Drove to Escape an Assault
One of the more disappointing aspects of the Immediate Roadside Prohibition review scheme is that there is no defence available if you drove to escape an assault. In criminal law we have the defence of necessity. So if there was a hunting accident and there was no reasonable option but for you to drive to obtain medical help, you would have a defence to any criminal impaired driving charge under that circumstance. Similarly, if the reason you got behind the wheel was to flee an attacker, you would be able to rely on the defence of necessity as an excuse to the criminal drunk driving charge. But what about Immediate Roadside Prohibitions?
In an IRP case there is no remedy for the victim of an assault who drove to escape the assault.
The BC Government takes the position that the only defences available to an IRP are those enumerated in the Motor Vehicle Act. To file your IRP in dispute you must select a box indicating the defence you intend to argue, such as that the ASD malfunctioned or you weren’t a driver. Interestingly, there is no “other” box allowing you to file your IRP in dispute on the basis of anything other than what the Government dictates.
The nightmare scenario
Although this isn’t exclusively something that happens to women, it happens often enough that women need to escape an assault or a sexual assault by getting in their car and driving despite having consumed alcohol. We’ve had cases in our office where our client faced a date-rape situation and had to get in their car to escape. We’ve had at least one case where our client was drugged and fled in her car. We’ve had cases where our female client drove just to escape being beaten. How is that dealt with in an IRP case?
All of these cases were ones where the defence of necessity would protect the individual from being wrongfully convicted if the matter was handled in criminal court. In each case the victim could provide evidence to establish that they drove out of necessity. In an IRP case, however, there is no remedy for the victim of an assault who drove to escape the assault. Although there may be another defence that arises from the facts and fits within the bounds of the defences permissible by the legislation, the fact that a driver drove to escape an assault, even a sexual assault, does not provide a defence to an IRP.
Exacerbating gender discrimination
Most victims of domestic assault and sexual assault are women. Already there are many barriers victims of assault face in our justice system. Victims of assault may be concerned about being overly scrutinized, cross-examined, or disbelieved. Another barrier that faces people in these circumstances should not be that there is no defence to an IRP if you are driving solely to escape an assault or other dangerous situation. The whole reason that we have these defences in the criminal justice system is to recognize that there are situations in life where our actions are truly involuntary. The defence of necessity accounts for this. The IRP scheme, by failing to allow for this, punishes people for their involuntary conduct.
Because women tend to face these types of situations far more often than men, the IRP scheme also effectively exacerbates the gender discrimination that women already face. This very gender discrimination is why women end up dealing with these awful realties more often than men.
If you’ve ever read an unsuccessful IRP decision, you are familiar with the harsh and cynical language that adjudicators often employ when scrutinizing and then rejecting the evidence of an applicant. Now, imagine being a victim of an assault, driving to escape that assault, and having the adjudicator parse your evidence, question your credibility and the reliability of your evidence in a cynical and critical language.
If you drove to escape an assault and consequently were issued an IRP, this BC Government is not there for you. It’s not their concern. You can’t file your IRP in dispute on the basis of necessity, even if the necessity is to escape being the victim of an assault.