The Only Thing a GLP Driver Supervisor Cannot be is Dead

Keys and DrinkIn case you missed it, the alcohol impaired supervisor of a learner driver ran afoul of police in Nelson this week. They called upon their son to use the family vehicle to transport them home from a party and were checked in a roadblock. The driver was sober, but the supervisor failed a breath test administered at the roadside.

Applying the provisions of care and control, the officer issued the supervisor an Immediate Roadside Prohibition (IRP) and impounded the vehicle.

Now it seems that many people, including defence counsel, have taken exception to this. It's yet another example of overzealous police deliberately mis-applying the law to cause difficulty for a parent who was doing the right thing by calling on their sober learner driver son to get them safely home from the party.

The term supervisor is not defined in the Motor Vehicle Act. This means that the dictionary definition can be relied on. One definition is to:

observe and direct the execution of (a task, project, or activity).

Can one reliably do this with a blood alcohol concentration (BAC) greater than 100 mg%? Our legislators have certainly decided that we cannot drive properly with a BAC that is half of this. The province of Manitoba says that this applies to the supervisor of learner drivers there extending it to not being able to pass a drug screening as well.

The legal concept of care and control of a motor vehicle is meant to prevent the impaired occupant of a vehicle from becoming the driver by including them in the same legal scheme. If you are impaired by alcohol or a drug, it can be problematic to be the only person in a vehicle.

This provision extends to the IRP laws:

"driver" includes a person having the care or control of a motor vehicle on a highway or industrial road whether or not the motor vehicle is in motion.

Is the supervisor of a learner driver in care and control of the vehicle? Both the family's lawyer and others say no, not unless they do something to control the vehicle.

This is not the first time that a similar situation has occurred here in BC and nothing has changed with the law since then.

Apparently the only legal requirement is that an adult aged 25 or older holding an appropriate driver's licence occupy the seat on the right of a learner. Read a book, have a snooze, perhaps even be unconscious and some would have you believe that the minimum has still been met. Even if it hasn't, the duty is still with the learner to decide not drive.

If there is no need to do anything, why are supervisors required to be there in the first place? I've read case law where the justice comments that the law needs to be read to include the intent of the legislators when it was created. Is it not reasonable to expect that a supervisor needs to actually participate when supervising?

This leads me to my final observation. How did our learner get to the party to pick his parents up? Alone, perhaps?

Comments

Why ruin a good story with facts

I find it interesting that the article posted by the lawyer originally stated the driver had an"N" licence and later posted that it was actually a learners permit,which in my opinion completely changes the circumstances.While it appears the purpose of the article was to generate public outrage for what seemed to be heavy handed justice,I am inclined to agree with how it was handled by the RCMP to a certain point.Although there was an update added to the article after the original posting,which stated it was a learners permit,the outrage train had already left the station.Where it gets confusing is the impaired charge to the passenger, who was supposed to be instructing the learner.My understanding is a learners permit is to allow hands on instruction and supervision to teach driving skills.It is not an excuse to allow an unlicensed driver to drive,and I would hope that ICBC has a clear set of guidelines regarding that, and also the specifics regarding the fitness of the teacher that is instructing.I feel that the parents showed bad judgement by allowing the situation to evolve as it did,and my take is the car should have been towed,as a safety issue,and also it was the responsable thing for them to do so, in order to protect other drivers on the road.Maybe you can answer a couple of questions for me Please

1 If they were in an accident,would the insurance be valid?

2If the RCMP had not intervened after inspecting and being made aware of the circumstances,and ther was a crash,what sort of problems would that create?

3 Can you elaborate on the impaired charge to the passenger?

Thanks

Also wonder if someone in the car managed to make the situation worse, by speaking in"KOKANEE"

More

I like that, speaking in Kokanee. I'll pass that one along.

I always look at defence statements with a bit of jaundice. Their job is never to jump up and down saying that their client is guilty as charged but are such nice people that we should just let things slide. However, they do have significant experience with the law and often manage to change how it is applied.

If that change is not palatable to the majority, then it is the responsibility of our legislators to step in and change it.

We occasionally hear a bit from the police and often nothing from the prosecution, at least until after a trial if there is one.

I've asked ICBC to comment on your first question. I'm willing to bet that insurance will cover the situation.

The police can intervene in one of two ways, apply the law or convince the person that another choice would be better in the circumstances. If the law does not cover the situation and persuasion fails, then there should be no liability for the police after the fact. Again, I'm not experienced in civil law so this may be just what logic implies, not how our legal system works in real life.

