We’re pretty good at predicting the outcome of a case, particularly drunk driving cases, but it’s not always a rewarding skill. When we defend IRPs, we get the disclosure first to determine what the defences are before we advise our clients. Usually we can then tell our clients the probable outcome.
Occasionally we are contacted by potential clients who first met with another lawyer who looked at the disclosure and told them they would lose. Then we take the case and succeed with an argument nobody had even thought of yet.
Nevertheless, predicting the outcome of a case has its downsides. Take, for example, the challenges to the IRP scheme.
From our perspective it’s morally reprehensible to punish people on the basis of a roadside breath tester. If you spend five minutes on our blog, you’ll see our position is clear. We think it’s contrary to principles of natural justice and a significant degradation of our legal rights to punish people before having a hearing. We think a person should be entitled to confront their accuser face to face in court by way of cross examination to challenge the allegation and the evidence. We think that the police shouldn’t be in the position of deciding facts upon which they themselves dish out punishment. We think that administrative hearing procedures using Government offices for adjudication shouldn’t be used to decide issues when the Government is a party with an interest in the proceedings. We think closed-door proceedings without full disclosure offends our historic legal rights. We think that the issue of drunk driving has been used as a wedge when it comes to IRPs to undermine the very rights that created our free and democratic society. And so we think that the IRP scheme marks a low point, but also a significant slide down the slippery slope toward a more unjust society.
The first views of the IRP scheme
When the legislation introducing the IRP scheme was introduced in the early months of 2010, there was lots of media coverage but little informed debate. It was crafted by the police, some people who worked at RoadsafetyBC and others in what is now called the Ministry of Justice (note the Orwellian irony). Most of the discussion in the media followed the Government’s press releases parroting the “harshest punishment” narrative and reporting on the purported drop in permissible blood-alcohol content.
We read the law really closely. What we saw scared us. From what we could see the Government, ostensibly for the purpose of public safety, was taking away long-established legal rights. These particular legal rights developed over centuries to ensure that innocent people were not punished. They developed to respect the dignity of the individual in a legal process that has historically been faulted for being torturous and dehumanizing.
As far as we’re concerned the IRP law is bad law for the reasons we’ve explained over and over on our blog. In a big picture sense, to us it was another milestone in the undermining of essential human rights.
Disillusionment for those who believe in Fairness
Seeing the big picture can be disillusioning and depressing. If you had the illusion that the Government is interested in fairness, then you’re sadly mistaken. Maintaining power is the number one goal of anyone in power. Machiavelli accurately described this 500 years ago. Even when confronted with horrible problems, the Government turns to spin mode to protect their political turf.
Fairness has nothing to do with it. It may be depressing. We’re sorry to burst anyone’s bubble. Don’t expect fairness in life unless you wish to be regularly disappointed.
Fair or not, is it legal?
Our original read of the IRP law was that it was crafty, bad and designed to facilitate all sorts of dirty police behaviour. We were also of the view that it was designed to mask unfair government practices by surreptitious means. It was sneaky and wrong but the people who crafted it were clever enough to obscure the worst of it.
The designers of the IRP law knew it would be subject to legal challenges. They designed the IRP law to conceal certain aspects so they could blow it past the courts.
As we indicated, we had such a broad understanding of what they were trying to do that we could see the big picture. In the early days some people who were involved in creating the IRP scheme privately confided in us that that’s what they were doing, but they felt that the ends justified the means.
Horrified at this, we picked through the legislation trying to identify an angle to attack it. How could we frame a court challenge? What first-principle law would the IRP scheme violate that would allow for a successful court challenge? Would court procedure stand in the way of any successful challenge? Was there a way to expose what was happening in individual IRP cases to the court to show the pattern?
We determined that the Government had likely pulled this off. Our review of the law was that it was so carefully written that they had managed to stick handle around the conventional and accepted grounds for legal challenge. Some things were renamed. For example, instead of calling the fine a fine, they called it a “Monetary Penalty.” Some things were massaged into a new category. Instead of using roadside screeners to screen drivers, they would be used for “administrative purposes.” Some things would be used for purposes completely opposite of their original intention. For example, the suspension of the Right to Counsel pursuant to section 10(b) of the Charter would be maintained although the original purpose of suspending that right arose because the readings would not be used as evidence founding punishment.
From what we could see, through clever legal drafting the Government had stick-handled their way past the courts. Our read of the law caused us to conclude that the laws as they have developed in BC would not protect us from the IRP scheme.
But surely this is unconstitutional!
The Charter of Rights is considered to be a flexible document designed to address changing legal values and perspectives. It is subject to interpretation by the courts. When the courts render decisions, the expectation is that they will be respected by courts at later stages in the development of the interpretation of the law.
The way the law has developed, and from the court decisions interpreting Charter Rights particularly in BC, we were of the view that the court would not declare the IRP law unconstitutional. In a short interview with the then hosts of the afternoon show on Rock 101 in Vancouver, I explained why I thought the Government would get away with this. One of the hosts said “surely this is unconstitutional!” My first urge as a lawyer was to defend the legal process and explain why in my view it should be unconstitutional. My tendency, however, with respect to predicting the outcome of a case, held me back. As I explained to the radio audience, the truth is I thought the Government would successfully pull a fast one. They distracted everyone with the “new” lower BAC level and wrote a law to skirt around the established Charter jurisprudence.
