As most people know, the Government has introduced the proposed changes to the Motor Vehicle Act to bring back “Fail” 90-day Immediate Roadside Prohibitions, also known as IRPs or Automatic roadside driving prohibitions. You can find the press release here and the proposed legislation here.
Apparently the press release was issued, there was a statement from the Minister, and then she refused to answer questions. We can understand why she would want to get out of there. The media are now well-armed with questions that the Government understandably would like to never answer.
First, the Garbage:
The Minister said that the Reports will need to be sworn. This is complete garbage. Although s.215.47 (d) will say that the report must be sworn or solemnly affirmed, s.215.49(1)(d) will say that the adjudicator must consider any other documents including reports that are not sworn.
So is there now a requirements for sworn reports? No. This is garbage. The ADP scheme formerly required sworn reports. In the summer of 2010 that was dropped to try to fool the Court at the IRP judicial challenge. Now the OSMV gives the same weight and consideration to unsworn reports as is does to sworn reports. So it is a rule that no officer need comply with.
The Minister said the police will be required to provide calibration documentation about ASDs used. There is no definition of what constitutes documentation. There was no requirement under the now deceased legislation, but there were boxes on the forms for such info.
By not providing any definition, this requirement is meaningless. Will a post-it note do? The legislation says “information relating to the calibration…” What the hell does that mean?
Again, sadly, this appears to be legislation written by someone who has no idea how this works from beginning to end.
Smoke and Mirrors:
The Minister seemed to emphasize that the second sample would be on a different device, as though this were new. This is the smoke and mirrors angle. The second sample was always to be on a different device, so there is no change there. The reasons to make this sort of announcement is to divert attention from the real issues with the legislation.
The second sample must be requested forthwith. So, although the officer has explained nothing to you, and you have no right to a lawyer and no idea of what your jeopardy may be, you must decide immediately and presumably blow into the second device immediately. We all know that if there is any alcohol in the mouth, and no time for it to dissipate, you can easily get two false fails in a row.
The changes to the Motor Vehicle Act, although purported to be significant, are only a few lines. The proposed bill, printed out as nine pages, says many sections are struck out and replaced by new sections. But the new sections are almost identical to the ones struck out, except for a few new section numbers or the odd word. The bill actually only adds a few subsections. But they made the legislation a few pages long as a red herring.
The One Slight Improvement:
The Government should be ashamed of themselves for making the second sample the deciding sample in the previous legislation. When we first heard of it back in the spring of 2010 we did not believe it. What kind of absolute garbage is that?
It indicated that the Government had no interest in a fair process at all. It was an indication of the spirit of the legislation. Although fairness is completely disassociated from all aspects of the IRP scheme in our view, this is one tiny step forward in nevertheless massively flawed legislation.
What is this About?
Kicking the can down the road. As we noted before, the entire issue is now a political no-win situation for the BCLiberals. There is nothing in the legislation to speak to people who received an IRP under the unconstitutional scheme. This scheme will not address any of the concerns raised in the Spencer decision (see: here and here). And consequently, it will meet a similar challenge.
Of course the Government knows this. They also know that if the matter is still making its way through the courts for the next 13 months, they can put the issue to rest until after the next election. So, if they lose the election (likely) then it is the NDP’s problem. If they win (now very unlikely) then they can dump it or… whatever. When you win you do not really care.
Obviously we have a lot to say about this. We will provide more insight in the next few days. However, from our perspective this legislative fix is a legislative dud on par with the former scheme.
Innocent people will still receive 90-day IRPs. Shameful as it is, the onus has been switched. In BC you are guilty unless you can prove that you are innocent, evident by the fact that the punishment starts long before you get a chance to speak to the accusation.
The new law is to come into effect June 15, 2012. The proposed legislation says nothing of the thousands of Petitions now before the Courts for the unlawful scheme.