People often ask me “do I really have to blow?” The answer was simple before the IRP scheme became the law in BC. With a criminal investigation, if you blow and the police broke the law (failed to properly follow the law) in getting you to blow, chances are good that you’d be acquitted of criminal charges flowing from the roadside breath sample. With an IRP it’s a lot different. An illegal ASD breath demand has not been a basis to revoke a Fail IRP. So it’s complex. But the question remains…[pullquote][/pullquote]
If the BC Government wrote the IRP law to create the obligation and power to make ASD demands, we think the entire scheme would have been struck down by the BC Supreme Court in Sivia.
Do I really have to blow?
So an Immediate Roadside Prohibition (IRP) is designed to be issued following a process that includes an Approved Screening Device breath demand which usually occurs at the roadside in a DUI investigation. The Approved Screening Device demand (ASD demand) is a notice that police officers read or say to drivers whom they reasonably suspect have alcohol in their body.
The demand has a few components. It’s a legal notice written, we assume, by Government lawyers to fulfill the police obligation but to obscure what’s actually happening. What’s actually happening is that the police officer is telling the person that they must blow into the ASD. The person is legally obliged to blow into the ASD. If the person refuses to blow or obfuscates, they may be convicted of a criminal offence.
In other words, you must blow or face criminal prosecution and a criminal charge.
Roadside extortion
That’s a big threat. If regular people threaten criminal charges to make somebody do something, they’d face a possible criminal charge for extortion, uttering threats or some such thing. But the police are allowed to threaten people to get the evidence they want. But it’s a limited power of roadside extortion. It’s only designed to be used for a criminal investigation.
Why is an ASD demand only for criminal investigations?
The ASD demand arises because of the Criminal Code requirement to blow into an ASD following a lawful demand. It is where the legal requirement attaches. Moreover, because ASD demands arise in situations where the person’s right to consult a lawyer is suspended and the police have detained the person without reasonable grounds, the evidence obtained IS NOT used for the purpose of proving a criminal charge. In other words, a Fail on an ASD is not evidence that is used at the trial to prove the Crown’s case. It’s inadmissible for that purpose.
It’s inadmissible because the person’s right to talk to a lawyer is violated, they are arbitrarily detained and they are compelled to assist the police in an investigation thereby violating their right to silence. All of these are Charter rights. Courts have traded them off (rightly) by guaranteeing that the ASD test results would not be used to prove aspects of a criminal allegation.
But what about IRPs?
At the original Sivia hearing in the spring of 2011 the lawyer speaking for the Government told the judge that the demand was irrelevant to the legality of the IRP scheme because if the BC Government wanted they could just write their own demand law into the IRP law.
Did I hear what I thought I heard?
We sat there wondering if the judge was able to really understand what they were saying. If, in fact, the BC Government wrote their own requirement for an ASD demand, the law likely would have been struck down because it would then be a full-on replacement of the criminal law and therefore outside of the constitutionally allotted power of the BC Government.
If the BC Government wrote the IRP law to create the obligation and power to make ASD demands, we think the entire scheme would have been struck down by the BC Supreme Court in Sivia. That the BC Government didn’t include ASD demand provisions was clever slight-of-hand. Instead of replacing the Criminal Code (federal law) they could say that their law only comes into play as an after-the-fact option for police.
Admire the BC Government?
This slight of hand was disingenuous but brilliant. The ultimate impact of the IRP scheme is the same whether the BC Government created the power for an ASD demand or they relied on the Criminal Code power, but the optics of the latter allowed them to argue that they hadn’t supplanted the Criminal Code. And they succeeded in Sivia.
A modification of the Government position
By the time the IRP scheme made it to the Supreme Court of Canada the BC Government argument had moved away from the source of authority for the ASD demand. The position had been modified. The BC Government position was that the source of the evidence for IRPs merely came to the police due to the ancillary criminal investigation. The evidence, they argued, was there and collected through a lawful process outside of the IRP scheme. They claimed that it was readily and legally available evidence because it had come about through an otherwise legally accepted means.
Does that make sense?
But hang on a second. Wasn’t the ASD breath sample evidence obtained with a threat? And in violation of the Charter of Rights? And for a purpose that was not part of the process?
And that’s the kicker. The legal protections of an ASD demand were turfed by the IRP scheme. We’ll explain how this plays out in an actual roadside DUI investigation in Do I really have to blow Part 2. And we’ll tell you about other things too.