In the next few hours we’ll get a decision from the Supreme Court of Canada in Goodwin/Sivia and Wilson. It’s going to be an interesting day.
Defective breathalyzer update
In the meantime, we need to tell you about the decision we received Thursday in the judicial reviews we did for two clients who blew into breathalyzers in the defective range.
These are the cases we advanced because of the systematic defects Paul identified in a certain range of ASDs purchased in the summer of 2010. Our argument in court was that the adjudicator was wrong in concluding that Paul’s affidavit (which many of you have read) did not make clear the problems in the specific case. The BC Supreme Court disagreed and we lost.
The Government has the right to rely on a defective breathalyzer, and there’s really not much we can do about that.
The decision will be posted on the BC Supreme Court website soon, and we will post a link for anyone who is interested in reading it.
Our argument was that when you could show a problem on a big scale it should be enough to extrapolate from the general to the specific and rely on this for a particular case. Not every GM ignition will allow the key to fall out but if the problem presents frequently, you issue a recall.
The BC Supreme Court said it was within the adjudicator’s right to reject that argument at the IRP review hearing.
We are disappointed with the outcome. The decision highlights two major problems with the Immediate Roadside Prohibition scheme. The first being that you cannot obtain the material you need to show a problem in your particular case, because it does not become available in time for the review hearing. The second problem is that the Government has the right to rely on a defective breathalyzer, and there’s really not much we can do about that.
You can be innocent, but the evidence won’t be disclosed by the police that will allow you to go from general to specific in pinpointing the particular flaw in the device used in your case. And good luck interpreting it in any event.
It’s frustrating.
Unfairness built right in
To us, it seems unjust that the Government can craft a law that relies on a device only intended for screening and use it for punishment. It’s been a running theme in our blog over the last several years. And the Government’s decision to rely on this device has been one that we were never happy about. But the judge in our case identified the issue – the Government has the right to do this, even if it produces unfair results. In our system of justice, the Government does not always have to be fair.
We are always advancing other appeals and angles of attack against the IRP scheme and defective breathalyzers. A growing concern, and one that has impacted people with this argument is that it is often not possible to obtain the disclosure to show that there was a problem with a particular breathalyzer. In the cases we had in court we had examples to show the problems in the range of breathalyzers but we didn’t have the records for the particular devices used in those cases.
With only seven days to file for review, and a requirement that a decision be rendered within twenty one days, obtaining the monthly calibration records for subsequent checks, and service records or faulty maintenance records in time for the hearing is impossible. This is one of the biggest flaws in this system. And even drivers who do pursue these angles may never obtain the documents.
For example, we request through Freedom of Information and Access to Information Act requests breathalyzer maintenance records on a regular basis. The Vancouver Police Department has simply refused to respond to our requests. It took us over a year to obtain near complete records from the RCMP for detachments in British Columbia. Some police departments are quick, but those are usually smaller departments who issue fewer IRPs. We find that the smaller the police agency, often the better maintenance. Funny that.
So you may never know if you blew into a roadside breathalyzer that was not functioning properly or not properly calibrated. Heck — even the recent news story about the IRPs revoked in Tofino and Vernon exposes this problem. The issue was identified several months before anyone was put right. Which meant the 90 days had come and gone for those people, and their lives had already been significantly impacted.
It’s hard to have faith in a government that cares more about the media spin than putting people back together, but that’s a later blog topic.
And in any event because we’re lawyers we don’t rely faith. We rely on facts.
Moving ahead on this issue and others
Here’s what you need to know going forward.
For our clients who had this argument and are awaiting a decision:
We don’t give up without exhausting all angles. Just because we did not succeed on this line of attack doesn’t mean that we don’t have other plans. We continue to make supplemental submissions on new evidence, supplemental disclosure, and new court cases that impact your case. When there is a change in the law, we are in the office late into the night or over the weekend analyzing your file (and hundreds of others) to see if we have a way to make it work for you.
Our fax machine is running pretty much non-stop during the day, sending submissions to RoadSafetyBC. We are continuing to put energy and legal work into your case often months after we conducted your hearing, and to do what we can to preserve your rights and any arguments you have. This is by no means the end of the road.
For clients who argued the defective breathalyzers and lost:
We’ll spend a few weeks considering whether there is a ground of appeal. At this point it’s tough to come at it to make an objective assessment. Regardless, you may have other grounds for judicial review and we encourage you to call us in the next week or two to discuss your options.
Many people had IRPs issued at the same time as we were making arguments about the Wilson decision. We expect a ruling from the Supreme Court of Canada in a few hours. Those decisions may open up avenues for judicial review in your case. Call us next week and we can discuss, after we’ve had time to process the decisions.
For people who had defective breathalyzers but did not dispute their IRP:
We are awaiting a decision on our challenge to RoadSafetyBC’s decision to no longer accept applications for extensions of the seven-day time limit. When we have that decision, we will write about the outcome in our blog and whether there is anything we can do in your case. Identifying a problem at a relevant time period with a specific breathalyzer used in your case will be necessary, so we will have to have a strategic plan in place. We will update you on the blog when it is time to contact us.
Speaking very frankly, as we always try to with our clients, it now appears that a remedy may be further out of reach. We’ll let you know what we think when we have more time to consider what all of the decisions that are coming down mean for our clients.
For people who had defective breathalyzers but unsuccessfully disputed their IRP:
As we indicated, you may have other grounds of judicial review. Things are changing very quickly in the law, and next week we will know a lot more about the future of the IRP scheme and how it might impact you. Hang tight. We will let you know next week when you should call us.
Stay tuned for the Wilson and Goodwin decisions.