DUI and IRP Lawyer Surrey BC – Vancouver & Across British Columbia

DUI (Driving Under Influence)  – IRP (Immediate Roadside Prohibition Reviews) - ADP – (Administrative Driving Prohibition)  & Other License  Suspensions & Reconsideration of Remedial Programs RDP & Ignition Interlock



UNIQUE EDUCATION & EXPERIENCE: Get my Documented Experience Working for You in Your Corner in your fight against your Prohibition and or Criminal Code charges. Don’t leave this up to chance, or hiring someone with less trial battle skills, or less dedication to the IRP Scheme.

WE HAVE RELENTESSLY & ZEALOUSLY STUDIED THE BC Government and Police APPROVED SCREENING DEVICE (ASD) – Currently the AlcoSensor DWF IV used by the police across BC  that caused your alleged IRP FAIL, as well as litigated the BAC DATAMASTER and alleged IRP REFUSAL caseslaw since 2000.   That’s a Lot of Time to get to know the Delicate Nuances of the this Complex, Technical Area of Law.  However, you only have 7 days from the receipt of the Notice of Prohibition! (Blue Form) to file a Review, and pay the Review Hearing Fee at ICBC Driver Services Centre, or in some areas, BC Government Agents.

As the well respected Honourable Court Judge Bastin, PCJ opined back in my reported pled case of Regina v. Wang (see below for full reported case link).  The Judge wrote, after our arguments This trial, characteristic of these sorts of cases, has been a contest of much technicality. These cases are very technical. The “i’s” must be dotted and the “t’s” must be crossed, and that is usually the way these cases unfold, and that is the way this case has unfolded.”  We won that case for Mr. Wang, and did our homework.

OUR PERSONAL PRIVATE LIBRARY OF DOCUMENTS, PUBLICATIONS, and RESOURCES contains thousands of pages of Law, Commentary and notations of DUI, IRP, and ADP issues over the decades.  Few have dedicated this much effort to this area of law.

Best DUI IRP CaseBooks Dil Gosal Surrey Vancouver Lawyer

I was also Schooled  – including two law degrees from the US, including advanced Master of Laws (LL.M.), and Experienced in the Aggressive US DUI Court System,  including US Federal Court.

We have aggressively  pursued the striking down of unlawful laws, advance Constitution – Charter issues.  As an example, we were able to have the Court Suppress Breath Tickets, and find Constitutional Violations in the spread of ‘Standardized Field Sobriety Tests’  (SFST) developed in Los Angeles and regulated by the US National Highway Traffics Safety Administration (NHTSA).

I was the First Lawyer in British Columbia to successfully suppress in BC Courts, the US NHTSA SFST Horizontal Gaze Nystagmus (HGN) tests back in 2002.

The case is cited below in full text, being Regina v. Sandhu, 2002 BCJ 696, 42 MVR (4th) 73.  That is the kind of zealous representation You Need.  Here is a copy of the Manual we used to challenge and win the Case. Field Sobriety Manual IRP DUI Horizontal Gaze Nystagmus

The BC Government is serious about throwing your life upside down with breath readings from just screening devices, called an Approved Screening Device – or ASD for short- as low as .05 with its new Administrative BC IRP License Suspensions system which aims to replace the Federal Criminal Code DUI Scheme, where you have Trial Rights.

You should be just as serious about Defending Your Case, and fighting your Driver Licence Prohibition Review or if need be, an Appeal to BC Supreme Court, and beyond.

Read and review the material on this website, educated yourself and once ready to get us in your corner, or if you have any outstanding questions,  fill out the Case Inquiry Form to the Right, or email us: WABCLawyers@aol.com, or text 604.719.1360.

Don’t Let Smokey Suspend Your Driver License Without a Review.

DUI License Appeal, Call Dil Gosal Now!

DUI License Appeal, Call Dil Gosal Now!


Here is what the Ministry of Justice, the Office of Superintendent of Motor Vehicles (OSMV), Road Safety BC, and ICBC have in store for you if the officer feels you “refused” or failed an Approved Screening Device Demand, and you received an Immediate Roadside Prohibition or Administrative Driving Prohibition under BC’s Draconian and Court Due Processless system – a regime that eliminates absolutely your Rights to Trial, or the Right for you or your lawyer to Cross Examination of the Officer and any witnesses – The greatest legal engine designed to determine and test the evidence. Try this on for size:

- At least $900 for your Vehicle Impoundment, tow, storage fees, for 30 Days - Your Vehicle Seized on the Spot
-Around $1,000 for Stroh’s Alcohol School - called Responsible Driver Program - (RDP) before you get your license back from ICBC.
-$500  Government fine for an IRP Refusal or ASD Fail
-Around $2,ooo for Ignition Interlock device installed into one vehicle to test your alcohol level randomly when driving.  How cool will that be with family, friends, and clients in the car?
-$250 Reinstatement Fee to ICBC
-Countless and Irreparable Harm: loss of employment; marital and family stress, etc.


Do not worry if you are in a remote area of BC, or outside Metro Vancouver.  We take cases across BC, including: Surrey, Abbotsford, Port Coquitlam, PoCo (Port Coquitlam), Vancouver, Richmond, Delta, Langley, Kamloops, Chilliwack, North Vancouver, Burnaby, Nanaimo, Kelowna, Squamish, Whistler, Victoria, New Westminster, Maple Ridge, Vernon, Penticton and anywhere else the Police have issued you a Notice of Prohibition.


What Will It Cost To Hire You for My IRP Issues?


I provide Flat Fees and often break the process down to two stages, so you know the fees upfront, and also don’t waste money on a fruitless Review.

Stage 1) Reviewing your Immediate Roadside Prohibition Documents:

My legal fees are currently $750 plus taxes and disbursements for this service. I want to make sure you understand what the facts are, what the applicable law is to your case, so you can make an Informed Decision whether to go ahead or not with the Review.

