Howard and the crew who argued Sivia, as well as the lawyers for the Government will appear in Court on Monday to make submissions on what should happen as a result of the finding that the IRP scheme is unconstitutional.
Kyla wrote some of the draft arguments concerning the Charter issues. We were confident the Court would find that the samples were taken in violation of each person’s 10(b) Right to Counsel, which it did. However, we felt that bearing in mind the degree of the punishment, the Immediate Roadside Prohibition scheme could not withstand a s.1 analysis. We were surprised, therefore, that the Court made the finding that the search was unreasonable, essentially because you could not properly answer to the allegation due to the limits to the review provisions. To this extent, the legislation did not withstand a s.1 analysis, i.e., it wasn’t reasonably justifiable in a free and democratic society.
One thing (and there were many things) that bothered us about the legislation, is that the police procedure started with a lie. Each time a person was asked to blow into an ASD under the Immediate Roadside Prohibition scheme, they were told that they must do so pursuant to the Criminal Code as a Criminal Code investigation. This was a lie over 99% of the time. In the 14 months of the legislation, we reviewed disclosure in over 700 IRP cases and spoke to several thousand people who blew or refused to blow into an ASD. In only one case did the client face a criminal charge, and in that case it was due to an allegation of dangerous driving.
Simply put, the only people who were charged during the IRP scheme were people stopped by an officer who didn’t have an ASD readily available, or if the person appeared grossly intoxicated, such that an ASD demand would have been completely unnecessary. Anyone else who was charged only faced prosecution because of some other Criminal Code allegation.
We don’t necessarily oppose administrative sanctions, but we did not feel that this scheme was truly for an administrative purpose, i.e. to correct behaviour, nor did we accept that it was appropriate to have police lying to people, particularly when they could not have that information corrected by access to a lawyer due to the 10(b) breach.
As we consider the implications of the decision finding the scheme unconstitutional, it seems to us that the finding of a s.8 breach provides a greater opportunity for redress for the many people who did not dispute their matter before the OSMV. We expect that the Government will take the position that people who did not dispute their matter before the Superintendent are incapable of obtaining a remedy because they did not dispute their matter at the first instance. The decision undermines this argument.
As the Court made clear in Sivia, innocence was not a defence you could argue before the Superintendent of Motor Vehicles. And if you read Spencer, you’d know that there was no purpose of making an argument before the Superintendent, because the decision would be reverse-engineered so that you would not succeed. The tribunal could simply shift what evidence you would need to prove.
Given that innocence was not a defence you could advance on review, it is perfectly understandable and forgivable that many people investigated whether to review their matter before the Superintendent, and concluded that it was futile despite having a meritorious argument.
Since April, 2010, we advised all clients to apply for a review, for the purpose of protecting them from the position that we expected the Government would take. Many people told us, bearing in mind they would lose despite their argument, they could not afford the $100 or $200 review fee considering that they were facing a $4700 bill from the Government. We told them that this was a completely rational decision, although against our advice. It was difficult to advise people to flush money down the toilet for some future possibility of a remedy.
The Court in Sivia may not address the issue of people who did not file for review. It is not something that was before the Court in that case, and it seems that there is no obligation for the lawyers for the Applicant to argue this issue. It may need to be decided at a later date. The Court might suggest to the Government that it do the right thing, but bearing in mind that to date the Government hasn’t done the right thing, i.e., reinstated driver’s licenses and refunded money, we have no confidence that the Government will recognize its obligation to put right what they did wrong.
It seems like a no-brainer: when you realize you’ve been violating Charter Rights with a law that won’t stand, simply start to put it right as quickly as possible – give people back their BCDL. Instead they’re adjourning the hearings indefinitely so they can continue a Charter violation. It’s simply wrong. And an aggravating factor to be considered in the upcoming lawsuits.
Ultimately the people responsible will need to testify in Court when the lawsuits get to trial. Paper shredders may be running full-tilt at this very moment. Thank goodness for electronic documents.