That was one occasion where I was not pleased about successfully predicting the outcome of a case.
Were we surprised? Absolutely
In the end our contribution to the Sivia court challenge was that Kyla wrote most of the written argument on the issue of the 10(b) Charter violation. The argument was based on the notes I made for the first few blog posts that we wrote about the IRP scheme and the discussions Kyla and I had in our office in those months. We emailed it to the lawyers who conducted the hearing and it became part of their written submissions.
From what we saw, our 10(b) argument was never a primary focus of the hearing. The meat of the Sivia challenge was the argument that the provincial government had no authority to write legislation that infringed on the Federal Government’s area of legislative competence.
That would have been a great argument with which to win. It would have eliminated 90-day IRPs. But bearing in mind the interpretations of the law by BC courts, in our office we were not optimistic.
None of the lawyers challenging the law put any emphasis into the argument that the law violated section 8 of the Charter. Section 8 prohibits unreasonable search and seizure of evidence. Is an IRP unreasonable? Well, if it’s based on a Criminal-Code search that has been found to be reasonable, and in fact the search is based on a reason, how can it be unreasonable? What about the seizure? Is it unreasonable? Well, the seizure is into a roadside breath tester which is not a particularly intrusive way of seizing something you’re blowing out of your mouth in any event, i.e. your breath.
We think the police process is unreasonable, the review process is unreasonable and the law itself is unreasonable because it is an affront to our historic concepts of justice in a justice system. But we couldn’t conclude that it was an unreasonable search contrary to section 8 of the Charter. So we were greatly surprised when the Court made that finding in the first Sivia decision.
It still doesn’t make sense to us. Much of the analysis in the decision reflected the points Kyla made in our argument concerning the 10(b) issues. This was cold consolation, however.
Sivia is the law and reflects the law
Predicting the outcome of a case is hardly a heroic outcome in this particular circumstance. Although we succeed in many IRP hearings, our overall feelings about the IRP law haven’t changed. We’ve become hardened by the things we’ve seen. We remain deeply unhappy about the state of the law.
The Bro case was limited to an analysis of the Government’s changes to the IRP law. We felt hampered by the legal rules that keep us from making arguments on many aspects of the law. We played with the cards we had. Ultimately we merely confirmed our earliest predictions about the IRP law. It was an example of us successfully predicting the outcome of a case, albeit the outcome after Sivia and some ultimately insignificant legislative changes.
Our law in BC
As it stands, the police can make you blow into a roadside breathalyzer because they don’t like you. If they question the clothes you wear, they can make you blow into an ASD (we’ve seen it). The police can punch you in the head. They can lie. It’s all given the rubber stamp of Government approval because the Government steadfastly holds that the Charter of Rights does not apply to Fail IRPs. You cannot cross examine the police officer. The police can use unreliable or uncalibrated roadside breathalyzers, so long as they successfully lie about it. That is our law in BC at this moment.
We have been predicting step by step
Although we weren’t counsel for Bro, we made submissions to court on certain aspects of the IRP scheme during the course of the hearing. The judge asked us whether some of these uglier parts of the scheme could be dealt with though the development of the law. In other words, by challenging RoadsSafetyBC (formerly the OSMV) decisions in court, could we not fix some of the more repugnant aspects of the IRP scheme.
Among ourselves we predicted the outcome of the case after that discussion. We felt that the nature of the hearing would not permit us to elucidate the big picture. Without knowing beginning to end how these matters progress from investigation, to hearing to review decision in light of a broad spectrum of fact scenarios, the court would never be provided with the big picture. This arises mainly from limits on the evidence that can be put before the court and earlier decisions of the court.
Our other prediction:
There may come a day when a grand court challenge eliminates the IRP scheme, but we’ve been reluctant to place our bets there. Our earlier predictions concerning how the law will be chiseled away to irrelevance are still looking promising.
Our relentless digging is pulling up more and more problems. Court decisions are turning the screws on the system. As a result of this (and without any credit to the Government) the IRP system and scheme is now limping along. We still think it will be chiseled away to such an extent that it will be unrecognizable in a few years time.
Cold consolation if you received a 90-day IRP and you were innocent. We’re sorry about that. We can tell you that we are embarrassed as lawyers that this is the state of our legal system. Many lawyers we know are so embarrassed by the IRP scheme that they refuse to discuss it. We understand that. We’re passionate about justice too.
We are relentless:
They’ve tried to stop us. We’re still going. We’re gonna keep digging and doing what we’re doing, because even if we can’t defeat the system in one grand law-busting court challenge, we can help as many people as possible in their own struggle with the IRP law. So far we succeed in more IRP cases than anybody else and the more we do, the better we get.
Life isn’t fair. The system isn’t fair. We’re trying to reverse a trend toward unfairness. Our goal is to do the best job possible for our clients while doing everything appropriate and ethical to challenge this particular legal scheme and this trend in the law. We appreciate your ongoing support.