The veteran Jurist and learned Judge Raven, PCJ held on Feb. 17, 2012, that although the Crown case was close, there was a doubt remaining with respect to identification of the accused A.J. The complainant had not seen the Accused before the incident, or after the incident.  The description was one of an Asian male with blonde hair tips, but the Accused was in fact Aboriginal (Native/First Nations). 

The officer testified he was not aware of the Thomas Sophonow case or Sophonow Inquiry Recommendations, nor had he received any formal training in Line Up Identification.   Instead of generating a photo pack with the descriptors given by the complainant, the officer, gathered images relating to the photos of the accused that he had obtained through a Prisoner Database.  No Asian were in the photo pack.  There were other issues of concern, including age disparity of the accused and other images.  Inconsistent evidence of the Complainant. 

In addition, the Complainant, through the assistance of a friend, searched the social media website of Facebook, and likely obtained images of the Accused after searching for his name (which was given by a witness to the Robbery, that Crown did not call), thereby reinforcing his in court identification, but an identification that was necessarily tainted. 

The photo line up was also thought to be audio and video recorded, but no disclosure was provided, as there were server problems with the RCMP Detachment, and it may have been that it was either lost or destroyed, or that each officer though the other was going to do the recording.  This was even more problematic as one of the officer’s had made no notes regarding the procedure of identification, and evidence existed from that on another ID, the officer neglected to read some of the instructions, despite ticking off the box that he had.  Officers were not acting in bad faith, but were mistaken.

Reference was given by the Crown in submissions to Regina v. Doyle, 2007 BCCA 587, Justice Hall granting leave, but declining the appeal on conviction of Robbery, on the basis that the Learned Trial Judge erred in attaching any weight to witness Identification evidence from a photo line up, as it was not done in accordance with the Sophonow Inquiry.   Doyle court held that the Sohponow recommendations were in fact, sound sensible and considered criteria, but that they were recommendations and did not carry the force of law, requiring binding legal dictates.   

D. Gosal, Barrister, surrey criminal lawyer, litigated the case for the Accused for two days, and the result was an acquittal.  For more information on Commissioner Cory’s Sophonow Inquiry, click here: Manitoba Link.

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 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, 5^th 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

Contact us to discuss whether it is possible to get your license back pending the hearing of your appeal in BC Supreme Court, and also whether it is worth it to do so.

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.

Contact me to discuss your case.

604.598.1118 or

WABCLawyers@aol.com for quicker responses.

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.

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.

Cite to Spencer 2011 BCSC 1311.
[60] The statutory scheme raises many questions beyond those put in issue in this case. The unfairness inherent in the approach taken by the delegates in both Gilles and here certainly hints at larger questions about whether the delegates are equipped with the degree of training or independence necessary to conduct fair hearings, or to demonstrate that they do so. I think it highly anomalous that a person who challenges a speeding ticket may appear personally before an independent and legally trained judicial justice of the peace, while the often far more serious consequences of the “administrative prohibition” provisions of the Motor Vehicle Act are adjudicated in this stripped-down manner.

The compelling social objective of removing drinking drivers from the road cannot justify a process that is incapable of reliably differentiating between those who have and those who have not offended. This case and Gilles give rise to a concern that the scheme is seriously flawed. Whether or not that is, in fact, so, will have to await a day when these broader issues are more squarely before the court.
The process set out in the Motor Vehicle Act for administrative suspensions obviously limits due process. That does not mean, however, that within those limits the dictates of fairness are truncated. A tribunal handicapped by the fact that hearings are not in person, that evidence is not sworn, that there is no cross-examination, and that imposes no duty on the officer to provide all the relevant material (including recordings of the event), lacks most of the means by which courts or other tribunals ordinarily discern the truth. Some cases may be obvious enough that they can be determined by these limited means, but it stands to reason that as the process is stripped of fact-finding tools, the number of cases that cannot be decided – that is, where the burden of proof has not been carried – must go up, if the balance of probabilities is being properly applied.
[53] It is not at all clear that the adjudicator appreciated that the task was whether it was “more probable than not” that the petitioner had failed, without reasonable excuse, to comply with a demand. As drafted, the legislation appears to make the task an either/or proposition, and that is how the delegate described his (or her) task (see paragraphs 19 and 29 herein, above). It is evident that the possibility, inherent in such a limited fact-finding process, that it might not be possible to decide was not in the delegate’s contemplation.

