The constitutional challenge to the Immediate Roadside Prohibition regime was heard in the B.C. Supreme Court last week. The arguments have all been completed now, so all there is left to do is wait for the judge to make his ruling about whether the IRP regime violates the Constitution or the Charter.
There were two main arguments advanced in challenging the IRPs. Firstly, it was argued that the IRP laws are not within the legislative competence of the British Columbia government. For those who do not know, the Canadian and Provincial governments are only able to enact legislation in certain areas. These are listed in sections 91 and 92 of the Constitution Act, 1867 to 1982. Because Impaired Driving and Driving over .08mg% is a criminal offence, and the Federal government has the exclusive authority to enact criminal law, it was argued that the new BC IRP laws could not be enacted by the Province. Only the Federal government could have made these laws.
A significant amount of evidence was presented to show that the new laws are resulting in a significant decrease in the number of people who are charged criminally. Rather than pursuing a criminal prosecution against individuals who drive after they have been drinking, the police are simply issuing an IRP and sending people on their way. Counsel for the petitioners argued that the IRP laws have effectively decriminalized impaired driving in BC.
In Constitutional cases, when a law is found to violate the Constitution, it may be struck down as having no force and effect. On its face this would appear the only remedy if the first argument made is successful.
The second argument is that the IRP process actually violates the right to be secure against unreasonable search and seizure and the right to counsel, found in sections 8 and 10(b) of the Charter. This has been our position regarding the new law since it came into effect.
In order to understand a little bit about how the law violates the Charter, it is important to understand the law prior to when the IRP scheme was introduced. When the approved screening device demand was made at the roadside, drivers were not entitled to the right to call a lawyer. The courts found that because the approved screening device was administered “forthwith” and because the results were only admissible to prove the police officer had reasonable and probable grounds to make a breathalyzer demand, the limitation on the right to counsel was “demonstrably justified” in the circumstances.
Under the new law, however, the results of the roadside screening test are used to severely punish individuals and impose penalties in excess of $4700. The new laws also have no remedy if the test was not taken immediately. This means that you could technically be delayed at the roadside by police for hours until they decide to take the test. You aren’t allowed to call your lawyer. You aren’t allowed to leave. And if you refuse to take the test, you get the same punishment as if you had failed it. The argument is that since there are now penalties associated with the test and the “forthwith” requirement no longer applies, the justification for the infringement of the right to counsel no longer stands. The IRP laws, the way they are today, can’t operate without the right to counsel being provided at the roadside.
There are several remedies available when a law violates the Charter. One remedy is to “read in” to the law the constitutional obligations of the Charter. In my opinion, reading in the right to counsel at the roadside would result in the IRP laws becoming completely impractical. It is impossible to ensure that every individual who wishes to exercise their right to counsel at the roadside could in fact contact their lawyer. Despite the prevalence of cell phones, there are still many areas in BC that do not have cell reception. There are also many individuals who do not have cell phones. Moreover, since the right to counsel isn’t limited to any lawyer, but includes counsel of choice, it might be difficult for police to actually implement the counsel of choice requirement if an individual does not have his or her lawyer’s number readily available. For this, and other reasons, it seems more practical to strike down the law as an inconsistency with the Charter.
After the argument was presented, the government lawyers had an opportunity to defend the laws. In my opinion, the position taken by the government is illogical and inconsistent. For example, it appeared the argument was that the government did not replace criminal law, but that police agencies were just instructing their members to stop forwarding charges to the Crown. This was merely an exercise of police discretion. Of course, this seems absurd when one considers the fact that policing agencies are agents of the Office of the Superintendent of Motor Vehicles when it comes to enforcing the Motor Vehicle Act. With respect to the Charter argument, the government lawyers appeared to argue that, on the one hand, they are importing the authority to conduct the search and seizure (taking a breath sample) from the provisions of the Criminal Code. On the other hand, though, they suggested that since police are investigating a Motor Vehicle Act offence, they aren’t required to follow the rules set out in the Criminal Code. It seems to me that they were asking to have their cake and eat it too.
At the end of the day, I feel that a really strong argument was put forward to justify striking down these new immediate roadside prohibition laws. I know many innocent people have been hurt by the new IRP scheme. We won’t have a decision for many more months, though, so we’re stuck with them for now. If you get an IRP, a Vancouver Criminal Lawyer can help assess your case and challenge it for you. Contact us.