Note to readers: Guest columnist Sarah E. Leamon is a criminal defence lawyer at Acumen Law Corporation, specializing in the area of impaired driving. She is also the chair of the board at PACE Society in Vancouver’s Downtown East Side. Follow @SarahLeamonLaw on Twitter.
The province of British Columbia is home to some of Canada’s toughest impaired driving laws. Originally introduced in 2010, this law—generally referred to as immediate roadside prohibitions or IRPs—was ushered in with the goal of saving lives by getting impaired drivers off the roads using swift and immediate action.
As noble as this mandate may sound, B.C.’s impaired laws have been subject to a great deal of controversy. Vocal opponents have spoken up against the law, airing concerns about a number of aspects, including its design, implementation, the inadequacies of the dispute process and the onerous nature of its penalties.
The first thing that you need to know is that this law was implemented by the provincial government under the Motor Vehicle Act. On a practical level, this means that if you are issued with an IRP, you are not in danger of receiving a criminal record. Instead, you have essentially received a very nasty traffic ticket. While this may sound better at first, you may think twice when you learn about the penalties—including a 90-day driving prohibition, 30-day vehicle impoundment, $750 in fines, and referrals to the Responsible Driver’s and Ignition Interlock programs—which are onerous.
The way that the law was enacted also means that police officers have the choice to either proceed by way of the Motor Vehicle Act or Criminal Code.
This is extremely controversial in itself. Not only does it raise concerns about the tremendous amount of discretion awarded to individual officers, but it also presents a potential problem with respect to the constitutional division of jurisdictional powers between the provincial and federal government. While the province argues that the IRP law exists alongside the federal law, others believe that it is undermining and supplanting it.
This is reflected in the statistics. As criminal impaired driving charges drop, the number of IRPs issued remains consistently and extraordinarily high. In 2011, they exceeded 22,000. RoadSafetyBC recently reported that over 18,000 IRPs were issued in the last year alone. When you consider that a criminal impaired driving investigation is complex, taking hours and involving multiple officers, there is little doubt as to why the quicker, simpler IRP method appears now preferred.
This brings us to another troublesome aspect of the IRP regime—the swiftness with which one may be issued. In my experience, the average IRP investigation takes approximately 10 minutes from start to finish. Although it can take longer, I have seen some investigations begin and end in as little as 60 seconds.
This is all made possible by the use of a small, handheld machine called an approved screening device, or ASD for short. This device was developed to aid police officers in the beginning stages of criminal impaired driving investigations.
After all, in order to detain a suspect, and make a valid breath demand under the Criminal Code, an officer must form the proper grounds to do so. In other words, they must have a reasonable belief that the suspect was operating a motor vehicle while their ability to do so was impaired by alcohol. In some cases, officers are able to achieve this solely through their observations.
However, if an officer only suspects that alcohol is a factor but is uncertain, they can use an ASD to elevate their suspicion to a belief. After that, the person should be properly provided with their rights, such as the right to counsel, and warned according to the Charter. Breath samples will later be obtained using a larger breath testing device, stored at the police detachment.
Under the IRP scheme, a person has no right to counsel. They are not cautioned or warned and they are not able to provide a breath sample at the police detachment if they wish to do so. Rather, the IRP is issued on the basis of the ASD alone.
Sole reliance on the ASD is problematic when you consider some of the flaws that are inherent to it. For instance, these devices are often prone to mechanical malfunction. They do not generate hard copy results, nor are they programmed to give numerical readings. These are only some of the many problems. An approved screening device is just that—a screening device.
But the entire IRP regime is based on the results generated by these devices. So what happens when something goes wrong? What happens when a prohibition is issued in error?
The IRP review process has been described by some as inadequate and unfair. While a person issued with an IRP can dispute it, they must do so within seven days of receiving it. If they miss the deadline for any reasons whatsoever, they are without recourse—no exceptions.
Once a dispute is filed, it is not conducted in front of a judge in open court, but rather over the phone with an adjudicator at RoadSafetyBC. Police officers and witnesses are not able to attend or give evidence and be cross-examined. Instead, the investigating officer provides a report that the applicant can answer with evidence of their own. The officer does not have to prove the case beyond a reasonable doubt, but simply on a balance of probabilities—and new legislative changes may soon reverse the onus, which means that it will be up to the applicant to prove their innocence rather than the officer to prove their guilt.
All in all, this makes for an extremely difficult dispute process. Success rates are low. When you compare this process to the dispute process for a $167 red light ticket, it seems even more absurd.
The provincial government claims that the IRP scheme has saved hundreds of lives that would otherwise have been lost to impaired drivers. Perhaps they say this in an attempt to justify a poorly drafted law that deprives people of their fundamental rights and an adequate dispute process. Whatever the reason for it though, this claim seems just as dubious as the law itself.