The information provided below is designed provide some basic legal information. It is not legal advice. If you would like legal advice about what to do with charges you are currently facing, you will need to talk to a lawyer. Please visit the Contact page or complete the form above to connect with Michael.
In Manitoba, The Highway Traffic Amendment Act (Immediate Roadside Prohibitions) came into force on December 16, 2019, and it created the Immediate Roadside Prohibition legislation. An IRP, or an immediate roadside prohibition, is an option for police officers in Manitoba to give a driver administrative punishments instead of charging them with a drive-impaired related Criminal Code offence, like impaired operation of a conveyance, operation of a conveyance at/over 80 mg%, or failing/refusing to provide a breath sample. This option is available after a police officer makes a breath demand for a roadside breath test into an approved screening device, commonly called an ASD. Technically, a police officer can also consider an IRP after a person fails a standardized field sobriety test, a roadside drug test, or if a blood test confirms the driver is over the legal limit for alcohol and/or drugs. However, I really expect it will only be used when the police officer is administering an ASD test. CBC wrote an article about this when the legislation first came into effect called “Stricter sanctions for impaired driving now in effect.” In reality though, the sanctions or punishments for drivers are very clearly lower with an IRP instead of being charged with a Criminal Code offence. The government of Manitoba has information about the IRP program here and Manitoba Public Insurance (MPI) has information here.
British Columbia led the way and was the first province in Canada to create an immediate roadside prohibition law, with the first version of the law coming into effect on September 10, 2010. Due to challenges in court about the law and whether it was Constitutional or not, British Columbia is currently on its third version of legislation contained within the Motor Vehicle Act, which came into effect on April 1, 2016. Because this has been around in BC for such a long time, it is the only province that really has any case law or decisions about IRP cases. If you received an IRP in British Columbia, you can contact Kyla Lee. Her office is in Vancouver and she literally wrote the book on immediate roadside prohibitions in Western Canada.
Saskatchewan introduced its version of immediate roadside prohibitions with The Traffic Safety Act amendments that came into effect on June 27, 2014. In Saskatchewan, their system uses a blood alcohol reading of between 40 mg% to 80 mg% to trigger a prohibition, which is the lowest of any of the IRP programs in the country. If you received an IRP in Saskatchewan, you can learn more about it by visiting the government’s website here or the SGI website here.
Alberta amended the Traffic Safety Act to create immediate roadside prohibitions and it came into effect on December 1, 2020. If you received an IRP in Alberta, you can learn more about it by visiting the government’s website here.
So, Manitoba clearly was not the first province to create this legislation and it also isn’t the last. At this point, all of Western Canada has an immediate roadside prohibition program set up and only time will tell if new legislation will be created in the other provinces.
It depends whether you receive a “warn” (your blood alcohol content is between 50 mg% to 80 mg%), a “fail” (your blood alcohol content is between over 80 mg%), or you fail or refuse to provide a breath sample into the ASD (approved screening device). This information was initially published by the government of Manitoba here when the law was introduced.
WARN
Vehicle impoundment - 3 days for a first violation, 7 days for a second violation, 30 days for a third or more violations
Fine - $400 for a first violation, $500 for a second violation, and $600 for a third or more violations
Driver’s licence suspension - 3 days for a first violation and up to 60 days for multiple violations
$50 driver’s licence re-instatement fee
If you have two or more violations within a 10 year period, you must complete a referral with the Addictions Foundation of Manitoba
If you have a third violation, you must enrol in the alcohol interlock ignition program
FAIL OR REFSUAL
Vehicle impoundment - 30 days for a fail and 60 days for a refusal
Fine - $700
Driver’s licence suspension - 90 days
$50 driver’s licence re-instatement fee
You must complete a referral with the Addictions Foundation of Manitoba
You must enrol in the alcohol interlock ignition program for 1 year
If you need help with a IRP, you can contact Michael Dyck immediately at 204-318-6116.
There are two big differences between receiving an IRP or a criminal charge for a drive impaired related offence. The consequences are more severe, including a criminal record, and the way you can challenge or fight the case is very different.