Maninder Gill

Update II

Note: Our office does not represent Maninder Gill.
September 20, 2010: Reports of Maninder Gill’s Residence being shot up, in drive-by shooting from last night, at 121 Street, near 56th Avenue, in exclusive Panorama Ridge area of Surrey, BC.

RCMP have seized video surveillance from the residence to try and determine if person(s) can be identified.

More to come in coming days….

Charges have been laid by the Crown against Maninder Singh Gill, 47 years of age, and include the following:
87(1) Pointing a Firearm
88(1) Possessing a Weapon for Dangerous Purpose
91(1) Unauthorized Possession of a Firearm
244(1) Discharge of a Firearm with Intent to Wound or Disfigure
268(2) Aggravated Assault
95(1) Possess a Prohibited or Restricted Weapon with Ammunition
244.2(3) Unlawfully discharge a Firearm.

These are all charges under the Criminal Code, R.S.C. The alleged victim is 54 year old Harjit Singh Atwal, who received a bullet wound to his thigh area. The dispute has apparently been ongoing, and related to alleged defamatory statements made, and civil actions commenced. Allegations involved statements regarding the conduct of Atwal’s family members, and and his behaviour in public. Plaintiffs include Atwal, Jaspal Atwal, and Harkirat Kular.

Atwal was previouslly a member of the ISYF (International Sikh Youth Federation), which is listed as a terrorist organization.

The shooting occurred at a wedding, at the Guru Nanak Sikh Temple (called a Gurdwara) on Scott Road in Surrey, BC on August 28, 2010. Gill turned himself into RCMP on August 30, 2010.

Update:

Gill has been ordered released on September 9, 2010, pursuant to an order of the Honourable and Learned Judge J. Lytwyn, PCJ, with conditions, and Deposit of $200,000. Conditions include no-contact with the Complainant, curfew, keeping the peace, and being of good behaviour.

If Gill perfects his bail the same day, he will have served 11 days in Pre-Trial Custody, at RCMP and Surrey Pre-Trial Centre.

The bail hearing (Judicial Interim Release) was set in the high-security courtroom of Surrey’s Provinical Court, which includes a bullet-proof barrier between the public and counsel/Judge, and accused.

Gill’s next appearance is set for September 30, 2010, and will likely be only a procedural date, as Crown Disclosure will take some time to be obtained, vetted, and provided to Defence Counsel.

Gill will at some point enter a plea to the charges; typically Guilty or Not Guilty. There will also be an election, if he pleads not- guilty, to have a trial in BC Supreme Court, or to have his trial in BC Provinicial Court. If he elects Supreme Court, a Preliminary Inquiry may also result.
—

In an unrelated footnote,

Ravinder Singh Binning

also obtained an Order of Release for Bail from Surrey Court this week, in his case involving charges of Hit and Run, which caused the death of Sardar Dilbag Singh Badh, and Sardarni Bakhshish Singh Badh.
The case involved an Acura TL, BMW, and a Camaro, on 128th Street and 85th Avenue (just 4 blocks north of our Law Office).

BC Securities commission has commenced hearings, and had previouslly issued a Trade Halt order in July of 2009.

It is currently listed on the Pinks under ticker SUGO, and still shows an address of 7445-132nd Street, Surrey, BC. Listed as an early stage mining & exploration company.

Apparently it had no mineral exploration lands, and the person running the operation Malkeet Bains, had no experience in mineral exploration, and was not a geologist. Karn Bahd was a seed shareholder as well.

During the period of June 2009 to July 2009, stock went from .35 cents to $4.95 USD. Bahd and an associate of Bains, named Narvinder (Narinder?) Virk’s shares comprised over 45% of the trading volume.

The Commission is looking at the conduct into allegations of false or misleading statements to the BCSC. The BCSC is looking to scrutinize conduct of: Parvin Kaur Dhudwal, Amrik Singh Bahd, Kulbir Singh (also known as Kelly) Uppal, Gurpreet Kaur Jhutty and Paul Uppal. Allegations are that the five were given money by the company to purchase shares. Those dates are scheduled for November 15, 16, and 19, 2010.

Malkeet Bains, had apparently bought 5 millions shares of the company, for 1/100th of a cent, and another 4.75 million shares to friends and family. A lease on a $100,000 land was made, with only $2,500 down.

