At this moment in time we are counsel on perhaps hundreds of petitions or appeals of IRP decisions in BC Supreme Court. We’ve actually lost count of the number of IRP decisions we’ve appealed, but the files fill a few filing cabinets. At the same time we’re working with other law firms on the proposed class-action suit, an application for leave to appeal to the Supreme Court of Canada and law suits in specific cases where we can demonstrate without a doubt that the police acted far outside of their lawful authority in connection to an Immediate Roadside Prohibition. We have actions started in relation to the so-called remedial programs, i.e. the Responsible Driver Program and Interlock, and we’re just now looking at the next steps in that legal battle. But at this point, in many of these cases we’re in a holding pattern. We’re not taking any steps, for example, with respect to many of the petitions or the proposed class-action. Many of our clients like it this way and know what we’re doing. Others watching on the sidelines wonder: what are we waiting for with these IRP appeals?
The short answer is that, although we’re pressing ahead on a handful of files, in most cases we’re waiting on the Court of Appeal.
The first version of the IRP scheme came into effect in September 2010. It was challenged in the spring of 2011 and on November 30, 2011 the BC Supreme Court said that the law was unconstitutional.
The case is known as Sivia v. the Superintendent of Motor Vehicles. We worked on a portion of the written argument in that case, which was based on the points in our first blog posts. We were happy to see that the reasoning of our blog posts was similar to the portions of the decision that found the law unconstitutional, although we framed it as a different Charter violation. We agree with parts of the BC Supreme Court’s decision, disagree with other parts and we figured that no matter what, it would be appealed to the BC Court of Appeal.
Sivia was appealed to the BC Court of Appeal, although Mr. Sivia dropped out because he was apparently put off by the notoriety. We think of him as a hero, but that’s another issue. Now most people don’t seem to know what the citation name will be for the case going forward and we’re reluctant to discourage heroes, so we’re not using the names of the other litigants.
The case was argued in the Court of Appeal in the spring of 2013. We watched it for a while. It wasn’t encouraging. We worry that some of the issues that we fee strongly about were not brought up much in the discussion. We know, however, that the Judges who hear the arguments in court, then go back and ponder on them, re-read the written arguments and the authorities and come to their own conclusions. So we’re not making any predictions.
We did, however, predict that the Court of Appeal would render its decision in September 2013. We were wrong. Then we said that the decision would probably come in November 2013. Wrong again.
Now many are predicting that the decision will come any day. That’s an easy prediction because there’s no certainty in it. But we agree, for a number of reasons, that any outside deadline that the Court of Appeal has set for itself must be approaching.
What will it mean? It could spell the end of IRPs, or it could open new arguments, or it could simply endorse the status quo. What that means for people with old IRPs is impossible to predict. And then there’s always the Supreme Court of Canada.
So what are we waiting for? We’re waiting for the Court of Appeal. Why are we not just going ahead in each case nevertheless? Because in each case we can see a downside for our clients if their appeal is heard before the Court of Appeal decision. Firstly, running hearings costs money and we try to protect our clients from unnecessary expenses. Secondly, if the Court of Appeal turfs the very essence of the IRP scheme, it could end it for every case without the risk of losing the individual appeal hearing.
Why we run some IRP appeals and not others:
Why have we run some IRP appeals and not others? If there is a significant public interest issue at stake, we’re pushing for hearings despite the fact that the Court of Appeal hasn’t ruled. For example, Kyla scheduled hearings to deal with the Remedial Programs from the first version of the IRP scheme. That caused the Government to back down and cancel the Remedial Programs for thousands of people. Kyla ran the Buhr case because we knew that it affected thousands more. We have been trying to get a hearing on with respect to the Wilson issue, and we hope to do it this week.
So what are we waiting for with these IRP appeals? We’re waiting for it to be in our clients’ strategic best interests before we conduct the hearings in any given IRP related case which is now before the Court. We expect that the Court of Appeal will answer many of the questions we have about the state of the law.
Which means we continue to wait for the Court of Appeal.