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Appeal ruling on the breathalyzer report

Appeal ruling on the breathalyzer report

Justice prevails and the OSMV can no longer use their breathalyzer report

When we put the news out on Monday concerning the appeal ruling on the breathalyzer report used by the Superintendent of Motor Vehicles, we didn’t expect to cause such a stir. A few minutes after we put up our News Release and tweeted it, the hits started flooding our blog. A few hours later our server was cooked and we blew our bandwidth budget for the year. We couldn’t even receive emails.

Of course, Kyla is particularly pleased with the decision because it was her case and she argued it in BC Supreme Court. We’re a small law office up against the big government machine. Naturally, our resources are much more limited. But court is a level playing field and we were confident that this argument would succeed.

Why did we challenge the Superintendent’s breathalyzer report?

The Report, called the Superintendent’s Report on Approved Screening Devices, was never made part of the legislation voted on by our members of the BC Legislative Assembly. It established baseline evidence that could not be rebutted at the hearing of an IRP appeal at the OSMV tribunal. Much of what is in the report is accurate. Significant parts of the report are not accurate, or are only accurate in certain circumstances.

When the first version of the IRP law came out, we identified flaw after flaw in the law and in the evidence being put forward by the police in many of our IRP defence cases. After a few months we were succeeding in many review hearings. The government faced significant embarrassment as their legislation started to falter. So they drew up the first version of the Superintendent’s Report on Approved Screening Devices.

We argued that it was inadmissible unsourced third-party hearsay, not allowed by the Motor Vehicle Act and in some aspects inaccurate. Our arguments were rejected in a mocking tone and so it was clear that there was no point in making this argument in hearing after hearing.

When the OSMV faxed us the Buhr review decision, we decided that we couldn’t let this continue. The tribunal relied on part of the report that is inaccurate and ignored entirely the evidence that revealed this. At that point Kyla prepared the appeal to BC Supreme Court.

This was a pure legal issue. The tribunal interprets the law and makes legal decisions. In this case it was clear to us that their interpretation of the law was flawed. And we believe that our client is innocent.

What does this mean for people who received IRPs?

The OSMV stopped using the report shortly after Kyla faxed it to them for use in an IRP review hearing on Monday morning. So if you receive an IRP now, they won’t use it against you to uphold the IRP at the review hearing. If your IRP review hearing is today, and they already sent you the report claiming that they will use it, don’t worry – they can’t.

But this is the important part: If you received an IRP at any time in the last few years AND you applied to have it reviewed, it’s possible that you can appeal the OSMV review decision now.

The OSMV sent this inadmissible report to everyone who sought a review of their IRP before the tribunal. The intention of sending it was to rely on it. And this is what the OSMV did.

If you lost your review before the OSMV tribunal, you have a strong argument on appeal to BC Supreme Court to say that the tribunal relied on inadmissible evidence. If successful, you would get a new hearing using the same evidence as in the first hearing, with the exception that the report can’t be relied on and you can provide any additional evidence to address any questionable assessments of the evidence made by the tribunal the first time around.

This is really important. We are going back, looking over the review decisions in the recent past wherein the OSMV tribunal rejected our arguments.  Our task is to determine whether it’s appropriate to appeal. Unfortunately this could take several weeks because we’re really busy right now.

If you are our former client and you want us to pull your file to see if it make sense to appeal the review decision, give us a call and we’ll try to get to it right away. If you weren’t our client but you applied for a review of your IRP and you have a copy of the decision, give us a call and we can review your case for the same purpose.


We would like to again thank all of our supporters in our ongoing challenge to the IRP law. We’re chipping away at it. We don’t think that a law needs to be draconian and operate outside of the Charter of Rights to be effective. We don’t think Canadians take kindly to governments legislating away our Charter Rights. We don’t think Canadian drivers want to be forced to provide evidence in a criminal investigation and then have the police turn around and use it against drivers in a provincial legislative scheme. And we don’t think Approved Screening Devices should be used as the basis of punishment.

And so on we go.


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