You may read the report and think there is no chance.  However, you are not trained to spot legal issues, or how they relate to the facts in your case.  That is why you go to a lawyer trained and experienced in that area.  Just like reviewing a medical X-ray or CATSCAN, you and I will likely not know what to look for or interpret the images; the Doctor can though, as she is trained and experienced in that.

Similarly, our legally trained eyes – with over 15 years of drinking driving defence – will study the Report to Superintendent provided by the Officer to the Office of Superintendent of Motor Vehicles (you are not provided a copy of that on the night of incident), Calibration Documents, Qualified ASD Technical Reports.

After we review these documents, we render an opinion to you on possible errors, legal issues, and validity of the Driver License Suspension and potential degrees of success.  If there is no likelihood of success, and you instruct us not to proceed, then your small investment has paid off, instead of just paying for a Review that has no or little merit or chance of succeeding.  We will give you the straight opinion.

Stage 2: Conducting the Actual Review:

If after our advice on the viability of the Review, you decide to instruct me to go ahead with the actual Review with Road Safety BC – Office of Superintendent of Motor Vehicles, at that point, I then offer a Flat Fee for conducting actual IRP DUI Licence Suspension Review Hearing.

My legal fees for this stage depend on the category of Prohibition, and start from $1,000  for 3 day prohibitions. $2,000 for a 7 day prohibition, and around $2,750 for a 90 day Prohibition, Fail or Refusal. All fees subject to GST/PST, and disbursements.

I will give you a firm quote once I review the Immediate Roadside Prohibition Documents.

I will only take 1-2 cases maximum per month. My submission packages are usually around 40-100 pages. We start drafting your IRP submissions from scratch, and custom tailor your submissions – not a cookie cutter pro-forma fill out, which I have sadly seen passed off as fresh work-product.  If you want hardcore zealous representation then call me. I usually dedicate 2-3 days on each IRP Review: Midnight Oil, and non-stop effort.  See how many lawyers will do that.

If you win your IRP, then all the filing fees, tow, storage and other monetary penalties are withdrawn and or refunded, and the Ignition Interlock Program and Responsible Driving Program is not required.

These IRP fees are significantly discounted compared to our regular Criminal Court DUI/Impaired fees, which are typically $7,000 to $9,000 (plus PST/HST) for one day. With our reduced, flat fee pricing, you get to take advantage of our DUI trial battle knowledge on your License Suspension Appeal.

Appeals of Adjudicator Decisions to BC Supreme Court by way of Judicial Review are separate matters and you must consult us to discuss any possible retention.

Retaining Forensic Toxicologist or Other Experts:

-If the assistance of a Forensic Toxicologist is of assistance (usually former RCMP  or Police Lab Experts), often an Expert in the field is hired to review and provide an Expert Opinion, which is based on the facts, law, and Various literature on the ASD Machines (Police & Manufacturer Manuals; accepted Forensic/ Scientific Procedural matters).  Those fees are of course separate and can be discussed once we are Retained (hired).

-Other experts may include Physicians, or Specialists to address any medical issues that may arise in your case, ranging from anything like improper temperature range of the machine, to improper procedure using the machine, which affects the reliability of the Fail results, or deemed refusals.

Attorney- Client Privilege

We also offer the Attorney Client and Solicitor-Client Privilege. This means that you can tell me all the details of the case, including things the Police may not know, and we are not bound to tell that to the Adjudicator. We can use sometimes use that to our advantage, in terms of the Adjudicator not having certain “admissions” by you, if you conduct the hearing on your own.

As an experienced Metro Vancouver Surrey DUI Lawyer, Dil Gosal can help guide you toward the best approach to defending your DUI / IRP charges.


Reconsideration of a Referral for Remedial Programs: RDP or Ignition Interlock:
We can also be hired to have a Reconsideration of a determination by the OSMV Road Safety BC  – that you must attend Stroh’s Responsible Driving Program (RDP), or Ignition Interlock in any vehicle you operate.  You typically have a very short time frame to provide submissions, and are best assisted by a trained professional who can articulate your position, and also address the factors that the OSMV considers in such Reconsiderations.
Our fees for this typically depend on your personal circumstances, and the time we spend, research, etc.

Proof in the Pudding: Here are actual Decisions for DUI – IRP and ADP Cases Won by experienced Lawyer D. Gosal (click to view CaseLaw).  Have a read through to get an idea of issues that may arise.

When choosing a lawyer, you should ask how many Reported Decisions that lawyer has in that specific area.

1) IRP: Immediate Roadside Prohibition Decisions from the Office of Superintendent of Motor Vehicles & Road Safety BC:

IRP REFUSAL WIN:: Vancouver Police Roadblock Alleged Refusal ASD Reversed.

IRP REFUSAL WIN: Fort St. John’s Gas Oil Operator wins alleged Refusal of ASD.

IRP WIN: Alleged IRP Refusal after 18 rounds of Golf at Kamloops Golf Course.

IRP WIN: Alleged Double Fails into ASD after allegedly being hammered at Casino.

IRP DUI Lawyer Wins Case

IRP Double Fail WIN for Surrey Lawyer Dil Gosal:

IRP Win for DUI Laywer Dil Gosal:

IRP DUP Surrey Lawyer Dil Gosal WINS for SURREY man who blew Fail, but Wins Refusal Case:

IRP DUI Richmond Lawyer Dil Gosal WINS for RICHMOND man who blew Two Fails!:

IRP DUI Lawyer Dil Gosl WINS Case for KAMLOOPS MAN:



IRP DUI Lawyer DIL GOSAL Gets Decision Where Client was allowed to get his Keys Back after DUI Prohibition!

Recent BC Supreme Court Decision regarding 90-Day Suspensions

2) DUI Case Acquittals: Here are some of the judicially reported DUI cases, i.e. case law precedents, from the actual court judges where my criminal DUI clients have been acquitted or litigated issues.

Surrey man drinks beer and gets off.  See ADP Case Victory.

