At the Supreme Court of Canada they deal with lots of hypothetical scenarios because they’re considering the reasonably foreseeable implication of certain legislation. We consider them too, but we also see these scenarios play out in real life.
This was the real-life case I referred to in Part 2. Our client refused to blow. At the hearing we argued that it was an unlawful demand and we…
Whether to…
As we explained in the last two blog post on this topic, there is a big question about whether it is better to blow or not when an ASD demand has been read to you by a police officer. On the one hand, the officer says that the demand is a Criminal Code demand and there are criminal consequences if you refuse. On the other hand, there will be no criminal consequences because if you refuse an ASD demand in BC, you will get an IRP which isn’t criminal. So it’s a threat and it’s a lie.
Now, there is no such thing as an IRP ASD demand. Still, as we stated before, honest cops often explain that the investigation is in fact and IRP investigation. This happened in the scenario discussed in Do I really have to blow: Part 2.
In the hypothetical scenario where the officer tells the driver the truth – it’s not a Criminal Code demand but the sample is for the purpose of an IRP investigation, it would seem to be an unlawful demand and you’d be entitled to refuse it.
This was the real-life case I referred to in Part 2. Our client refused to blow. At the hearing we argued that it was an unlawful demand and we succeeded in the IRP appeal. But why?
We had video. The passenger used his iPhone to record the discussion where the honest and decent cop told the driver of the consequences of refusing. In this case he said it was a 90-day IRP. The police officer read the standard Criminal Code demand but it was a hollow threat because the investigation was really an IRP investigation. The demand itself was a lie and the officer explained it. And it was on video.
Because there is no “IRP ASD demand” there was no obligation for our client to provide a sample to the officer’s ASD and therefore he didn’t. And we succeeded.
The disturbing thing
We know that this happens all of the time because most police officers are honest and good and even if they’re told to lie, they won’t. But the police reports that they complete with each IRP lack the detail about the discussion. It merely prompts that the demand was made. The officer indicates yes, and that’s the evidence that the tribunal will accept.
Unless you have video, that is.
The real implications
You are entitled to refuse an unlawful ASD breath demand. But what happens if the breath demand is unlawful, but you still blew?
At the roadside you can’t know whether the breath demand was lawful or not. It’s a decision made by a judge or tribunal.
If you can prove that the ASD breath demand was unlawful and you refused it, you will succeed on your IRP review. The RoadsafetyBC tribunal will revoke a refusal IRP if the ASD breath demand was unlawful.
If you blow, however, you’re shit out of luck.
People try and people lose
Since the first version of the IRP scheme was enacted, people have tried to argue that their Fail IRP should be revoked due to an unlawful ASD breath demand. Never worked. We’ve tried it. Never worked.
The training manual for RoadSafetyBC adjudicators says that they cannot revoke an IRP for Charter reasons, such as an unlawful ASD breath demand where the person then went ahead and blew.
So maybe refusing is better?
If you make a flow chart you see that there is an extra argument for people who refuse to provide an ASD sample in BC. Meaning it may be better to refuse.
Balance that, however, against the likelihood of the officer botching the test. We see that it’s common for police officers to botch ASD tests. It’s an argument that we succeed with all of the time in IRP hearings. How do we spot the problems? Among other things, the IRP lawyers in our office have all taken the manufacturer’s training course.
So maybe refusing isn’t better. The problem, however, is that having a remedy available to those who refuse that isn’t there for those who blow Fail sets up a motivation to refuse. Moreover, it’s fundamentally unfair. Moreover, it encourages unscrupulous police officers to make unlawful ASD breath demands because they know if they get a Fail it won’t matter. Bringing us back to the Supreme Court of Canada.
The question posed by the Justice
At the Supreme Court of Canada hearing on May 19, Justice Moldaver asked a Government lawyer this:
JUSTICE MOLDAVER: I’ll just ask you this question because its unclear to me how it fits in. If the officer did not have reasonable suspicion, to give, to make the demand under the Criminal Code, how does that factor in? Now but he or she gets the reading of five whatever, they get to a second reading and its 5 again. How does that play into this or does it?
That’s the precise scenario we’ve dealt with many times. The Government’s position has always been that they don’t care whether it was an unlawful demand. If the officer didn’t have a reasonable suspicion, there has never been a remedy in any IRP hearing where the driver provided a breath sample.
In fact, this has been the Government’s position in case after case. We argued it and lost. We lost because it’s been their policy that unlawful breath demands, such as where the officer doesn’t have a reasonable suspicion, are irrelevant because the Charter doesn’t apply to IRP hearings.
In the Bro case last summer I made the argument in BC Supreme Court that the IRP scheme was unlawful because an officer could make a capricious demand and there would be no remedy if the driver provided a sample. The Government took the position that there would indeed be no remedy in such a circumstance and that nevertheless they were within their lawful right to refuse to provide any such Charter remedies.
In any event this was the response of the Government lawyer to Justice Moldaver’s question:
GOV LAWYER: You can come up with some hypotheticals where it might play in to, where it might permit specifically revocation of the IRP. It would be an unusual situation. We see for example the allegation that an officer has for example pulled over a vehicle of multiple occupants, windows roll down, smells of alcohol, officer just decides to ASD the driver, makes no effort to determine that it was the driver that smelled of alcohol. And immediately administers the ASD with no further fanfare and low and behold, at the application for review, the driver and his or her occupants, put forward sworn statements to the effect that this driver had been consuming mouth wash up until the point at which this took place and that it was the mouth wash that triggered the fail. I mean you see these types of arguments from time to time. In fact you see them more than you might- [interjected]
Was it good for you?
You can decide for yourself if that answers Justice Moldaver’s question to your satisfaction. We think the answer should have been simply that they never provide a remedy in a Fail case due to an unlawful breath demand. It’s been their policy since September 20, 2010.
We can tell you that we wish that the question had been put more clearly. We can also tell you that we prepared a transcript of these submissions so that we can use them in IRP hearings.
A new policy
As far as we’re concerned, if the Government told the Supreme Court of Canada that the IRP scheme works in a certain way, we intend to hold them to it by reminding them in each IRP hearing that policies of their office contradict what they presented to the Supreme Court of Canada. That’s our new policy.
The problem with this exchange is that from our perspective the question wasn’t answered at all, so we can’t say. We can’t say whether they have a new policy and you can now get a remedy when you blew and the demand was unlawful. The answer didn’t answer the question, either for the Justice or for us.
So in answer to the question, Do I really have to blow, we give you this:
GOV LAWYER: You can come up with some hypotheticals where it might play in to, where it might…