A lot of people who receive IRPs find themselves in handcuffs and being read their Charter Rights, or told that they’re under arrest for impaired driving.
Many clients come to us saying, ‘I was arrested after I got my IRP,’ and then asking the question, ‘is that legal?’
The answer to that is complicated.
Is that legal?
In order for a police officer to legally arrest a person, the officer has to have reasonable grounds to suspect that person has committed an offence.
In the 2015 case of Goodwin v. British Columbia Superintendent of Motor Vehicles, the SCC ruled that an IRP does not constitute an offence, so there’s no independent power to arrest a person as a result of an Immediate Roadside Prohibition.
The power that the police have to arrest is not limited to the consequence that they are going to be imposing, it’s related to what grounds they hold.
When you provide a sample that registers a ‘Fail’ into an approved screening device, a police officer would have, as a result of that ‘Fail’, grounds to believe that you are too impaired to be operating a motor vehicle.
These are grounds to effect an arrest. An officer could theoretically arrest a person who has been given an IRP on the basis of the grounds that they’ve committed that offence.
Similarly, refusing or failing to provide a sample of breath into an ASD is also an offence under the Criminal Code, and also would give the officer rights of an arrest.
So legally speaking, yes, an officer could arrest a person after an IRP.
However, there is another question that has to be answered.
Were your rights violated?
A police officer’s right to arrest isn’t solely limited to whether they have grounds for the arrest. The right to effect an arrest is also informed by the surrounding context.
We used to see this a lot in the past before the IRP scheme was introduced.
The analysis that was done in impaired driving cases ultimately led to a decision in the BC Supreme Court, that found if a person is believed to have committed an impaired driving offence, there isn’t actually a common law right of arrest, but rather merely a right to detain a person.
Although the basis upon which an arrest or detention can be made is the same, the surrounding conduct is different.
The purpose of effecting an arrest under the Criminal Code and at common law, for a person who is believed to be impaired, relates to the requirement that the officer conducts a further investigation.
In an impaired driving situation, the arrest would really be to facilitate the provision of breath samples at the police station on an approved instrument.
The problem that arises is that when a person is being issued an IRP, the officer already knows they’re not going to take them back to the police station, or give them breath samples or have them blow into an approved instrument, so the arrest serves no purpose.
The officer is also not going to, nor intends to, facilitate any of the rights that go along with the arrest or detention, such as the right to counsel, reading the right to counsel and then implementing as much as possible, that right for a person who requests it.
So, there’s no need to effect an arrest to facilitate somebody’s right to contact counsel.
And, with an IRP, in the vast majority of cases, people are released at the roadside. They’re not asked to blow into an approved instrument, they’re not taken back to the police station for the purposes of providing samples there, and they’re also usually not being held in custody for something else, such as being intoxicated in a public place.
There’s usually no reason that the police would want to continue their interaction with the person, and so then the person is free to go.
Effecting an arrest in a situation where a person is free to go, might violate your rights.
Obviously, it depends on the circumstances and a determination of whether somebody’s rights were violated is fact-based. It can’t be determined simply and because your rights were violated in one case doesn’t mean your rights were violated in another.
If the police had no good reason to arrest you, didn’t intend to facilitate any of your other charter protected rights, and were going to be releasing you with your IRP paperwork to find your own way home or drive you home, then an arrest is not necessary and it would be a violation of your rights.
A second question arises as to what remedy you might have if your rights are violated in the context of an IRP arrest.
It is a minor violation of your rights for a very brief period of time but it’s also something that can have a profound psychological impact on people. Those who are arrested after receiving an IRP may have a claim against the officer for wrongful arrest.
Whether or not that claim results in any significant monetary advantages would be assessed on a case-by-case basis, depending on the individual harm that you’ve suffered.
What rights do you have if you’re arrested after an IRP?
If you are arrested after an immediate roadside prohibition, then you have the same rights that any other arrested person has.
You have the right to retain an instruct counsel, without delay. That means that the police have to tell you about your right to counsel, and they have to provide you with certain information, such as you can contact any lawyer you want. The police also have to facilitate your efforts to contact counsel.
If you’re taken back to the police station after receiving an IRP, presumably if they’re arresting you for some other offence, then once you’re at the police station, you have to be given a prompt opportunity to speak with the lawyer that you want.
The police are also obligated to refrain from obtaining any type of incriminatory evidence from you until you’ve had a reasonable opportunity to consult with legal counsel.
We often see certain types of circumstances transpiring when somebody gets an IRP where the police are also conducting another investigation. For example, if the police believe that you’ve committed an assault, or you were obstructing a police officer, or any other possible situation, in addition to also have being given the IRP, it has resulted in an arrest on the basis of the fact that the person has committed another offence.
Of course, your rights that are tied to that arrest are rights that are owed to you on the basis of that arrest. And you can’t characterize that arrest and those circumstances as an unlawful arrest simply because you got an IRP.
If the police are acting on the basis of lawful authority to arrest you for something else, your rights aren’t violated because you got an IRP.
But the rights that you have are your full legal rights, the same as if you had been arrested for impaired driving, and taken back to provide breath samples and the officer hadn’t been issuing an IRP.
The police do retain the power to arrest you in the middle of an IRP investigation. And so, determining whether an arrest that happens at the same time as an IRP is lawful will also depend on when the arrest took place.
If the arrest took place after your first test, before your second test, and before you were advised of your right to a second test, then that arrest is likely to be lawful.
This is because, after the first test, the officer usually will determine whether or not they think it’s appropriate for you to be issued an immediate roadside prohibition.
So, if they determine that it’s appropriate, they will unarrest you, and redo your right to request a second test. There would be nothing unlawful about that because up until the decision-making point about issuing a second test, and proceeding by way of IRP, the officer is conducting a criminal investigation.
If they decide to unarrest you, your right to counsel is also untriggered. The courts have ruled that, even though you were arrested, once the arrest ends, your right to contact a lawyer also ends.
If you were arrested at any time, while you were being given an immediate roadside prohibition, you can always contact our office to discuss the circumstances of your arrest, and whether or not that would have been lawful.