Right now the police in British Columbia are busily working to replace the Alco-Sensor IV Approved Screening Devices (roadside breathalyzers) with a new-to-them model. We take some credit for the move. We’ve identified catastrophic problems with the old Alco-Sensor IV DWF breathalyzers used in BC and they’re hoping to replace them before the you-know-what hits the fan. We have evidence that supports our assertions that thousands of people have been wrongly given IRPs on the basis of ASDs with a design/manufacturing flaw. A significant number of the ASDs that were in use in the last 4.5 years in BC were part of a bad batch.
After going public in July 2014, we waited a few months to see if the police and the Government would do the right thing.
The police knew of the problem but kept it silent. We obtained disclosure that proves the problem and that they knew of the problem long before we went public back in July 2014 (<click to the left or see below).
In autumn we decided to step things up. The evidence had mounted to the extent that we felt we had no option but to sue to stop these devices from being used and to use this information to defend our clients.
Could we do otherwise? Shouldn’t the Government have done otherwise?
What about negligence?
Good question! You knew just what we were getting at. In our view the Government was negligent and we felt that if we sat on this evidence without doing something we’d start to be complicit. Why did we feel it was negligence? That’s another good question!
There is a three-step test for negligence that they teach law students on the first day of law school. For the rest of the year they mess with the test to blow your mind. If, at the end of the year, you can somehow remember the three-step test, you can pass the exam in torts.
Step one: A Duty of Care
What this means is that one person owes a duty to another person, usually not to allow them to be injured in certain circumstances. For example, your neighbours have a duty of care with respect to the shingles on their roof. They must not permit them to fall off or become loose such that they should then fall and injure you or damage your property.
Step two: Breach of that Duty
This is simple. There was a duty of care, such as with the neighbour’s roof, and they failed to fulfill their obligations. If your neighbours didn’t ensure that the shingles remain on the roof and some fell off, they would have breached the duty. But if the shingles landed harmlessly on your driveway, negligence is not made out because of step three…
Step three: Damage Resulting
Without damages, there is no lawsuit. There is no negligence. If those shingles hit you on the head, leaving you with an injury of any sort, then there is damage resulting from the breach of the duty of care (steps 1 and 2) and you can sue.
Is it negligent to use defective breathalyzers?
The way we see it, the RCMP and the police in BC have a duty of care to motorists in BC and to anyone whom they detain for investigation. This isn’t really contentious.
Did they breach their duty? Well, they purchased and used defective breathalyzers that they knew were part of a “bad batch” and they continued to use them long after they were aware of the problem, and even after we went public with the problem. They used defective breathalyzers to issue Immediate Roadside Prohibitions. That, it seems to us, is a breach of their duty of care, particularly to the people who were issued IRPs.
Was there damage resulting? Hell yes. Anyone who received an IRP will tell you that. So in our opinion, and the opinion of the dozen or so lawyers with whom we’ve discussed this, it’s negligent to use defective breathalyzers.
How long did we wait?
After going public in July 2014, we waited a few months to see if the police and the Government would do the right thing. You know, when large organizations, like the RCMP or the Government don’t do the right thing, or try to hide their error, it’s usually a lot worse because the damages are more significant and the public trust is lost.
We mentioned GM’s recalls just before Christmas because we wanted the people who follow our blog closely to know what was happening. GM tried to hide a defective device. They have a duty of care to the occupants of GM vehicles. They breached the duty by permitting a defective device to hold the key in the ignition switch. The damage resulting was that people have been killed and badly injured.
Our Government and the Police follow the GM example
The GM example of trying to fix the problem before it becomes public is being closely copied by the Government and the Police. From the material we’ve gathered, we’ve concluded that the reason that they’re so busy replacing the Alco-Sensor IV DWFs is because they want to have the defective devices out of service before these matters get to court.
Our quandary
Over the years our law office has found a lot of important and newsworthy stuff in police and Government disclosure. We’ve done a lot of good for the system in that our efforts have forced the police to do a better job and forced the Government to change policy to make the system less unfair. We suspect that we’re more effective at changing Government policy than the official opposition. It’s rewarding for us as lawyers. However, being the holders of the insider information about thousands of defective breathalyzers presents a big problem.
We’ve been called a lot of bad names. Paul has been threatened by police officers (which he never took particularly seriously). Sometimes police officers make nasty remarks on Facebook. Whatever.
No, the problem for us is the immensity of this. The police in BC have been using defective breathalyzers for years, knowing full well that there was a bad batch. We also know from the Port Moody calibration scandal that the Government will work to blow it past everyone with tactics such as withholding information until the issue is no longer something that catches the public interest.
We know that the Government has a huge legal budget. They appeal almost every successful Supreme Court IRP review decision. They’ve got a budget that, in comparison to our, is virtually unlimited.
The Government has also tried to silence us. No point in detailing it here, but suffice it to say that they don’t share our view of freedom of speech.
So our quandary was whether we wanted to be whistle blowers. It poses a huge threat to us.
Interestingly, we’ve had quite a number of insiders in the Government and the police feed us information over the years. We always wondered why they didn’t go public. Dealing with our quandary we can now see some of the mechanisms and dynamics that silence whistle blowers.
Will the cover up succeed?
The Government is replacing the defective breathalyzers right now. Traffic officers who haven’t received the training are scheduled to do so in the coming weeks. In many detachments over the last month they have already started to use the newer model, the FST. It’s quite likely that they will get rid of the defective Alco-Sensor IV DWFs as soon as possible because they don’t want the evidence to be available when the matters go to court.
As for court…
As we said above, several months ago we started challenging IRPs on the basis of a portion of the evidence we’d accumulated regarding the defective breathalyzers. We’ve been conducting reviews before the RoadSafetyBC tribunal and bringing forward the issue at hearings.
We feel that we were obligated to bring this to the tribunal. It’s a test of the tribunal’s independence. In the past they have viewed themselves as an arm of law enforcement. Such a position discredits the entire justice system. We have found that they have very close ties with the police. This is a significant concern.
In each case where we presented the evidence, the RoadSafetyBC tribunal adjourned the decision past the 21 day period and into 2015. This was some sort of official/unofficial/off the record/plan/collusion scheme that someone must have ordered. In any event, we figured that the decisions wouldn’t come until the replacement breathalyzers were introduced.
And so, here we are…
Late this week we started receiving review decisions from the RoadSafetyBC tribunal upholding the IRPs where the breathalyzer came from the defective breathalyzer batch. Of course, we’re appealing them. In a few months the media might catch on to the story.
We’ve filed Petitions to appeal the decisions to BC Supreme Court and Friday we sent in supplementary submissions and more law to the RoadSafetyBC tribunal on the outstanding IRP reviews to further build the case for the inevitable appeals. The matter is now before the courts.
This is too big to hide
The cover up will not succeed because this is too big to hide. The important thing now is for everyone to rally around as we prepare to take these cases to court. As we’ve said before, we have confidence in our courts. We have a lot of work ahead.
Postscript:
PS: We deal with a lot of negligence cases, particularly car accident cases where we deal with ICBC for clients injured in a car accident. If you know anyone looking for a good lawyer, tell them to call us.