When Sivia was argued the Government did not put forward evidence of a drunk driving expert, i.e. a forensic toxicologist. We weren’t surprised. There are dozens of experts in the effects of alcohol, the chemistry of alcohol and the equipment used to measure alcohol concentration who work in labs for the RCMP across Canada. Many of them testify in court every day. But in the Sivia hearing the Government did not call any of them as witnesses, or present an affidavit from any of them. Why?
The main reason it seems is that they could not find a toxicologist to say that roadside breath tests are reliable. They could not find a drunk driving expert who would say that the manner in which tests are taken at the roadside and the equipment used will produce reliable tests. Instead, the Government produced an affidavit of a police officer. Not an expert qualified to give the necessary opinion about the reliability of this type of testing.
The Immediate Roadside Prohibition scheme is founded on roadside tests that are not performed pursuant to proper scientific procedures which were designed to generate reliable tests. And as a result many of the tests are inaccurate.
Knowing this we are dumbfounded as to how anyone who knows anything about roadside breath tests could support such a scheme. But again, if the Government is paying you a salary to uphold their scheme, for some it may be a good enough reason to lie about it. When it comes to qualified drunk driving experts, even the Government couldn’t find a toxicologist to lie. Simply put, the experts in breath testing and blood-alcohol concentration all concede one major fact: it is well known in the scientific community that a significant percentage of roadside tests will be inaccurate.
As lawyers challenging IRPs, we are both reassured and saddened when police officers contact us to thank us for our work in challenging the IRP scheme. On the one hand we are pleased to see that they know we are right in our criticisms of the scheme. On the other hand we are dismayed that they keep their knowledge and information confidential when the appropriate course of action is to publicly denouncing the scheme.
When the modified scheme came into effect June 15, 2012, the evidence of qualified forensic alcohol experts took on a new light. Although the Government couldn’t find one to support their scheme in court, the OSMV adjudicators will occasionally accept the evidence of drunk driving experts in IRP review hearings.
It will be interesting to see how this plays out as the cases are appealed in court. We noted early on that the OSMV would simply reject the evidence of an expert as “theoretical,” when it was in fact based on reliable evidence presented at the hearing. This some sort of strange doublespeak, but it’s not uncommon language in review decisions (see Spencer).
What we have found since the IRP law came back into effect is that logical presentation of proper legal defences is simply not sufficient to succeed on review of an IRP. The case presented by the applicant must be overwhelming to succeed. This will often include the evidence of a forensic toxicologist, i.e. a qualified drunk driving expert and the supporting evidence upon which the toxicologist can base their opinion.