Note: this blog post speaks of the first IRP scheme and the decision of the BC Supreme Court in the case which considered the constitutional validity of the scheme. That case was appealed to the BC Court of Appeal and a decision was rendered on March 3, 2014. Our thoughts on that court decision can be found here.
Yesterday the BC Supreme Court rendered a decision finding that the sections of the Motor Vehicle Act dealing with 90-day Immediate Roadside Prohibitions violate sections 8 and 10(b) of the Charter of Rights. With respect specifically to s.8, the Court found that the Charter infringement cannot be justified in a free and democratic society.
As a result, it is clear that the legislation as drafted and implemented by the Government can no longer be considered as law.
We have taken the position from the outset that this legislation is primarily punitive. In our view, it is not designed to correct behaviour; rather it is intended to punish. The legislation also imported an “over .08” standard, which is a criminal offence. In our view, the unstated purpose of the legislation was to replace the criminal law with something expedient and cheap for the government.
The Court did not accept the argument that this is, in essence, criminal law disguised as administrative. Court decisions over the last 15 years have created tests that permit an expanded view of what can be considered administrative law. We believe that the decision properly articulates the state of the law. However, we are not satisfied with the state of the law, particularly because of the abuses that may take place and that we have observed first hand.
At approximately 5:00 Wednesday afternoon, the BC government issued a news release acknowledging that the review scheme was flawed. The government acknowledges that the previous law (which existed prior to September 20, 2010) is now in effect. In other words, the IRP scheme with respect to 90-day prohibitions is over.
The Government has indicated that it intends to re-jig the scheme. There is no indication that they intend to appeal the Supreme Court decision.
In our view, an appeal would be foolish. The hearing took place in spring, 2011. There is much more evidence now available to support the argument that this is criminal law disguised as administrative. For example, almost everyone who blew into an ASD in the last 14 months was issued an IRP instead of criminal sanctions. Also noteworthy is that the Alberta Government deliberately avoided implementing an “over .08” standard. Unlike the BC legislation, the proposed legislation in Alberta, on the face of it, does not include legal tricks to obscure its deficiencies or to try to fool a court.
Where do we go from here?
To abide by the decision, the Government could significantly reduce the punitive aspects of the scheme. We have always argued that the 30 day impound is unnecessary and not rationally connected with the goal. It was, in our view, simply punishment with no logical purpose. It did serve to generate taxes for the government, however. As well, the fine (which the Government, in a move of cynical Orwellian doublespeak called a “monetary penalty”) was not administrative in the sense that it was a tax rather than an attempt to re-educate. In any event, we doubt that the Government will re-address the punishment in light of their earlier positions.
Noteworthy is that the Government made the decision to compel every British Columbian who got a 90-day IRP to take the Responsible Driver Program and purchase and use an interlock in their vehicle. The Government suggested it was mandatory in their publications, but claimed it was discretionary in the submissions to Court. This was disingenuous in our view as there were no review provisions to challenge whether it is necessary or appropriate in the circumstances. Simply put, if it is mandatory and there is no provision to challenge it, then it should be written in law. To do otherwise is deceptive. Obviously, the Government disagrees.
With respect to the evidence and the review of the prohibition, the legislation simply stated that if you blew a fail, you lose. The application for review made this clear. Many people attended ICBC to dispute their prohibition and walked out when they learned that they could not dispute the correctness of the reading. We encouraged many people to challenge their IRP who ultimately missed the 7-day review period or elected to suffer the consequences despite being innocent. A number of courageous people challenged their IRP knowing they would lose, even if they were innocent.
One particular concern we had was that the legislation demanded no time of driving. The Government also took the position that if you blew, you had no Charter rights. In that case, a police officer could issue you an IRP at your kitchen table after unlawfully entering your house when you had not been out for hours. This is intolerable in a free and democratic society.
As the lawyers in our office poked holes in the legislation and the reliability of ASDs over the last year, the Government came out with directives to correct problems with evidence. For example, one indicated that the police officers always take samples that are not contaminated with mouth alcohol. This is obviously absurd and worthy of a police state. It is abhorrent in a democracy governed by law.
