Often reporters looking at ASD maintenance records in our office will ask if anyone is actually guilty. It is the kind of thing you might think for a minute when you are shocked by the problems with the devices, or you see one of the cases like Margaret MacDonald’s.
Of course many people are guilty. If you examine historic records of how many people blew under when taken to the detachment, perhaps 20% of people who blew Fail are innocent. When it comes to ASD refusals, we think it is more like 80%. And some Immediate Roadside Prohibitions are lifted on review. The problem is, in our experience the ones that are lifted are not the ones where people are necessarily innocent. And the people who are innocent cannot expect to have their IRP lifted on review.
There are a number of reasons for this including the fact that the IRP scheme is a guilty-until proven-innocent model. Because you are serving the punishment already, you have been assumed to be guilty. Then there is no substantive disclosure of evidence, no opportunity for further investigation and no chance to challenge the evidence of the accuser. You have up to 30 minutes to make your case over the phone. If you order a pizza, it may not arrive before the hearing is over. And for insight into the process, read Spencer.
Many innocent people received IRPs and like Margaret MacDonald suffer to this day. We calculate from some Freedom of Information disclosure that in the final months before the first Sivia decision, about 2.5% of 90-day Fail IRPs were lifted on review. How many of these people were innocent? Perhaps half. How many innocent people ended up stuck with an IRP that they should never have received? Perhaps 20-25% based on some of the historic records of later Datamaster tests (not including refusals which, as we said, we think is a much higher number).
The Cranbrook RCMP came out Thursday to give their side of the story. It was smear in our opinion — they suggested that she must have eliminated the alcohol from having been in the Warn range – something for which they offer no evidence to support. Who do you believe? Cranbrook RCMP or Margaret MacDonald with her blood test? Given your choice, is it right to give the police this much power?
There are many excellent police officers in this province, but you cannot expect them to be objective about their behaviour or the evidence that they think they have observed. Which is why historically we have relied on Courts.