Regina v. Hostacny
Regina v. Dolan
Regina v. Davidson
Regina v. Wang
Regina v. Kiani
Regina v. Sandhu
Regina v. Parhar


If the police decide you should get a Promise to Appear or Summons for Criminal Court, we can be hired for that as well.  The most common Provincial Courts in Metro Vancouver for Criminal Code DUI’s and Criminal Refusals are: Surrey Provincial Court, 222 Main Street Vancouver Provincial Court, Abbotsford Provincial Court, Port Coquitlam Provincial Court, and Richmond Provincial Court.

IRP – Immediate Roadside Prohibition FAQ

Having defended clients across British Columbia for DUI and IRP charges for over 15 years, many common questions arise.  Here are some general frequently asked questions (FAQ), and general responses.  This is not legal advice, and you should Contact Us immediately if you have been charged with an Immediate Roadside Prohibition (IRP) Fail or Refusal under section 215.41 the Motor Vehicle Act, or are facing Criminal charges under the Criminal Code, for DUI, Impaired Driving, Over. 08, or Refusal allegations.   Very strict time limitations apply for filing a review of the IRP with the Ministry of Justice – Office of the Superintendent of Motor Vehicles –  RoadSafetyBC, and you must act accordingly to preserve your right to contest the allegations.

I was pulled over and given an IRP Fail or Refusal, and now I have a 90 day Immediate Roadside Driving Prohibition (IRP).  The case seems hopeless for me, should I dispute the IRP?
Absolutely.  If you don’t dispute it, it will be deemed that you did in fact commit the offence of Fail or Refusal.  Once we are hired, we will advise you how to file a Review by attending an ICBC Driver Services Centre, advise you of what grounds to choose for the Review, and what kind of Hearing to have (Oral or Written).  We will then get the Police Report from Victoria RoadSafetyBC.  Once we review this Report, we can advise you of the merits of your case – chances of success, technical issues that may come into play, and also legal and factual issues that you may not be aware of.   These reports are usually 10-20 pages of very technical data and sworn evidence.  This Report does not come with the two blue papers you received (Notice of Prohibition and Vehicle Impoundment).  Critically analyzing this Report is the key to any success.

Having done DUI/IRP defence for over 15 years, we have a large resource based library collection of documents, specialized DUI defence books, rarely published internal police and manufacturer Operation, Calibration Manuals for the Approved Screening Devices, such as the Alco Sensor DWF IV, and access to caselaw (decisions made by Judges) and previous IRP decisions on similar issues that may arise in your case.  Having that much material and experience will assist you in your Review, as we can spot the issues quickly, and have the supporting documents if issues arise in your case. This is one key advantage in hiring us.

If you win your Review, your driver license will be re-instated, Review fee reimbursed, as well as the impounded vehicle returned to you or the owner, and all storage and towing costs will be paid by the BC Government to the date of the Successful Review Decision.

Will ICBC find out that I have been given an IRP?

The Police officer who completes the Report will provide ICBC a copy, through the Office of the Superintendent of Motor Vehicles RoadSafety BC.

Do I get Driver Points for an IRP?
No. Currently there are no Driver Points, or Driver Risk Premiums given for an IRP.  However, the existence of an IRP on your record can be taken into consideration if the OSMV wishes to Prohibit you longer if you have an Unsatisfactory Driving Record under other sections of the Motor Vehicle Act, such as section 93.

How do I file a Review and Dispute the IRP?
You should contact us immediately, and hopefully before you attend ICBC Driver Services Centre, to file your IRP Review.  If we are hired, we will advise you of the procedure and what to do.

How long do I have to file my IRP Review – Dispute?
YOU ONLY HAVE 7 DAYS to file an Application for Review, and pay the Application Feefrom the date you are served the IRP Notice of Prohibition under Section 215 of the Motor Vehicle Act.

If you miss the 7 day period, you are by law deemed to have accepted the IRP, and all the related penalties, fines, and consequences.

Many people call us after the 7 day period and want to file a Review.  The government will NOT advise you to appeal, and will write you advising you of any additional requirements for your license, such as RDP (Responsible Driving Program) and Ignition Interlock procedure for any vehicle you drive, and the associated expenses.

Once you have conducted the Review for Me, how long until I get the Decision?
The statute says that a written Decision is to be provided within 21 days of the date you received the Notice of Prohibition. However, there is also power for the OSMV Adjudicator to extend the decision date, and give a Notice of Extension.  This happens often, and the adjudicator may then provide a Temporary License to you pending the Decision, and allow for early release of the vehicle.   So you will likely have to serve between 7-21 days of the Prohibition even if you win the Review.  So much for the Presumption of Innocence.

Should I get a Lawyer for the IRP Review Dispute Hearing?
Yes. Many people try to “save money” and file the Review and do the Review on their own.  However, your chances of success, in our opinion are DRASTICALLY REDUCED, as you will likely not be aware of the Very Technical legal issues which is what we find, tends to win the cases; nor have supplemental material, such as Operator or Calibration Manuals, or caselaw, or forensic expert assistance through a Toxicologist that we often retain to assist you in providing an Expert Opinion about the deficiencies in the procedure that police performed.  GET THE DEFENCE YOU DESERVE, we have the expertise in this area.  Often it is not about the machine result, but legal issues about the machine, or technical issues, such as legal grounds for the breath demand, etc.

Also, when we make legal and factual arguments and submission on your behalf, that is not evidence; whereas if you give your submissions, you are jeopardizing your case, as you will be making admissions, including things like, refusal, or having admitted to driving or being in care or control of the vehicle. What you tell us is protected by Attorney-Client privilege as well.

I haven’t dealt with DUI/IRP lawyers before and after doing some research, I don’t really know who to hire, what should I look for when making my decision, as this Prohibition is affecting my life drastically? 

  1. Ask how much experience the lawyer has in IRP/DUI defence, including real trial experience.

D. Gosal has over 15 years of Trial experience, with a focus on DUI/IRP cases since 2000.

  1. Does the lawyer have any actual Judicial Decisions Reported in the Library Caselaw Books that are now called Precedent and      other lawyers rely on for their cases, or IRP case decisions they can show you so you know they are good at what they do?

