The B.C. government has apologized for various violations of rights over the past century or so; it should apologize for rights violated less than a decade ago.
The province brought in tough new measures in 2010 to curb drinking and driving. A driver who blew a “warn” or “fail” on a roadside screening device faced automatic and immediate penalties — a driving prohibition, seizure of the vehicle, along with fines and fees for towing, storage and getting the driver’s licence reinstated.
But the B.C. Supreme Court ruled in 2011 that the law was unconstitutional, because drivers had no way to challenge the roadside test.
In response to that ruling, the province changed the law, requiring that police tell drivers they can ask for a second test on a different device, and that they can request a review of the test through the Office of the Superintendent of Motor Vehicles. The B.C. Court of Appeal upheld the amended law, as did the Supreme Court of Canada.
We don’t approve of people who drink and drive. We approve of tough penalties for those who do. With stricter laws, the B.C. government has been able to reduce significantly the number of deaths from impaired driving.
But we also believe in due process. Tough measures should be balanced with careful safeguards to ensure basic rights are upheld, and one of those basic rights is a fair hearing, an opportunity to state a case before an impartial tribunal. And there should always be an avenue of appeal.
Before the flawed law was corrected, 16,500 drivers suffered severe penalties. They had to pay to retrieve impounded vehicles, to have their licences reinstated and for counselling under the Responsible Driver Program. They incurred legal expenses and costs for alternative driving arrangements. Many lost income and suffered embarrassment.
They were found guilty by police and their devices, and punished without a trial. They had no recourse, no opportunity to appeal. It’s an incredible violation of rights.
Even though the courts said the law was wrong before the province fixed it, the drivers who suffered those unfair penalties cannot be compensated for their losses. In a unanimous decision, a division of the B.C. Court of Appeal says even though the law violated drivers’ rights, the declaration of invalidity is not retroactive.
Fairness doesn’t seem to be at the root of the decision, but rather, concern for the potential cost to the provincial government.
“Clearly, a retroactive declaration of invalidity has the potential to have a significant financial impact on the government even though this is a ‘sanctions’ case and not a ‘benefits’ case,” wrote Justice Sunni Stromberg-Stein.
“This is especially true given the pending class action with approximately 16,500 class members. There is no doubt that this is a relevant consideration in examining whether ‘a retroactive remedy would unduly interfere with the constitutional role of legislatures and democratic governments in the allocation of public resources.’ ”
The decision says: “a government must pass laws and take administrative actions with an eye to what the constitution requires. … However, when a court changes the existing law or creates new law, it may, under certain conditions, be inappropriate to hold the government retroactively liable.”
But governments have established precedents for apologies when policies have brought discrimination and harm. While this case is not in the same league as the Japanese displacement of the Second World War, the oppressive treatment of Chinese immigrants or the cultural genocide of the residential-school era, thousands of people were deprived of their rights. They deserve an apology.