What would you like elaborated? I had hoped that the links and explanation in the original article would cover the situation, but I'd be happy to add to it.

Was just curious how the

Was just curious how the passenger could be charge with impaired?Was it a stretch legally,or because of the responsability to supervise the driver,did that make her in control of the vehicle.I also wondered about how the drivers got to the party,and if he did drive alone, that may have factored into the amont of justice administerd.I think there is quite a bit more to the story,I just find it frustrating that most people are criticising the RCMP,when the primary goal is everyones safety.

Thanks

Is there insurance ? Supervisor ??

Yes, there seems to be confusion as to the class of license of the driver.  IF the driver held a "N", the right front passenger is a mute point.  I find it hard to believe that the RCMP would be that far away from the stipulations of the law, by applying the IRP to the right front passenger if a "N" driver was operating the vehicle.  Even worce than applying it to the right front passenger with an "L" driver, driving.

You and others talk about the right front passenger as a "supervisor", or an "instructor".  That might be an expected function of the "accompanying adult" but the law makers have termed the required right front passenger as an accompanying adult and don't describe any required duties.

The insurance is good as gold.  If the driver held an "L", they complied with the MVA having an accompanying adult.

If there was a collision, the driver was fully licensed and qualified to operate the vehicle, if liable for the loss, the vehicle's insurance would fully cover any claims.

You stated : "I am inclined to agree with how it was handled by the RCMP to a certain point"  If "to a certain point" is defined as legally stopping the vehicle in a road check and making sure the driver was sober and was legally operating the vehicle, you are correct.  Everything after that, was illegal and the result of the RCMP not understanding the law they were there to enforce.

ICBC has a clear set of guidelines.  They follow the MVA to determine if a driver is legally qualified to operate a vehicle.  Unfortunately the RCMP apparently didn't.

Passengers are not required to be sober to occupy a vehicle, no matter the size of vehicle (in the original article, one of the concerns the RCMP constable that bungled this said the small size of the vehicle could have enabled the intoxicated mother to grab the stearing wheel and presumably send the vehicle out of control)

Interesting you say the parents showed bad judgement in not driving and getting their 22 year old "L" driver son to driver them home, completely legally, but don't find that the RCMP showed bad judgement, or really a complete lack of knowledge of the Criminal Code and Motor Vehicle Act, by acting illegally in kicking these there law abiding citizens from their vehicle and illegally siezing their vehicle.

Now does the costs involved get paid out of the provincial policing budget or the RCMP budget ?

It's not just terminology, but function.

You and others talk about the right front passenger as a "supervisor", or an "instructor".  That might be an expected function of the "accompanying adult" but the law makers have termed the required right front passenger as an accompanying adult and don't describe any required duties.

Having been in all the roles - Qualified Supervisor, Driver Examiner, Driving Instructor - I'd like to clarify this a bit.

It has often seemed to me that people frequently fail to understand what a Driving Instructor is, and it's definitely a mistake to assume that there aren't 'any required duties'.

It's remarkable how often a person (particularly a licence applicant) will refer to a DE as an Instructor. But it ain't so! Few examiners hold a Driving Instructor license, and it's questionable whether they would ever have the ability to teach someone how to drive. That's not their role.

Meanwhile, a qualified supervisor could be that doorknob who was tailgating you in the rain the other day, or the twit (often in an Audi or BMW) who rarely bothers to signal. They could have undiscovered health issues, they could have a criminal record for sexual abuse. But so long as they have the necessary Driver License and they're 25+, that's it! They're qualified, according to law. Meanwhile, the quality, quantity, and nature of their supervision is not in any way specified. This last sentence should be comprehended properly by every member of the police, before they start handing out inappropriate tickets and apprehending people's cars - illegally, as in this case.

As for a Driving Instructor? That's a licensed ability to perform a task; i.e. teaching someone how to drive. There are requirements (including extensive knowledge about driving, incidentally) that must be met under law, and these are re-checked every couple of years when they renew their Instructor License. There's even a whole portion of the MVA Regulations (Division 27) devoted to outlining ICBC's requirements for Driving Instructors, Driving School Vehicles, and Driving School Operations.

Thanks I feel much better now.

And in most respects, I definitely agree with most of the preceding post. 