D. Gosal has an uncanny amount of Judicial Decisions on DUI cases, and IRP Decisions.  Many lawyers may go their entire career without Reported Judicial Decisions.  See our case law decisions links above for our links to actual cases we have been lawyers on in IRP and DUI cases.

  1. Does the lawyer have a large resource library of technical manuals and documents that others may not have and worked      closely with Forensic Toxicologist Experts so he is aware of the issues that many may not spot?

We have accumulated many documents that are hard to get since 1999, and continually seek new material, so that we may assist you in your defence. This includes, Alco Sensor IV DWF Calibration Manuals by the RCMP, Accuracy Check and Calibration Procedure Guidelines, RCMP Resource Reading Material by the RCMP Forensic Laboratory Services, ASD Manufacturer Manuals, Canadian Society of Forensic Science Approved Procedures for the ASD Machines.   We know what procedure is supposed to be followed to test and calibrate these machines.  If they are not tested or calibrated properly, then the results can be NOT RELIABLE, and even produce false and high results.

We know what defences work, and what does not work.

  1. How many cases does the lawyer take in a given week or month?

Since D. Gosal is a sole practitioner, he takes only a very select number of cases, usually 1-2 per month, so that he can dedicate his entire energies, knowledge and experience into your IRP Review. By choice, he does not ‘run a mill’ and take dozens of cases, as we find that one cannot dedicate the depth required to study and produce quality submissions and arguments.

Is an IRP a Criminal Charge, because it references the Criminal Code demand on the blue paper?
No, it is not a Criminal charge, even though the demand and some law is incorporated from the Criminal Code.  It is an offence under the provincial Motor Vehicle Act. You do not get a criminal record; however there are very serious civil consequences, including possible breach of insurance, penalties, fines, remedial programs before re-licensing etc.

Will I get higher penalties for filing a Review – Dispute if I lose?
No.  You have a Right to a Review as per statute.  The BC Prosecutors, called Crown Counsel, have a policy in place to not proceed with Criminal Code offences if an IRP is given.

If I lose the IRP Review Dispute Hearing, do I have to do the Responsible Driving Program and install Ignition Interlock into vehicles that I drive?
Not necessarily. There is an opportunity to hire us to assist you in a “Reconsideration of a Referral” for these Remedial Programs.  This is a separate process than the IRP Review, and we can discuss this with you.

Can I ask for a reduced Prohibition, or a work exception, as I will likely lose my job and it’s very hard on the family?
No, there is no reduction of prohibition.  It is an all or nothing review; in that either you win, or you lose.  They do not consider Hardship, such as family or financial difficulties resulting from an IRP.

If I drive while Prohibited, what happens?
You will likely be charged with Driving While Prohibited, which carries a 1 year prohibition, 10 Driver Points, and if it’s a second conviction, you could face mandatory Jail of at least 14 days.   Your car insurance will also likely be invalid, for breaching insurance policies, and you could be facing serious civil lawsuits for damage to property, injury claims, lost wage claims, etc.

Posted on Mar 25 2020 by gosal



The proposed legislation now removes virtually the only golden thread of common Law that was left in the IRP scheme, which was that the burden of persuasion rested with the officer to confirm the evidence was sufficient on a FAIL or REFUSAL. Now, the burden is placed upon the citizen to establish sufficient evidence of his innocence.  The presumption of innocence was removed with even the existing IRP scheme, as the vehicle is towed and prohibition starts immediately, without any due process until a Review was filed, and usually a decision not reached until almost 3 weeks into the prohibition.

The proposed Legislation, which is at first Reading, reads in part:

32 Section 215.5 is amended

(a) by repealing subsections (1) and (2) and substituting the following:

(1) The burden of proof in a review of a driving prohibition under section 215.48 is on the person on whom the notice of driving prohibition was served. [emphasis added]


-Also, as is the case now, despite the express requirement of the officer having to make a demand of one’s breath under the Criminal Code, the Adjudicator does not even look to the lawfulness of the grounds for the demand in a Fail. 

-You are not currently allowed to cross examine the officer, and there is no day in court.  The court backlogs are all cleared up, as no Trial Rights exist, and yes, you get lesser penalties than a Criminal DUI, but you are steamrolled by the Motor Vehicle Act instead, which is virtually a Charter of Rights & Freedoms Free Regime.  All this as we celebrate 33 years of the Charter, and upcoming 150th Canadian B-day. 

-For those that are seriously impaired, they get off with just a civil IRP, and given the basic decriminalization of DUI in BC, don’t face serious Judicial consequences.  All in the name of ‘protecting the public.’

Perhaps worth a reflection.  


Posted in Uncategorized

Posted on Jan 7 2020 by gosal

DUI License Suspension

DUI License Suspension

An immediate roadside prohibition (IRP) is one of the most dramatic ways you can lose your license in Surrey. British Columbia DUI laws allow an officer to pull you over, ask you to take a breathalyzer test, and suspend your license effective immediately. Nobody wants to experience that, but it happens all too often. Your blood alcohol level (BAC) only has to be .05 for you to be detained and your license suspended. It starts with your car being towed and you being forced to get a cab home, and of course your life can be thrown into turmoil from there.

Even though you’re in this situation, you have no right to a lawyer in the eyes of Canadian law. So if you’re going to get one, you have to do the work yourself. Do you need a DUI lawyer for an IRP license suspension appeal? Or can you handle it yourself? Most likely, you don’t want to spend money on a lawyer. But no matter how much you learn about IRP suspensions, you’ll never know as much as someone who has defended countless people in almost exactly the same position as you.

An experienced Surrey DUI lawyer will be able to walk you through the initial steps, such as going to the Responsible Driver Program (RDP) and installing an Ignition Interlock into your car. Both of these things are required before you can get your license back. Any delay can cause your suspension to last a lot longer than the stated 90 days. With someone on your side who knows exactly how to get through the process and conduct your IRP license suspension appeal, you can get through this difficult time as quickly as possible. You’ll be grateful that you have someone to help.

