When the BC Supreme Court ruled on November 30, 2011 that the 90-day Immediate Roadside Prohibition scheme for Fail blows violates the Charter, many people contacted us looking for compensation for their loss. We asked everyone to sit tight because despite the ruling, we know the Government will do everything it can to avoid writing cheques.
In the weeks that followed we learned that the Government intended to ask the Court to suspend the declaration that the law was invalid. Our view was that an unlawful law remaining in place would not be applied because it opened up the police to liability. So we knew that they would not use it. Why then would the Government want to keep it on the books?
Our conclusion was that the Government intended to write some stop-gap legislation that would allow new hearings for people who blew Fail. This would mean that their offices, instead of the Courts, could decide who should have their IRP lifted (and consequently seek compensation).
If they manage to send everyone back for a new hearing, and then they uphold 70% of the prohibitions, this would be a big win for the Government because it would mean the amount they may have to pay is significantly reduced. As well, they will effectively break the one big group of people who were wronged by this law into smaller groups with different interests, making it easier to forestall any class-action lawsuit.
From our perspective, there is no way to offer a fair hearing to the people who received 90-day IRPs. The evidence will not be available. By virtue of the passage of time, it will be impossible in most cases to collect the type of evidence necessary to put up a proper defence. Simply put, it will be impossible to answer the allegation.
So what of the extension of the law? It is not being applied despite the Court allowing its existence for a few more months. What is the consequence of this?
For many people postponing the declaration that the law is invalid will merely aggravate their damages. If your interlock is due to come out in May there is no point in having a lawyer seek to have it removed earlier. But the damage is there. You may still be without a job because no one will hire you with that restriction on your license. You may have lost your home. You may not have been able to pay for piano lessons for your child, a family vacation or your flight back east for your aunt’s funeral.
If the world was fair, the Government would have started putting things right on December 1, 2011. But they wanted time. Not time to figure out how they can compensate you for your damages, but time to figure out how they can avoid compensating people.
What do we expect? We expect they will write some legislation to try to uphold the unlawful prohibition in any event. And they will introduce a law limiting any compensation to a refund of money paid to the Government.
We will challenge any legislation of this sort. But until these matters are concluded, please keep track of the damages that arose from your 90-day IRP. Make a list of your out-of-pocket expenses, money paid to the Government and any loss of opportunity caused by the prohibition and interlock requirement.