There are three important IRP appeals now winding their way through the courts that have the prospect of changing the Immediate Roadside Prohibition scheme in a significant manner. Last week the BC Court of Appeal heard arguments on one of the appeals dealing with the IRP scheme as it was used in BC between September 20, 2010 and November 30, 2011.
We posted some updates about this last week and we noticed that many people were confused about which appeal was actually being heard. It’s understandable that people would be confused. We’ve been dealing with the IRP scheme since it was enacted and there have been many twists and turns along the way. But most people only become engaged with the issues when they receive an IRP.
So here is a quick summary of the three main IRP appeals that are now before the courts.
Compulsory “discretionary” remedial requirements, i.e. interlock and RDP:
On behalf of a handful of clients we have filed test cases to compel the Government to back down from forcing everyone through the RDP and to get an interlock if they receive one 90-day IRP. As far as we’re concerned if your driving record discloses no history of drinking and driving, the Motor Vehicle Act does not give the Superintendent of Motor Vehicles the authority to simply force you to get an interlock and go through the RDP. The law does not allow the Government or the Superintendent to make you get an interlock just because of their own ideology or view of things.
This has been an ongoing conflict we have with the Government and they would do anything to shut us up at this point, especially with an election looming. Our requests to get the information about the numbers of people who were forced to get the interlock have been thwarted by the Government at every step. Still, our efforts freed 1137 people from the Interlock and RDP so we’re going to keep up the pressure on this one until we get our day in court. Our petitions have been filed. This week we will file for interim relief to force the issue into court as soon as possible.
Constitutional validity of the current IRP scheme:
In our view, the changes to the IRP scheme which came into effect on June 15, 2012, cause the new IRP scheme to violate the Charter of Rights in ways that are different than the first version of the scheme. So we have filed petitions to challenge the constitutional validity of this second IRP scheme.
Of particular importance to us is the use of an ASD to punish someone when the subject is deprived of their right to counsel as required in section 10(b) of the Charter of Rights. It is trite that this Charter breach is acceptable when the results are not used as the basis of punishment. What has yet to be properly addressed is that the Charter breach is greatly exacerbated when hokey evidence is used to justify harsh punishment.
We also intend to argue that the Government is not allowed to simply decide to ignore the Charter of Rights or legislate it out as they have with the IRP scheme. The Charter of Rights is supposed to be the highest law in the land. If the Government can decide to simply ignore it and instruct their tribunals not to give Charter remedies, then we are no longer ruled by law.
The appeal of the first IRP scheme (what we once called the Sivia appeal) at the Court of Appeal:
The first version of the IRP scheme was found to violate the Charter of Rights by the BC Supreme Court on November 30, 2011. Our office was not directly involved with the appeal which we regret to some extent. The lawyers for both sides did a good job in explaining the issues that were important to their clients. Still, important aspects of the scheme were incorrectly explained to the court. For example, the Government indicated that only people with a history of drinking and driving were forced through the interlock and RDP. We knew this was wrong, but the Government is closely guarding the stats (see above).
Also the discussion concerning the Right to Counsel was largely a side issue. We weren’t sure, as well, if the court was made to understand the issues concerning the 30-day vehicle impound and the appeal process.
After the BC Supreme Court gave its decision, both sides appealed to the BC Court of Appeal. Two days of the hearing took place last week and another day is scheduled for this week. The issues were further narrowed.
We got the sense that the lawyers acting for the petitioners were most interested in the division-of-powers argument. This is not our favourite argument. If we were doing it we would focus more on the Charter of Rights. But the lawyers take their instructions from their clients and decide with their clients how they will advance their case.
The problem, of course, is that the fate of a few thousand British Columbians comes down to the decision in this case. And it’s awfully tough to persuade three judges that the one judge who heard all the arguments and gave a reasoned decision is, nevertheless, wrong.
Appeals waiting in the wings:
We have a number of issues concerning IRPs that we want to get before the courts. A problem that we are finding is that the Attorney General’s office consents to many of our arguments so there is never a court decision on the issues we raise. This is how the 1137 we relieved of the interlock and RDP.
After we deal with the Interlock and RDP for everyone else, our hope is to take on the 7-day window to file to appeal your IRP. This is of particular importance in Vancouver where the police used photocopied documents for several months until we figured it out and Kyla forced the OSMV to acknowledge that this was not acceptable evidence.
If you missed the 7-days to file for review of your IRP, particularly if you were in Vancouver and received your IRP between June 15, 2012 and November 1, 2012, give us a call and we may take yours on as a test case.