The judge framed the roadside suspensions as a case where the police act as judge, jury and corrections officer. Obviously the Charter protects people against this kind of informal trial. But I’d argue that it’s not the police officer acting as a judge, it’s the breathalyzer. The police are stopping motorists and administering breathalyzers as they would normally, but then instead of the breathalyzer telling the police officer to recommend charges, the breathalyzer runs the trial and tells the police officer to administer punishment.

If breathalyzers are accurate beyond a reasonable doubt, there’s no reason why their ruling would be less just than that of a jury. For other crimes, our justice system is designed so that bias can only be applied into letting people go free, but that’s still unfair to society. A police officer can decide not to recommend charges, a Crown prosecutor can decide not to recommend a trial and a judge or jury can decide that there is insufficient evidence. Automated justice is juster justice.

It’s also worth pointing out that the reason BC had to use administrative penalties rather than a normal criminal charge is that the federal government has jurisdiction over the Criminal Code. Bill C-10, the Safe Streets and Communities Act, does a lot of things, but fighting drunk driving isn’t one of them. And it’s better to let BC experiment rather than immediately roll it out over the whole country. Which is why provinces should get jurisdiction over the Criminal Code or separate from Confederation.