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IRPs – What we’ve argued all along

Today the Supreme Court ruled that the taking of samples for the purpose of a 90-day IRP is a violation of sections 8 and 10(b) of the Charter of Rights. We have taken the position since the legislation was introduced that using ASD results to harshly punish an individual is a violation of sections 8 and 10(b). The section 8 violation arises by the use of the sample obtained in violation of these rights. The Court now will address the declaration necessary to strike down the relevant provisions of the IRP scheme. Each person who received a 90-day IRP should be entitled to...

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Court Decision on Constitutional Validity of IRP Scheme

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...

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Small Business Owner with Human Resource Problems?

Owning and operating a small business is challenging but very rewarding. With all the things you have to look after to run a successful business, the last thing you want to worry about are Human Resource Problems. The reality, however, is that failing to squarely address human resource problems can result in significant cost and liability for a small business. At Acumen Law Corporation, our labour and employment advice is straightforward and results oriented. We speak your language because we have been there. Mr. Koshman has managed departments and employees. He has dealt with hard-nosed unions. He knows and understands employment...

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Port Moody Police and Improperly Calibrated ASDs

We receive many calls each week regarding the ASDs in Port Moody and the problem with their calibration. We have not had confidence in the government to address the issue, so in October we took the problem directly to the media. Although we have many concerns with the BC Government's Immediate Roadside Prohibition scheme, one of its most glaring faults is the reliance on Approved Screening Devices to collect evidence. The law in Canada has been that the results of such a test could only be used to form just cause for further detention and grounds to demand further samples of...

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It’s been over a year…

September 20th, 2011 marked one year of Immediate Driving Prohibitions in British Columbia. Although the law has been constitutionally challenged, no decision has yet been made. You can read more about the Constitutional challenge in my earlier blog post, located here.

Since the challenge, things have not changed. Individuals in British Columbia are still being stopped and issued harsh penalties without being afforded the right to contact counsel. Impaired driving charges are being forwarded to the Crown only in exceptional circumstances, meaning that the jurisdiction of the court in criminal charges is still being ousted.

The approved screening device

Roadside gamble (note: ASD image altered for dramatic effect)

What is it?

Until the Immediate Roadside Prohibition laws were introduced in British Columbia last year, the Approved Screening Device, which many people simply refer to as the roadside breath tester, was intended to provide a quick and easy way for the police to assess a driver’s sobriety without detaining them for a lengthy investigation.

The only ASD commonly used at this time in BC is the Alco-Sensor IV, a device produced by Intoximeters of Saint Louis. The versions sold to Canadian police departments have simplified software to make it easier for Canadian police officers to understand the results. The “Alco-Sensor IV DWF Screener” used in British Columbia indicates “Warn” between 60mg and 99mg in 100ml (up from 50mg as of November 2010) and “Fail” if over 100mg in 100ml. Below 59mg it displays the actual BAC.

What to do if you get an immediate roadside prohibition

Since September, 2010 the BC Government has been issuing drivers in the province Immediate Roadside Prohibitions if they fail an Approved Screening Device test or if they refuse to comply with an Approved Screening Device demand. The Approved Screening Device is the roadside breath tester used in these cases.

If you have received a 90-day IRP it is important that you consult a lawyer as soon as possible. You only have 7 days to file an application for review of the prohibition. While extensions of the 7 days are available, they are only granted in extreme circumstances. Most people do not meet this standard. Many lawyers, including our office, offer a free consultation to discuss how to proceed with your IRP review.

Immediate roadside prohibition challenge

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.

Court of appeal upholds 8.5 year sentence

A Nova Scotia man has had an 8 and a half year prison sentence for impaired driving upheld by the Province’s Court of Appeal. He was convicted in February of impaired driving, leaving the scene of an accident, and driving while prohibited. He is also subject to a lifetime driving ban.

The Criminal Code sets out escalating penalties for repeat impaired driving offenders. The mandatory minimum sentence for impaired driving on a first conviction is a $1000 fine. A second conviction will result in a mandatory minimum of 30 days imprisonment. A third or subsequent conviction carries a mandatory minimum of 4 months in prison. The man in this instance has twenty-two previous convictions.

Marijuana use and driving

A British Columbia study was recently conducted to determine the percentage of drivers who use marijuana before operating a motor vehicle. Drivers in Vancouver, Saanich, Abbotsford, Prince George and Kelowna were tested orally between the hours of 9pm and 3am. Of the nearly 3000 drivers who participated in the study, more than 200 tested positive for the presence of drugs in their system.

I don’t think people usually associate impaired driving with drug use. What more readily comes to mind is the use of alcohol and its effects on the ability to drive. But the Criminal Code provides that impairment can be either by alcohol or by a drug. With the potential for over 7% of drivers in British Columbia to be impaired by drug use, this raises some serious concerns.