The Vancouver Sun has a full article on the history, authored by David Baines, Vancouver Sun, and is available online. Also see infomine.com
or visit the BC Securities Commission at bscs.bc.ca

Mr. Gosal acts as Criminal Barrister for Norman Segundo and Gerardo Arguello that was referenced in Jane Seyd’s article in the North Shore News, of January 26, 2011, alleging that they assaulted Ryan McCaffery.
Gerardo and Norman will be defending the various charges, and look forward to the trial of this matter, where the other side of the events can be heard, and the truth and credibility of the witnesses determined by the Courts.

They do not wish to have the matter tried in the media, but are compelled given the details published, to respond in part, given the recent one-sided media report and social network alienation.
Gosal can advise certain facts were not included in that news story, which include that Norman is physically a small person, at approximately 110 pounds. Gosal said that he understand that the alleged victim is described as well over 250 pounds, and well over 6 feet tall.
It is the position of the defence that it was McCaffery who aggressively advanced towards Norman, and Gerardo was terrified, came to the assistance of his friend Norman, who was fending off McCaffery’s advances and attacks.

Gerardo was with his family, including two small crying and fearful children in a Van, along with Norman and another female. They were in no rush and were on their way to the outdoors. As opposed to McCaffery, who admits he cut off at least 2 other cars. It is understand by the defence witnesses that it was in fact the complainant that was acting in an aggressive manner, and that Gerardo and Norman tried to defend themselves, and others (the women and children in the Van). And that one of my clients offered water to McCaffery at the conclusion of the matter.

Any questions, please contact Dil Gosal, at www.GosalLaw.com or WABCLawyers@aol.com.
88750 Newton RPO, Surrey, BC, V3W 0X1. Tel: 604.598.1118

Orginal Article, citation to Vancouver Sun, Province, and North Shore News:

North Vancouver man beaten in road rage: Two men charged after alleged Hwy. 1 assault with baseball bat By Jane Seyd, North Shore NewsJanuary 26, 2011
A North Vancouver father is recovering from his injuries but has been left unable to work after being savagely beaten in a case of road rage gone horribly wrong on Highway 1.

Ryan McCaffery’s vehicle was forced to a stop halfway up The Cut and the driver of a minivan got out and attacked him with a baseball bat after an altercation on the road turned ugly on the afternoon of Jan. 1.

McCaffery said he knew the situation wasn’t going to go well when he got out of his vehicle to check for damage and a man who was a passenger in the other vehicle ran up and began to attack him. Shortly after, the driver joined in. “I felt a bat hit my head,” said McCaffery.

While the driver continued to hit him with the bat, the passenger punched him in the stomach. “I remember them saying that I was in big trouble, that I’d made a big mistake,” he said.

McCaffery said trouble first started as he was merging on to the on-ramp for the Ironworkers Memorial Second Narrows Crossing and accelerated to cut in ahead of two other vehicles. That made one of the drivers angry. “He figured I cut them off,” said McCaffery. “They started screaming and yelling and threatening.”

McCaffery said he was on the bridge deck when he heard something smash against the side of his vehicle and noticed the mini van with the angry driver beside him. At that point, he stepped on the gas to get away, and thought the incident was over. But when he was about halfway up the steep hill into North Vancouver, he saw the mini van again.

“They cut across two lanes of traffic and hit the brakes,” directly ahead of him, said McCaffery. That was the point when the driver and passenger came after him.

Luckily for McCaffery, a number of other drivers saw the beating in progress and phoned 9-1-1.

The two men were arrested at the scene. McCaffery was taken to hospital, where a two-inch gash in his head required seven staples to close. He also suffered bruising, swelling of his hand and a welt near his elbow. “I still don’t have full use and strength in my left arm,” he said. The accident has left the father of two small boys — who works as a tow truck driver — temporarily without an income while he recovers from his injuries. “Financially it’s hurting us right now,” he said.

As a tow truck driver, “I deal with aggravated people all the time,” he said. “I’ve never once had something like this happen.”

Corp. Peter DeVries, spokesman for the North Vancouver RCMP, said it’s discouraging to see road rage escalate to this level of violence. “He certainly could have been killed,” said DeVries.

Gerardo Arguello, 37, from Vancouver, and Norman Segundo, a 34-year-old Californian, have been charged with assault with a weapon in connection with the attack. They are scheduled to appear in North Vancouver provincial court next month.

