drivers, caught without probable cause, free.

It is a cheap, lazy, and irrational approach to a major problem. The only reason that I can see for this removal of due process is to make us feel better for doing something about drunk drivers.

I hope the police are smart enough to continue to require probable cause otherwise they might start losing cases that matter.
Here is the CBC story about the B.C. legislation.

There isn't a whole lot of difference between the court's reasoning and that which I posted over a year ago. Drunk driving is a terrible problem but trying to fix it by ignoring fundamental legal processes and basic rights is not the way to go. This is a symptom of a far more common illness. People don't think rationally about hot button issues.

Hopefully this will mean a quick death for the same legislation here in Newfoundland and Labrador

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