“May pose a danger”
It may seem nebulous, but it was the conclusion of the Court that applying the Charter to immediately strike down the unlawful IRP law “may pose a danger” such that it is appropriate to delay the declaration of invalidity.
What does this mean for our clients? The Court went on to say:
In suspending this declaration of invalidity it is not my intention that the fact of the suspension itself will affect any rights that may have accrued or vested up to the present date.
This would seem to suggest that people who have sought a remedy in the Court by filing a Petition will not be affected in the remedy they can obtain.
Of great concern for a smaller number of people is what the Court held with respect to refusal situations. The legislation still sets up a 10(b) violation for each person. The Court concluded the following, however:
 The first question involves the extent to which the decision finds the ARP regime to be unconstitutional; in particular, the constitutionality of the provisions of the ARP regime pertaining to persons who “failed or refused, without reasonable excuse” to provide a breath sample. I think that is clear from my reasons, particularly at para. 382(d), that the unconstitutionality of the legislation arises “from the screening device registering a “fail” reading over 0.08”, and not from a refusal to provide a sample of breath in the first place.
 This conclusion is supported by the fact, as Mr. Copley points out, that the ARP regime provides a more meaningful avenue of review for persons who do not provide breath samples than it does for persons who register a “fail” reading on an approved screening device (ASD).
This has not been our experience at all. We have found that that the review process with refusal situations is as flawed as it is for ASD fails. It is unfortunate that evidence was not called on this issue, among others. The problem we found is that the Government is hiding the information we need to properly assess the issue of whether there is any meaningful avenue for review for alleged refusal cases.
How Devious Is the Government?
More than you’d think.
Several months ago we made a number of Freedom of Information requests to the Government to investigate some of the claims that the Government was making. Over the course of this year the Government claimed that IRPs were being regularly lifted on the basis of potentially inaccurate fails. They suggested it was common that evidence provided by an accused for their review hearing was accepted to impeach ASD results. This does not accord with our experience dealing with IRPs on a daily basis. The Government had also claimed that the refusal review was more vigorous, and that a significant number if IRPs were being lifted on review. The approximate number of 90-day IRPs was once reported at 20,000, then 22,000 and the Court was told 15,000.
We noted in the summer that virtually no one was winning on review, and in August the Government again changed the rules to reduce what the police had to prove. Our win rate in the first 3 months of the scheme was approximately 22%, but it dropped precipitously in the summer. We were not alone. Other lawyers told us they were experiencing the same thing and some began to only argue the Constitutional issue because they believed the review was futile. When the Spencer decision came out (essential reading: http://www.courts.gov.bc.ca/jdb-txt/SC/11/13/2011BCSC1311.htm) we wanted to know what steps the Government took, if any, to address the concerns expressed by the Court. We noted what appeared to be temporary staffing changes at the OSMV, but no changes in the manner in which cases were addressed.
We wanted to get to the bottom of these issues, to determine whether this was an issue of miscommunication, whether there was a concerted effort to mislead or whether this was simply the left hand not knowing what the right was doing. So we wrote to the Government pursuant to Freedom of Information legislation to request disclosure.
We waited past the deadlines, and nothing was disclosed. We began our complaint to the Privacy Commissioner, and we waited for a response. Still, no disclosure.
Of course, this would have been important information for the Court to have in the proceeding. The Government held it back, however.
On Friday December 23, 2011, a few hours after the decision came out the Government sent us their responses via email.
As we said in a previous post, the fullest evidence before the Court is usually the best. The Government clearly did not want this evidence to get before the Court. They held it to the last second, releasing only after it was too late for the Court to consider it.
To us this is cynical, creepy and it demonstrates that the Government is anything but open.
They came Friday afternoon, so we have not had a chance to review them. It may take a couple of weeks.
With respect to the steps the Government took concerning the Spencer decision, here is the Government’s response:
I am writing further to your request received by the Ministry of Public Safety and Solicitor
General. Your request is for:
“All training, reference and other materials used to address the issues identified in Spencer v. British Columbia Superintendent of Motor Vehicles, 2011 BCSC 1311, as well as any memos, notices and other documents pertaining to the issues identified in this case.”
Please be advised the records you requested are withheld in their entirety…