There are a few steps we take right away when we defend an Immediate Roadside Prohibition (an IRP) to determine how we can best defend the allegation and succeed for our clients. Most important is to obtain the Report to Superintendent, which is a document we get from the government. The police must complete the Report to Superintendent pursuant to the legislation. Clients often ask us where do you find the defences to an Immediate Roadside Prohibition and the answer is best broken down in four general categories.
1. Litigation procedure:
The procedure to dispute an IRP is largely spelled out in the Motor Vehicle Act but heavily modified and by dozens of judicial decisions that have come out over the last 11 years of the courts dealing with these cases. These are procedural obligations that are primarily part of the function of the RoadSafetyBC tribunal at the Office of the Superintendent of Motor Vehicles in Victoria. These obligations include statutorily compelled disclosure and also import duties of fairness in properly considering the evidence before the adjudicator.
In a recent BC Supreme Court case, the judge criticized the method of analysis employed by the adjudicator at the Superintendent of Motor Vehicles as they failed to grapple with the substantive issue, preferring to reject the evidence of the Applicant (the driver) based on immaterial concerns with the evidence.
Litigation procedure is an expanding area for defences to an IRP. To get a flavour of the developments in this area, a good start is Kyla Lee’s book, Immediate Roadside Prohibitions in Western Canada where she summarizes and explains the legislation and many of the court decisions. (https://store.lexisnexis.ca/en/categories/shop-by-jurisdiction/british-columbia-9/immediate-roadside-prohibitions-in-western-canada-skusku-cad-6813/details)
2. Police procedure:
The steps the police take in an Impaired Driving Investigation are the same as in an Immediate Roadside Prohibition up to the point that the officer offers the subject a second test or the officer decides to issue the IRP on the basis of an alleged refusal to blow. Kyla Lee covered the steps of an impaired driving investigation in a very thorough manner in a series of YouTube videos. (https://youtube.com/playlist?list=PLiZphGIZgt5gEWhVlApdv-HihHeLKol9O)
The steps of an impaired driving investigation are instructed by the Criminal Code of Canada, but the Criminal Code doesn’t tell the officers what to do. They need to be taught it which means it’s something with time they forget and consequently they often depart from the guiding rules without even knowing it.
Because the steps the officers take are taught as an ideal investigation, they are rarely prepared when things depart from their script. A botched investigation can arise if certain particular steps are taken out of order or there is a delay of even a few minutes moving from one part of the investigation to the next.
If you’re considering hiring an IRP lawyer who is not with our office, we advise to find someone with a great deal of Criminal Code Impaired Driving experience and who is an active member in the larger Impaired Driving Lawyers’ organizations. The reason for this is because a solid knowledge of the criminal case law in this area provides a strong advantage when looking at what the police did in the case.
3. Police conduct:
Bad police behaviour often gets a pass at the RoadSafetyBC tribunal. We often think that if the people of BC knew that this is what the police get away with, they would be rightly dismayed. Still, when the police act unprofessionally it makes it that much harder for the tribunal to reverse engineer a decision where the prohibition is upheld because the government does not want the courts to see just how bad the police behaviour can sometimes be.
Occasionally bad police behaviour is evident in the disclosure documents, but more often there is some other source that exposes unprofessional or downright objectionable police conduct.
Interestingly, our clients often are unaware of what the police shouldn’t do because we in our society have become somewhat accustomed to high-handed police behaviour. It’s our job as IRP lawyers to know the limits to police conduct and to explain it to the tribunal.
4. Applicant evidence / evidence adduced:
It is rare that the driver’s evidence alone is completely accepted and then provides a triggering IRP revocation. This is not to suggest that the applicant’s evidence is unimportant. It’s just, unless there is something pointing to a problem in one of the above three categories, it is rare that the driver’s evidence, even if it is 100% true, will be accepted as truthful by the tribunal.
What this means is that the IRP lawyer will usually find a defence to the IRP on the face of the Report to Superintendent and then use that in addition to evidence from the driver to structure the submissions to the tribunal.
Applicant evidence is very important. It became essential when the law was modified in April 2016 to create an enhanced presumption of guilt. As the IRP law now stands, even if the police behaviour was atrocious and they failed to follow correct procedure, without evidence from the applicant, the IRP will likely be upheld.
The problem that arises is that drivers almost never know what’s important from the incident that could help their case. To get around this we interview our clients with what we call a modified funnel approach. We select avenues that we wish to investigate after reviewing the report. Then we ask our clients questions arising from the areas that may be most likely to expose a potential defence. It is surprising how often this is an effective way to find the defences to an Immediate Roadside Prohibition.
What is your defence?
Because every case is different, we need to examine the evidence to find the defences to each Immediate Roadside Prohibition. If you have received an IRP, call us right away.
We can start working on your case after a brief discussion on the phone. Call now.