Posted on Dec 30 2020 by gosal

Visit the other blogs for previous discussion of Sivia v. British Columbia (Superintendent of Motor Vehicles) 2011 BCSC 1639.  This note is about the newest part of the Decision, litigiated December 19, 2011, and decision rendered December 23, 2011, of Sivia v. British Columbia (Superintendent of Motor Vehicles) 2011 BCSC 1783.

We are currently taking screenings for certain candidates to file a Petition for Judicial Review (Appeals to BC Supreme Court). We can apply to have your driver license suspension put on pause, and also the requirements for RDP Responsible Driving Program, and Ignitition Interlock.

Fill out a Case Inqiry on our website, or email WABCLawyers@aol.com to discuss your ADP, IRP, or Criminal DUI Case, if you received a Notice of Prohibition, or DUI Promise to Appear for Court, or Fingerprints.

-Remember, the issue of retrospectivity is still to be litigated in that specific case.
-Remember, Sivia II has held that Refusal charges DO NOT form part of the affected potential group.
-Remember, you could of course have issues, affecting the decision in a Refusal, on non-Sivia grounds; ie. that the Adjudicator acted Patently Unreasonable in your decision.

-Be Careful of General or Generic Cookie Cutter Appeals.  Trust D. Gosal Law Corp., the Law Firm that dedicates itself to YOUR SPECIFIC CASE, encompassing all arguments, specific and general!

The Court held:

[1]           This is an application to settle the form of order that I made in my reasons for judgment dated November 30, 2011 [2011 BCSC 1639].

[2]           The issues include: the scope or extent of the Charter infringement by the provisions of the ARP regime; the precise form of the order declaring parts of the ARP legislation invalid; the effective date of the declaration of invalidity; and the appropriate order to be made at this point concerning the petitioners’ claims for various forms of relief, including the return of license fees, hearing fees, impoundment costs and penalties, and remedial program and interlock costs.  I will deal with each of these issues in turn.

[3]           In my reasons, I summarized my conclusion on infringement at para. 382(d) as follows:

The ARP legislation infringes s. 8 of the Charter insofar as it concerns the prohibition, penalty and costs arising from the screening device registering a “fail” reading over 0.08.  This infringement is not a reasonable limit which is demonstrably justified in a free and democratic society.

[4]           The first question involves the extent to which the decision finds the ARP regime to be unconstitutional; in particular, the constitutionality of the provisions of the ARP regime pertaining to persons who “failed or refused, without reasonable excuse” to provide a breath sample. I think that is clear from my reasons, particularly at para. 382(d), that the unconstitutionality of the legislation arises “from the screening device registering a “fail” reading over 0.08”, and not from a refusal to provide a sample of breath in the first place.

[5]           This conclusion is supported by the fact, as Mr. Copley points out, that the ARP regime provides a more meaningful avenue of review for persons who do not provide breath samples than it does for persons who register a “fail” reading on an approved screening device (ASD).  In fact, the review for persons who do not provide a breath sample is similar to the review process under the ADP regime: see Helgesen v. British Columbia (Superintendent of Motor Vehicles), 2002 BCSC 1391.  Accordingly, the aspects of the ARP regime dealing with an allegation of a driver failing or refusing, without reasonable excuse, to provide a breath sample, do not fall within my finding of an infringement of s. 8 and the entered order will reflect this point.

[6]           The next issue is the precise form of order.  In my earlier decision I found that only part of the ARP regime under the Motor Vehicle Act (MVA) offends the Charter.  Having reviewed the helpful submissions of Mr. Mickelson and Mr. Copley, I find that the offensive provisions of the ARP regime are severable from the remainder of the regime and the remainder of the MVA in general.  The formal order will therefore declare the offending provisions of the regime to be invalid.  The proposed order tendered by Mr. Copley, with some changes as pointed out by Mr. Mickelson, generally properly reflects the specific declaration of invalidity, and the order will be entered in terms that I will discuss at the end of these reasons.

[7]           The next issue is the more difficult and more urgent matter relating to the timing of the declaration of invalidity.  The question is whether I should make that declaration now or suspend the declaration of invalidity, as proposed by Mr. Copley, for a period of six months.  Mr. Copley suggests that the declaration of invalidity of the part of the legislation found to be unconstitutional should be suspended until June 30, 2012.  In his submissions he referred to a press release issued by the Minister of Public Safety and Solicitor General on November 30, 2011:

Obviously, we are going to take time to study the decision in depth so we can determine specific next steps and impacts.  The Government will, however, make a change to the Motor Vehicle Act to address the judge’s concerns.  The ability to challenge the approved screening device reading will be added to the current grounds for appeal.

[8]           The leading case on the question of a delayed or suspended declaration of invalidity is Schachter v. Canada, [1992] 2 S.C.R. 679.  In Schachter, the Supreme Court of Canada was concerned with defining an appropriate constitutional remedy for a breach of s. 15 due to an under-inclusive provision of the Unemployment Insurance Act, 1971, S.C. 1970-71-72, c. 48, as amended by S.C. 1980-81-82-83, c. 150, s. 4.  The Court discussed the appropriate application of various constitutional remedies, including declarations of invalidity, and outlined the circumstances in which it would be appropriate to suspend such declarations  (at para. 79):

A court may strike down legislation or a legislative provision but suspend the effect of that declaration until Parliament or the provincial legislature has had an opportunity to fill the void. This approach is clearly appropriate where the striking down of a provision poses a potential danger to the public (R. v. Swain, supra) or otherwise threatens the rule of law (Reference Re Manitoba Language Rights, [1985] 1 S.C.R. 721).

