How it went down: IRPs at the Supreme Court of Canada
Seven heavy-duty judges, cameras and a very impressive room filled with lawyers. Kyla was the first to step up and speak to the Court. It was an impressive sight seeing how it went down when we finally got to discuss IRPs at the Supreme Court of Canada.
We think the lawyers on both sides made their best efforts before the Court to advance their arguments. Still, we can always imagine a better method of sorting this out.
Our first impression was that we got out the essential points and the Court seemed to understand our concerns with the scheme. The next day we started to second-guess our strategy. Then we watched the video of the hearing and now we’re feeling pretty good.
Watch the IRP action
You can watch the hearing on the Supreme Court of Canada’s website. Kyla and Paul are sitting at the front table on the left. When you’re watching the video you’ll see Howard Mickelson Q.C. who was sitting immediately behind Kyla. Mickelson and Shea Coulson presented the main arguments in the Goodwin case. Behind Howard Mickelson you can see Sacha Roudette who is one of the few lawyers outside of our office who appeals IRP review decisions in BC Supreme Court. We worked with her last summer in the Bro case so we were glad to see that she came to Ottawa on behalf of her clients who were on the docket that day.
(UPDATE: Shortly after the hearing, Sacha Roudette agreed to come work with us. It was a long time coming. We’re really glad to have her as part of our team.)
Sitting beside Sacha Roudette was Claire Hunter acting for the British Columbia Civil Liberties Association. If you watch the video you will also see Shannon Prithipaul who spoke on behalf of the Criminal Trial Lawyers’ Association (Alberta) and Criminal Defence Lawyers Association (Calgary). Also on behalf of the Goodwin argument was Michael Lacy for the Criminal Lawyers’ Association of Ontario.
Kyla steps up to the plate
Because she would be the first to speak about IRPs at the Supreme Court of Canada, Kyla wanted to lay the foundation so the Court knew what they were dealing with. She explained that the IRP scheme stripped away all of the rights related to ASD testing that have been defined by the courts over the decades. She explained that the demand to blow into an ASD was a lie because it didn’t come with the protective guarantees that accompany a Criminal Code demand for an ASD breath sample. She explained that the two-step test in the Motor Vehicle Act imported a protection that assists the police so that they can safely do the right thing and not issue an IRP when the grounds don’t exist.
Watching the video and from the feedback we received, it looks to us that Kyla nailed it. We’re proud of her work.
The Wilson case has limited application in the sense that if we’re successful it may apply to a small percentage of all of the IRPs issued in the future. It’s worthwhile watching the entire hearing to get a better sense of where the arguments fit. The cases that follow from Sivia (Goodwin and others) are mainly concerned with the first version of the IRP scheme.
In those cases the punchiest arguments were made by lawyers acting as interveners. As opposed to the lawyers who filed the appeals and factums, the interveners were not bound to stick with the arguments made in the lower courts. As a result they could cover aspects of the IRP scheme not addressed full on by the lawyers who launched the appeal.
Approximately 198 minutes into the video, Claire Hunter explained very clearly that the IRP sanctions are so similar to the Criminal Code sanctions in severity that they’re really penal consequences in disguise.
At approximately 203:30, Shannon Prithipaul from Gunn Law Group in Edmonton ripped apart the new practice of governments creating so-called administrative schemes at a local level to deprive us of our Charter rights. Given a mere five minutes to speak, Shannon honed in like a laser on the danger of turfing our rights for expediency. Shannon is brilliant.
At approximately 208:50 Michael Lacy spoke on behalf of the Criminal Lawyers’ Association of Ontario. At this point it felt like the bases were loaded and we needed a home run. Michael delivered. He called the review provisions a sham. He explained that this was an end run around the Charter of Rights.
Justice Moldaver asked a question about the unlikelihood of a second sample being wrong. Michael explained that you need to know about the right to a second sample to make the decision. We would have added that under the first version of the IRP scheme the second sample was made out like a threat because the second sample was the one the prohibition was served on. Moreover, often police officers simply refused to provide a second sample under that law. Usually they’d tell drivers that if they blew again they’d be charged with a criminal offence.
As for the current IRP scheme, the second sample is just as likely to be contaminated with mouth alcohol as the first without a correct observation and deprivation period. And no matter what, the police can always lie which we have seen too many times to count.
Collectively we all cringed when the lawyers for the Government suggested to the Court that fairness and Charter principles were being applied in IRP review hearings. That’s simply not been the case. They told the Court that police officers either carry two ADSs with them or they better have ready access to a second. That hasn’t been our observation. There are no Charter remedies for unlawfully detaining people in an IRP investigation. We’ve seen people who give up waiting for a second ASD to arrive or where the officer simply uses the same ASD and either lies or tells the truth about only using one ASD in their report.
The Government lawyers told the Court that the second ASD was intended to provide fairness. Under the first version of the scheme the second sample came with a threat. Fairness wasn’t the consideration.
The Government lawyers spoke of a speedy review hearing and decision of the RoadSafetyBC tribunal. Meanwhile there are dozens of IRP decisions outstanding from our office alone. Some people have been waiting over a year for a decision from RoadSafetyBC.
