Today, November 30, 2011, at 10:30 a.m. the British Columbia Supreme Court released its decision concerning certain challenges to the constitutional validity of the Immediate Roadside Prohibition (IRP) legislation. The court has ruled that the ARP legislation infringes s. 8 of the Charter insofar as it concerns the prohibition, penalty and costs arising from the screening device registering a “fail” reading over 0.08. This infringement is not a reasonable limit which is demonstrably justified in a free and democratic society
We are studying the decision to determine what steps we need to take for our clients. Please return to our blog in the next few days for updates.
The decision of the court can be found here: Sivia and the Superintendent of Motor Vehicles
A summary of the finding that the legislation violates the Charter of Rights is in paragraph 16 of the decision:
[16] However, I find the ARP legislation infringes s. 8 of the Charter in the limited circumstance where, on the basis of a search of breath by an approved roadside screening device, a 90-day license suspension as well as significant penalties and costs are imposed on motorists who allegedly blow over 0.08, without those persons being able to meaningfully challenge the results of the search. I also find that the infringement is not saved under s. 1 of the Charter. The Province has failed to demonstrate that it constitutes a reasonable limit on the right to be free from unreasonable search and seizure.
Background
Lawyers acting on behalf of the Applicant argued that the legislation which created the scheme duplicated and replaced federal criminal law because it imported an .08 standard and because when a person receives an IRP, the criminal investigation is automatically shut down. They also argued that the law facilitated a breach of each individuals Charter rights in every investigation.
Lawyers acting on behalf of the Government argued that the legislation is purely administrative and therefore within the legislative realm of the provincial government.
The primary tool that BC police use to identify impaired drivers and remove them from the road is an ASD. This did not change with the introduction of the legislation. The principal change was that the police no longer need to take more reliable samples into a breathalyzer at the detachment. In the event of an over .08 sample, the driver still faced a 90-day driving prohibition.
Our primary concern with the legislation is relying on ASD results to punish people harshly. We have hundreds BC police documents showing a history of problems with these devices. Many police forces, such as Vancouver, know that these devices can have serious reliability problems. The VPD has obstructed our attempts to obtain full disclosure of the history of their units. Despite our efforts, it is likely that they will continue to successfully withhold this information. The Office of the Superintendent of Motor Vehicles does not assist us in obtaining these documents. Usually, by the time we get them, most of the punishment has been served.
The issues in the constitutional case do not address whether the scheme itself is fair. In our view it is grossly unfair. Furthermore, by shunting these cases to an administrative tribunal that does not publish its decisions, the impression given is that the government is primarily interested in saving money and avoiding scrutiny. This is a disturbing turn in a democratic society ruled by law.
Much has been made of the recent statistics prepared and released by the government. Noteworthy, but omitted from the government releases is that when the scheme was introduced, BC police purchased 2200 new ASDs. This in itself is a major factor. Simply put, the police now have the equipment needed to make an impact.
As stated, the police in BC have always had the power to stop a suspected impaired driver from continuing down the road. What this means is that the story of the statistics is misleading. It was not the IRP scheme that effected the reduction in deaths from drinking drivers. It may simply have been more enforcement. Noteworthy as well is that the police in BC have greatly stepped up enforcement.
The legislation may have the effect of reducing recidivism. If repeat drinking drivers are the ones who caused deaths in the past, the government should release the statistics concerning how many deaths were caused by people with a history of impaired driving in the last 12 months when compared to the same period each year of the last decade. This would be a useful statistic to show that the government is honest about the spin it puts on the legislation. To date, I have not seen these statistics released to the public.
As we have indicated in the past, the only real change in removing suspected impaired drivers off of the road has been to remove the right of individuals to challenge the evidence. Under the IRP scheme, in our experience being innocent will not help your defence. We believe that many innocent people have been given IRPs and had them upheld on review.