At the first review hearing we conducted right after the law was introduced, we argued that if the public was to have confidence in this arm of the justice system, the tribunal must be assertive in scrutinizing the evidence of the police. This was not picked up by the tribunal, and this individual, although innocent in our view, was the first victim of this legislation.
For many people, this was their first contact with the justice system. The Government designed the scheme, wrote legislation that precluded defences, including the defence of innocence, and designed a form to be used to generate evidence. The form was not prescribed by law, i.e. attached to some piece of legislation. Prior to introducing this scheme, the Government removed the requirement that the forms be prescribed by law in the prior scheme. We believe that this was an attempt by the Government to disguise the differences in the schemes in anticipation of any court challenge. Our greatest fear was that, had the legislation not been found unlawful, the Government would have simply removed the final already woefully inadequate requirements from the form.
Why did so many people not challenge the prohibition? Simply put, the Government designed it so you would lose regardless of guilt or innocence. Many who challenged the prohibition explained to us, after reviewing the reasoning of the tribunal, that they had lost all confidence that justice was available in our present era in British Columbia.
We have confidence in our Courts. Our particular concern was that so much effort had been put in getting around judicial scrutiny. We were concerned that the massive evidence we had collected would not normally be revealing in a review of the law. Consequently, the Court was not made aware of the full scope of the injustice done by this legislation. Nevertheless, the Court saw through much of the obfuscation and rendered the decision as it did. We are thankful, once again, that justice has been defended by our Courts.
In the last few months we presented decisions of the Supreme Court to the tribunal to try and show that the law required greater scrutiny of available evidence and that the best evidence be provided. Noteworthy is that in most instances the police obstructed our attempts to obtain the evidence necessary to defend our clients. We have received decisions which indicate that the tribunal would not comply with the rules as explained in the Supreme Court decisions because, in the view of the tribunal, the legislation trumped anything the Court would direct. This also caused us significant concern.
Where do we go from here? No one can be issued a 90-day IRP bearing in mind this ruling. It simply makes no sense considering each person could make the same arguments to the Court. Consequently, anyone who received a 90-day IRP and is serving the prohibition should immediately attend and ICBC Driver Services and demand their license. If that does not work, call us.
If your car is in impound due to a 90-day IRP, you should attend to have it released. The Government has no lawful authority to direct otherwise. The Government should pay the towing and storage fees. Again, if that does not work, call us.
If you have served the prohibition, you should be entitled to compensation and to have the interlock device removed. Please check back with us here on our site. We will have recommendations concerning this in the coming days.
With respect to “warn” range prohibitions, the legislation as it stands will need to be re-visited. If, for example, you blow warn, demand to blow again and then blow fail, no IRP can follow and a subsequent arrest would likely be unlawful. This is inconsistent with the intention of the criminal legislation and it poses an impossible hurdle for the police.
As we review the implications of the decision, to us it is clear that the Government will not be able to simply tweak the law, as the Government has now suggested. For example, we have unearthed documents from around BC showing dramatic problems with ASDs. We can show that it is particularly dangerous to rely on them when the punishment is severe. Still, there are too many pitfalls to discuss here, and, moreover, this is not the proper place for the discussion.
In any event, it is important at this point to note that the Court has affirmed the legal threshold at .05mg%. This was not the central argument at the review. It is our opinion that aspects of the procedure may be need to be revisited if the law is to be acceptably fair. Nevertheless, from our own experience conducting thousand of breath tests we have concluded that this is an appropriate threshold at which to invoke administrative sanctions.
Again, we thank our clients and the public with their support over the last 14 months. On many occasions we tried to explain the unexplainable to people wrongfully issued IRPs, as well as to their friends and families. We believe that this is a time to reflect on our relationship with the government, the role of our government and the rights and obligations of each of us. We live in a democracy governed by laws. This demands of us that we remain skeptical of our governments.
(Note: IRPs were originally called Automatic Roadside Prohibitions by the BC Government and in this is the phrase used in the Court decision.)