Over the summer we were working hard but we also tried to take a break from writing IRP blog posts. Kyla has her own blog, but we didn’t want to spend all of our free time writing. We needed a break and a little sunlight. But now we’re back at it and we have a lot to cover. First and most important, perhaps, is that we’ve started a constitutional challenge to the new IRP law.
On June 20, 2016, Kyla filed a constitutional challenge to IRP 3.0 in BC Supreme Court in Vancouver.
Background:
When the first BC Immediate Roadside Prohibition law was found unconstitutional and struck down with regards to drivers who blew Fail, the BC Government said that they would make changes to the law to make it comply with the Charter of Rights and Freedoms. They did that and the new law, what they called “IRP 2.0,” came into effect on June 15, 2012.
IRP 2.0
Two years ago the BC Supreme Court concluded that the IRP 2.0 law was in compliance with the Charter of Rights. The Court had concerns with the law, however. Still, the problems, as the Court stated, could be addressed through the normal course of litigation. In other words, the IRP 2.0 law itself was not so offensive as to justify a finding of a Charter breach, but there were problems that would be spoken to and addressed over the course of the years as appeals (by way of Petition to the Court) were heard.
Fine, we said. Although we weren’t supportive of the law ourselves we could work within it to make changes so at least it would be fairer going forward. And that’s what we did. But we got too good. Particularly with respect to developing new arguments. Kyla conducts so many IRP reviews that their skills in this field are finely tuned. On top of that, Kyla has conducted dozens of IRP judicial reviews since over the last two years. Our downtown office is only a few blocks from BC Supreme Court. Kyla now files five to ten judicial review petitions every week and conducts a full on BC Supreme Court appeal approximately once a week.
We made the system more fair. And we’ve succeeded in many many IRP reviews. But it’s been clear to us that there are fundamental problems with the IRP scheme. In our view the basic concept is flawed.
The IRP law failing
When it comes to IRPs, the Government is the opposing party. They don’t want people to succeed in challenges to the prohibition. They want to start from the assumption that everyone is guilty. They don’t want to pay for the towing and storage of vehicles they have seized. They want to claim their law is a success.
As we continued to litigate IRP cases it became increasingly clear that IRP 2.0 was not a success. In fact, if you hired our office to defend your IRP we probably succeeded in the review. It’s impossible to succeed in every case (unless you only do one and you’re very lucky) but for example, on one day last week we received more than 10 successful decisions in 90-day prohibition cases.
IRP 3.0
Long before the Court rendered the decision in the IRP 2.0 challenge we explained how we were chipping away at the IRP scheme. That’s simply part of the legal process. We’ve tried to speed things up by strategically running certain arguments and we’ve been more successful than even we anticipated. This put the Government in a tough spot. The numbers made it clear that their law was flawed. They decided to act on several fronts.
They made a number of changes to the law. First they decreed that anyone who missed the 7-day window to file for review would be SOL even if they were innocent. Second they refused to provide disclosure of the allegation — i.e. a copy of the police report, unless applicants paid the review fee. The entire remedial program was revamped so that punishment was no longer discretionary by law. Now there is a mandatory requirement to attend the privately run Responsible Drivers Program and the Interlock requirement is contingent on your driving record.
The BC Government has made a number of other changes to make the law less fair, but the most noteworthy is that they reversed the onus of proof. Whereas in IRP 1.0 and IRP 2.0 versions of the law, the onus was on the police to show why an IRP should have been issued, under the new version of the law the onus is on the driver to show why the IRP shouldn’t have been issued.
We wrote about the new burden of proof back in April 2015. You can see how it played out in the legislature in another blog post Funny doings in Victoria.
As part of a clever sleight of hand, the Government introduced elements of IRP 3.0 in stages. The last and perhaps most offensive part, switching the onus of proof, came earlier this year.
The essence of the IRP 3.0 plan
The third version of the IRP scheme is an attempt to restore as much as possible the first version of the IRP scheme. The BC Government is trying to place obstacles in the way of challenging IRPs and making the punishment mandatory as it was applied when the first version of the scheme was in place.
They’re trying to get through the back door what they couldn’t get through the front. Instead of making a law that respects the original court ruling, they passed a law that was lawful and after the finding it was lawful, they’ve gone and changed it to make it unlawful again. This is what we intend to explain to the Court.
Our constitutional challenge to the new IRP law
On June 20, 2016, Kyla filed a constitutional challenge to IRP 3.0 in BC Supreme Court in Vancouver. We served the Government and waited for a reply. We kept waiting. No reply.
Eventually Kyla pushed them. They asked for extra time to file a response. Eventually outside of the timeline they filed a reply. We wanted to set a date for the hearing in October, i.e. next month. They said that didn’t have time. They have many lawyers in their office.
Last week, they asked us to schedule a preliminary application and delay scheduling hearing dates. They want the preliminary application in November, which means we would not get to have hearing dates until February at the earliest. And a decision from the court on the application may not come for six months after that, delaying it even further.
Politics
Obviously a decision striking down IRP 3.0 would be a huge embarrassment for the BC Government. We have a provincial election in May 2017.
Our IRP blog policy
The reason we did not tell you about this is because we have many special projects underway. We try to be wise about the release of information. We try to be tactical. Our special projects team has many matters on the go. We discuss them here on our IRP blog when it won’t undermine our cases and it’s in the interest of our challenges to the IRP scheme to keep everyone informed.