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“May pose a danger”

It may seem nebulous, but it was the conclusion of the Court that applying the Charter to immediately strike down the unlawful IRP law "may pose a danger" such that it is appropriate to delay the declaration of invalidity. What does this mean for our clients? The Court went on to say: In suspending this declaration of invalidity it is not my intention that the fact of the suspension itself will affect any rights that may have accrued or vested up to the present date. This would seem to suggest that people who have sought a remedy in the Court by filing a...

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Court decision – December 23, 2011

The Court has rendered its decision concerning the implications of the 90-day IRP scheme having been found to violate the Charter of Rights. We are reviewing the decision. We will post updates when we have had an opportunity to consider the implications of the decision. You can read the decision here: http://www.courts.gov.bc.ca/jdb-txt/SC/11/17/2011BCSC1783.htm...

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Gambling

We expect a decision from the Court today concerning the application of the November 30th ruling in which the 90-day IRP/ARP law was held to be unconstitutional. What will it mean? We will tell you when we see it. One way or another, we doubt it will resolve the issue of outstanding IRPs or provide a complete answer for people who have their matter before the Court in the form of a Petition to review the adjudicator's decision. Simply put, the Government appears to have dug in its heels, so it seems probable that the matter will end up in the BC...

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Stats and waiting for the return of your BCDL

A suggestion the Government seems to make by hammering one single statistic out of context is that recidivists are responsible for drunk driving deaths and therefore we should conclude that the IRP law stopped repeat drunk drivers. That would be the only way the decrease could be attributed to the IRP scheme. And bearing in mind that it is 90-days that the person is off the road, then what we would need to examine is how many repeat drunk drivers cause an accident in the 90-days after they are initially stopped. None of this is discussed when the Government bleats...

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Update on Monday’s hearing

The Court heard submissions with respect to what should happen now that the 90-day Immediate Roadside Prohibition scheme has been found unconstitutional. The Justice indicated that he understood that there is a desire for a prompt decision. The issues are complex, however, so we do not expect a decision until early January at the soonest. The Government argued that the Court should suspend the implementation of the ruling until June. The Government also argued that they should be exempt from having to reimburse anyone for the fines, towing, storage, etc. For simplicity, we have broken down the Government's argument into three...

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Do you feel lucky?

Between September 20, 2010 and November 30, 2011, simply being in British Columbia was a high-stakes game of chance. If a police officer claimed that an unidentified witness claimed you drove, that was good enough to prove you were a driver. Time of driving didn't matter, so long as there was no suggestion that you drank after driving. The police could make an ASD breath demand with no evidence of alcohol consumption, because there was no remedy so long as they managed to obtain a sample. And then there's the ASD. Regularly we had people tell us that they'd either had...

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Alleged refusals and why they bother us so much

The Globe and Mail reported Saturday that the Government expects to argue that 90-day Immediate Roadside Prohibitions for refusal allegations should be untouched by the November 30th ruling. As far as we're concerned it is the 90-day scheme that was found unconstitutional, with an immediate prohibition, vehicle impoundment, RDP and interlock, fines, etc.; without an actual possibility to investigate the evidence, no decision on a hearing for two to three weeks into the punishment (or much longer), no substantive disclosure, no cross examination, no prosecutor, no Charter arguments, no face to face hearing with a legally-trained adjudicator, no publication of tribunal...

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Refusal Allegations and 90-day IRPs

A hot topic this week has been whether the Government can rely on the unlawful legislative scheme if the police allege that the subject failed or refused to blow. In other words, if they don't get a sample, can they then say that the search and seizure wasn't unreasonable because there are no results to consider? Some people are wondering if the Government is going to ask the Court to allow 90-day Immediate Roadside Prohibitions if the allegation is of failing or refusing to provide a breath sample. We don't think they'll be that silly – if you've been told that...

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BC Supreme Court on Monday

Howard and the crew who argued Sivia, as well as the lawyers for the Government will appear in Court on Monday to make submissions on what should happen as a result of the finding that the IRP scheme is unconstitutional. Kyla wrote some of the draft arguments concerning the Charter issues. We were confident the Court would find that the samples were taken in violation of each person's 10(b) Right to Counsel, which it did. However, we felt that bearing in mind the degree of the punishment, the Immediate Roadside Prohibition scheme could not withstand a s.1 analysis. We were surprised,...

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