My First Thoughts

Was the new driver a teenager and never driven anything.I learned how to drive a tractor and a large two axel grain truck before I’ve was ten years old,when I got my licence,all I needed was to be 15 teen and a parent’s permission.I knew how to drive but had never read the manual about driving on the road.I failed the exam because I never read the manual but passed the road test. I did eventually get a licence to drive.

Even so my parents wouldn’t let me drive on the road because I had no experience to drive on a highway nor in city traffic.

Isn’t this a classic example of who ever read the instructions manual. I would expect the supervisor to be alert,supposing the new driver has just the very day obtained his new licence that is filled with doubt wondering if all is right about his skills handling the car,as an example knowing who has the right of way at a four way stop.

Can’t tell me a new driver isn’t filled with doubt and still knows everything but very little experience.I would think the officer was in the right frame of mind.

GLP

I would like to have more information.

The reports I read the son is 22, rather old in my opinion to have a "L" Then if he had a "N" would not require a supervisor. Did he travel with the parents to the party and stay the designated driver?

Is this a situation where the GLP created the problem? Is there a requirement where a person still in the "N" stage from another jurisdiction has to revert back to an "L" when they get a licence in B.C.?

Would be interesting to hear the full story.

In the previous case if I remember correctly it was the grandson driving his grandfather home after being driven to the bar to pick-up the vehicle and grandfather. As he had an "L" could not drive by himself, only combination was to have the learner drive with the possibly impaired person.

We should just drop this GLP. Might work fine in cities but in rural areas it creates a lot of problems. Kids that should have a full licence are stuck with an "L". Have a "N" restricted to the number of passangers. So you get a group of teens working at a mill together doing clean-up have to get their parents to pick them up after work due to a stupid law.

And then even by ICBC reports new drivers taught by a non-professional have a lower accident rate. And before you tell me to show you the information go to ICBC and look it up. It is there in the reports.

Another View From Enforcement

I have charged a learner for 25(15) when the supervisor was drunk.

At trial i ask why the supervisor wasnt driving. Answer was that he was impaired. I explained that to supervise one needs to have sober judgment.

He was convicted for not having a supervisor.

It seems like a no-brainer, doesn't it?

But let's think about this issue for a moment, particularly the legal requirements - and potential penalties, if the police determine that a charge should be brought against ... someone.

Different jurisdictions address the requirements that a Learner Driver must follow in quite different ways. Plus which, we have to consider just what a 'License' is, and how it was earned. Or not.

Firstly, just for purposes of analogy, compare the requirements in the UK (considered to be a comparatively stringent jurisdiction) to here in BC. Over there, you can be ignorant as anything about driving, lack adequate vision for the task (because none of this stuff is actually ascertained until the day of your Driving Test), and they don't care so long as you send the necessary fee and requisite ID to the DVLA.  At that point, then they'll cheerfully send you what they term as a 'Provisional License' which can then be used to practice and learn about driving under certain conditions (including the requirement for an adult licensed driver to be in the vehicle, in common with most jurisdictions).

Here in BC, certain fundamental requirements must be met. Starting with a Knowledge Test, to determine whether the Applicant should be issued their Learner License; nothing new with that either, it was ever so even before GLP came along 20+ years back. So if you don't have adequate comprehension of general driving laws, along with road signs, or if your eyesight doesn't meet the standards, then you don't get that Learner License and you can't legally drive yet, period. You have to earn that there Learner License, by virtue of your acquired knowledge and ability beforehand. It's a Driving License, dammit; you can be issued traffic tickets, you must follow all driving regulations, and so consequently you are responsible for your actions behind the wheel. This includes any Restrictions on your license, of course; one of which is for you to be properly accompanied by the appropriately licensed person. That means some licensed person in the right front seat, who hopefully knows a bit about driving ... but that can't be legislated. Also it's worth noting that for an initial Class 6/8 Learner's, the restriction is against having passengers, rather than making a passenger a requirement. So if your first driver license is for a motorcycle, you're allowed to teach yourself, by yourself all about driving (except you can go do this amongst all the rest of us).

There is no legal definition of 'appropriate', though. There can't be! Not to go off-topic here, but I'm reminded of how comedian George Carlin once opened a show, it went something like this: "Do you realize that, somewhere on this planet, some person has the world's worst doctor?" It's undeniable, of course. Well guess what? The same thing goes for parents, and other adult licensed drivers. The Learner doesn't really get to pick and choose! It's an inescapable fact that somewhere in the world, somebody has the world's greatest parent for the purpose in the right front seat - and somebody else has the world's worst. But it's not for a learner to make this judgment, any more than a person gets to pre-scrutinize their teachers in High School.

