Sticking Your Neck Out

Both myself and my colleague, Paul Doroshenko, are known for the ways in which we stick our necks out in the interests of justice. Doing so has its benefits, mostly because we know we are sticking up for the little guy and there is great satisfaction that comes from fighting for a cause that you believe is just. I am particularly active in defending Immediate Roadside Prohibition cases, and have advanced numerous complex, technical, and creative legal arguments. I do not always succeed, but I do cause the Superintendent of Motor Vehicles some difficulty.

However, there are also downsides to doing what we do. And if you’ve noticed the silence in my blog as of late, the downsides are part of the explanation.

I was recently the subject of two attacks on my character by the Superintendent of Motor Vehicles. One came in the form of a proceeding in BC Supreme Court seeking to have me disqualified from representing any clients before the Superintendent, in perpetuity, or to specifically disqualify me on a number of my existing cases. It also named the other lawyers at my firm and Acumen Law Corporation. The other came in the form of an argument that I had engaged in misconduct for doing what I am ethically obligated to do: defend my clients to the best of my ability, advancing every possible argument.

Ian Mulgrew wrote a story for the Vancouver Sun about these allegations, and recognized the absurdity of them. The Superintendent has since backed off on both fronts.

My belief has been that these attacks were a thinly-veiled attempt to intimidate me and persuade me not to take on so many significant cases. I say thinly veiled because the Attorney General wanted a Court Order to prevent me from doing just that. There’s an old saying, “If you can’t beat ’em, join ’em.” I guess the flip side of that is that if you can’t beat them or join them, then you should try to destroy them. During the height of this, I joked to Paul that generally when people say that the Government is out to get them they come off as crazy. In my case, I could say it in sincerity, with filed pleadings to back it up.

I’m not one to back down, and I did not take these allegations or these attacks lightly. I spent money out of my own pocket defending myself and my colleagues, and I put in countless hours preparing material and evidence to support my case. The unfortunate result is that this distracted me from things like writing my blog. But in no way did it convince me to back down. While all of this was going on, I was still arguing judicial review cases in BC Supreme Court. I’ve had a streak of successful decisions, including two prohibitions that were sent back for re-hearing after my successful arguments last week alone. I’ve filed an application for leave to appeal a decision to the Supreme Court of Canada, and I’ve appeared in the Court of Appeal to argue pro-bono for a client’s case. I argued an interesting jurisdictional question on a driving while prohibited charge, and am awaiting a decision in June, 2016.

But personal projects like the blog, or my love of iZombie and It’s Always Sunny in Philadelphia have had to fall by the wayside.

The effect of this all has only been to refocus my efforts against fighting the Immediate Roadside Prohibition legislation and to try to make the process fairer and more reasonable. Tomorrow, I appear again in BC Supreme Court on an important argument relating to statutory interpretation. The Government wanted to make me back down. They wanted to distract me. It hasn’t happened, and it won’t.

I may have been quiet, but I haven’t been gone. I’m still taking cases, and still interested in advancing important causes. The Government might try to cut me, but I’m still sticking my neck out.

21 thoughts on “Sticking Your Neck Out”

  1. Keep up the good work! Taking on the entire weight of the government is often lonely work.

  2. I’m curious, what do you find wrong with taking away a deadly weapon from an accused criminal?

  3. Bob the mechanic

    Keep it up.. Roadside prohibitions have their place, but they are easily abused, and there has to be some protection and recourse for it

  4. You miss the point. She is obligated to forward any best argument. That’s the justice system. Agreement with the argument is irrelevant.

  5. Hi Larry,
    I’m assuming what you mean is that a car is a “deadly weapon” and an “accused criminal” is a person who receives an IRP.
    There are a number of logical flaws with your question, particularly given that IRPs are not criminal charges, and the people who receive them are not accused criminals or, even, criminals. It isn’t a crime to fail an ASD test, and if a person is issued an IRP they will not be prosecuted criminally. Moreover, the Supreme Court of Canada recently determined that an IRP isn’t even an offence, in Goodwin v. British Columbia (Superintendent of Motor Vehicles) 2015 SCC 46. Similarly, vehicles are only deadly weapons when they are used as such and are otherwise, by and large, tools that people use in the course of their employment, family obligations, and daily living. Much like you could stab someone to death with a screwdriver, but that doesn’t make it a deadly weapon generally speaking.
    I suppose what your question really boils down to is this: do I agree that it is right to take away a person’s car if they’ve been drinking and driving. And I do, with limits – a brief prohibition from driving to deal with the pressing need to remove a potentially impaired driver from the road for the time they are impaired is something I think any reasonable person can support. But the IRP doesn’t fall within those limits in any way.
    In any event, your comment doesn’t really align with my post so it’s hard to understand your context. My job as a defence lawyer is, as Ian below has correctly pointed out, to advance every argument that will assist my clients. My ethical obligations stretch further in that I have to set aside my own personal views in order to do so. Just like a doctor has to perform a life-saving surgery on a murderer or a rapist, I have to represent my clients without letting my personal opinions about them or their actions interfere. And if I can’t do that, I can’t be their lawyer. Not everyone can do it. But it is still something each and every one of my clients is entitled to.
    Thanks for reading.

