Our third constitutional challenge to BC’s IRP system

Acumen lawyer Sacha Roudette explains why we’re once again challenging British Columbia’s Immediate Roadside Prohibition (IRP) impaired driving administrative regime.

IRPs allow police officers to immediately take away a driver’s rights based merely on the results of screening breath tests at the roadside. Unlike a criminal drunk driving charge, the driver does not have a full opportunity to defend themselves against the allegations in court, and the driver now bears the burden of proof as opposed to the officer. There is also no right to counsel at the roadside, despite the fact that the effects of the prohibition are immediate and there is no right to cross examine the officer on his or her evidence.

Sacha explains Acumen’s strategy, as the case heads to the BC Supreme Court in Victoria on Dec. 11, 2017.

 

Two huge problems still plague Immediate Roadside Prohibition system

One of the issues with the Immediate Roadside Prohibition system is how it unfairly impacts Canadian’s s. 8 Charter rights. This right protects Canadians from unreasonable search and seizure. Requiring drivers to subject themselves to roadside breath tests is a form of police search, and to abide by the Charter, this search must be reasonable.

In our view, the only way to do that would be to provide an avenue for drivers to meaningfully review the test results from the breathalyzer. Currently, drivers are required to apply for review within 7 days of being given an IRP. Even after the driver is given a review, it is up to the driver to then prove that they didn’t fail the breath test, or didn’t otherwise refuse to take the breath test.

It’s essentially the driver’s word against the officers. And on top of that, drivers will generally not have access to evidence obtained by police in issuing the IRP, making it doubly difficult to challenge the allegation.

For example, a person being tested with a breathalyzer may be told they refused to provide a breath sample, when in actuality the status indicator on the approved screening device read something else altogether. How is a driver supposed to then prove what they saw without knowing what went into the police records?

 

Drivers asked to provide a breath sample also do not have immediate access to a lawyer

The reason a police officer can even demand a breath sample is based off sections from the Canadian Criminal Code being applied towards provincial law in the form of the Immediate Roadside Prohibition system.

The roadside breath sample itself is supposed to be used for the purpose of investigating sobriety, not for laying a charge. In a criminal trial, traditionally, evidence obtained from roadside screening devices would be inadmissible.

But under the IRP system, the roadside breath test can be used by itself to penalize a driver. In our view, we see this as a breach to a Canadian’s right to immediately access counsel.

This is a fact that’s actually recognized by the courts, but the courts have deemed the Charter breach acceptable nevertheless.

However, we believe those pulled over and asked for a breath sample should be given immediate access to counsel.

There are many situations where having a lawyer right away could be helpful, especially since the IRP system allows for drivers to be tested and penalized before they ever speak with legal help.

The thing is, under Canadian laws, you’re only allowed a right to counsel after being arrested. But with the IRP system, even though you haven’t been arrested – yet – you’re still being detained. You’re not free to go. And you’re required to comply with police demands, with the threat that failing to do so will result in further consequences. It sure sounds like a situation where lawyer should be involved.

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