[emphasis added]

[9]           However, the Court also emphasised the constitutional implications of suspending such declarations.  The point articulated in Schachter that there are serious concerns from the point of view of the Charter when suspending a declaration of invalidity, was recently reaffirmed by the Supreme Court in Canada (Attorney General) v. Hislop, 2007 SCC 10, where the Court said (at para. 121):

As Lamer C.J. noted in Schachter, at p. 716, such suspensions are “serious matter[s] from the point of view of the enforcement of the Charter” because they allow an unconstitutional state of affairs to persist.  Suspensions should only be used where striking down the legislation without enacting something in its place would pose a danger to the public, threaten the rule of law or where it would result in the deprivation of benefits from deserving persons without benefiting the rights claimant (p. 719).

[10]        On the topic of the “suspension” guidelines articulated in Schachter, Peter Hogg, in Constitutional Law of Canada [Peter Hogg, Constitutional law of Canada, 5th ed  ) (Toronto: Thomson Reuters, 2007) at 40-9 - 40-10], states:

… the guidelines “have largely been ignored in subsequent cases”.  That is because a new rationale, which can be captured by the notion of “dialogue”, has developed for the suspended declaration of invalidity.  That new rationale is simply that, in many cases where the Court has found a law to be unconstitutional, the Court would prefer the legislature to design the appropriate remedy.  “The suspended declaration of invalidity can be viewed as a form of legislative remand, whereby unconstitutional legislation is sent back for reconsideration in light of the court’s judgment.”  This is not an abdication of responsibility by the Court, because, if the legislature chooses to take no action during the period of suspension, the Court’s declaration of invalidity will take effect.  But the period of suspension gives to the legislature the first opportunity to remedy the constitutional wrong.

[11]        Mr. Copley argues that the failure to suspend the declaration of invalidity will lead to financial chaos, give rise to the risk of acquired rights during the interim period, and create a danger to the public.

[12]        I think the issue that warrants consideration is whether there will be a gap left by the declaration invalidating part of the ARP regime, and whether that gap will create a situation that could “pose a danger to the public”.

[13]        The ARP regime was designed by the Province as an effective means to combat the serious problem of drinking driving and the personal tragedy and emotional costs it causes.  In my ruling, I largely upheld the regime, finding it to be within the legislative jurisdiction of the Province.  My ruling was that the ARP regime, with its automatic roadside prohibitions, is unconstitutional as it applies to drivers allegedly blowing over 0.08.

[14]        Beyond the ARP regime, with respect to drivers blowing over 0.08, the tools available to the police are: a criminal prosecution after taking the driver to the police station for a breathalyser test; and/or, a 90 day Automatic Driving Prohibition (ADP) effective after 21 days’ notice; and/or, an immediate 24 hour driving suspension.  Mr. Mickelson says that there is no gap created by declaring the “fail” or “over 0.08” part of the ARP legislation invalid because the ARP regime is still valid and effective with respect to drivers blowing between 0.05 and 0.08, and because the criminal law and ADP regime are available for drivers blowing over 0.08.

[15]        However, Mr. Copley’s argument, as I understand it, is that the ARP regime is a complete regime in and of itself.  It efficiently removes impaired drivers from the roads and deters repeat impaired drivers in a manner which is more effective than the criminal law or the ADP regime.  In his submission, although there may be other regimes available to the police, to declare the impugned portions of the ARP regime invalid would be to create a gap which poses a danger to the public by denying the police the tools necessary to efficiently combat the problem of impaired drivers.

[16]        Mr. Copley argues that the danger must be assessed in light of my findings as to the pressing and substantial objective of the government in adopting the ARP regime.  He points to paras. 1 and 61 of my reasons as follows (see also paras. 268-271 of my earlier reasons):

The death and injury caused by drinking and driving is of great concern in our society, and reducing it is an indisputably important goal.  This litigation involves a challenge to certain legislative measures taken by the British Columbia government in pursuit of that goal.  The challenge requires determining whether the legislative measures are within the Province’s constitutional jurisdiction and whether they are consistent with the rights of individuals protected in the Canadian Charter of Rights and Freedoms [Charter].  Such an assessment occurs in the context of tension between individual rights and societal objectives.

As Mr. Justice Cory said in an oft-cited quote from R. v. Bernshaw, [1995] 1 S.C.R. 254 (at para. 16):

Every year, drunk driving leaves a terrible trail of death, injury, heartbreak and destruction.  From the point of view of numbers alone, it has a far greater impact on Canadian society than any other crime.  In terms of the deaths and serious injuries resulting in hospitalization, drunk driving is clearly the crime which causes the most significant social loss to the country.

[17]        Mr. Copley refers to the evidence of the Superintendent of Motor Vehicles outlining the statistical evidence suggesting a significant drop in alcohol-related fatalities during the period following the introduction of the ARP regime.

[18]        Mr. Mickelson says that the statistical evidence can be misleading and, while granting that even one alcohol-related fatality is too many, suggests that any recent reduction in deaths may equally be the result of the introduction in the ARP regime of suspensions at the 0.05-0.08 range.

[19]        In considering the issue of danger, I think I should be mindful of the fact that the Legislature has established a regime which it views as not only effective, but more effective than other tools which are available to counter a serious and pressing danger in our society.

[20]        The concern, of course, with a suspended declaration of invalidity is the fact that until the law is changed there will continue to be Charter infringements.  This is a serious consideration.  Courts in some cases have made orders where they establish terms to protect those whose constitutional rights might be violated by the operation of an unconstitutional law.  See for example R. v. Swain, [1991] 1 S.C.R. 933; R. v. Hoeppner (1999), 134 Man.R. (2d) 163 (C.A.).

[21]        I have considered the possibility of making a provision in the order that as a condition of the delayed declaration of invalidity I would require drivers receiving ARPs in the “fail” zone to have more robust review rights.  However, I think this is properly a matter for the Legislature, and even as an interim measure would require this Court to intrude too heavily into the legislative realm.   As Dickson J. (as he then was), stated in  Hunter et al. v. Southam Inc., [1984] 2 S.C.R. 145 (at p. 169):

While the courts are guardians of the Constitution and of individuals’ rights under it, it is the legislature’s responsibility to enact legislation that embodies appropriate safeguards to comply with the Constitution’s requirements. It should not fall to the courts to fill in the details that will render legislative lacunae constitutional.