  6. DUI is a criminal offence, correct? And if convicted the driver receives a criminal offence, thus turning them into a criminal. DUI also turns a motor vehicle into a deadly weapon, therefore it is no longer a tool. DUI is a known killer or destroyer of life, families get devastated by an action that is otherwise 100% Preventable.
    Therefore taking away the “Deadly Weapon” from a DUI is not breaking anyone’s rights, it is simply taking away the weapon until court, same as the police would take away the screwdriver a person was holding if someone was found stabbed to death with a screwdriver, or a person walking through a crowd with a gun, you wouldn’t expect the police to ignore the person with the gun just because they had not killed yet, you would expect them to take the gun away, correct? Especially if the person carrying that gun was drunk.
    Or do you think the police should just let the drunk with a gun in a crowd to continue on their way until something happens first?
    At least with IRP, the driver has to blow into 2 separate devices to prove their BAL to determine if the weapon gets taken away on the spot.

  7. Larry, you’re the only person who has mentioned DUI’s here, this isn’t about DUI’s, this is about IRP’s, they’re not the same thing.

  8. IRP legislation doesn’t accuse the driver rather it convicts them without the option of prior judicial review like you would get for running a red light for example. The government doesn’t want it’s shaky evidence tested which every Canadian has a right to.

  9. Your wrong, IRP does Not convict anyone, it removes the vehicle from the driver that has been drinking, rather than letting them continue to drive and likely kill or injure an innocent human.
    Running a red light is human error, DUI is completely a drivers choice to turn their motor vehicle into a weapon, it is no longer human error.

  10. Carew Martin, I hate to break the news to you, but an IRP is the direct result of DUI.
    If you blow a warn or a fail, in other words (DUI) the consequences result in an IRP.

  11. Kyla, keep up the good work. Keep fighting to keep the scales of justice balanced. Society as of late, seems to have lost its fight against government and its desire to make laws that punish people without due process and the presumption of innocence, and tip the scales in favor of the crown at all costs. We are well down the slippery slope of the loss of our civil freedoms that our forefathers fought so hard for us to have. Thank you

  12. Larry, the problem with IRP’s is that, unlike DUI’s, you don’t get a day in court, thus circumventing the “innocent until proven guilty” maxim upon which our whole legal system is based. Now we know you’ve never made a mistake but other people do sometimes, like cops sometimes who pull over driver’s who they think have been drinking, thus the need for due process. Your analogy with the gun was reasonable but your analogy with the screwdriver wasn’t because the person driving hasn’t hurt anyone with their car and in all likelihood won’t, even if they drive home drunk, their odds are just increased. You seem to be under the impression that everyone that drives drunk ends up in an accident and I can assure you, that’s not the case, while the odds increase of them getting into an accident driving drunk (the drunker they are, the greater the likelihood of an accident) the odds are still heavily in their favor of making it home fine.

  13. I see Carew, you support drunk drivers even though it’s a proven killer every day, and those it doesn’t kill can be injured to a point of being life long suffering, and not just for the victims. What a Sad human you are.
    With IRP you get to blow in 2 separate devices so the odds of an error are extremely unlikely, and you have 7 days to file an appeal.
    Curious, if you bought a lottery ticket that only had a 5% chance odds of being killed or injured permanently if you didn’t win the top prize, would you still want to take that chance and buy a ticket?

  14. Larry,
    The odds of an error being extremely unlikely are not disputed. That doesn’t mean that the burden of proof has been met which is exactly what our justice system is designed around, and for good reason. Take this example:
    A strange outlier, no doubt, but that’s what it’s crucial to allow for. Circumstances that might not be obvious by the side of a road.

  15. Ian Fisher,,,,, Sure an extremely rare condition where the person suffering from it very possibly shouldn’t be operating a motor vehicle on public roads anyways. But the benefits that the IRP provides far out way the inconvenience that 1 person in how many million might have.Even one life saved makes up for a temporary inconvenience of one person here and there don’t you agree?

  16. Oh Larry, I see you’re at it again. You remind me like nothing so much as a creationist arguing against evolution: You don’t actually have a clue what you’re talking about, but pontificate loudly and confidently you will because you just know you’re right. Well, sorry to break it to you but you’re very wrong in this case. You see, the IRP concept is unconstitutional. The end. Everything else you spout is just so much dust in the wind.

  17. Poor Aram, there is zero unconstitutional with taking a motor vehicle away from a DUI on the spot. What part of DUI do you not understand, it kills and injures every day, many times a day, proving you completely wrong. The very knowledgeable Lawyers that helped put this law into practice, far outweigh your wrong opinion.

  18. Um… Larry… Tell us all what DUI stands for and tell us what IRP stands for please… And what country you live in and your religious beliefs and if you suffer from any hallucinations or headaches. And if you’re voting for trump or clinton..

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