People contact us from different professions and ask us about the impact an IRP may have on their professional obligations.
Regulatory bodies that govern the work of doctors, realtors, insurance agents, teachers, etc. have different rules if one of their employees receives certain charges, convictions, traffic tickets or other sanctions.
If an employee receives one of these things, it must be reported to the regulatory body in certain circumstances.
The Law Society is no different, and lawyers both know and fear the requirement to report if something happens.
An IRP is not a Criminal Charge
An IRP poses a particularly complicated problem. Because the Supreme Court of Canada ruled in 2015, that an IRP does not constitute an offence, it is not as though a lawyer who receives an IRP is charged with an offence.
A lawyer charged with an offence under the Criminal Code is required to report it to the Law Society, however, they’re not required to report a traffic ticket.
An IRP is technically less serious than a traffic ticket in the sense that a traffic ticket is an offence and an IRP is not.
The consequences and the ultimate impact, are far worse for an IRP, but from the perspective of a sheer legal sanction, it is less serious than a traffic ticket.
The Law Society has never given a clear statement on whether a lawyer needs to report an IRP. There are a few things that can guide you in your decision on whether it is necessary to report the prohibition to the Law Society.
Should you report your IRP?
The first thing is what your mandatory reporting criteria are. You are required to file a report to the Law Society, about yourself or another lawyer, in a number of circumstances.
There are rules about reporting monetary judgements to the Law Society. An IRP is not a monetary judgement, however, if you were to judicially review your IRP and costs were awarded against you, then you would have to report that to the Law Society.
You must report a criminal charge to the Law Society executive director, but again, an IRP is not a criminal charge.
Lawyers are obligated to report any conduct that raises a concern about a lawyer’s honesty or trustworthiness. This is the grey area when it comes to IRPs.
The reason for it being a grey area is because an IRP can lead to findings of dishonesty if you dispute it and are not successful, which can trigger a mandatory reporting situation. This occurs most commonly when police ask drivers a question like ‘what have you had to drink tonight? and people provide an answer that is untruthful.
In those circumstances, where you have no legal obligation to answer the question, you don’t have a legal right to lie to the police without consequence.
Those can include consequences from the regulatory body. Numerous BC Supreme Court decisions have found that untruthful statements to the police about alcohol consumption can be a basis to find a person lacking credibility.
An adverse credibility finding against you as a lawyer, made by a tribunal, is exactly the type of situation that would trigger a reporting obligation based on a concern about your trustworthiness or honesty.
This is again why we always advise you not to answer questions from police when asked about alcohol consumption. Remaining silent, which is your legal right, does not trigger concerns about your honesty.
Refusal to provide a breath sample
The other situation that may trigger concern about your honesty, or trustworthiness, and thus a mandatory reporting requirement arises, is circumstances of refusal to provide a sample.
Refusing to provide a breath sample, notwithstanding the fact that you get an IRP for it, is also a criminal offence. And it’s not just considered to be any old criminal offence, it is viewed by many judges, courts, and prosecutors, as being an offence against the administration of justice.
The rationale for this interpretation is that because there is a legal obligation to provide a sample when lawfully demanded to do so, refusing to do so, is showing disrespect for the law. It is refusing to comply with the law, and not in a situation of civil disobedience, but a situation in which the inferences that you’re not complying because you know providing the sample will show that you’re impaired or over the limit.
This is why we say it’s a little bit of a grey area. In theory, all of the elements necessary to prove a criminal charge have been collected at the point that you refuse to blow. At this point, you have been given a demand, the evidence of your refusal is there, and the officers generated evidence. The only thing that prevents you from being charged with a criminal offence for refusing to blow is a Crown Counsel policy that people don’t get charged with refusal if they’ve received an IRP.
Because you were deliberately willing to violate the law, this may suggest that you are an otherwise dishonest or untrustworthy person in the Law Society’s eyes.
Of course, we at Acumen Law understand that there are many reasons why a person might refuse to comply with a demand for a breath sample, that demand could appear to be unjustified even when it is lawful, and that situations when dealing with police include a massive power imbalance that becomes aggravated in the circumstances of male police officers with female detainees, Indigenous people, or visible minorities.
If you receive an IRP, your best bet is to contact a practice advisor, as well as a lawyer who focuses on this area, to look at your options for disputing it as well as to protect yourself in the event of a reporting obligation is triggered.
Law student options
The answer to this question also changes for articling students.
If you are applying to become a member of the Law Society and start your articles, the Law Society does ask on the articling application if you have ever received an IRP. You are required to answer this question truthfully and if you’re caught lying when answering this question, it will be way worse for you than if you were to just answer honestly.
Answering honestly will likely trigger an inquiry by the Law Society, into the circumstances of the IRP. Things such as whether it was a 3-day, 7-day, 30-day or 90-day prohibition, whether it was for a ‘Warn,’ ‘Fail,’ or refusal, what led to the prohibition and how much alcohol you consumed.
If you intend to become a lawyer, whether you are in law school or whether you are in your articling year, dealing with an IRP is important because you do have an obligation to report that to the Law Society.
If you are articling, the first thing you should do upon receiving an IRP is report it to your articling principal.