When the decision on the application of Sivia came out on December 23rd, we knew that it would complicate matters. Courts try to call it like they see it, based on the law and the facts presented. The lawyers for the Government carefully explained the position of their client (the Government) i.e. that lifting the IRP scheme for a few months would pose a public threat.
We have previously explained why we disagreed with this interpretation, but it does not matter so much anymore because the Court agreed with that argument and allowed the continuance of the legislation. But there was/is a caveat: the Court did not rule out remedies, nor did it award a remedy.
On the one hand, this helps avoid a moral hazard. Had the 90-day Fail scheme been struck, it would have created a reason to refuse, at least to those who were really drunk. Few people would have been aware of this. Nevertheless, in certain circumstances it would have been better to refuse a sample. Also, on the face of it the scenario of: sample 1 = WARN; sample 2 = FAIL seems less ambiguous.
However, on the other hand, bearing in mind that remedies are still available, who would wish to issue a 90-day IRP for FAIL when it creates a real likelihood of a future civil claim?
Jane Seyd reported that in North and West Vancouver the police are employing the laws that were in place prior to September 20, 2010. We have also noticed that this is what is happening on the street. It seems likely that someone with the power to make the decisions has noticed that breaching Charter rights is a bad idea, and worse it may put you in a position to pay for damages later on.
So, the public risk argument has been trumped by the possibility that the Government might need to pay for violating Charter rights. Which is why we believed that the ruling would complicate things.
So, where do we stand? It depends on where you are in the scheme.
If you got an IRP for Fail and you disputed it, you are still in a good position to obtain a remedy. You should consider filing a Petition to appeal the adjudicator’s decision.
If you have yet to Petition to Court to appeal the adjudicator’s decision, you should think about doing that before there is any further declaration from Court. We are concerned that people can be categorized in certain classes and the people with the strongest position will be those who disputed their 90-day Fail IRP through each step. Call us if you want us to file your Petition.
If you got a 90-day IRP for blowing Fail and did not dispute your matter by filing for a review with ICBC Driver Services, it may be appropriate to seek an extension of time to file for a review. We say “may be” because we cannot predict the future and if the Court rules that you live and die under the law, despite the Charter violation, you will have wanted to register your opposition to having received the IRP in whatever manner you can. This is like insurance. We hope that you will not need to rely on it and it may not provide you with full coverage. If you want us to do this for you, call us.
If you already retained us to file the dispute (a Petition) of your 90-day IRP for blowing FAIL, then you are in good shape. Do not lose too much sleep. The law is on your side.
With respect to people alleged to have refused to blow, the Court did not find this a violation of the Charter. If the punishment has been suspended by virtue of having filed a Petition, then you are in a perilous position. If the decision is not successfully appealed, then you can expect to serve any punishment that has been suspended. If you did not review your matter before the Office of the Superintendent, then you are in a particularly poor position.
For most of the alleged refusals in which we act, if we need to argue the merits of the OSMV decision, we can do so on the basis of similarity to the seminal Spencer decision. We will address this in the near future on a case by case basis.
There were relatively few refusal IRPs issued. The police have the option today to go IRP for refusal or ADP, which carries almost the identical consequences with a slightly more palatable review.
If you had a refusal IRP case, all is not lost. As we alluded in previous posts, it seems inevitable that Sivia will be appealed. We may require assistance financing the appeal, so let us know if you wish to contribute to the cost of litigating this further.