Media Storm & Class-Action Update
I met with CTV this morning to further explain some of the problems with ASDs following the Canadian Press story published on Boxing Day.
We have a significant amount of disclosure showing problems with these devices, but understandably reporters want to cut to the most revealing. Also, much of it is hard to understand unless you know what you are looking for. Every time we receive disclosure there is something that is the talk of the office for a few days – we are shocked that these problems exist and that the police simply shrug their shoulders. Any objective person reviewing these documents would see that there is a problem relying on ASDs for punishment.
There is no doubt that police officers are dealing with a number of seemingly contradictory problems on a day to day basis, including protecting their job and status within the organization, their reputation among other officers in addition to protecting the public. Which is why it is somewhat understandable that protecting the rights of an accused, or investigating the reasons a person should be exonerated are only a lost footnote in the daily work of a police officer.
Courts and the process of discovery generally make up for this failing of the police. However, once you eliminate the court as part of the fact-finding process, you can guarantee that innocent people will end up punished. We have seen this many times in the last 15 months under the IRP scheme.
A good example of the failing of the police can be seen in the CTV interview of the Abbotsford officer. He indicated that the investigating officer thought the reading did not fit with other evidence. I think this is garbage – the officer made an ASD breath demand for a reason (I doubt that they would wish to say he did it without any grounds). He suggested that they did not issue an IRP in that case. But what about the previous victims of this device? Did they look through their files and determine who else received an Immediate Roadside Prohibition due to this device? Nope. Not a chance.
For police officers, part of protecting your status within the organization and protecting your job is keeping your mouth shut when you have information that might embarrass the organization. So, swept under the rug until a criminal defence lawyer thinks to look under there. Unfortunately, there are thousands of these devices in BC and dozens of maintenance records for each device, so you cannot expect your lawyer to obtain the necessary disclosure in an Immediate Roadside Prohibition situation. And by the time they did, you would have lost your hearing, served your prohibition and paid the money to the Government.
With respect to the Abbotsford situation, based on what we see my suspicion is that the officer was demonstrating it to someone because he thought they were refusing. That is the only time officers blow into an ASD at the roadside — to try to humiliate a driver by showing that the device is working despite the unsuccessful attempts to blow. And then the officer got a Fail testing himself.
As you would expect, there is now a chill on recording faulty readings and malfunctioning devices. Sadly, many detachments keep few records and the scrutiny of this media storm could make them shut down further.
Class Action Update:
We were first out of the gate on many of the problems with the IRP scheme, but we are holding back at the moment on a class action suit for reasons that we will explain in a future blog posting. What we can say is that in our view a class action may not be the approach we will take to obtain the best results for our clients. If we decide to go in that direction, we will post the necessary information here on the blog and begin to accept clients for this purpose.