Tomorrow marks 15 years since British Columbia’s Immediate Roadside Prohibition (IRP) scheme came into force.
I have been involved in some way with the defence of IRPs since the day they began. Over that time I have seen thousands of cases, countless hearings, and an evolving body of law. Experience brings perspective.
After fifteen years, here are my 15 biggest complaints about the IRP regime.
1. Presumption of Guilt
The scheme flips the presumption of innocence on its head. A driver is punished first and must then fight to prove that the government’s decision was wrong. This undermines a core principle of Canadian justice.
And yes, I recognize that the presumption of innocence is really only something that applies in criminal justice. But to my clients who receive an IRP, they don’t feel they’re being treated any differently than somebody who is charged with a criminal offense. This perception becomes even worse when they realize the burden is on them to prove their innocence in the review hearing, as opposed to the burden being on the state – the people who have all the power and all the evidence in their possession.
2. Lack of Meaningful Review
The “review” before the Superintendent of Motor Vehicles is not a true trial. Adjudicators rely on paper submissions, with no live witnesses. There is a very limited ability to challenge the evidence.
The hearings themselves are conducted either in writing or by telephone. You cannot even see the adjudicator’s face to know whether your submissions are making an impact.
Because there is a prohibition in the legislation on cross-examination, not only can witnesses not be cross-examined, but adjudicators are often reluctant to ask questions because they don’t want to be perceived as conducting a cross-examination. This results in decisions that ultimately say things like, “I question why you behaved this particular way,” when had that question been asked in the review hearing, an answer could have been provided.
This results in a system where questions that would ordinarily be posed by a judge to counsel during submissions aren’t asked. As a lawyer, I’ve conducted thousands of hearings in court where judges and justices have interrupted my submissions, asked me questions to clarify points or to move me along from points that are not meritorious and onto something that may have more meat. It would be helpful if adjudicators did this. The failure to do so effectively results in a guessing game for litigants appearing before this tribunal. You have to guess not only what the adjudicator may view as important but also where the adjudicator may have questions on the evidence. You must predict all of those things as though the adjudicator is an adversary, as opposed to a neutral trier of fact.
This creates this perception that the adjudicator is acting contrary to the interests of the individual in the hearing as opposed to acting in the interests of justice according to their legislative obligations. While that is not what is actually occurring, the manner in which the hearings are conducted leads to many of my clients having this perception.
3. Restricted Evidence
Drivers cannot compel police disclosure beyond the narrow record the officer chooses to provide and what is required by statute. Key pieces of evidence, such as witness statements, police dash camera, or body cam footage, are often impossible to obtain.
And although there is no power to compel disclosure under the legislative scheme, courts have been reluctant to read into the scheme any criticism of police who fail to submit relevant evidence that is clearly available and in their possession. They characterize this as making the scheme unworkable, when really the unworkability falls to the driver who cannot work in advancing a defence.
In respect of this, courts have also suggested that drivers can simply contact the police and ask for the disclosure. This fails to recognize that in many circumstances police will not turn over these documents without a court order, which cannot be obtained, or without going through the freedom of information process. This process takes far longer than the time frame a person has to prepare for the immediate roadside prohibition hearing.
4. Device Reliability
Approved Screening Devices (ASDs) are treated as infallible even though they are subject to operator error, environmental factors, and scientific limits. Courts have repeatedly noted the absence of robust safeguards.
When it comes to arguing these issues in the hearings, the scheme effectively functions to say that because the devices are prescribed for this purpose, they’re reliable enough. It reminds me of the old statement, “Good enough for government.”
Historically, when we’ve tried to point out issues like the fact that the 2100:1 partition ratio used by these devices is not universal and may not be reflective of somebody’s actual partition ratio, or the fact that studies about blood alcohol absorption and elimination were conducted primarily using white men of European descent in the 1950s, the response has been, “Yes, but this is what is legislated, and so this is what we have,” and its flaws are just an inherent part of the process that is accepted.
5. No Accommodation for Disabilities
The system assumes every person can provide a breath sample on demand. Drivers with medical conditions that make blowing difficult or impossible are often left without a fair path to defend themselves.
Despite the fact that we have a well-recognized shortage of medical professionals, lengthy waitlists to see specialists, and hundreds of thousands of people in this country without access to a family doctor, the expectation is that if you have a medical condition that prevented you from being able to provide a sample, you are to provide the medical evidence to support that. This creates an impossible burden in many circumstances. Because people do not have access to the medical care in the first place. Much less the opportunity to get into their doctor, to get an appointment, to get all of the evidence necessary within the very short timeframes for the review.
6. Financial Penalties Disguised as “Administrative”
The costs—license reinstatement fees, towing, storage, and remedial programs—are punitive. Yet the government insists the scheme Is not punishment and therefore outside the protections of the Criminal Code.
Let’s not forget that there are all sorts of hidden consequences associated with the prohibition. While the documents tell you about a $500 fine, they don’t tell you about the $250 license reinstatement fee or the $31 short-term license administration fee. The documents don’t tell you that after you renew your license at the end of the 90 days, you will only get a 2-year renewable license as opposed to a 5-year renewable license. Many drivers are surprised to find out months after they have reinstated their licenses that they are now being referred to remedial driving programs under sections of the Motor Vehicle Act that are not explained to them at the time the prohibition is issued.
7. Short Deadlines
A driver has only seven days to file a review and less than twenty-one days to prepare a case. That is often not enough time to obtain extra disclosure, expert opinions, medical records, witness evidence, or scientific analysis.
To make matters worse, there is no ability to extend the deadlines for an applicant driver. The driver must file the application for review within seven days, and if that seven-day limitation period is missed, there is no remedy whatsoever. The driver could be in a coma for the seven days and it would not matter. Their failure to file for review would leave them with no recourse.
