We have filed the application for leave to appeal the Wilson decision to the Supreme Court of Canada. The Wilson appeal is underway.
Two leading BC Supreme Court cases, Richardson and Wilson, found that the police need to have reasonable grounds to conclude that the driver is affected by alcohol in their ability to drive before the police could issue an IRP for Warn or Fail on an approved screening device. We think the logic in these two decisions is sound. Firstly, it’s in the Motor Vehicle Act:
214.41(3.1) If, at any time or place on a highway or industrial road,
(a) a peace officer makes a demand to a driver under the Criminal Code to provide a sample of breath for analysis by means of an approved screening device and the approved screening device registers a warn or a fail, and
(b) the peace officer has reasonable grounds to believe, as a result of the analysis, that the driver’s ability to drive is affected by alcohol…
Secondly, the Court of Appeal agreed with the Court’s finding in Sivia that the legislation initially lacked a substantive means to challenge the validity of the results and the reasonableness of the prohibition. In keeping with the amendments to the legislation and the expansive nature of the grounds for review, the interpretation given to this section of the Act by the Supreme Court in Wilson and Richardson is, in our view, the only reasonable interpretation.
The point is that drivers need to have a meaningful opportunity to challenge the IRP. This includes challenging it on the basis that the decision to issue the Notice was not supportable.
Canadian courts have long taken the position that legislation must first be read in a manner that is Constitutional before reading it in a manner that is not. Our concern with the decision of the Court of Appeal is that it takes such a narrow approach to the interpretation of this provision that it does not consider the legislation from a Constitutional lens.
There is also an important point to be made with respect to any law that punishes people before the opportunity for a hearing.
The IRP scheme is dependent on police officers collecting the evidence and then issuing the punishment. Although it may seem incongruous, at the same time the police have very little discretion if they feel that the IRP is not valid for some reason or another.
Talking to police officers, some have told us that occasionally they didn’t trust the ASD reading. There have been occasions where the officer could not identify a particular problem with the ASD yet they felt that there was a problem with the reading. We have reams of internal police documents showing problems with ASDs that were not identified by the officers at the roadside but were later identified during monthly calibration.
The IRP scheme removes most of the safeguards from wrongful punishment. One of the safeguards that the Legislature included was that the police should have a reasonably held opinion that the driver is affected by alcohol. It simply makes sense.
The Wilson appeal decision at the BC Court of Appeal was released at the end of May. At the Court of Appeal level, the justices went against the two BC Supreme Court decisions. We think that the Court of Appeal decision doesn’t accord with Sivia or Murray.
Wilson appeal: the next step in the process
We have filed the application for leave to appeal to the Supreme Court of Canada. What this means is that the Court will look at our material, and the material that the Government will eventually file in response, and then decide whether or not we get a hearing. If the Court denies our application for leave to appeal, that is the end of the matter and the BC Court of Appeal decision remains the law (unless there is some subsequent change). If the Supreme Court allows our application, then we get our chance to attend to explain our argument to the Court.
You may recall that the Government filed an application for leave to appeal in the Murray case. We became involved in preparing the response for Mr. Murray. Ultimately, the Court denied leave to appeal (we were successful) and the case ended there.
Why we’re now running the Wilson appeal
Kyla argued the Richardson case at the BC Supreme Court level. We were discouraged to see that the RoadSafetyBC/OSMV tribunal didn’t follow the law (as it was) when Wilson and Richardson were decided. We weren’t surprised – they also didn’t follow the law on Murray until we succeeded at the Supreme Court of Canada. So we were all fairly certain that they would exhaust all levels of appeal before they decide what law to follow.
Knowing that this issue would be appealed in any event, we started preparing our argument for the Supreme Court of Canada. When the Wilson decision came out Kyla discussed the decision with the lawyers who argued it at the Court of Appeal.
As you might expect, Mr. Wilson has spent a lot of money challenging this IRP. Although the Government has virtually unlimited funds (your tax dollars) to defend and promote their IRP scheme, for most people funding an appeal to the Supreme Court of Canada is out of the question.
As far as we’re concerned, this is a matter of public importance. We’ve decided, therefore, that we’re going to pay for this out of our own pockets for now and look for some other way to cover our costs if leave is granted.
So we have taken over the case for Mr. Wilson and we hope to get our argument heard at the Supreme Court of Canada.
Filing the Wilson appeal – application for leave
Today our agents in Ottawa filed the application for leave to appeal. Kyla prepared the leave application over the last three weeks and we’re comfortable that she has explained the issues that the Court should consider. An interesting coincidence is that today also marks the introduction of an IRP-like law in Saskatchewan, adding to the argument that clarification in the law is of national importance.
In the event that leave is granted, a date will be set for the hearing many months from now.
Keep in mind as matters move forward that most applications for leave to appeal to the Supreme Court of Canada are not granted. With respect to this specific issue, two judges at the Supreme Court level came to one conclusion, and three judges at the Court of Appeal level came to a different conclusion. All of these people are experts in the law who are doing their best to come to a correct interpretation of the sections of the Motor Vehicle Act bearing in mind principles of statutory interpretation.
In many respects, the Supreme Court of Canada is the final frontier. We will continue to update you as the Wilson appeal moves ahead.
Wish us luck.