Gordon Dykstra Interview with Christy Clark on CKNW about the Motor Vehicle Act

Transcription of the interview:

Christy Clark: Justice Minister Rob Nicholson has been talking to his provincial counter port about imposing random road side breath testing to catch drunk drivers. This is very different from what they do now which is not entirely random. Gord Dykstra is a lawyer who has represented DUI and impaired driving cases with his company Dykstra & Company. Gord, nice to have you on the program.

Gordon: ya, I'm glad to be there. Thanks for asking me to help you out. 

Christy Clark: So, whats the difference between the proposal for random testing and what happens now?

Gordon: well, the proposal for random testing is is that the police officer can pull over anybody and ask them to provide a breath sample into what they call the approved screening device. And what's happening now, since September the 20 is is that in British Columbia under the terms of the Motor Vehicle Act, the police officers in British Columbia can already do that but I think the random breath testing is something that they want to incorporate into the criminal code.

Christy Clark: So it wouldn't change the actions of police, but it would change the penalties associated with it?

Gordon: Well, that's right. The penalties that are now provided are set out under the Motor Vehicle Act, and they are as they are and I can mention the details of those. But if they have random breath testing as a provision under the criminal code, then of course the penalties would include incarceration possibly. which the Motor Vehicle Act can't do. 

Christy Clark: Right. so, Gord, one of the things that confuses me, I'm not aware of police actually randomly breath testing people now. I know that you drive along and you can hit a road block and I suppose there is some randomness in that but my understanding of random breath testing would be that the police would just be able to pull over every third car on the road if they felt like it. 

Gordon: well, that's exactly right. you have the concept correct. But, I think that in British Columbia its quite clear, that since September the 20, under Section 215.41 of the Motor Vehicle Act, a police officer can pull over any driver any time and ask him to provide a sample of their breath in the approved screening device. 

Christy Clark: Don't they have to have to have reasonable cause?

Gordon: Not at all

Christy Clark: But they don't do it now much do they?

Gordon: well, my experience is is that they are in fact doing it. I get a call just about every day from somebody who tells me that they were pulled over. They either blew a fail or a warning on the approved screening device, they lost their car for seven days and sometimes it's not even their own car, it's their employer's car and they're on their way to work or on their way back from work and they get fired because their car has gone into impoundment and its the end of their life.

Christy Clark: Now let's talk about reasonable cause for a second because all of this discussion about random testing and the new rules around drunk driving. The administrative sanctions that police are allowed to bring in, impose under the new Motor Vehicle Act changes. there has been a lot of discussion, Gord, about whether or not that is even constitutional. What's' your view about it?

Gordon: Well, that's the view. and certainly a number of judges and a number of academics have talked about that and it's a very difficult concept to get your head around. one side of the argument is is that everybody in Canada is free from arbitrary detention and certainly a road side stop is an arbitrary detention. But on the other hand we say well we balance that with the fact that the administration of justice has to have its reputation intact and a small deviation from that right is not a serious infringement and therefore we should be allowed to do that because we're preventing a huge harm.

So there's two sides of the debate. and where it eventually is going to end up, I don't know, but I'm sure that a case from British Columbia will end up in the Supreme Court of Canada as to whether a police officer can arbitrarily detain somebody and ask them to provide a sample and then remove his motor vehicle to an impoundment yard for as long as the Motor Vehicle Act prescribes. 

Christy Clark: So if this argument about arbitrary detention does find its way to the Supreme Court, would that ultimately mean that even road checks, even the organized you know the road checks that ICBC pays for, would be, would be also deemed to be illegal?

Gordon: No, I don't think so. I think there's clear law, and there has been for at least 20 years that road side checks are an acceptable limit on a person's right not be arrested. but the question really is whether this random stopping is going to be a reasonable limit on his right to not be detained. That's going to be the issue. But I think, my thinking is that looking at the decisions of the Supreme Court of Canada from the last two or three years, I think that they are inclined to sort of say that it is a reasonable limit.

Christy Clark: But don't police have to have a reasonable cause to search your person and your car? I mean, is that also going to be an argument likely that goes forward to the court on constitutional grounds. We hear, you hear guys making this argument quite successfully all the time when the cops find you know bags of cocaine in the trunk of their car. Could drunk drivers or suspected drunk drivers make the same argument?

Gordon: I don't think so because the police don't, they don't, they aren't really searching the car. they have the right to pull the car over at any time and any place and they have the right to ask the driver of the motor vehicle to provide a sample of their breath but I don't think they have any right to search the car. What happens of coarse as often, when they pull a driver over they see something that's suspicious and they go over and have a look and that's an illegal search. What they should do, you know is get on the phone and get a warrant and then they can search the car. But they don't. 

Christy Clark: So, Gord, the Justice Minister wants these criminal sanctions to be attached to it. That won't change much in British Columbia I suppose, although it will change things across the country.
Gordon: Well, that's true. In British Columbia, what it will change is if they bring in random breath testing under the criminal code, and that there likely will be a penalty that will involve doing time in jail, right. Which is what the Motor Vehicle Act doesn't provide.

Christy Clark: right, because that is just an administrative penalty that police are able to.. Could that administrative penalty also be challenged Gord?

Gordon: Well I think so, because what's going on is is that your rights are being infringed upon without what they call an adjudicative process. Right? I mean there is nobody that can adjudicate whether the police are wrong or right in what they're doing. The police basically are the, they are, they do all the functions, they are the accuser and the judge and they make their decisions right at the road side. Whether their wrong or right, doesn't make any difference, you have no recourse.

Christy Clark: And is that going to find its way to court do you think?

Gordon: Oh I think so. I think it's going to get challenged in the Supreme Court of Canada, eventually. There will be somebody who will do it. 

Christy Clark: whether or not, whether or not, Rob Nicholson gets his way and adds it into the criminal code. 

Gordon: Well that too, is going to be a situation that that may be an unconstitutional addition to the criminal code, in which case the Supreme Court of Canada will strike it down, but they're still thinking that it's not unconstitutional and if it is an unconstitutional what's the acceptable limit on your freedom. 

Christy Clark: Great to have you. Thanks for joining me today.

Gordon: Ya. Thank you for asking me.