Really big projects we’re working on
We’re a really busy law office and we like it that way because we get a lot done and we learn that much more along the way. In addition to our day-to-day work for our clients, we’ve also been involved in some really big projects primarily concerning challenges to aspects of the Immediate Roadside Prohibition scheme. The big projects tend to take a lot of our time, including the free time that we might otherwise have. These are the projects which bring us back to the office many nights and most weekends.
The Wilson case
If you’ve been with us for a while you may recall the twists and turns of the Wilson case. In September 2013, the BC Supreme Court rendered a decision in a Warn IRP appeal case where, despite the Warn reading on the ASD, the officer did not provide evidence that they believed Wilson was affected by alcohol. Moreover, there was no evidence other than the Warn upon which to base such a conclusion. You can read our first blog post about the Wilson case here.
In our view of the law, the officer in Wilson could have gone ahead and issued a 24-hour driving prohibition. The standard of opinion and grounds for review are lower for a 24-hour prohibition. On a plain reading of the IRP legislation, the officer requires a reasonably based opinion that the person is affected by alcohol in their ability to drive to issue an IRP. This was the finding of the BC Supreme Court in Wilson.
We argued the Richardson case before Wilson was heard at the Court of Appeal. The judge in Richardson confirmed that such a reasonably based opinion is a prerequisite to issuing an IRP. She went further to recognize that the same opinion is necessary for a Fail 90-day IRP as it is for a Warn IRP. And she went even further to state unequivocally that an adjudicator can’t ignore a binding BC Supreme Court decision.
In the summer we argued certain issues of constitutional validity of the second version of the IRP scheme and we received the decision of the Court in September (a case called Bro). Interestingly, the judge in that case expressed an opinion concerning prerequisites to issuing an IRP. One of our concerns is that in the law and in practice the police appear to be permitted to make unlawful demands for people to blow into an ASD. The only time you get a remedy from an unlawful demand is if you refuse to blow. Then, on reconsideration during the appeal you can ask for a remedy for an unlawful ASD demand. But you can only do this if you refuse.
What if the police through compulsion, extortion or violence get you to blow despite an unlawful ASD breath demand? The Government banished the Charter of Rights from the IRP scheme so you have no remedy. That was one of our particular complaints to the Court in the challenge to the second version of the IRP law.
In the judge’s decision he acknowledged the problem. The challenge required that we attack the law from various perspectives. This was the one issue that seemed to most trouble the judge. He suggested that a lawful demand may be viewed as a prerequisite to issuing an IRP.
So, Wilson, Richardson and Bro in BC Supreme Court seem confirm that there are prerequisites in law and in the legislation that, if not met, will cause an IRP to be revoked on appeal. And that’s great.
The problem is that the Court of Appeal overturned Wilson.
Wilson at the Supreme Court of Canada
Kyla wrote the successful argument to the Supreme Court of Canada in the Murray case, so the lawyers involved with Wilson called her to see if she wanted to take it further. Mr. Wilson was out of money, and the lawyers involved didn’t want to pay to go to the Supreme Court of Canada. We decided to take it over and pay for it ourselves.
In June we filed the Wilson appeal to the Supreme Court of Canada. They have our material and the Government’s argument. Now we’re waiting to see if we are granted leave to make our argument to the Court. We have our fingers crossed.
We’re also very optimistic. We think our argument is solid and it’s an issue of national importance because every province is considering invoking some sort of IRP-style law.
What about Richardson?
Richardson was appealed by the Government and the case is set for hearing at the BC Court of Appeal. The case is scheduled for December. This is interesting because, although one issue may be resolved by Wilson at the Supreme Court of Canada, we expect that the Court of Appeal will confirm the finding in Richardson that the RoadSafetyBC IRP appeal tribunal must follow binding Court decisions.
At the BC Supreme Court level three judges have come to the conclusion that there are prerequisites to issuing an IRP, regardless of the fact that these prerequisites are not delineated as grounds to revoke an IRP. To us this makes sense because it brings some integrity to a process that, in our view, is largely devoid of fairness.
Financial considerations of these really big projects
Who is paying for this? We are. Out of our own pockets.
For the most part, we’re not getting paid for work on any of the big projects that we’re working on and Acumen Law Corporation (i.e. us) is paying thousands of dollars to finance these appeals. We recently spoke about financial considerations when it comes to an IRP. We estimate that we have invested in one form or another perhaps as much as $500,000 of our own money and work into challenging the IRP scheme. In financial terms, this is what we have invested to date. Why? We feel that we have a moral obligation because we are lawyers and we are in the particular position to do what we’ve been doing.
In addition to these big projects, we have a number of equally significant IRP challenges in the works. Sarah is dealing with a crucial issue about the application of later court decisions for appeals of older IRPs. Kyla is dealing with the Government’s appeal of the Clark decision which holds that adjudicators can’t make inferences where there is no factual foundation. Paul started an action in Federal Court to stop the RCMP from using defective breathalyzers.
We would also like to focus more attention on vehicle seizures for alleged excessive speeding and the BC Government’s civil forfeiture scheme. We have a special projects team to help us with these projects and others.
Because we’re paying for most of this and doing the work, we’re being very selective about the issues we take on. If you have any ideas about how we can finance some of these challenges, we’d love to hear from you.