[emphasis added]

[22]        Accordingly, I have concluded that an immediate declaration of invalidity of part of the ARP regime may pose a danger to the public.  I have decided that in the circumstances, after weighing all relevant factors, it is appropriate to grant a delayed declaration of invalidity such that the order that I make will not be effective until June 30, 2012.  In suspending this declaration of invalidity it is not my intention that the fact of the suspension itself will affect any rights that may have accrued or vested up to the present date.

[23]        The final issue relates to the personal remedies of the petitioners.  The position of the petitioners on this point is that any reference to the issuance of an IRP (ARP) in the petitioners’ driving records should be expunged, and they should be reimbursed for all penalties and other related costs such as the payment in connection with the remedial program, the payment in connection with the impoundment of the motor vehicle, the payment of a hearing fee, and the driver’s licence reinstatement fee.

[24]        As the Court pointed out in Hislop (at para. 86):

Because courts are adjudicative bodies that, in the usual course of things, are called upon to decide the legal consequences of past happenings, they generally grant remedies that are retroactive to the extent necessary to ensure that successful litigants will have the benefit of the ruling.

[25]        I agree that it is important that the petitioners (other than to the extent that any of the petitioners received an ARP on the basis of an alleged failure to blow[1]) benefit from this ruling.  However, I am concerned that issues such as the retroactivity of the ruling, whether I can grant personal remedies under s. 24(1) of the Charter in addition to broader s. 52 Charter remedies, and whether certain monies are recoverable by the petitioners in this case are complicated matters, and I did not receive full argument on all of these points.  In order to give proper consideration to these complex issues, it is my view that further submissions by counsel are necessary.

[26]        Accordingly, the part of this application specifically with respect to possible personal remedies of the petitioners is adjourned and may be brought on at any time convenient to counsel.

[27]        Finally, I return to the specifics of the formal order.  The entered order should provide that the declaration of invalidity will be suspended until June 30, 2012.  The formal order should also set out the infringing parts of the legislation which are severed and which do not include references to the “failure to blow” provisions of the legislation.  Counsel should settle the form of the order as soon as is reasonably practicable based on my clarification in these reasons of the scope of the infringement.  If there is any issue between counsel on the form of the order, they may make written submissions with a draft form of order.

[28]        Therefore, in summary:

1.            The “failure to blow” aspects of the ARP regime do not infringe the Charter;

2.            The formal order will be settled in accordance with these reasons;

3.            There will be a declaration of invalidity of the infringing parts of the ARP regime, but the declaration of invalidity shall be suspended until June 30, 2012; and

4.            The claim of the petitioners for personal remedies will be adjourned pending further argument.

“J.S. Sigurdson J.”

The Honourable Mr. Justice J.S. Sigurdson

Posted on Dec 9 2020 by gosal

Law in a State of Flux for DUI Appeals in BC:  How it Affects You
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There is a lot of hype and noise out there about what the law is, what it isn’t, what the remedies are, and what they are not.  Here are some salient sections of the Sivia v British Columbia (Office of Superintendent of Motor Vehicles) Decision. See our previous blog, for a summary of the decision.

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This Charter argument that protects Unreasonable Search and Seizure position has been taken consistently by D. Gosal Law Corporation.  Justice Sigurdson, of the BC Supreme Court, in Sivia v. BC (Supt. Of MV) 2011 BCSC 1639 agrees.
He has held, inter alia:

[16]         However, I find the ARP legislation infringes s. 8 of the Charter in the limited circumstance where, on the basis of a search of breath by an approved roadside screening device, a 90-day license suspension as well as significant penalties and costs are imposed on motorists who allegedly blow over 0.08, without those persons being able to meaningfully challenge the results of the search.  I also find that the infringement is not saved under s. 1 of the Charter.  The Province has failed to demonstrate that it constitutes a reasonable limit on the right to be free from unreasonable search and seizure.

And also, in particular reference to the Section 8 Argument, the court held a violation that was NOT saved by Section 1 of the Charter.

306]     Having reviewed the relevant aspects of the ARP regime which authorizes the search and seizure of breath, the issue is whether the petitioners have demonstrated a breach of s. 8 of the Charter.

[307]     As is apparent from my review of the ARP legislation, there are two distinct branches of the ARP regime which impose driving prohibitions and cost consequences to drivers, they are: driving prohibitions and associated penalties and costs for drivers in the “fail” range, and; driving prohibitions and associated penalties and costs for drivers in the “warn” range.  The prohibitions for drivers in the “fail” range are more substantial, being 90 days and related penalties and costs totalling upward of $4000.  The prohibitions, penalties and costs for drivers in the “warn” range are less substantial.  The prohibitions are much shorter at 3, 7, and 30 days (depending on the number of occurrences) and the cost implications are lower.

[308]     I will deal with each branch of the ARP regime in turn.

[309]     The pressing government objective and the social utility of removing impaired drivers promptly from the road are important with respect to prohibitions, penalties and costs in both categories.

[310]     In assessing whether the law that authorizes a search in a regulatory regime is reasonable for the purposes of s. 8 of the Charter I have considered the various factors discussed above which include two crucial factors: first, that the search by the screening device is part of a regulatory scheme focused on extremely important government objectives, and second, that drivers subject to the search under the ARP regime have a diminished expectation of privacy in their breath.

[311]     I intend to discuss the “fail” and the “warn” categories separately because I have reached separate conclusions about them.

[312]     With respect to the “fail” (over 0.08) branch of the regime, there are particular considerations that I think are significant in the s. 8 analysis.  It is fair to say that this part of the ARP regime approaches the realm of criminal law in terms of the impact on the driver and the nature of the regime.  The search power that is central to the regime is derived from a power given to the police under the Criminal Code as part of a criminal investigation, the suspensions that are imposed are lengthy and the costs that follow automatically from a prohibition are significant.