How to Deal with ICBC Injury Claims

By: Dilraj Singh Gosal, BA, LL.M, JD, of D. Gosal & Associates, Law Corp.
Barrister & Attorney At Law
205, 12888-80th Avenue (York Centre)
Surrey
www.GosalLaw.com
604.598.1118

Car accidents are never fun. They can be very stressful, and lead to anxiety, depression, and leave you wondering what your rights are. If you have been injured in a car accident, and the accident was not your fault, the Law may allow for you to recover money as compensation. This area of law is governed by what lawyers and judges call, the law of contracts and torts. The Law attempts to compensate you to the status that you had before the accident occurred.

There are strict time limitations in which you must bring your claim for compensation or damages. If you don’t act before the time limitation, the Law may not allow you to have any recovery, no matter how injured you are.

Should I get a lawyer?

The choice is ultimately yours. However, a lawyer can assist you in your claim, and help you avoid pitfalls along the way. This includes dealing with things like the limitation dates, gathering employment data, medical records and other evidence of injuries. The lawyer can also access similar cases in the past, through caselaw, which can assist ICBC and ultimately, the courts, in determining what a fair and just award is. They can draft and file your lawsuit, in case you have to sue. They can do witness and case preparation.

ICBC adjusters may try to influence you against obtaining a lawyer. “You’re a good person…you don’t need a lawyer…I’ll work with you and treat you fairly” may be possible responses. You will have to weigh the pros and cons. Lawyers can ensure that your rights are protected, and help you get the compensation that you deserve.

Lawyers will often charge on a contingency fee agreement. In other words, they will charge a percentage of any money recovered for you. The percentages can range between different firms and lawyers, but is typically no more than 33.3 percent in motor vehicle personal injury cases. Just because you hire a lawyer, does not mean that you will have to go through a trial. Most cases will tend to settle before trial.

At D. Gosal Law Corp. we only act for persons injured in accidents, not the insurance company. Our loyalty is to you, the client, not to ICBC.

Pain & Suffering:

This is a common ground of claim, often called general damages. Here, we try to asses in a monetary amount for the value of the loss of enjoyment of life. This can be for the discomfort, emotional pain, depression, etc.

It is very important an injured person see his or her doctor, so that the doctor can evaluate the injuries, and the recovery. Both Courts and ICBC may often rely on these reports in determining awards. Communicating with your doctor regarding your injuries is very important.

Wage Loss:

If you cannot work as a result of the car accident, you may be entitled to compensation for the lost wages or income from the date of your wage loss until you are able to return to work, or the settlement of the case.

Lawyer can help you obtain the evidence you need to prove your claim, through the Canada Revenue Agency, financial statements, etc.

In some cases, you can be awarded the gross income without deduction, and not just the net pay. In some cases, there may be permanent loss of future wages. In those types of cases, expert evidence through actuaries and economists can assist in calculating the value of the loss to a “present value.”

Physiotherapy and Rehabilitation:

If you are injured in an accident, you may be entitled to “no-fault benefits”. If you are considered an insured person, you may be able to recover costs for treatment, such as physiotherapy, or other rehabilitative programme.

If an insured person dies as a result of the car accident, ICBC may reimburse for burial, or other funeral expenses. Surviving spouses or a dependant child may also receive lump sum payments depending on the circumstances.

Low Velocity Impact Cases:

ICBC may sometimes take the position that you are not entitled to compensation, as your accident was of a minor nature. Often my clients will get a letter that reads in part: “The information currently available to ICBC, including the minimal nature of the impact forces involved in the collision, as well as your physical condition at the time of the accident, has led us to believe that that the above-noted accident did not result in any compensable injury to you.”

Breach of Insurance Coverage:

Often we get calls from people who have been denied coverage from ICBC. There is a duty of good-faith between you as the insured and the insurance company, which includes disclosing truthful information of all material facts in the application. In some cases, ICBC may deny coverage if they believe that there has been a violation or breach of this duty of good faith.

Some types of situations where breaches may arise are:

-committing fraud during your claim; intentionally making a false statement about a claim; or misrepresenting or failing to disclose certain facts in the application for insurance.

For example, if the car is insured for pleasure use only (which results in a lower premium to the insured) and it is then driven every day to work, and an accident results, ICBC may deny coverage, because the car was not properly insured. Other examples include improper rate classes, incorrect territory, and improper principal operator.

