It’s a bad system to be punishing people on the basis of roadside breath testers.
That’s the message that we’ve been trying to get out ever since the Immediate Roadside Prohibition / IRP scheme was introduced. Last week it hit the newspapers that a huge number of the IRPs that were revoked in December 2012 were in fact revoked due to unreliable breath samples. We can take the credit for this. Most of the review decisions simply say that “I am not satisfied that the ASD used in your case was reliable.” In many cases the lawyer or person who succeeded on review probably had no idea why it was not reliable. In fact, it was an issue we identified when we took a close look at the calibration documents used in Vancouver. Kyla ran a hearing on the issue and the Attorney General’s office eventually conceded the point. And consequently many people in Vancouver succeeded on their IRP review without knowing that it was owing to our persistence.
Starting today the BC Court of Appeal will hear several days of arguments concerning the first version of the IRP scheme. This IRP appeal is tremendously important, not just for people who received an IRP before November 30, 2011. This hearing will deal with whether the BC Government even has the constitutional power to make this law. If it doesn’t, then both versions of the IRP law will likely fall.
If they have the power to make such a law, the next step will be whether the law itself violates the Charter of Rights. If it does, the next step is whether it is justifiable in a free and democratic society.
It will be interesting to see how the IRP appeal is handled by the highest court of our province.
Our expectation is that many issues that we regularly discuss here will not be part of the argument in the IRP appeal. For example, we don’t expect that the problem of alcohol in the mouth contaminating roadside breath samples will form a major part of the IRP appeal. It should. But for various reasons, particularly with respect to how evidence is presented in these sorts of hearings, we don’t think the problems concerning unreliable breath samples will be a deciding issue.
If the IRP law passes the constitutional tests, and thereby remains on the books, the problem of unreliable samples will have to be addressed in appeals of OSMV IRP review decisions to BC Supreme Court. Because of the inherent unreliability of roadside tests, we predict that within a few years the law will die from being chipped away one decision at a time by our courts.
If you’d like to know more about the mouth-alcohol conundrum, you can find it explained in two interviews on the Simi Sara show on March 14, 2013. The podcast is here. The portion with Paul starts at about the 8 minute mark.
We’ll try to post updates about the IRP appeal hearing in the next few days. It could be an interesting week.