Over the decade since the Immediate Roadside Prohibition law was introduced in BC, there have been many changes to the law and the procedure, and the changes keep coming.
Version One
When the first version of the law was introduced, it was called the Automatic Roadside Prohibitions. The government of the day realized that “Automatic” suggested there was no right of review. They were concerned about how the court would see that when the inevitable challenge to the legislation was advanced.
So they changed the name from Automatic Roadside Prohibitions (ARP) to Immediate Roadside Prohibitions (IRP).
When the IRP law was struck down as unconstitutional in November 2011 (regarding Fail IRPs), the law was then re-written and re-introduced.
When the IRP law was introduced, there was no limit on the duration of the hearing. It was common in our office for hearings to take 2 hours to get through all the evidence and legal submissions. The government did not like that the hearings often took so long, so they imposed a 30-minute time limit on IRP oral hearings.
Consequently, we shifted to a hybrid model – sending in written submissions for part of the evidence and argument and focusing our oral submissions on those aspects of the case that are difficult to describe in writing—that way, we cover as much as possible with the truncated process.
Version Two
The second version of the IRP law came into effect in Spring 2012. It introduced the rule that a driver is entitled to a second test on a different device and could mount an “evidence to the contrary” defence.
Both the first and the second version of the IRP law operated on the standard legal principle of proving the case on a balance of probabilities.
Imagine the scales of justice. That balance is the thing that tries to make the system fair.
Scales unfairly tipped
Sadly, the government changed the law to tip the scales.
After the court challenged and upheld the second version of the IRP law, the government changed the rules to tip the scales. They amended the law so that the burden was on the applicant to establish that the IRP should be revoked.
This was a troublesome turn. When the second version of the IRP scheme was before the court, Kyla identified several problems with the law. The judge asked and then postulated that these problems could be ironed out in later court cases.
The government’s response instead was to write themselves a finger on the scale to tip the case in their favour.
That never sat well with us, but the courts appear disinterested at this point in arguments about the legality of the IRP scheme so the government can get away with a lot that might be questionable.
A waiting game
A good example is extensions of time to render decisions.
When the IRP law was introduced, it was clear the intention was that, except for truly exceptional circumstances, the decision would be rendered within three weeks from the date the prohibition was issued.
They did not expect pushback from lawyers and people who received IRPs.
Soon they were having difficulty keeping up. Even after hiring and training new adjudicators, they could not render all the decisions within the three-week window.
Their answer at first was to put the prohibition on hold and release the impounded vehicle. This was reasonably fair and took into account that the government was the one at fault for the delay.
The ball is in their court after the hearing. If they fail to deal with it, they must take responsibility.
After the court upheld the second version of the IRP scheme, there was nothing to stop them from abandoning this procedure. They knew the challenges to the law would not likely get back before the court, and indeed, they are tough to explain to a judge.
As a consequence, they dropped the practice of simply putting each prohibition on hold.
There are cases where the person pays the fee for the hearing; the hearing is conducted, they serve the prohibition and pay all of the fees. And they wait, sometimes for more than a year, for a decision.
To our mind, this is unconscionable, but it was the inevitable consequence of the court rubber-stamping the IRP scheme when the second version was unsuccessfully challenged.
A constant struggle
We have been there for all of the changes to the IRP law over the years. Kyla argued a case, which was the first big blow to the government, which stopped them from inventing their own evidence.
Sadly, the government then just wrote an amendment to the law to create their own evidence.
And so it goes. We push back. They change the goalposts, and the courts are generally accepting of the situation.
When the law was struck down in November 2011, the idea was the law should be made fairer. That is not how it played out. Changes to the Immediate Roadside Prohibition law have made the system less fair, more complex and more difficult to navigate.
We’ve been there since the beginning, even writing the book on Immediate Roadside Prohibitions. We’re trying every day to make the system fair.
If you would like to discuss defending your IRP, call us right away. You should know that we can’t help you if you miss the 7-day window to dispute your IRP, so don’t delay calling us.