The Court heard submissions with respect to what should happen now that the 90-day Immediate Roadside Prohibition scheme has been found unconstitutional. The Justice indicated that he understood that there is a desire for a prompt decision. The issues are complex, however, so we do not expect a decision until early January at the soonest.
The Government argued that the Court should suspend the implementation of the ruling until June. The Government also argued that they should be exempt from having to reimburse anyone for the fines, towing, storage, etc. For simplicity, we have broken down the Government’s argument into three headings.
1. Moral Panic
2. Financial Panic
3. Keep Moving (nothing to see here)
With respect to the first heading, Moral Panic, the argument is essentially that the IRP scheme saved so many lives that if the Court allows it to fall, it will imperil us all.
The Government has worked very hard to set up this argument, releasing data strategically with very little background material; trying to get the public onside. We do not feel that the statics they quote tell anything about the story.
As we have stated before, the tool to detect and remove suspected impaired drivers from the road is the same one used for over a decade in B.C., the AlcoSensor IV DWF. If you came up to a roadblock in 1999 or 2009 and you blew a fail, that was it – you would not continue down the road, and in fact there was a high likelihood that you would find yourself charged with a criminal offence. You would face a 90-day prohibition followed by a 1-year prohibition if convicted in court. So, the method of detection and removing drivers from the road is identical.
What would be interesting to know is how many people in the old scheme drove drunk within 90 days of their arrest, and also how many in this situation caused an accident causing death. Compare that to the new scheme. The number in both scenarios is probably zero. Which is not so dramatic, so it is not one they will use to make their pitch.
The second statistic that we need to know to make any comparison is how many hours of police work have been put toward enforcing this legislation, as opposed to the previous years. Our guess is that more than double the hours had been put into roadblocks in the 14 month period in which 90-day IRPs were issued. Why do we say that? The police in BC did everything to buttress the statistics. They loved the regime. The first people to advocate for a police state are always the police. We witnessed roadblocks all over Vancouver that were simply absent in previous years. We received similar reports from all over BC. And police officers we spoke to told us there was a major push underway to hand out IRPs.
We also believe the more or less systematic refusal to respond, or to obstruct our Access to Information (FOI) requests by both the Government and certain police departments is indicative of their desire to not allow us to get to the bottom of certain issues, including statistics that would undermine the Moral Panic argument.
We accept that people have strongly held beliefs and we respect their right to hold these beliefs. As lawyers, we prefer facts and we find that the fullest evidence will reveal the most accurate record of the facts. We think this is missing from the Government spin.
One fact we do know is that police forces in BC purchased 2200 new ASDs when the new law came into effect. This in itself may have a major contribution to removing suspected impaired drivers from the road. If you consider that many more people received IRPs over the course of the year than ADPs in previous years, you can conclude that either more people were drinking and driving, or there was more enforcement. It is not likely that drinking and driving increased.
We also know that historically the collision and death rates drop wherever there are new drinking and driving laws introduced, and they tend to return to the norm a few years later. It is believed that this is because it is always a hot topic when new DUI laws are introduced, and as a consequence it is on everyone’s mind. So again, when this law was introduced we do not think that drinking and driving went up, despite the huge numbers of people who received IRPs. This points to only one answer: enforcement.
Government’s choose how much money to put into any given program in their budget. This last year, many police forces put a great deal of money into DUI enforcement. When budgets are squeezed in upcoming years, you can expect DUI enforcement to be cut. The Government could have had this level of enforcement in the pre-IRP scheme, but enforcement and justice cost money. So they cut out the latter.
Which brings us to the second point the Government made, i.e. Financial Panic. Essentially, the Government believes that it does not have a calculator big enough to count up the money they need to reimburse all of those people whose Charter Rights they violated, so they do not want to do it. This also could be called the Financial Incompetence Defence. You can see that we are more cynical about this than the Moral Panic argument. It seems that there are only three different categories and most people will fall into the category of having paid all of the money. So it is not difficult. The Government knew the legislation came perilously close to violating the Charter, and they decided to go that route in any event. We think they knew it would violate the Charter, but that they thought they could get away with it by being clever and sneaky. In any event, they screwed up and it is time to write cheques – pay back the money they should not have taken or made people pay.
So, the Government made a huge mistake, causing an actual Financial Panic for over 15,000 British Columbians, many of whom were innocent and all of whom were deprived of a meaningful way of addressing the allegations. But they do not want to pay back the money that they should not have taken.
The final argument, Keep Moving – nothing to see here, is that this can all be handled by the OSMV in their normal course of things. The people who facilitated the legislation, advocated for it and made it happen, should just take a look at the cases where the Charter Rights were extra violated, and then tidy up here and there. Essentially, don’t worry – it’s all fine. Besides, does the Court want to cause a Moral Panic?
Obviously, we are cynical. And we know this is not a joke. From our perspective, the Government came up with a really creepy scheme to address short-term budget constraints by removing justice from the equation. We feel that we need to shed light on this because an unjust justice system is a threat to the liberty of each individual. And had the Court not stepped in, years down the road we would all lament this trend. It is the proverbial slippery slope. The Premier indicated a few months ago that they liked it so much, they planned on implementing it in other spheres.
As lawyers, we found the legislation deeply offensive and contrary to all of our concepts of justice and fairness. We were on the front lines with our clients, witnessing a harbinger of things to come. Drunk drivers are pariahs of our age, and an easy target for those seeking to infringe on our liberty. We need to take a long view and set aside the moral panic, or we may become a society in which few of us would wish to live.
Keener Points:
It turns out a surprising number of people are reading this blog at the moment, and we’re getting a lot of great feedback. Thanks for that, by the way!
Further to the Moral Panic argument above, the Government is now forcing everyone who receives an ADP to go through the same “Administrative” punishment as did the people who received 90-day IRPs. So, aside from the towing, storage and fine, if you get an ADP today for alleged refusal to blow into an ASD or over .08 on the BAC Datamaster, you get a 90-day prohibition, interlock at the end and you must take the Responsible Driver Program. This is all happening under the “discretionary” power of the OSMV, which is not acting with discretion but making everyone do it. So is there a need for 90-day IRPs (aside from saving money)? No. We are just as safe.
If you are old enough, you will remember Preston Manning, leader of the Reform Party, which renamed itself the Canadian Alliance Party, which was not allied with anyone until Peter MacKay (the guy who uses Government helicopters for fishing trips) broke his promise to Progressive Conservatives and allowed that party to be subsumed into what is now the Conservative Party, sans progress.
Preston Manning and his party gained a lot of support with a Moral Panic argument. They argued that Young Offenders were lurking in our streets, hiding in the shadows waiting to attack elderly females in particular. Not enough people signed on, however, so they broadened the fear-mongering and now they are the Government. Proof, it seems, that the Moral Panic argument is effective.
The Members of Second City, having seen A Clockwork Orange, and ever prescient and attuned to social trends, recognized this particular Moral Panic early on.