This week marks 10 years since the Immediate Roadside Prohibition existed in some form in BC. Acumen Law Corporation has been an ardent opponent of the IRP scheme since its inception. We have been very vocal about our issues ever since they came into force and effect.
Nevertheless, to mark 10 years of IRPs, we took a look back at some of the issues, complaints and clashes we have had with the scheme itself and those who supported it. So here are our 10 biggest problems with the IRP scheme. Some of them have changed, but some are very much still in effect.
IRP 1.0 found unconstitutional
The first version of the Immediate Roadside Prohibition law that came into effect in September 2010 was later declared unconstitutional by the BC Supreme Court and struck down in 2012. Why? Several issues were raised, including a breach of Section 8 of the Charter – freedom from unreasonable search and seizure – and s. 10 – right to be presumed innocent.
The BC government appealed the BC Supreme Court decision at the BC Court of Appeal and lost it before appealing again unsuccessfully to the Supreme Court of Canada.
Denial of retroactive remedy
After the first iteration of the IRP scheme was found unconstitutional, understandably, many aggrieved people suffered losses under the law. There was the hope of a class-action lawsuit to help people who might be entitled to a legal remedy for a while. Unfortunately, after approaching the Courts, they were told there would be no remedy. This decision was appealed to the BC Court of Appeal, but again the court denied the petitioners’ claims for retroactive remedies.
Constitutionality of IRP 2.0
After the first IRP scheme was struck down, it wasn’t long before a second version of the scheme, IRP 2.0, came along. It was introduced to address the breaches committed by the first version. This too was subject to a Charter challenge; however, this time, the Courts found it was not in violation so that it could remain in effect.
Sworn reports
One of the changes introduced by the second version of the IRP scheme was the requirement of police to submit a sworn report every time they issue an IRP. It’s an important piece of evidence needed to uphold an IRP. As IRP lawyers, without it, we might as well just be arguing with a piece of paper.
IRPs already did away with the need for police officers to provide testimony or attend court to testify about an impaired driving charge. The least they can do is provide a sworn report in connection with an IRP. So the second version introduced this as a requirement; however, the language that was used provided many leeways for the police to submit unsworn reports and still have them considered.
As a result of this issue, we ended up getting involved in the first-ever IRP case at the Supreme Court of Canada, which you can read more about here.
Burden of proof
One of the biggest problems, as we see it, and one of the issues we have most consistently spoken out against is the reversal of the burden of proof in IRP legislation. In criminal drunk driving cases in other parts of Canada, it is the responsibility of the Crown to prove beyond a reasonable doubt that an alleged drunk driver did operate a vehicle while impaired. IRPs, on the other hand, switch this around. It is up to the accused driver to either prove their innocence. This provision in the law has long angered those who see it as a huge violation of the Charter. Nevertheless, it has remained in effect, in large part because courts have interpreted the public interest in discouraging impaired driving as sufficient to override these concerns. In our opinion, that kind of thinking is a slippery slope.
ASD test results
Sometimes you have to take a step back and look at something to realize how crazy it is. Often it will make you think, how did we get here? The IRP scheme is unlike any other driving prohibition scheme in Canada for many reasons. Still, one of the starkest differences is that an officer can serve you a prohibition based solely on the results of a roadside breath tester. A small handheld device can decide your fate. It’s called a roadside prohibition because it’s just that: they are issued at the roadside, which brings us to our next complaint.
Immediate effect
Another major difference between IRPs and driving prohibition laws in the country is that they take effect immediately. If you get one at the roadside, there and then you must deal with the penalties, which include fines, 90-day driving prohibition and even the requirement to attend a remedial program.
Think about that for a second; you do not get the opportunity to dispute an IRP before getting the penalties. What happened to habeas corpus? Instead, drivers have to seek the removal of an IRP before being free from its punishments.
Problems with ASDs
As stated earlier, IRPs are based on readings from an approved screening device (ASD). ASDs are electronic devices, and like any piece of machinery, they malfunction. They are not always accurate, and that’s why other impaired driving legislation often requires drivers to go back to a police detachment for further testing. Of course, ASDs must be administered by properly trained officers, and they have to undergo regular maintenance and calibration. However, we have built our practice around identifying when police do not follow proper procedure and use devices that either are not properly calibrated or are being used in the wrong way. It makes you wonder all of the times someone has blown into an ASD that isn’t working correctly, but the driver just accepted the IRP.
Dispute process
When you challenge an IRP, the deck is stacked against you. The BC government did not design the process to be simple enough for the average Joe to understand. In fact, for most people, it’s a bureaucratic nightmare. Most people are not experts in breath testing equipment or the science of alcohol impairment. So identifying where the police might have made a mistake is almost out of the question. Remember, the burden of proof is on the driver, and it’s not good enough to dispute an IRP and proclaim yourself innocent. You must, somehow, prove it.
Seven-day limit
Something that surprises and alarms many people who receive an IRP is that you have only seven days from the date it was issued to make a dispute. It can be a lot to take in, and people don’t always know their rights or what they can do if they want to challenge. If you miss the deadline, there is simply nothing you can do. And we mean nothing. While the Courts agreed in the past that the deadline was too strict for some, the government has done nothing to ease the rules. And, frankly, why would it?