October 2015

A Regulatory System for Cyclists

There has been a lot of attention paid to the issue of bicyclists and the use of the roadways lately, particularly given recent stories involving a cyclist’s alleged assault on a pregnant woman or the cyclist ICBC is blaming for an accident because he was impaired. As a driver, I can say that my experience on the roadway is that many cyclists appear to be either ignorant of their obligations on the roadway, or willfully reckless about following the rules. It’s frustrating as a driver, and as a person who defends drivers because I can see the way that cyclists pose a significant risk to the public, but do not have any accountability when they violate the rules.

As a result of the increase in discussion on this topic, many people have been calling on Government to regulate cyclists in the same manner as cars are regulated: compulsory insurance policies and bicycle registration with plates. To my mind, this is the only reasonable system that keeps cyclists accountable to drivers, pedestrians, and one another, and it is the only reasonable system that protects cyclists from harm.

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A Marijuana Breathalyzer? Don’t Hold Your Breath

Over the last several months, numerous articles have been posted discussing the development of a marijuana breathalyzer. The theory is that through the miracle of science (or a complex technical formula the explanation of which is not relevant to this blog post) a sample of a person’s breath will reveal the concentration of marijuana in their bloodstream. This is similar to alcohol breathalyzers, though the process by which the sample is analyzed and the marijuana detected is vastly different.

Many groups like MADD Canada have pushed for a mechanism of roadside testing for drivers suspected of being impaired by drugs. They see the development of these tools as a victory in the battle against impaired driving. But will a marijuana breathalyzer really help anything?

I say no.

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The Supreme Court of Canada Ruling – No Change

When I first read the judgments in the Wilson and Goodwin cases this morning, I thought “Well… that was anticlimactic.”

The short version is that there is no change to the status quo. The legislation that was challenged in the Goodwin cases (the first version of the Immediate Roadside Prohibition scheme) was found to be unconstitutional for the reasons given by Justice Sigurdson. The Court commented specifically that the amendments to the legislation, i.e., the current version of IRP laws, demonstrate that there can be a more reasonable review process. This likely shuts down any further challenges to the current version of the law.

As far as Wilson is concerned, the Court concluded that the argument suffers from a fatal flaw: the legislation is not ambiguous. I knew going in that I had a tough, mostly impossible case. Getting leave to have my argument heard was a surprising feat. I am not disappointed with the work I did, and I fought to the end for my clients and a cause that I believe in. As a lawyer, that’s my job and I did it as well as I possibly could have. I have confidence that the Supreme Court of Canada is applying the law fairly and correctly and hearing all cases with an open mind.

Still, to be human means it’s hard to not get the result you want. Many people do not realize that being a lawyer is like riding a roller coaster every day. There are highs when you are victorious for your client, and lows when you are not.

So going forward I continue to do what I’ve been doing all along: representing my clients to the best of my ability and continuing to challenge the Immediate Roadside Prohibition law and any other law that impacts the rights and freedoms of drivers in this province.

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The Wilson Decision – Yes, No, or Something? 

Today we got word from the Supreme Court of Canada that they will be giving their decision in the Wilson v. British Columbia (Superintendent of Motor Vehicles) and Goodwin v. British Columbia (Superintendent of Motor Vehicles) cases on Friday morning. This news confirms my earlier predictions and suspicions that the decision would be rendered in October.

We will finally have an answer from Canada’s top court on the legality and proper process of British Columbia’s DUI law.

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Ian Mulgrew: B.C. drunk-driving law looks flimsier than ever (Vancouver Sun) 

Five-years after Victoria introduced the nation’s toughest anti-drunk-driving laws, the controversy over the inequities of instant curbside justice continues.

Documents obtained from a freedom of information request show numerous B.C. motorists have been wrongly handed stiff Immediate Roadside Prohibitions for impaired driving as a result of improperly calibrated screening devices.

The drivers will receive some reimbursement but the lawyers who obtained the material claim it emphasizes a more insidious problem. The Office of the Superintendent of Motor Vehicles, which operates a supposedly independent appeal process for IRPs, is working so closely with police, these documents show, that even the appearance of impartiality has been destroyed.

“Never has it been disclosed to us for the hearing that the superintendent is on the B.C. Association of Chiefs of Police impaired driving advisory committee,” said Vancouver lawyer Kyla Lee, whose office made the FOI request on behalf of a Vancouver Island client. “That’s the part that strikes me as most disturbing about this (collection of emails, briefing notes and drafts).”

The B.C. Supreme Court, she explained, has criticized the government for not maintaining a robust appeal process separate from its enforcement and prosecution roles.

“They are supposed to be, as a tribunal, independent,” Lee said. “They are not supposed to be the prosecutor and the judge in their own case. But by being represented in this capacity on the committee, they are.”

Her colleague at Acumen Law Corp., lawyer Paul Doroshenko, said that more than 1,000 IRP appeals across the province in the last year have focused on the calibration process for the 2,000-plus approved roadside screening devices deployed by B.C. police agencies. Their office is handling about 300 of the files.

Within the 35-pages of interaction between the government and police released, the RCMP said it found between Jan. 23 and July 31 in Tofino, 39 invalid IRPs were issued.In Vernon, the RCMP said, they issued 13 invalid IRPs between June 13 and Aug. 3.

The problem is more widespread, Doroshenko insisted, and police say in the back-and-forth emails with the superintendent’s office they are undertaking a provincewide review.

Municipal departments may be affected, as well as criminal cases, because the same concern about the certification of gas used in the calibration process for roadside devices applies to breathalyzer machines, Doroshenko added.

In Aug. 15 notes, the minister was told to minimize the concern if it becomes public by saying the problem is fixed, drivers will be reimbursed, their records cleansed and, most importantly, the program that penalizes motorists blowing above .05 will continue to save lives.

But Doroshenko maintained recouping the roughly $5,000 in fees and charges it costs most drivers is little compared to the often expensive collateral consequences, such as loss of a job, that can result from an IRP.

More than 18,800 prohibitions are handed out annually under the scheme, which is credited with reducing drunk-driving casualties and the load on provincial courts while drawing criticism for trampling on civil rights and hurting too many innocent motorists.

“It’s another failing of the system that we are seeing,” Lee said.

“When you entrust police to do everything that has to be done in these investigations — to calibrate the devices regularly, to employ them in a reasonable manner, to follow all the steps of the legislation, to prepare the evidence, to submit it to the superintendent and then you don’t have the safeguards that we used to have when there were criminal prosecutions … .”

But efficiency and enhanced public safety have triumphed over procedural as well as fundamental fairness.

Lee said the latest, updated version of this legislation — passed but not enacted — envisions the superintendent and police working together like joined twins.

After hearing arguments earlier this year, the Supreme Court of Canada continues deliberating about the constitutionality of the original law and this way of doing business.

Prudence suggests waiting for that ruling before adopting a new iteration of the heavy-handed law.

“It’s not in effect yet and the superintendent shouldn’t be behaving as though it is,” Lee said.

“As far as I’m concerned, that law is absolutely unconstitutional and our intention is to challenge it at the first available opportunity.”

Read more: http://www.vancouversun.com/news/Mulgrew+drunk+driving+looks+flimsier+than+ever/11410297/story.html#ixzz3neNPJwZe

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