IRP legal test with no remedy

Imagine for a second that a government started with a blank sheet of paper and wanted to design a law to deal with the difficult problem of impaired driving. They could start by writing a law that goes something like this:

1.) Everyone who is impaired by alcohol in their ability to drive and drives a motor vehicle on a road or highway commits an offence of IWD – Impaired While Driving.

That seems straightforward enough. It addresses the concerns, sets out the legal test and creates the offence. If you were writing the law, the next thing you might do is say that anyone who commits IWD receives such and such punishment. Again, it’s not rocket science or brain surgery.  Innocent people can be acquitted if the facts don’t meet the legal test. Guilty people can be convicted. It’s pretty straightforward.

But what if you are not really interested in separating the innocent from the guilty? What if you start from the assumption that everyone is guilty? You might want to include the following:

REASONS A PERSON MAY BE NOT GUILTY OF IWD
2.) The court may only find a person not guilty of IWD if:

(a) the court finds that the subject vehicle was not a motor vehicle; or

(b) the court finds that the location was not on a road or highway.

In this scenario the only way a person can be acquitted is if the vehicle was not a motor vehicle or the location was not on a highway. But what if you were not driving? Tough luck. What if you were not impaired? Sorry; that’s not a defence. What if there was no alcohol in your body? Still, you’re out of luck because the defences don’t allow you to succeed on that ground.

The test is in the offence, but you can’t succeed because the defences are limited by the restrictions. The delineated grounds to acquit are limited. They omit defences that naturally arise from the description of the offence. Although a legal test is set out, the limitation on what the court may do essentially eliminates the essence of the test.

Which brings us to the IRP legal test.

Wilson and the IRP legal test

Of course, the Wilson decision of the BC Court of Appeal is now off to the Supreme Court of Canada. The issue in Wilson at the Supreme Court of Canada can be reduced in the same manner as the hypothetical above. In the BC Motor Vehicle Act it states:

215.41(3.1) If, at any time or place on a highway or industrial road,

(a) a peace officer makes a demand to a driver under the Criminal Code to provide a sample of breath for analysis by means of an approved screening device and the approved screening device registers a warn or a fail, and

(b) the peace officer has reasonable grounds to believe, as a result of the analysis, that the driver’s ability to drive is affected by alcohol,

the peace officer, or another peace officer, must…

That’s the IRP legal test. You will note the location of “and” in addition to the words “the peace officer has reasonable grounds to believe.” It would seem to suggest that absent the peace officer having reasonable grounds to believe, if would be an unlawful prohibition.

In other words, if that’s part of the legal test, the officer needs to state that they have an opinion and that it’s reasonable. What that means is that the opinion is based on one or more non-speculative reasons. If the officer was giving evidence it would go something like this:

On the basis of the ASD Fail result, the odour of liquor on the breath of the subject, and the observations I made of the driver fumbling to produce their driver’s license, I was of the opinion that the driver’s ability to drive was affected by alcohol.

Something along that line would probably meet that part of the legal test. The officer has given an opinion and it’s based on real reasons. They have expressed reasonable grounds that the driver is affected by alcohol.

We congratulate you, Dear Readers, for recognizing that this isn’t a difficult IRP legal test. It wasn’t intended to be. Nevertheless, it serves a valid purpose. When it comes to IRPs, despite government assurances to the contrary, the police are taken to have no discretion concerning whether to issue an IRP. We have had police officers tell us that there have been cases where they knew “something was wrong” and they didn’t conclude it was appropriate to issue and IRP, but had no choice. Some have suggested to drivers to call a lawyer in the hopes that there would be some way to overcome the lack of discretion through an appeal to RoadSafetyBC.

If you are interested in separating the innocent from the guilty, this small IRP legal test is important. It gives the first decision maker, i.e. the peace officer, the opportunity not to issue an IRP and to go another route such as issuing a 24-hour prohibition or conducting a Criminal Code investigation.

Limiting defences – undoing the IRP legal test

Like our scenario above, the IRP law has delineated grounds upon which an IRP may be revoked. The Motor Vehicle Act say this:

215.5 (1) If, after considering an application for review under section 215.48, the superintendent is satisfied that the person was a driver within the meaning of section 215.41 (1) and that,

(b) in respect of a 90-day driving prohibition resulting from a sample of breath for analysis by means of an approved screening device and the approved screening device registering a fail,

(i) the person was advised of his or her right to forthwith request and be provided with a second analysis under section 215.42 (1),

(ii) the second analysis, if the person requested a second analysis, was provided by the peace officer and was performed with a different approved screening device than was used in the first analysis and the notice of driving prohibition was served on the person on the basis of the lower analysis result,

(iii) the approved screening device registered a fail and registered the fail as a result of the concentration of alcohol in the person’s blood being not less than 80 milligrams of alcohol in 100 millilitres of blood, and

(iv) the result of the analysis on the basis of which the notice of driving prohibition was served was reliable, or

(c) in respect of a 90-day driving prohibition resulting from a failure or refusal, without reasonable excuse, to comply with a demand described in section 215.41 (4), the person so failed or refused,

the superintendent must confirm the driving prohibition…

Now you’re thinking, what about that whole “affected” thing? How come that isn’t a consideration in the possible defences to an IRP? If it’s part of the IRP legal test, shouldn’t there be a remedy if the facts don’t comply with the legal test?

You now understand the essence of the first Wilson decision. The BC Supreme Court judge in Wilson said that if there is a test and the evidence doesn’t support the conclusions under the test then there should be a remedy. The Court of Appeal disagreed and seemed to conclude that the RoadSafetyBC tribunal is limited to the above-noted considerations (despite Murray) so the officer’s opinion is irrelevant and therefore it’s not a legal test.

Which brings us to the topic of the photo we selected for this blog post. What would you think of a smoke detector that had a non-functional test button? What if the manufacturer said that their device included a test button but in fact it tested nothing and was only for show? How confident would you be in that smoke detector?

There’s more to the Wilson appeal to the Supreme Court of Canada, but this blog post is intended as an executive summary of the issue. Is it an IRP legal test with no remedy? Right now that’s the case. We think the government shouldn’t be able to restrict remedies in such a way that increases the likelihood of innocent people being punished. Indeed, why include the IRP legal test if you’re going to disregard it or, in effect, write it out of the legislation?

And so this particular IRP legal test will be at issue before the Supreme Court of Canada.