I used to run Driving Instructor training courses for a large DTS. Something I always emphasized, is that the Instructor's job - and the parent's also - is to make themselves redundant. That's what it's all about. The fresh faced driver who gets behind the wheel for ths first time will not be the same individual who is later able to pass their test! It's all wrong if the parent/adult is still advising them all the time, and I doubt that this was the case in the Nelson story. They will have learned to function behind the wheel on their own, if their parents and/or DTS have done their job. That's primarily what the Road Test measures.

So I reckon that this youngster made his/her best decision at the time, whilst following the numerous restrictions on their LDL. They cannot be liable for their passenger's behaviour. But I do also wonder how they got to the party; perhaps by bus?

Reply

How the person got to the party we do not know. There is always the possibility he drove his parents there and was the desiginated driver.

Regarding another view from enforcement I always recommend people appeal their conviction. You will never get a fair trial in a Kangaroo court which is what traffic court is. If you can get into a higher court you have a very good chance of winning. Personally never lost.

From what I have seen written previously there is nothing in the act stating the supervisor has to be sober. I think the person in your case had a good chance of reversing the kangaroo judges decision.

Again only going on what is written and without the full background we are all only guessing.

Heavy Thoughts

As we have learned, the RCMP have now come to the attention of the public because of a second, GLP issued to the passenger of a vehicle.

While it seem “reasonable” that an “accompanying adult” be alert, supervising, ready to take control, issuing instruction to an “L” driver, the legislators have seen fit not to include such requirements in the MVA.

The provisions of “Care and Control” that you have mentioned deal with occupants of a vehicle who are IN THE DRIVER’S SEAT.  In the case at hand, and the previous passenger IRP in Salmon Arm, the person issued the IRP was in the right front passenger seat.

You continually used the term “supervisor”.  You went so far as to state : “The term supervisor is not defined in the Motor Vehicle Act. This means that the dictionary definition can be relied on.”

The need to define a term, would be applicable to your argument IF, that term was included in the MVA.  It is not.

The MVA described the individual who is with the “L” driver as an “accompanying adult”.  If anything you would then need to seek the definition of “accompanying” and “adult”, not supervisor.

The BC IRP legislation links directly to the provisions of the Criminal Code of Canada.

The BC MVA states : (Section 215.41(3.1 thru 4)

(3.1) If, at any time or place on a highway or industrial road,

(a) a peace officer makes a demand to a driver under the Criminal Code to provide a sample of breath for analysis by means of an approved screening device and the approved screening device registers a warn or a fail, and

(b) the peace officer has reasonable grounds to believe, as a result of the analysis, that the driver's ability to drive is affected by alcohol,

the peace officer, or another peace officer, must,

(c) if the driver holds a valid licence or permit issued under this Act, or a document issued in another jurisdiction that allows the driver to operate a motor vehicle, take possession of the driver's licence, permit or document if the driver has it in his or her possession, and

(d) subject to section 215.42, serve on the driver a notice of driving prohibition.

(4) If a peace officer has reasonable grounds to believe that a driver failed or refused, without reasonable excuse, to comply with a demand made under the Criminal Code to provide a sample of breath for analysis by means of an approved screening device, the peace officer, or another peace officer, must take those actions described in subsection (3.1) (c) and (d).

You will note the BC legislation states “demand to the driver…” ..”as a result of the analysis, that the driver’s ability to driver is affected by alcohol”  “comply with a demand made under the Criminal Code”

The Criminal Code of Canada in respect to a testing for presence of alcohol or drug.  Section 320.27(1) & (2) states :

*       320.27 (1) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a conveyance, the peace officer may, by demand, require the person to comply with the requirements of either or both of paragraphs (a) and (b) in the case of alcohol or with the requirements of either or both of paragraphs (a) and (c) in the case of a drug:

o    (a) to immediately perform the physical coordination tests prescribed by regulation and to accompany the peace officer for that purpose;

o    (b) to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of an approved screening device and to accompany the peace officer for that purpose;

o    (c) to immediately provide the samples of a bodily substance that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of approved drug screening equipment and to accompany the peace officer for that purpose.

