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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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Bad-Faith Government and Kitimat ASDs

Firstly, we'd like to thank all of the people who have phoned and emailed us in the last couple of weeks. It's been gratifying to know that so many people support the work we do, and that so many people are following our updates. It's inspiring to see that people are aware of the threat to the rule of law when we give almost unfettered power to the police or a government agency. Kitimat ASDs: Many people (surprisingly) have contacted us about the comment we made a few days back concerning problems with the ASDs in Kitimat. It's an important issue, but...

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Update – waiting for an OSMV review decision

We have a number of clients waiting for a decision on their review hearing with the OSMV. We are also fielding many calls and emails from people who conducted their own hearing or had another law office conduct the hearing, and have yet to receive a decision from the OSMV. This is what we know: The adjudicators have been instructed to conduct hearings, but to not render decisions until they have been further instructed on how to decide the cases. We guess what this means is that they can review the evidence and make notes, but not give a decision. You are thinking...

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The Government Responding to the Court

If you've read some of the previous blog postings, you'll see that we dug up a lot of material over the last 16 months concerning problems with the ASDs. We knew that it was a mistake to rely on them for harsh punishment. So we were encouraged when the Spencer decision came out a few months ago. The Spencer decision largely foreshadowed the Sivia decision, which found the scheme unconstitutional. In Spencer the Court found that, if there was to be any confidence in the IRP review process, the tribunal should consider the best evidence. Because the police would typically not...

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IRPs – People Serving the Punishment

We expect that arguments will be made to the Court before Christmas concerning what the declaration should be, i.e. what sections of the law will be struck or modified and whether this will apply retrospectively. We expect the Government to take the position that the decision applies from this point forward. There has also been a rumor that the Government would concede that anyone who filed a Petition to review the OSMV decision would be entitled to a remedy. This suggests that they will oppose a blanket remedy for everyone who received an IRP. We see only two categories of individuals: those...

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ASD Accuracy Problems

ASD Accuracy Problems

Mi-Jung Lee had another report on the IRP scheme, this time dealing with ASD accuracy problems and ASD malfunctions. She picked one of many inaccurate calibration tests to give as an example. The spokesman for the VPD said one with such a reading would have gone for repair, but she did not say that this unit went for repair. In fact, there was nothing in the disclosure to suggest that it was sent for repair. There are a number of interesting points to note: We had to fight for these documents; No lay person has been able to obtain these documents to defend an...

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The IRP Stigma

We've had a number of reporters call us in the last few days, and everyone rushed to get the story out for the evening news on Thursday. Mi-Jung Lee at CTV had a woman who served her 90-day for an alleged refusal. It was interesting because over the past 14 months many clients did not want to appeal the review decision because they were concerned about the notoriety. This worked in the Government's favour because few people were willing to speak up to explain how unfair the scheme was for fear of public humiliation. We found that many people would read...

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