Challenge to the IRP scheme version 2
Few people are aware that there was a challenge to the IRP scheme version 2. We didn’t talk about it here on our blog because we thought it would be inappropriate to publicly discuss it before the hearing took place. However, the hearing is now over and so we’re now happy to report what’s been going on.
Back on November 30, 2011, the first version of the Immediate Roadside Prohibition scheme was found unconstitutional in a BC Supreme Court decision called Sivia v. The Superintendent of Motor Vehicles. The Court in that case identified several failings with the IRP scheme, and in particular the limitations on the review of 90-day IRPs for blowing Fail. Unlike Warn IRPs, which are relatively painless, and refusal IRPs, where no actual evidence is obtained from the suspect’s body, when it comes to 90-day IRPs for blowing Fail, the punishment is really harsh. And of course, the evidence is extracted by way of a breath sample taken under threat of criminal prosecution.
Some background is necessary.
The first roadside breath demand law was passed in 1976 and appeared in the 1977 Criminal Code. It authorized the police to make a demand for breath samples at the roadside from drivers whom the police suspected to have alcohol in their bodies. It authorized a warrantless search, and the drivers were not permitted to contact a lawyer beforehand. The Bill of Rights has a provision very similar to the Charter of Rights regarding the right to contact a lawyer before evidence is obtained against a person. The law was written so as to be as minimally intrusive as possible with respect to the right to talk to a lawyer. A requirement was written into the law to make the demand for breath forthwith and the readings would not be used as evidence for a criminal charge (to incriminate anyone) or for a driving offence under law such as the Motor Vehicle Act.
Fast forward to the late 1980s Courts across the country grappled with these provisions of the Criminal Code in light of the Charter of Rights. The roadside breath demand law (ASD provisions of the Criminal Code) were challenged for violating the Charter of Rights. The law was found to violate the Charter, but it was permitted to stand because it was demonstrably justified in a free and democratic society. It was therefore saved by section 1, but with the same limits as to use as before.
This was striking a balance. Obviously it’s necessary for the police to be able to screen drunk drivers for the purpose of stopping anyone who is over the legal limit from continuing down the road. This is what is sometimes called verification. The use of the results of roadside breath samples was restricted to allowing an officer to come to the conclusion that they had reasonable grounds (just cause) to detain the subject (thereafter a suspect) for criminal investigation and to stop the suspect from driving down the road. The readings would not be admissible in court for punishment. The purpose was to verify whether any given driver should be permitted to continue on their way or be detained for further investigation.
And that’s how matters stood for decades.
There are superior court decisions, including from BC, which say that the evidence from an Approved Screening Device (ASD) is inadmissible for almost everything, including as evidence to support a Violation Ticket under the Motor Vehicle Act.
And of course that makes sense to us, because ASD breathalyzers are designed, approved and introduced for that purpose. They are screeners. Moreover, the readings are too unreliable to be used for punishment.
Then came the IRP scheme.
The IRP law walks like a duck
The IRP law is clearly not a criminal law. It’s not in the Criminal Code and you don’t get a criminal conviction if you get an IRP. Still, the punishment is similar to a criminal charge, the police are testing for the same thing and the law outlaws the same blood-alcohol level. Moreover, it goes on your driving record, for which you can’t get a pardon, and it stays there forever, following you to the grave.
The Government has said that the IRP law is administrative law because the hearings on review are before their administrative panel. This is logical fallacy that you can break apart many ways. Regardless, by virtue of the fact that there is no criminal conviction and no chance of jail, the Court in Sivia was comfortable in agreeing that the IRP law is not criminal.
Still, it’s awfully harsh. Looking at the review process, and bearing in mind the frailties of the evidence the BC Supreme Court in Sivia found that the law violated s. 8 of the Charter of Rights as being an unreasonable search and seizure bearing in mind the harshness of the punishment and the truncated review process. The Court in Sivia said this:
 There are really only two issues to be decided under the statutory review: was the applicant a “driver”, and did the screening device register a “warn” or “fail” (or did the motorist refuse to blow) as the case may be? The statutory review does not permit the driver to attempt to demonstrate that he or she did not have a blood-alcohol reading over 0.08 or to challenge the accuracy or functioning of the ASD. Moreover, the review does not allow the driver to attempt to challenge whether the demand for a breath sample was capricious, cross-examine the officer, or raise the issue of whether the driver was advised of the possibility of giving a second sample.
 The most important of these concerns however is that the review process does not allow the driver to challenge the apparent result of the ASD.
To us what the Court is saying is that the scheme might be constitutional if the person who received a Fail IRP could obtain the disclosure necessary to actually challenge the ASD readings. If they could challenge the validity of the ASD demand and cross-examine their accuser, the system might be demonstrably justified in a free and democratic society.
In version 1 of the IRP scheme you could contest the readings, but because of the truncated review process, stripped of fact-finding tools such as disclosure and cross-examination, you could not actually challenge the evidence of the officer regarding the breath test result. The Court said this was wrong and the law was held to be unconstitutional.
The Court of Appeal agreed. Of course there were other findings, some of which are spot on the money and others with which we disagree. But in any event, the law was struck down and the BC Government was given 6 months to write a new IRP law.
IRP scheme version 2
The major changes in IRP scheme version 2, which came into effect June 15, 2012, are that the officer’s report was now to be sworn (which the tribunal ignored), the police would be expected to provide some ASD information (which they did before) and the lower of the two readings would prevail. A new Report to Superintendent with check boxes instead of evidence was introduced and the police started sending one-page certificates saying the ASD was just dandy in order to comply with the requirement for ASD information.
In Sivia the Court didn’t say things would be better if reports were sworn by the officer. None of the other changes say anything to address the shortcomings in the IRP law that were identified in the Sivia decision.
Real disclosure so as to challenge the results? Nope.
Challenge to the validity of the ASD demand? Nope.
Notification about the possibility of a second sample?
Yes, but no requirement for the police to tell you that the lower of the readings is supposed to prevail and is supposed to be on a different ASD. Only that the person has a right to forthwith request and be provided with a second analysis.
The challenge to the IRP scheme version 2 – the Government is trying to pull a fast one
If you go back and read what the Court said in Sivia and look at the changes to the law that the Government made while claiming they were acting in response to Sivia, you might conclude, as we did, that it was all intended to pull a fast one and in the end do the opposite of what was called for by the Court. Instead of making the IRP scheme fairer, it was designed to put a little facade of fairness on it and actually make it harder for people to realistically challenge the results.
That’s what we think. If you agree, you might be drinking the Acumen Kool-Aid, as some commentators on the internet claim. In any event, you now know the basis of our arguments in the challenge to the IRP scheme version 2.
It took three and a half days of arguments in BC Supreme Court in Victoria last week to explain all of this. It might have been quicker to just submit this blog post, but we had other things to say. We’ll tell you about how the hearing went and some other issues that were important in future blog posts.
We apologize for not posting last week. Obviously we were very busy. Thanks again for following our blog.