Another common example that comes into our office is the case where the person is charged with Impaired Driving (drugs or alcohol) or Driving while having a blood alcohol concentration of over .08. In those cases, if the person is convicted, then that can result in an automatic breach of insurance coverage, which can have significant monetary repercussions.

Where to Start a Lawsuit?

In British Columbia, we have two main trial courts for civil actions, including personal injury claims. The Provincial Court (Small Claims) and Supreme Court have different sets of rules and procedure. Provincial Court has a monetary award limit of $10,000, which increases to $25,000 in September of 2005. Many claims for personal injury will fit within that court jurisdiction. However, if the case involves higher levels of damages, then the case can proceed to Supreme Court, where there are options for Fast-Track Litigation, and summary trials. There are pros and cons for each court, which should be discussed with a lawyer. This includes the losing party in Supreme Court paying costs, which includes a portion of the lawyer’s fees.

There are alternatives to trial as well, including settlement conferences, and mediation.

Judgments can also be appealed to a higher level of court, if there is an error in law, or a misapprehension of the case.

Injured at or during Work:

If a worker, as defined a provincial law, is injured, she may have a choice or election to choose ICBC for a tort action or WCB for a compensation action, depending on who else was involved in the claim. In some cases, there is no election, and proceeding with WCBC will preclude any action against ICBC. You can discuss the pros and cons and the election process with a lawyer.

Conclusion:

The area of contract and tort law is complex, and if you are injured in an accident through no fault of your own, it may be worth your while to contact a lawyer to obtain legal advice.

• This article is general comment and is not legal advice, and not be relied upon. If you are injured in an accident, consult a lawyer immediately without delay to protect your rights.

Caber Police Dog

On the Lighter Side,

Caber, a yellow-lab, is now on the payroll at Delta Police Department. He will be assisting victim services, and is known as a “police trauma canine.”

He has already gained praise from the Delta community, in his assistance with the case of slain Delta teen Laura Szendrei.

UPDATE: FEBRUARY 21, 2011:

An 18-year-old man has been charged with first-degree murder in the beating death of Laura Szendrei, police in Delta, B.C., announced on Monday morning.

Police says the suspect was arrested in the North Delta area on Sunday without incident. He was not previously known to police.

The suspect’s identity was not released by police because he was 17 at the time of the homicide. He is expected to appear in BC Provincial Court in Surrey, BC, later on Monday.

Some controversy existed when the murder occurred, alleging connections to motor bike gangs or associations.

NEW UPDATE: March 4, 2011

SURREY POLICE SHOOTING SHUTS DOWN KING GEORGE AND HIGHWAY 10:

Adam Brian Purdie, 28, is reported to be the deceased who passed away in a hail of bulletes from the RCMP, while driving his tinted out Chrysler 300.

Saanich Police Department will be conducting the investigation, after there was initially some confusion in terms of who would be handling the investigation, as New Westminster Police Department were initially referenced.

He had apparently already done a stint of federal time for various criminal offences, including assault, and had a firearm prohibition.
He had worked at Coquitlam Chrysler.
Family and friends are refuting the media reports that he was merely a Criminal, and they say that he had done many positive things since his release, including community outreach.

—–

SURREY MOUNTIES MAY FACE CHARGES IN SURREY SIX SHOOTINGS – MURDER
Four RCMP Officers involved in the infamous “Surrey Six” gangland homicide investigation ( IHIT) could be facing charges of their own, under the Criminal Code, RSC.
A “special prosecutor” – Christopher Considine, has been assigned to conduct a review, of the independant investigation conducted by the OPP (Ontario Provincial Police ) Department had considered an allegation of improper sexual relations (affair) with a potential Crown witness in the actual Surrey Six case.

It has been reported, that her proffered evidence could have been used to help identify the people who were involved in the Surrey Six Homicide.

The killings rocked the community, given that two were innocent civilians (youthful Chris Mohan, and Ed Schellenberg, 55, of the Abbotsford Area. It occurred at the Balmoral Tower at 9830 East Whalley Ring Rd. in Surrey on Oct. 19, 2007.

Dennis Karbovanec already pled out on the case, with a life imprisonment sentence, with parole eligibility after 15 years.

James Bacon, of the Bacon Brothers, is charged with one count of first-degree murder and one count of conspiracy to commit murder in the case, while Cody Rae Haevischer and Matthew Johnson are each charged with six counts of first-degree murder and one count of conspiracy.

More to Come.