Of course we have many concerns about the Immediate Roadside Prohibition law but to us it boils down to one overarching issue and that is that the IRP scheme is unfair. As lawyers we always strive for fairness. It’s something that most people generally aspire to from childhood. If you ask young children what is fair, they usually have well-developed ideas about it.
One of our particular concerns with the IRP scheme is that the process starts with a lie. The police officer who makes the demand for the ASD sample says that it’s a demand pursuant to a Criminal Code investigation. The Government choose this approach because it allows the police to suspend the driver’s Charter Rights temporarily. Then, when the ASD breath sample is obtained the police stop the impaired driving investigation and switch to issuing an IRP. With IRPs there are no Charter Rights. So the lie at the start lets the Government and the police get around your Charter Rights. Your Rights have been eliminated by legislation. We don’t think that’s fair.
The there’s the dispute process. Long before you have an opportunity to dispute your IRP, you’re being punished. With a Criminal-Code impaired driving charge they can’t do that because of your Charter Right to be presumed innocent and not be punished unless proven guilty. By virtue of the legal trickery at the roadside, the Government can get away with this. It’s not fair. It’s dirty.
Is it fair to only give people 7 days to file to review their IRP? It’s a ridiculously short period that makes absolutely no sense.
Limitation and filing periods are designed to ensure that parties to any legal case aren’t disadvantaged by the passage of too much time. Who is disadvantaged if there is more than 7 days? The Government? Nope. The evidence isn’t going to be lost or become unattainable if the period was 30 or 60 days. The driver/applicant? No, because they’re the one suffering the punishment.
When you’re asking yourself what is fair you can only conclude that the 7 day-period was designed to import unfairness in the system. If you’re not sure whether this is fair, ask grandpa.
Of course, all of this is long before you get a hearing. All of this is long before the OSMV provides the select and well-vetted disclosure to the applicant.
We’ll talk some more about what is fair in future blog posts. The picture we’re trying to paint for you is that the very underpinnings of the IRP scheme are unfair. And it carries through each aspect of the Government’s application of the law. It is a law designed to be unfair and that is applied in a manner specifically intended to be unfair every step of the way.
We’ve learned a lot dealing with the Government in our challenges to the IRP scheme. One thing we can tell you is don’t count on the Government to be fair.