Some recent developments on the Immediate Roadside Prohibition (IRP) front. If you have been following closely, you may know that Sivia, for whom the leading case is named, was in fact an ASD refusal allegation. So although this person is commonly referred to as having been successful in the Court challenge, in fact they were not because the decision only found “Fail” scenarios to be a violation of the Charter. We were aware that Sivia did not have much of an argument on the merits of the case, so it was just a matter of time until this petition was upheld by the Court. You can read the decision upholding the prohibition here.
Of course, the entire matter is going to the Court of Appeal, and perhaps the Supreme Court of Canada. And the Government will have been replaced by then, so there are many twists and turns to the story. From a tactical standpoint, it may have been wise to use one of the more egregious refusal cases to appeal rather than Sivia, but it was one of the first review decisions rendered, so it made it to Court first.
Also, last week submissions were made on possible losses and compensation, i.e. damages, that should flow from the unconstitutional “Fail” scheme. This may impact the remedy of any potential class action lawsuit. As we predicted, the Government took the position that, despite the unconstitutional scheme, nobody should get a remedy because it had not been found unconstitutional until November 30, 2011.
This is a patently ridiculous argument. But as we have observed, they intend to fight this all the way. For the BCLiberals, this is a life and death struggle.
At the very minimum, anyone who filed a Petition challenging the law is entitled to a remedy. And seeing as we can still file Petitions today for Fail IRPs from last year, there is nothing to differentiate the classes of people entitled to a remedy. However, it is all up to the Court.
We do not expect a ruling right away, and from our perspective all of this is premature bearing in mind that the Government has yet to introduce any legislation to address the first ruling in Sivia.
Today we will find out if the voters in Alberta replace their government. The Alberta version of the IRP scheme is on the table there, and for many people it is a referendum on whether there should be harsh punishment for over .05 as we have in BC. The Progressive Conservatives, facing extinction, did not enact the law, preferring to wait for a mandate. There is a good chance that they will get a boot out the door, rather than a mandate.