IRP 2.0 court challenge
As we explained earlier, we were involved in the challenge to the second version of the Immediate Roadside Prohibition scheme. The hearing took place just over a week ago in BC Supreme Court sitting in Victoria. IRP 2.0 is now in the hands of the Court.
Of course, the first version of the scheme was found unconstitutional by the Court when it came to 90-day IRPs for blowing “Fail” and the law was re-drafted. The Court decisions regarding the first version are still under appeal so everything could be upset by later rulings on the first version. For example, if the Supreme Court of Canada finds that the law facilitates some other impermissible breach of a Charter Right, such as the Right to Counsel, IRP version 1 and version 2 would both be impacted.
Bearing this in mind, there was a live question as to whether any hearing on version 2 should take place. It could be that we were doing the work and the Court will render a decision that is meaningless in the end if the previous decisions are overturned in any way. Still, there is an important public interest at stake. Many people are in limbo because of IRPs either on their driving record or under appeal.
A few days before the hearing a separate hearing took place concerning whether the entire matter should be adjourned. We made the decision to take no position but instead to simply explain the issues that we felt the Court should consider. Ultimately the Court decided that we would press on with the hearing.
The work was divided between our law office and lawyers at esquimaltlaw.com. Half of our office went to Victoria for the case. We divided the arguments between the lawyers who could attend and each made our submissions over the course of 2.5 days.
By virtue of the fact that Sivia is the law in BC, we were not of the view that the Court should hear new arguments on issues decided in that case. It would have been a waste of time and taxpayers’ money. Our focus, therefore were the changes that the BC Government made following Sivia when they reintroduced the law.
One particular exception was that the Government put forward an affidavit with the purpose of asserting that roadside breathalyzer results are so reliable that the Government is justified in allowing a hugely truncated review with minimal disclosure. As you might expect, we didn’t think much of that argument. We’re not sure how important it is to the ultimate decision, but we don’t think the Government’s material did anything to support their argument. We argued that their material supported the contrary position.
As far as our opinion of the process and the quality of the Supreme Court hearing, we can report that we were very satisfied with the hearing overall. The time in court was used very well. The judge was clearly well prepared and his questions (although few in number) indicated to us that he understands the arguments as fully as we could hope.
The people of British Columbia were well served both by the Court and the lawyers for the Government.
In general, we were pleased with our work. As always, however, we can identify things we would have done differently or covered differently. We imagine that the lawyers for the Government have similar reservations.
What will the Court rule? We have no prediction. One thing that was reaffirmed for us in the Sivia case is that predictions are somewhat useless because there are so many avenues open to the Court. Although there are legal tests, much of the decision-making requires balancing competing legal principles and interests.
Did the Government’s changes to the IRP law make it comply with the Charter of Rights? Stay tuned.