On October 16, 2015, in the wake of the Supreme Court of Canada’s decision in Goodwin and Wilson, Justice Minister Suzanne Anton delivered the following statement:
“Our belief is that the amendments our government made in June 2012 already address the constitutional issues noted in the court’s decision, and our intention is that the IRP program continue without interruption.”
It’s a careful statement. Of course, the “constitutional issues,” as she phrased it, actually refer to a very powerful victory for B.C. citizens and a very significant defeat for the B.C. government.
the Superintendent now, on its own initiative, can assist itself to challenge forensic defence evidence while also retaining the power to render a decision on your case.
It’s strange to think about a government in opposition to its citizens. But that is exactly what happens in a constitutional challenge. To challenge a law – and indeed succeed in that challenge – means that the government passed legislation that cannot be permitted to exist under our Canadian constitution.
Ultimately, the first version of the IRP legislation – which was in force between September 2010 and June 2012 – was found by the B.C. Supreme Court to be in violation of s. 8 of the Charter and was struck down. At the conclusion of the s. 8 analysis, Mr. Justice Sigurdson identified several fatal defects in the legislation, and held that the primary reason for the Charter violation was that the review process did not permit a driver to meaningfully challenge the validity of the results of the search.
And yet, the government continued to appeal their loss all the way to the Supreme Court of Canada – and they consistently lost.
Nevertheless, Anton’s statement sounded victorious. The B.C. government seemed to have been satisfied that despite those pesky “constitutional issues,” the 2012 legislation was still in force, and it was here to stay. No comment on the fact that throughout the past year, the government actually made further changes to the IRP legislation that were designed to make the review process even more unfair. Yet, Anton, perhaps quite strategically, seemed to suggest that they were not going to push any of these further amendments and were now just going to leave well enough alone.
And then – in my opinion, quite unsurprisingly – changes to the IRP legislation were in fact brought into force on November 2, 2015.
Our cynical predictions borne out again
The bulk of the changes were made to s. 215.49, which is the provision that governs what the Superintendent will consider on review. In short, the Superintendent now, on its own initiative, can assist itself to challenge forensic defence evidence while also retaining the power to render a decision on your case. How on earth is that a procedurally fair and an objective review process?
A government in opposition to its citizens
This outrageous change was brought into force by the government mere weeks after the Supreme Court of Canada determined for the first time that section 8 of the Charter requires procedural fairness guarantees in the IRP review process. Under the IRP legislation, drivers are immediately prohibited from driving for 90 days. They face severe consequences and penalties solely as a result of the ASD test results. For the law to be constitutional, the Supreme Court of Canada agreed that drivers must be given meaningful opportunities to challenge the alleged results of the ASD.
We win countless IRP cases before the Superintendent because the ASD test results were not reliable. This is a necessary procedural protection in any legislation that authorizes a search or seizure. The question is: how do these amendments – intentionally drafted to defeat defences regarding the reliability of the ASD test results – stand up to constitutional scrutiny?
We are putting this one under the microscope.
We see a government in opposition to its citizens. Canadians are alert to this type of furtive governing right now.
Keep watching for updates.