IRP – disproportional punishment

Attempting to explain the deficiencies of the Immediate Roadside Prohibition scheme is a daunting task unless you’re speaking to a person who has been through the IRP process. People who have had an IRP just get it. Defence lawyers, many of whom gave up in the face of the IRP scheme, know just what we’re taking about.

When you tell people about the many devastating malfunctions of roadside breathalyzers, they get a glazed look on their face. When you speak of the substandard (grossly substandard) review process, they assume that you’re just a whiner.

Once you get an IRP, however, it all becomes clear. We’ve talked to people all over British Columbia over the last few years about the IRP they received. Right after the IRP law was enacted, we represented a client in Fort St. John and then a client from Dawson Creek. Since then we’ve been the lawyers for hundreds of people from all around BC.

A common issue many people raise is the disproportionate punishment of a 90-day IRP if you live in a smaller community.

Proportionality and justice

As lawyers we espouse and believe in the concept of justice. Reduced to it’s simplest, it really comes down to the interplay of fairness and responsibility. In court, where there is precedent and legal rules to facilitate fairness and responsibility, most participants walk out with some sense that justice has been done. Life is not fair and the world is not fair, but the rules of court and principles of our legal system are reasonably good at approaching fairness and promoting responsibility.

The IRP process is very different from the court process. You can read our last 400 blog posts to glean where, in our view, fairness fits in the process (hint: it doesn’t factor largely in the IRP scheme) but suffice it to say that an in-house, closed-door process does not accord with our definition of justice.

In court, however, things are different. We may not always agree with the court, but one thing we see in the development of the law is that there is an ongoing quest for justice and fairness. Part of fairness, in particular when it comes to punishment, is that the punishment should fit the crime. When we speak of proportionality in the justice system, we’re usually engaged in a debate of whether the punishment is proportional to the wrong.

Mandatory minimum sentences

If you run into a judge in the line up at IGA, and you end up talking generally about sentences in criminal cases, chances are you will hear that the Federal Government’s mandatory minimum sentences, now included in the Criminal Code, set up disproportionately harsh punishment in many circumstances. Judges, for the most part, use good judgement in sentencing taking into account the offence, the circumstances, the offender and the goals of sentencing. In balancing these considerations, our courts try to ensure that the punishment is proportional in light of all of these considerations.

The ire of many of the judges arises from their view that the sentences are often disproportionate to the crime due to the mandatory minimum sentences now in the Criminal Code.

Real drunk drivers

We discussed the dis-proportionality problem of issuing 90-day IRPs to people who had three drinks while handing out the same punishment to drivers who had 16 drinks. The 3-drink IRP sufferers may not be a threat to anyone on the road. The drivers who are inebriated put the public in general at risk. In either case, the police issue the same 90-day Immediate Roadside Prohibition. The odds of success on review are about the same; we succeed in most IRP hearings because of technicalities.

Anyone who was in good shape but still got an IRP knows first hand that this isn’t fair.

Disproportionate punishment in smaller centers and rural BC

If you live in Vancouver and you get an IRP, chances are that you can walk to the bank, the IGA and the bus stop without breaking a sweat. Moreover, you can tune up your bike and tell everyone that you’re going green. Not so if you live in Cache Creek or Tete Jaune Cache. If you live 30 km from McBride, a 90-day driving prohibition is basically a prison sentence because there is no public transit, there is nothing within walking distance, you can’t ride your bike in 2 meters of snow (shout out to Blue River where 2 meters of snow is a dusting!) and if you try to walk, 2 to 1 chances you’re eaten by a bear.

That’s the existential threat. What about work? Sure, many people from West Vancouver who get nabbed on the Lion’s Gate Bridge can simply hire a driver for 90-days. No big deal. A 90-day IRP isn’t so bad if you’re a stock broker in downtown Vancouver or a dentist in Yaletown. If, however, you live in the real town of Yale BC (not some synthetic developed community in a big city) and you commute to Hope, then chances are a 90-day IRP means the end of your job.

The IRP scheme is just that much more unfair to people in rural BC

We can tell you hundreds of reasons why the IRP scheme is unfair. For us, proportionality is a significant concern, particularly when it comes to 90-day IRPs for people in rural BC and smaller communities.

If you balance the review process and punishment with respect to Warn IRPs, the results of the analysis will be quite different. With respect to 90-day IRPs, if you live in a rural community the IRP is disproportional punishment.

The IRP scheme comes down much too hard on people in rural BC. In our view it can’t be justified because the punishment is so often grossly disproportionate to the offence. In this sense, 90-day IRPs are discriminatory to people in rural British Columbia.

Will this issue every be corrected by our courts? Don’t count on it. The BC Government has been very clever. Few IRP review decisions ever get before a judge and the issue of disproportional punishment for rural British Columbians will probably never be corrected.

The best result in an IRP case

The best result is that you challenge your Immediate Roadside Prohibition and succeed on review. To date we do this in more IRP cases than any other law firm in BC. If you have an IRP, call us and we’ll try to help you. If you know someone who was nabbed, give them our number.