Strangely, despite the Government’s spin about the harshest punishment, the Government’s lawyers tried to say that the fact that IRPs are not criminal is a positive benefit.
To us this is a bizarre and illogical argument. How is it a positive benefit to be the subject of a unreliable investigative process that produces questionable evidence in a scheme with a “sham” review process? Should people be happy that they got similarly harsh and stigmatizing punishment on the basis of a screener rather than on investigative breathalyzer tests? Huh?
The lawyers for the Government also argued that another benefit of an IRP is that if you’re applying to volunteer to coach soccer and you face the humiliation of disclosing a criminal record, you don’t need to worry if you got an IRP. What they didn’t tell the Court is that an IRP stays on your driving record, which is a document you are probably more likely to need to disclose if you plan to drive the children to the local rink.
It’s true that an IRP might get you out of volunteer driving duties if that’s your plan. The problem is that many people need to disclose their driving records to their employer.
The non-argument argument
Disconnected from the legality or illegality of the IRP scheme is the issue of whether it is effective. For the Court this is really a non-issue so we’re not worried about this point, but the Government lawyers spent a great deal of their allotted time harping on their view of the numbers. They failed to explain to the Court that during the 6-month period when Fail IRPs weren’t issued (November 30, 2011 to June 15, 2012) the death and accident rate for alleged DUI drivers was either lower or the same as when IRPs were issued.
The best question
Justice Moldaver asked a Government lawyer specifically what happens when a police officer doesn’t have lawful grounds to make an ASD demand. Basically because there is no court oversight to the police, we see the police often making completely unlawful ASD demands. For example, we’ve seen people forced to blow because they wore the jersey of a certain sports team, a paper wrist band or what have you.
In answer to the question from Justice Moldaver the Government lawyers said you could come up with some hypotheticals. Interestingly, Justice Moldaver’s hypothetical scenario is one we see all the time.
The Government lawyer said that an unlawful ASD demand might permit revocation of the IRP.
This is simply wrong. We assume that the Government lawyer didn’t know this. It’s too bad because he gave wrong information to the Court on an essential issue and in fact the very issue that seemed to be of concern to the Court. You will not find a decision rendered by the OSMV tribunal where an IRP for Warn or Fail was revoked due to an unlawful ASD demand. Moreover, the grounds to revoke a Fail or Warn IRP do not include that the demand was unlawful. This was a false statement to the Court.
Then the Government lawyer went on to redirect the discussion to the issue of people advancing the defence of mouth-alcohol from mouthwash. In the end the question was never answered.
A Government lawyer also argued that there was “room to deal with” situations where an officer mistreats someone at the roadside. Again, we have never seen this as a consideration in a review decision of the tribunal where the IRP was revoked. What we see day after day is deference to the account of the police, regardless of what may have actually happened.
A Government lawyer said that principles of Government tribunals are supple and flexible so as to account for and deal with police errors. From our perspective this is the furthest thing from the actual functioning of this tribunal. The tribunal has been described in BC Supreme Court decisions as apparently working backward to uphold IRPs. Moreover, the grounds to revoke an IRP are tightly delineated, extremely limited and applied to the benefit of the Government.
We did like that a lawyer for the Government said that ASDs typically produce the correct result. “Typically” means “usually” which is a correct statement. The problem is “typically” means 50.1% and up, and perhaps as little as 50.2% of the time.
Justice Moldaver also asked about unreliable samples being a reason to revoke an IRP under the first version of the scheme. A Government lawyer said that it was always a possible argument but that it wasn’t being made.
Ironically, Paul made that argument in the very first IRP hearing we conducted in the first week of October 2010. Right after finishing the hearing he attended a talk given by the Chief Justice at the new Vancouver Convention Center.
It was an argument we made all of the time. The tribunal just rejected the argument over and over.
The best things
A Government lawyer said there was no restriction on what the applicant can produce before the tribunal. He agreed that an applicant is entitled to raise anything. This is very important. We’ll try to explain it in the next blog post.
A Government lawyer also said if the tribunal is met with evidence of overriding unfairness to the driver that the tribunal would revoke the IRP.
We’ve taken this as a declaration from the Government that the IRP scheme will now take a 180º turn.
We’ve made this argument in IRP hearings countless times since the very start of the IRP scheme. Now we’re going to hold them to it.
Your money’s worth
For all our observations, we think the lawyers on both sides made their best efforts before the Court to advance their arguments. Still, we can always imagine a better method of sorting this out.
We don’t expect decisions in these cases concerning IRPs at the Supreme Court of Canada until at least September.
Some final thoughts
We were displeased with the allocation of time for the interveners. The lawyers speaking for the interveners were given only five minutes to make their argument which to us was unfair bearing in mind the effort put into the argument and attending the hearing. We know that time is tight, but when lawyers fly across the country due to the importance of the matter, it’s disheartening to be given the floor for only 5 minutes.
What we really liked to see was the gender split.
Sometimes it seems that we are overwhelmed with men who like the sound of their own voices. In this hearing the first speaker was Kyla who simply laid out the argument in her typical straightforward and passionate manner. The balance of the lawyers who spoke or who were there for their clients represented something very near the equal gender distribution that should exist in the legal profession.
We’re happy about that.