*       Mandatory alcohol screening

(2) If a peace officer has in his or her possession an approved screening device, the peace officer may, in the course of the lawful exercise of powers under an Act of Parliament or an Act of a provincial legislature or arising at common law, by demand, require the person who is operating a motor vehicle to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of that device and to accompany the peace officer for that purpose.

It is my position that a passenger in a vehicle operated by another person who is sitting in the driver’s seat is NOT in “care and control”.  You and others seem to be stuck on the fact that the passenger in this case has some duty to supervise the driver.  Somehow this non-existent requirement to supervise makes the passenger “in care and control”.

I would further suggest, IF, there was a requirement in the MVA that the “accompanying adult” should be the “holder of a valid and subsisting driver’s license for the class of vehicle being operated and must be alert, attentive, sober, and actively supervising the actions of the “L” driver”, and the accompanying adult was not.  Enforcement should then be directed at the driver for operating a vehicle being the holder of an “L” license without a qualifying accompanying adult.  The sobriety of the right front passenger should not be an issue.

What if in this case, the intoxicated right front passenger was an unlicensed driver that didn’t qualify even to the current MVA requirements.  Would you have issued an IRP to them ???

I just listen to an interview

I just listen to an interview with the lawyer,Sarah Lemon on CKNW today@ 2:15 and she stated the driver had a Class 7 graduated licence,and also drove by himself to the party to pick up the parents.There was no mention of what time this took place,but my understanding is it not allowed to be used between midnight and 5am.

Class 7 'L' License Restrictions:

You're absolutely right, here's a list of the Restrictions that apply, including not driving solo or between midnight and 5:00 am.

But it's noteworthy that there's nothing in law that requires a qualified supervisor to be sober; heck, they could be fast asleep. After all, when all is said and done, they are NOT driving the vehicle.

and the time was....

The article Castanet describing this incident states they were stopped at 11:30 PM. 

Flawed Legislation

​Odd my son was sleeping in his car drivers seat engine running standard vehicle seat reclined. No intent on driving. Blew a warn.If he had blown over .08 and If he had gone to court there were many cases where the judge ruled that the intent of the driver doing the same was to use his car as a bedroom, no intent to drive. As this went to a tribunal the ruling was stood as they do not have to look at case law. He was told that he could have released the parking brake and the car could have rolled. Not easy to release a hand brake.

The case you mention. What if the drunk fellow had asked his son to pull over and that he was taking the wheel. He could have changed his mind.

If someone walks to his vehicle to get an item, keys in his hand he can be charged with care and control. These laws definitely have flaws.

A question for the police to ponder ...

... in regard to this 'Qualified Supervisor' question.

IMHO, based on the information I've learned from this here site, the police have erred seriously here. They seem to think so, too, according to the Castanet article. They're eager to cancel that mistaken IRP, in fact.

In fact, it appears that the most serious licensing infraction was the choice of the driver to drive solo to pick up his parents; this transportation may even have been pre-planned, which is a worry if you think about it. So the key issue, from an insurance point of view, would be whether he would be properly covered en route to get his parents despite clearly failing to obey that restriction on his L license. However, that was not discovered until afterward and no charges were brought forward; so it didn't happen, under law (that's my comprehension of it). And personally, I doubt if that choice this young adult made to drive solo would be relevant unless he (a) got caught in the act or (b) was found at fault in a collision en route. Neither of these occurred.

Let's go forward now (using our imaginations, because this didn't happen, yet) to next Christmas. By now, this young fellow has passed his Class 7 test and is now an 'N' driver.  He's sitting at home, totally sober and everything, and one of his parents phones from a party, asking him to drive them and a couple of their adult friends home; all of these potential passengers have been consuming alcohol and smoking weed (all perfectly legal) and they're feeling no pain, y'know?

So of course he goes and picks them up. He ensures that the 'N' is clearly displayed, and leaves his phone in the glove compartment, turned off.  and while delivering every person safely home, he goes through a roadblock. The restrictions applying to his C7N license include a limit on the number of passengers who are not family members, unless there's a 'Qualified Supervisor' in the car (i.e. a licensed 25+ year old parent).

And let's remember, by now this driver has been functioning solo behind the wheel for months now, perfectly legally and perfectly safely.

Would anybody (in uniform or otherwise) want to try and argue that he's driving in contravention to the restrictions on his license? Because I think he's made the best choice possible in the circumstances.

Not An "N" Driver

If I understand correctly after all I have read, this driver was a class 7L.

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