If you missed the article in the Vancouver Sun on Wednesday, click here to read it.
The article describes the ordeal of Margaret MacDonald, who received a 90-day IRP for alleged refusal following the brutal treatment one can generally expect from BC police when they conclude you are not trying to blow. We have explained the problems here and here, but Margaret MacDonald’s case is somewhat different in that she refused to be shamed into silence. Simply put, she was willing to speak to the media.
After being brutalized by the police, she took a taxi to a hospital and the staff were sympathetic enough to take a blood test. Normally they refuse to do this, but in her case they helped her out and it turns out there was no alcohol in her blood. There is no way that she could have eliminated any significant amount of alcohol to take her to zero in the time, so it seems highly likely that her assertion of not drinking is accurate. Simply put, the test confirms her stated drinking pattern.
Like most people, she tried to blow and the police simply called her a liar. But she was honest, explained what happened at the review hearing, provided her evidence to the OSMV. And it was upheld on review. (Of course).
Why was it upheld on review? If you have conducted a review, then you know. Margaret MacDonald’s case is not exceptional by any means, aside from the fact that someone actually agreed to take blood from her and more importantly, she was willing to go public with what happened.
As most of the people reading this know, the IRP scheme facilitates this brutal treatment from your first contact with the police, to receiving the OSMV decision, to dealing with the interlock and RDP. You may be innocent, but you have only 30 minutes over the phone to establish what happened with grossly inadequate disclosure, rules limiting your argument, pre-decided findings of fact in the form of an ever-changing Superintendents Report on ASDs, no application of precedent , etc. Then you can wait for the decision rejecting your evidence. All the while you are already being punished.
Does anyone consider this fair? Apparently the Government does…
No wait? Because Margaret MacDonald is a senior and her case was in the newspaper, the Solicitor General/Attorney General is going to order a review of the decision.
Would Margaret MacDonald be less credible if she was 21? What about if the hospital staff refused to take a blood sample?
There have been thousands of cases like Margaret MacDonald’s under the IRP scheme (noteworthy: a decision under the ADP scheme would have the same result in our experience) but the Government prefers to ignore this unless the person is a senior and on the front page of the paper.
Margaret MacDonald is a courageous person speaking up against an ugly system. And she has the life experience to know when something is wrong and that it is her duty to speak up. We are not criticizing people who were shamed into silence — this was part of the Government’s scheme after all, but we applaud Margaret MacDonald for her heroism.
More on the Government’s method to make people too ashamed to speak up in another post. Today our main purpose is to thank Margaret MacDonald.
What was the final outcome of this battle?
Ms. McDonald was not our client. We understand that her matter was abandoned because she could not afford to appeal the case, which was very unfortunate.
The “Refusal” provisions of the law were found not to violate the Charter of Rights and were upheld. The defences have expanded significantly, however. Kyla Lee has appealed some refusal cases to BC Supreme Court and the BC Court of Appeal with some significant success.
We’ve developed some very strong arguments and collected particularly useful material to deal with refusal cases. Innocent people still find themselves in Ms. McDonald’s position, however, and we are particularly concerned that the changes that came into law on December 18, 2018, will increase the number of people facing unwarranted refusal allegations.