We are often asked what happens when the police don’t read you your rights during an Immediate Roadside Prohibition investigation. It is really a question of whether there is a remedy. We know it is not uncommon for the police not to read a person their rights during an Immediate Roadside Prohibition investigation. A couple of issues arise in these cases.
A little background is required.
What are your rights?
Like in the United States, the police have certain notices they must read to people when they detain them. In the US, they call them Miranda Rights because the leading case on that name deals primarily with the notice of the right to remain silent and the right to talk to a lawyer.
In Canada, we call them our section 10 Rights, or sometimes our Charter rights, although many Charter rights have little to do with police drinking and driving investigations.
Our equivalent Miranda rights are that, upon arrest or detention, we have a right to be informed of the reason for the arrest or detention, we have a right to talk to a lawyer, and we have a right to silence.
Practically speaking, it means in a drinking driving investigation, we are entitled first to be told why the police stopped us. In many cases, it is obvious. For example, if you pull up to a CounterAttack roadblock, you as a driver know why you are being detained. In other cases, the officer may pull you over and say they observed you committing a Motor Vehicle Act offence and tell you what offence they think you committed.
It’s more complex when the officer pulls you over for speeding, perhaps, and suddenly switches to a drinking-driving investigation. The fact of a demand to provide a breath sample roadside may be considered sufficient to fulfill the first notice of your rights.
In other words, the officer telling you that you are expected to blow into a breathalyzer may be considered sufficient notice of your right to be notified of the reason you’re being detained. In the case of a demand to blow, it is notice that the detention is to facilitate a drinking-driving investigation.
That’s only one step of being notified of your rights, however.
The second is being notified of your right to talk to a lawyer. Section 10(b) of the Charter guarantees a person who is detained be notified of their right to talk to a lawyer and, if they wish to speak to a lawyer, to be put in contact with one without delay. But what of it at the roadside?
Problems with IRPs and basic rights
In BC, we punish people with 90-day Immediate Roadside Prohibitions, and nobody is ever notified of their right to talk to a lawyer or permitted to talk to a lawyer. It’s a clear violation of the right to counsel.
How do the police get away with it? Why are they allowed to violate this “guarantee” under the Charter?
The government knew when they introduced the IRP law that this would be subject to challenge. They had two basic lines of attack.
The first is well established in law. In Canadian law, the right to counsel (being notified of the right to talk to a lawyer and actually then actually talking to a lawyer) can be suspended if the police have some lawful authority to gather evidence in a relatively unobtrusive manner.
When it comes to roadside breath testing, the Court has said that the police can violate the right to counsel to obtain roadside breath tests.
There was a caveat, however. The Court said that the results of the roadside ASD tests were not allowed to be used to incriminate. In other words, a Fail breath result could not be considered by the court to establish a prohibited blood-alcohol level.
The problem is the Court ruled that the test results CAN be used to allow a police officer to gain grounds for further investigation. Therefore, the door was open to using the breath samples obtained in violation of Charter rights to have limited admissibility.
The IRP loophole
At first, it was only admissible to justify further investigative steps. When the Immediate Roadside Prohibition law came along, the next proposed use was to punish drivers with a 90-day driving prohibition.
How could this be? How could the police be receiving the green light not to read people their rights and yet impose harsh consequences?
It’s all in a phrase.
The government knew this would end up before the court, so instead of calling the $500 fine a “fine,” they called it a “monetary penalty.” And instead of putting the cases in court, they made the matters part of the administrative scheme before an administrative tribunal.
Because of those changes, the Cout said it is okay for the police to violate your rights.
Even if you can prove your rights have been violated, when you are not read your rights in BC and you are issued an Immediate Roadside Prohibition, it does not come with a fine, and because an IRP is “administrative,” there is no remedy.
There are limits to our guaranteed rights. The IRP law is where we see rights set aside by the operation of laws designed to control drinking and driving. The Court has decided that this limit to your rights is okay. Whether you agree or not, it is the law.