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BC Supreme Court Strikes down DUI Roadside Laws in Part
November 30th, 2011 by gosal on

OUR OFFICE HAS BEEN FLOODED WITH CALLS, EMAILS, AND MEDIA INQUIRIES.
DO NOT THINK JUST BECAUSE THIS SUPREME COURT CASE CAME OUT, YOU WIN YOUR IRP!

You need to act diligently, and file your appeal within allotted time set by the OSMV, and consult a DUI / IRP Practitioner like us immediately to protect your rights, which the Court say do exist (in narrow circumstances!).  The Case stands for very narrow issues, and it is not simply Striking Down Pending cases, or licensing requirments.

DIL GOSAL, BARRISTER. NOV. 30, 2011.
www.GosalLaw.com
www.DuiLawyerSurrey.com

In a decision released November 30, 2011, over 80 page Sivia decision Court (through Jon Sigurdson, J.) has struck down certain provisions of the Legislation.
I have read the decision in detail. Given the complexity of legal issues pled, and very narrow Ruling, and lack of Remedy section, you should assume that your IRP continues in force, unless the OSMV advises otherwise.

A quick run down of the case, shows that the Judge stated that although the IRP drinking driving laws are close to replacing the Criminal Law, it does not replace the Criminal Code provisions for DUI (Criminal law is federal power, not provincial).

The Immediate Roadside Prohibition laws DO NOT violate Section 11 (d) of the Charter, being the Presumption of Innocence.

The Immediate Roadside Prohibition laws DO NOT violate Federal Law or Section 11 of the Charter, in that it is NOT a Penal Consequence akin to Cirminal Law. The Pith and Substance of the IRP is not Criminal Law, which is the exlusive Jursdiction of Parliament.
The Immediate Roadside Prohibition laws DO VIOLATE Section 10 Right to Counsel of the Charter, but the sections are saved by Section 1 of the Charter.

The Immediate Roadside Prohibition laws DO VIOLATE Section 8 of the Charter that protect against unreasonable Search and Seizure, in the limited circumstances on FAIL and REFUSAL candidates, where the person has little meaningful way to challenge the results of the search. This infringment is not saved by section 1.

People caught in the Warn Zone (.05 to .099), it DOES NOT infringe their Section 8 rights. The Court held on this point, “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. ”

The Remedy is to be considered between counsel, and to appear before the Court for further Orders.

At this stage, it seems that Attorney General Shirly Bond has suggested that the Clarke government will try to made legislative amendments to “fix” the holes in the Motor Vehcile Act, so that the concerns enunciated in Sivia will be addressed. That may happen in the spring of 2012, and until then, you may be facing even tougher sanctions, with Criminal DUI charges.

In the meantime, Bond advised that there are still laws on the books that were not addressed in the case.  Specifically, the 90 day Administrative driving Prohibition (which had the 21 day grace period), and also Criminal DUI and Criminal Impaired Driving and Over. 08 charges.

Those laws will actually be tougher, in the sense that you could end up with two driving prohibitions, and a Criminal Reocrd, and a 1 year ban, well over $5,000 in ICBC Driver Risk Premium Assessments Premiums,  court fines, etc.  This was the system before September 2010.

-The IRP Laws authorize a Search and Seizure, by referring to the ASD results of the ASD for the purpose of issuing Driving Prohibitions.
-Does the Law authorizing the search, trigger the application of section 8 of the Charter, and whether the law is unreasonable and violates section 8. Considering the Nature and Purpose of the Law, the Intrusiveness of the Search, regulations for driving.

-Court finds different results for Warn and Fail. For Fail, the court opined, in the lack of ability to test the results:

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.

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.

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