There are some things to consider when trying to determine if the IRP Scheme does in fact violate human rights.
Challenges to IRP Scheme
There have been four major constitutional challenges to the IRP Scheme since it came into force in 2010, and all of them have focused on the question of whether or not there is a good enough review process for people to challenge their prohibitions.
In the first challenge, the court found that the IRP Scheme did not have a good enough review process as it pertained to ‘Warn’ or ‘Fail’ samples.
However, it did not find the same thing when it came to people who were alleged to refuse to blow.
No constitutional challenge, thus far, has been able to successfully demonstrate that people who are alleged to refuse to blow do not have a fair review process.
The thing about the constitutional challenges is that most of them focus on what happens to the person after they’ve disputed the prohibition, meaning the focus is on what happens after all of the consequences have already started.
Violation of Human Rights
But arguably, where the IRP Scheme is now most vulnerable to be found violating somebody’s rights actually has nothing to do with a person’s constitutional rights, but instead has everything to do with their human rights.
Under the Human’s Rights legislation, it is wrong for the government to create a law that would discriminate against somebody, or has the affect of discriminating against somebody, based on an immutable characteristic. This meaning something you cannot change about yourself.
Among human rights, one of the protected categories is disability. And the IRP Scheme inherently discriminates against people who are disabled.
Even more specifically, people who have disabilities that affect their ability to provide a breath sample into a roadside breathalyzer.
The IRP Scheme requires that a person produce a sample that is suitable for analysis into the device. But that is not possible for everyone, as some people are physically incapable of producing enough breath to blow into a device because of some type of medical condition.
Innocent until proven guilty
If you were charged with a criminal offence, in the same circumstances, you would not suffer any consequences prior to having your matter dealt with by the court. You’re innocent until proven guilty, so there’s no inherent discrimination against you.
A prosecutor would take your file, look at it, get information from you or lawyer, and come to the conclusion that they could not charge you on the basis that you are disabled and are not able to provide a sample, and therefore not guilty.
In addition, in a criminal investigation, police officers have other methods that they can use to test your sobriety.
If a police officer comes to the opinion, that as a result of a medical condition or a physical condition, it would be impracticable to obtain a breath sample, they’re allowed to demand a blood sample.
At this point, they have the power to test your sobriety, but it doesn’t violate your rights in the sense that it’s not compelling you to do something that you’re physically incapable of doing.
There are also physical coordination tests, that the Nation Highway Traffic Safety Association (NHTSA) validated for alcohol, that can be used under the Criminal Code, if an officer suspects that you have been drinking.
Discrimination in the IRP Scheme
But the Immediate Roadside Prohibition Scheme does not allow a police officer to use a blood test, or a coordination test. It is solely based on the result, or the absence of a result, of a roadside breathalyzer.
Unlike a criminal case, where the prohibition doesn’t take affect immediately, an IRP begins right away.
So, if you’re disabled and you can’t provide a sample because of your disability, you are taken off the road, your license is suspended, and your car is impounded. And then, if you want to dispute the prohibition, the burden is on you to demonstrate your innocence.
On top of all that, you also have to pay $100.00 or $200.00, for the privilege of disputing it.
No matter what, if you are a person who, as a result of a disability, cannot provide a sample into a roadside breathalyzer, you suffer a consequence.
And you suffer that consequence, solely on the basis of the fact that you have that disability.
Human Rights violations
This is particularly uncharted territory from the human’s right perspective, ever since the law changed under the Criminal Code, where now police don’t have to have a reasonable suspicion that you were drinking, and can demand a blow at random.
People with disabilities can display no symptoms of impairment, and exhibit no signs of being drunk, and still be asked to blow into a breathalyzer.
And when they are unable to provide a sample as a result of their disability, they are then punished for it. This in itself is a human rights violation.
How we can help
We believe there is an opportunity that people have in those circumstances, to file human rights claim against the BC government for imposing those consequences.
In those circumstances, our office would absolutely be interested in helping somebody pursue human rights claim for a violation in that situation.
You would be entitled to compensation, and not just compensation for what you’re out as a result of having to go through all of the consequences of the IRP, but also compensation for the insult to your dignity.
The IRP scheme is vulnerable to being struck down on the basis of its discrimination against individuals in these circumstances. It is likely that the legislation if somebody brought a constitutional challenge arguing that it is discriminatory against that class of people, who for physical reasons could not provide a sample, would not be saved under section one of the Charter.
There is no valid public safety objective in punishing somebody who gives no suggestion that they’ve been drinking.
And because of this, it is our belief that the current IRP Scheme does in fact violate human rights.