Today the BC Court of Appeal released a decision in Sivia v. the Superintendent of Motor Vehicles. This was a challenge to the first version of the Immediate Roadside Prohibition law with respect to 90-day IRPs. Here’s what you need to know about the Court of Appeal’s decision:
The Court of Appeal confirmed the BC Supreme Court ruling that the law violates s. 8 of the Charter of Rights. It further confirmed that this violation is such that the law could not be redeemed and therefore the first version of the IRP scheme is unconstitutional and invalid.
The challenge to the law concerning whether the provincial government has the authority to legislate in the realm of drinking and driving was again dismissed.
In the end the Government’s appeal of the BC Supreme Court ruling was dismissed, as was the appeal by the drivers.
Does this matter to me?
If you were issued an IRP for blowing Fail between September 20, 2010 and November 30, 2011, then this case is important to you.
Many people from this period applied to Court to review the IRP tribunal decision of the Superintendent of Motor Vehicles. The challenge to the law was relied on to temporarily halt driving prohibitions for hundreds of people. As well, thousands of people have IRPs for Fail from this period on their driving record, despite the fact that the Court, both at the Supreme Court level and now at the Court of Appeal have found the law unconstitutional.
Back when the BC Supreme Court found the law unconstitutional, the next issue was what remedies should follow.
This has yet to be decided at the Court of Appeal. The BC Supreme Court gave no remedies to the heroes who challenged an unlawful law, or to anyone else whose s.8 Charter rights were violated by the BC Government with the first IRP scheme.
We explained our feelings on remedies for this Charter violation in a blog post on July 20, 2012.
What about the RDP and Interlock?
The good news is that, if you received an IRP for Fail before November 30, 2011, you are no longer facing having to complete the Responsible Driver Program or get an Interlock. You can thank us for that. It’s explained here on our blog. Our gift to you.
What about IRPs since June 15, 2012?
90-day Fail IRPs that were issued under the second iteration of the law, that is after June 15, 2012, are not affected in any way by this ruling. The BC Court of Appeal specifically refused to comment on the legality of that version of the IRP scheme.
The challenge to the second version of the IRP scheme is underway. We were waiting for this decision before the hearing takes place concerning the second version of the law. Our office is more involved in the challenge to the second version, so we’ll have a better opportunity to tell the Court what we think is wrong with the law.
The decision today was predictable and it is more or less what we expected. We’ve been of the view that the BC Court of Appeal would go no further in striking down a law that was already removed from the books. That’s not necessarily a reason why; read the decision for the Court’s reasoning. But it just makes sense.
It is for this reason that we think people who received IRPs should be looking for remedies relying on Richardson, Buhr, Murray and other recent court rulings. We think that now is the time to appeal your IRP review decision.
We’ve predicted the ultimate demise of the current version of the IRP law for reasons not related to grand court challenges.
We may be wrong. Predicting the future is hard.
As far as the decision on remedies for the unconstitutional version of the first IRP law, we are making no predictions. We’ve made our feelings known. At this point we’re crossing our fingers.
Final note:
We’ve said it before and we’ll say it again: Sivia opens up the possibility of the de facto decriminalization of Marihuana. This flows from the law of unintended consequences. What you need to know about the Court of Appeal’s decision is that it legitimizes this approach.
All we need is a courageous city council. In a city like Nelson.