[313]     Under the criminal law a driver has a number of protections to ensure only properly compelled evidence can support a conviction, however under this provincial regime, the same protections do not exist.  The search under the ARP regime in this case results in consequences similar to those arising out of a criminal investigation, but provides a far less meaningful basis upon which to challenge the legitimacy of those consequences.   I conclude that this is a significant issue in terms of the reasonableness of the law.

[314]     Although the consequences to the driver are particularly significant in the event of a reading in the “fail” range, the driver does not have the opportunity, even after the prohibition comes into force, to challenge whether he or she was in fact over 0.08 or whether there were problems with the ASD that may have lead to an inaccurate reading.  The societal interest underlying the objective of removing impaired drivers from the roadway has been accomplished by the immediate prohibition, but the ARP legislation nevertheless provides an extremely limited review, particularly on the important question of whether the driver was in fact over 0.08 at the time the prohibition was issued.  The prohibition and significant consequences are based on a search of the driver but the driver has extremely limited grounds to challenge the accuracy of the results of the search.

[315]     A reasonable review regime in a regulatory setting such as this is a relevant consideration in balancing the state interest against the interest of individual motorists.

[316]     The balancing of an individual’s privacy interests and the state interest in the safety of highways involves consideration of all of the factors that I have set out.  In summary, I have considered: the minimal intrusiveness of the search; the lower expectation of privacy in a compelled breath sample at roadside; the fact that driving is a highly regulated activity and a privilege; and that I have found the objective of the legislation, to remove impaired drivers from the highway, to be a very compelling state purpose.

[317]     I have also considered, under the “fail” aspect of the regime: the closeness of the ARP regime to criminal law; the impact on the driver through the severity of the penalties and costs and the length of the prohibition; the fact that the search is based on suspicion rather than reasonable belief; and the extremely limited basis for the driver to challenge the prohibition.

[318]     As I have described earlier, I have concluded that s. 8 of the Charter applies to the ARP legislation.  Upon a consideration of all the factors I have discussed in connection with the prohibitions arising from the “fail” aspect of the ARP regime, I find that the ARP regime infringes s. 8 of the Charter, as it has been demonstrated to be an unreasonable law.

[319]     A key reason for my conclusion is the fact that while the consequences from the search are substantial and approach criminal law sanctions, there is no way under the impugned law for the driver to challenge the validity of the results.  As evidenced by the review process already in place under the ADP regime, it is possible to allow for a more meaningful review to be put in place without in any material way affecting the government’s objective of removing impaired drivers promptly and effectively from the road.  In my view, it is not reasonable to preclude a driver a more meaningful review of the grounds for a lengthy suspension, penalty and costs in the “fail” (over 0.08) part of the ARP regime.

[320]     This deficiency is not corrected by the administrative challenges available to the petitioners on judicial review because those challenges will not be able to address the concerns about the validity of the search results.

[321]     I recognize the pressing nature and importance of removing impaired drivers from the highway.  However, that government objective can be fully and efficiently realized while respecting the rights of the individual driver as well.  The ARP regime that imposes prohibitions for drivers who “fail” at the roadside does not appropriately balance the rights of individuals and society at large.  Relying on a search power derived from the criminal law that allows for a breath demand on suspicion but does not meaningfully allow the driver to challenge the suspension after the fact is not, in the entire context, reasonable.  I therefore find that there is an infringement of s. 8.

[322]     Let me turn to the branch of the ARP regime that deals with prohibitions, penalties and costs when the driver has a reading in the “warn” range upon a search by an ASD.  The question again is whether the law that authorizes the search with respect to the “warn” aspects of the ARP regime is reasonable with respect to s. 8 of the Charter or whether it infringes s. 8.

[323]     In considering and balancing all of the factors that I have described, I reach a different conclusion than I have reached with respect to the “fail” provisions of the ARP regime.

[324]     The petitioners have not established that the branch of the ARP regime dealing with ASD readings in the “warn” range is unreasonable.

[325]     To analyze this, I have considered the ARP regime in the “warn” range as if it were a stand-alone and separate legislative regime.

[326]     The government objective of removing impaired drivers from the road is a significant factor that applies to this aspect of the ARP regime as well as all aspects of the regime.

[327]     In connection with suspensions arising from the screening device registering in the “warn” range, the penalties for a driver are lighter and the suspensions are far shorter; starting at 3 and 7 days and increasing only as much as 30 days in the case of repeat offenders.  In the Summary of Consequences and Costs published by the Ministry of Public Safety and Solicitor General, the administrative consequences in the “warn range’ are described as starting with a 3 day suspension and costs totalling $600 made up of towing costs, the administrative penalty and the licence reinstatement fee.  Accordingly, with respect to prohibition length and associated costs, the ARP regime, in the case of a “warn” reading, does not approach criminal law in anywhere near the same manner as in the case of a “fail” reading.  Moreover, it is also significant that the area of concern for prohibitions in the “warn” range (between 0.05 and 0.08) is not in an area typically the subject of criminal law; that is, suspensions for driving over 0.08.

[328]     While recognizing the weakness of the statutory review process as it applies to the “warn” branch of the ARP, after considering and balancing all of the factors, I am not persuaded that the ARP law that authorizes a search resulting in consequences for persons who blow in the “warn” range is unreasonable.  Put another way, I am satisfied that in the case of prohibitions and related penalties and costs that are imposed on a driver in the “warn” range, the pressing government objective justifies the intrusion into personal privacy.

[329]     In connection with this part of the ARP regime, the petitioners have not established an infringement of s. 8 of the Charter. Accordingly, had the ARP regime been restricted to the consequences associated with a driver registering a “warn” on the ASD, I would not have found an infringement of s. 8 of the Charter.

[330]     Nevertheless, and to the extent that I have described above, I find that the petitioners have established a breach of s. 8.  I will discuss below whether the infringement is saved by s. 1.

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