Speaking at a conference a few weeks ago we laid out 27 of the IRP defences that don’t work which should work if the system were fair. Of course, when it comes to Immediate Roadside Prohibitions, fairness has nothing to do with it. Many people are guilty, a significant number are innocent and the review procedure is faulty such that the innocent can’t be identified (see: Spencer). And of course, you’re punished long before you get a chance to make your case in the hearing, which, as we have said before, is a faulty review process (see: Spencer). Our editorial comment to our list of IRP defences that don’t work was that it was “a list so long that it makes you cry.”
As lawyers we lose sleep knowing that people are wrongly punished. We compiled the list and gave it to other lawyers because it was clear that many people are making the same unsuccessful arguments day after day. We see the same failed arguments regularly now because we have dozens of IRP decisions under appeal to BC Supreme Court that have come our way from lawyers and individuals who were unsuccessful at the OSMV tribunal.
An IRP isn’t a DIY or something to dabble in. It’s an adversarial process and the Government does not want the applicants to succeed. We’ve said this in blog posts before, but nevertheless people try to conduct their IRP review on their own, and when they lose they call us in the hope we can fix it.
It’s always better to succeed at the first step with the right argument. If it’s clear that the OSMV decision is a forgone conclusion, it’s important to carefully set up the argument for the appeal to BC Supreme Court. It’s a complex thing. It’s not for the faint of heart or amateurs. DIY Immediate Roadside Prohibition appeal decisions show to us that people keep trying the IRP defences that don’t work. It’s unfortunate because these are the cases that seem to be the least likely to succeed when the matter goes to BC Supreme Court. But that’s another issue.
Today we want to tell you about another of the IRP defences that doesn’t work: the defence of necessity.
Reported in the National Post recently was the story of a woman who drove her vehicle to escape someone whom she expected to attack her. This was in Saskatchewan where, thankfully, sanity is more common in government and therefore they have no IRP scheme. In her case she was acquitted when she advanced the defence of necessity. Simply put, she only had one reasonable option (reasonable is a little flexible when you’ve been drinking) and that was to drive in order to escape her assailant, despite the fact that she’d been drinking.
Of course, this is fair. The defence of necessity arises when you’re deep in the woods and the person with whom you’re out there is badly injured. And you need to drive, even though you’ve been drinking. Or you’re visiting a friend at their ski chalet. And suddenly it’s clear that if you don’t leave immediately, the sexual assault will get a lot worse. Because after a few glasses of wine that guy isn’t a friend but a sexual predator.
Unfortunately, these scenarios, which might very well allow for the defence of necessity to a DUI allegation in court, would never succeed in an IRP review hearing. Simply put, the Government isn’t interested in whether you drove to save a life, or your own life, or to avoid being a victim of a sexual assault. To them is doesn’t matter. These are all scenarios where necessity would typically excuse the DUI driving in court. And that makes sense, because it’s fair.
If you believe in fairness, you might feel like crying when you see the approach taken by the BC Government. The IRP defences that don’t work are all ones that should work if the scheme was fair.
And if that get’s you down, we might as well tell you that the scenarios we gave are based on cases that have come to us in the last few years. One woman drove her car to escape a sexual assault. Another fellow quite reasonably drove his car following a similar crisis in the woods.
We have seen a handful of clear necessity cases where people were issued IRPs and there was no remedy at the OSMV tribunal. It’s not fair in our view.
Actually, it’s reprehensible.