It is the 30th anniversary of the Charter of Rights and Freedoms and as far as we are concerned there should be a national holiday. The Charter of Rights and Freedoms governs all sorts of relationships we have with governments and police. It informs our sense of fairness and the very idea of what we understand Canada to be. We all get a day off for Victoria Day, to celebrate something to do with a British monarch who has been dead for over 100 years and who facilitated the subjugation of peoples around the world by way of nationalistic ethnocentric militarism. But enough about her. What about that holiday?
Well, there is no point in planning the party just yet because the rights we enjoy are being chiseled away by our governments wherever possible. As criminal and driving lawyers we see this on a day to day basis. A pattern can be identified. In the first decade governments reacted to the Charter, litigating each issue and then responding when the Courts struck down legislation. In the start of the second decade, governments actively tried to write legislation in the spirit of the Charter. For the last 15 years, you can identify a trend where governments attempt to write legislation that circumvents the Charter. The process accelerated in the last 5-6 years. The Immediate Roadside Prohibition (IRP) scheme is a prime example of this.
The Office of the Superintendent of Motor Vehicles long ago adopted the policy that if your Charter Rights were violated by the police, they did not care so long as there was a breath sample to consider. So, if a police officer sexually assaulted you, they would not care in the slightest unless you refused to blow. They never provided a Charter remedy and steadfastly held that the Charter did not apply to their hearings.
With respect to Administrative Driving Prohibition (ADP) hearings, they received some support from the Court. But there was an understanding that when you were served an ADP you would have your date in Court on the associated criminal charges at some point in the near future. So, although we may not agree with it, there was some sort of logic there. The administrative tribunal, the OSMV, would always overlook the Charter violations. The venue where you could speak to the Charter violations was Court to answer your charges.
This provided some consolation for people who suffered a Charter violation. Although your provincial Solicitor General did not care, at the very least the officer(s) involved would need to answer questions about it in Court. And the Courts in British Columbia have been reasonably courageous in applying the Charter.
However, if the Court found your rights had been violated, you were still stuck with the ADP because the OSMV would never provide a Charter remedy when a breath or blood sample had been obtained. So the BC Government succeeded in implementing legislation that circumvents the Charter.
Emboldened by their success in getting around the Charter with the ADP scheme, the Government came up with the IRP scheme. Just like the ADP scheme, the OSMV took the position that the Charter did not apply so long as you provided a sample to an ASD. They relied on the ADP jurisprudence to justify this position, and never gave a Charter remedy to anyone who blew a Warn or a Fail and received an IRP.
With an IRP for Warn or Fail there is no remedy if your Rights have been violated.
What is the impact on the justice system in our province? Well, with an IRP the police did not submit the matters for charge approval. Consequently, you would never have your day in Court. And so the police, knowing they would never need to answer for their behaviour, started to disregard the Charter and all of the rules for gathering evidence.
Consequently, what the IRP scheme means to the police is that the Charter is out the window in impaired driving investigations that culminate in an IRP. This is also why the police like it so much.
Obviously this was not the intent of the Founding Fathers who brought our Grand Charter of Rights down from the mountain, entrusting it to the people to protect justice and fairness. But there you have it.
The IRP scheme is a straightforward example of how a government can get around providing the legal protections that should be afforded by the highest law in the land.