Similarly, once the hearing is scheduled, getting an adjournment in the hopes of getting further disclosure or evidence or statements or video or medical records is at the whim of an adjudicator. But the tight timelines that apply to drivers don’t apply to the decision making. Adjudicators have the power to extend the time to render a decision as many times as they want for as long as they want.
8. Unbalanced Standard of Proof
The balance-of-probabilities test is supposed to be even. In practice, however, The balance of probability standard is applied often in a way that looks a lot like proof beyond a reasonable doubt. Adjudicators reject the credibility of individuals routinely on the basis of their failure to provide corroborative information that may exist without ever assessing their credibility, even in a thorough, well-documented case by a person who said nothing untruthful at the roadside. If they fail to gather some corroborative piece of evidence the adjudicator imagines may have been available to them, they may find their entire account disbelieved on that one factor.
Even in a criminal case, the Crown would not be held to such a strict standard of proof.
9. Opaque Decision-Making
Written reasons that result in prohibitions being revoked are templated one-sentence decisions that provide no real analysis of the facts, the evidence, and the reasons for the conclusion. In administrative decision-making, judicial review would overturn such reasons on the basis of their failure to lack any transparency whatsoever. But, of course, a successful party cannot apply for judicial review of their prohibition. Thus, the courts can never interfere with an adjudicator’s failure to provide reasons for successful judgments.
While the government has defended this as being based in the desire to get successful decisions out to applicants faster, we have always held a sneaking suspicion that this was not for that purpose but instead because prior decisions of the tribunal were being put forward for their precedential value.
This leaves a bad taste in our mouths about why reasons are not provided only when prohibitions are revoked.
10. Moving Goalposts
Policy manuals and internal procedures change without notice. What wins a case one month may fail the next because of an internal memo the public never sees.
Under the Motor Vehicle Act, adjudicators also have the power to rely on technical materials, which includes summaries of scientific evidence prepared by the Superintendent. This legislation effectively gives the Superintendent of Motor Vehicles the power to write their own summary of what science says, or to generate their own evidence aimed at rejecting the evidence tendered on behalf of an applicant.
11. Connection to Police
While the adjudicators themselves do not have a direct connection to the police, the Superintendent of Motor Vehicles as an organization has a working relationship with police agencies. Concerns raised in review hearings often appear to be relayed back to the police in some way or another, such that issues resulting in prohibitions being revoked become closed off.
At a high level, this may seem like a good thing – people are not being unjustly issued prohibitions. But if you look at the circumstances in which this is occurring, it is typically not because problematic police conduct is being corrected, but instead the evidence that led to the discovery of the problematic police conduct is being obfuscated by the police.
12. Impact on Employment
Commercial drivers, healthcare workers, and tradespeople can lose their jobs after a single roadside test—even when later evidence shows they were not impaired.
But the scheme doesn’t permit consideration of a person’s hardship. I have watched lives be destroyed before my very eyes as people who receive these prohibitions lose their jobs, lose their homes, and in some cases, lose their lives.
While impaired driving is a scourge — that’s a fact that’s not debatable — the harsh consequences of the prohibition should not be disproportionate to the impact a person had. An IRP is not being issued to somebody who is in an accident that results in death or a bodily harm. In most cases, it’s issued to an individual who otherwise presents with only sufficient indicia to give the officer a suspicion of alcohol in the body. In many cases, there is not even a suspicion since police can conduct breathalyzer tests without any grounds whatsoever.
These are people with undetectable symptoms of impairment stopped at random for sobriety checks, and yet despite the actual consequences of their conduct not having a significant impact on society, the significant impact of the prohibition on them and their family members can never be considered by an adjudicator.
13. Limited Judicial Oversight
Judicial review is expensive and narrow. Courts can only ask whether the decision was “reasonable,” not whether it was correct, leaving many unfair outcomes untouched.
The BC Supreme Court civil system is overburdened, understaffed, with insufficient judicial resources and court time to address the number of cases before it. Within the civil system, cases must be prioritized, and administrative judicial review hearings of immediate roadside prohibition cases are not given priority by the court. They don’t involve somebody receiving damages for bodily injury or the return of children to a parent in a custody agreement.
As a result, it’s extremely difficult to get court time on judicial review, and many people who file an application for judicial review wait months or even years before a court date can be scheduled.
Even once a court date is scheduled, there’s no guarantee it will even be heard that day as cases are routinely bumped due to a lack of availability and the court deliberately overbooks itself.
14. Lack of Public Understanding
Most people do not realize that an IRP is not a criminal charge but can have harsher real-world consequences than a first-offence impaired conviction. Misinformation leaves drivers unprepared to defend themselves.
This misinformation also leads people to not act within the 7-day time limit. I talk to numerous people every week who’ve missed their 7-day time frame to dispute a prohibition because they did not know. While that is written on the paperwork they receive, it is in the tiniest of fine print.
The lack of public understanding about immediate roadside prohibitions also impacts how people conduct themselves when dealing with police. Because people are not informed properly on how to deal with police, they make decisions about how to conduct themselves in their interactions with police that ultimately prejudice their cases.
15. Entrenched Culture of Overreach
Fifteen years of operation have normalized the idea that roadside police officers can act as judge, jury, and executioner. This acceptance erodes broader constitutional protections for everyone.
After 15 years, the IRP scheme remains a quick, revenue-generating shortcut that sacrifices fairness for efficiency. Drivers deserve a system that balances road safety with fundamental rights. My hope is that this anniversary sparks serious discussion about whether this model of roadside justice should continue for another fifteen years, and, if it does, whether it should be amended to make it more just.