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Vancouver photocopy debacle: IRPs issued on photocopied evidence

Vancouver photocopy debacle: IRPs issued on photocopied evidence

DUI and IRP expert Paul Doroshenko shows the evidence is unreliable

In early September 2012 we were reviewing disclosure in a client’s Immediate Roadside Prohibition (IRP) case issued in Vancouver and we noticed that something was a little funky. Now, we are aware that the ASDs in Vancouver have a long history of being improperly calibrated and of having serious reliability problems. So we generally look at evidence from Vancouver with greater scrutiny.

What we noticed was that the Certificates of Qualified ASD Calibrator provided in this one particular case were identical, with the exception of the serial number and service expiry date of each device. Although the Certificates purported to contain information about the calibration check of two separate devices, they were an identical photocopy of some other document. Even the signature of the officer who says he did the calibration check was photocopied.

Paul stood on his desk and held the Certificates up to the light to be sure. And his hunch was right – they were photocopies.

We immediately realized that we had discovered something big. So we set about the task of pulling every Certificate of Qualified ASD Calibrator we have received from the Vancouver Police Department since the regime came into effect on June 15, 2011. Sure enough, every Certificate was an identical photocopy of some other document. The problem, it was apparent, was pervasive in the VPD.

Now, you may be asking yourself “So what?” We had to think for a second too about what this meant.

The Certificate of Qualified ASD Calibrator is a document that is required to be filled out by the officer in charge of calibration. It is submitted as part of the evidence in an IRP hearing for the purpose of demonstrating that the device was properly calibrated at the time of the tests. It is evidence. It is submitted to a tribunal. It is intended to be relied on at a hearing. And it forms part of an officer’s report that is required to be sworn.

It is a very serious document.

The problem with the practice of photocopying Certificates is that it gives the appearance that the officer is trying to mislead the tribunal. By producing this document, the officer is suggesting that he checked each device and found that it was properly calibrated. However, the information is from only one calibration check, from one test of calibration. And the officer is reproducing it again for multiple units.

There was no information to show when the serial number was added to the document, or by whom. Same goes for the service expiry date. The statements contained in the document are therefore completely unreliable. They make it impossible to know whether the device was properly calibrated, or if it was checked at all.

We concluded that it was realistically possible that the officer was leaving the form on his desk for other officers to fill in the serial number as they wished. At the most generous we could be with the conduct, it was fundamentally lazy. The result of the practice was to mislead the tribunal.

And so we made the argument. And lost. We could prove the Certificates were unreliable, but the OSMV tribunal almost always overlooks bad police behavior.

We then appealed the decision to Supreme Court. The Government lawyers conceded and sent the matter back for a re-hearing. This time we won. Unfortunately by this time it had been over a month since we discovered the issue.

Of course we noticed the problem was ongoing. It appeared in every file we had in Vancouver. Because of our relentless searches for records and our continuous Freedom of Information requests, we were able to obtain copies of all the Certificates in Vancouver. For clients who only blew once or those who blew into devices with Certificates purportedly produced on different dates, we were able to locate the evidence in our files to show that the photocopying issue was present. Those prohibitions were revoked.

In a period of about a month, every IRP file we had in Vancouver resulted in the prohibition being revoked. A recent FOI to the Government for all successful IRP decisions in November 2011 showed that nearly 35% of the IRPs revoked in November were revoked as a result of the photocopy issue.

There are probably many innocent people whose IRPs might have been revoked had they had access to other copies of Certificates to demonstrate that the photocopying issue applied to them. This is the kind of information that would only have been available to people who had access to the records we have. This is the kind of information a self-represented person doesn’t have access to.

In our view, the Government should be revisiting the IRPs issued to people in Vancouver and determining whether they were impacted by this issue. We have the documents to discern this information.

We have no confidence that the Government will take it on themselves to revisit all of the Vancouver IRPs for this period. But we’re willing to do it.

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