CONSEQUENCES
Vehicle impoundment - 30 days for a fail and 60 days for a refusal
Fine - for a first offence it is $1,000 minimum for impaired operation, minimum of $1,000-$2,000 for operation at/over 80 mg%, minimum of $2,000 for fail/refusal. For a second offence, there is a minimum 30 day jail sentence. For a subsequent offence, there is a minimum 120 day jail sentence
Driver’s licence suspension - 90 days immediate, then a minimum 1 year driving prohibition from the Judge for a first offence and a minimum 2 year driving prohibition for a second offence
$50 driver’s licence re-instatement fee
You must complete a referral with the Addictions Foundation of Manitoba
You must enrol in the alcohol interlock ignition program for 1 year after the Judge’s driving prohibition ends (increases if it is a second or subsequent offence)
A criminal conviction which mean a criminal record
HOW TO FIGHT OR CONTEST IT
With an IRP, the default is that the prohibition was imposed correctly and for the right reasons. You are not provided with any disclosure or police reports and you have to file a request under The Freedom of Information and Protection of Privacy Act (FIPPA) to get a copy. If you want to fight it, you have to file an application and pay a fee for a hearing. The hearing can be done in writing or orally and a decision will be made by a registrar. You are NOT allowed to bring applications to exclude evidence if your Charter rights were violated. You can proceed on your own or hire a lawyer to assist you.
With a criminal charge, the default is you are innocent of the charges, thanks to principals of fundamental justice engrained in the Charter of Rights and Freedoms. You are given a first court appearance and are entitled to receive a copy of the disclosure, or police reports, about your case. From there, a prosecutor determines whether there is a reasonable likelihood of conviction and then you can decide to plead guilty or set a trial date. If you have a trial, a Provincial Court Judge will hear the case and there are no court costs or fees in order to have a trial. You are allowed to bring applications to exclude evidence if your Charter rights were violated. You can proceed on your own or hire a lawyer to assist you.
There are several situations where a police officer either CANNOT or WILL NOT administer an IRP and will, instead, proceed to lay a charge under the Criminal Code:
the driver has a previous conviction for a drive impaired related offence
the driver was responsible for causing bodily harm to another person
the driver was responsible for causing death to another person
there are other aggravating circumstances (this is not defined anywhere, but an officer testified at a trial that these circumstances could include a collision or if it was in a residential area)
the officer does not have 2 approved screening devices (this is because after the first breath sample is complete, the officer is required to notify a driver of the choice to provide a second breath sample into a second ASD)
Although the legislation allows for a police officer to administer an IRP if the driver fails or refuses to provide a breath sample into the approved screening device, during one of my trials, a Winnipeg Police Officer testified under oath that he was instructed by his superiors to charge drivers with a Criminal Code offence instead of using the IRP when a driver failed or refused to provide a roadside breath sample.
Because “other aggravating circumstances” is not defined anywhere in the legislation or in the information provided by the Manitoba government, it can be hard to tell in some cases if the officer is choosing not to administer an IRP for a valid policy reason or just because they don’t like the driver for whatever reason. This, to me, creates some concerns that some police officers may use their discretion and not administer the IRP to a driver if the driver is being difficult or uncooperative with the officer or if the driver is a visible minority.
Unlike other provinces, you have up to one year from the date the prohibition was issued to contest it. In British Columbia, for example, the driver has 7 days to dispute the prohibition. In order to have a hearing, you must file an application for review and pay a fee (it is more for an oral hearing). While you wait for the hearing, the driving prohibition remains in place. So, although you have up to a year to fight it, most people will want to get the process started quickly.
If you want a hearing only in writing, it must be heard 10 days after the application is filed and the fees are paid. For an oral hearing, it must be heard 20 days after the application is filed and the fees are paid. The registrar uses a legal test called “a balance of probabilities” which is much different than the test a Judge uses for a criminal charge in Provincial Court, which is “proof beyond a reasonable doubt.” The registrar is required to consider:
any relevant sworn or solemnly affirmed statements and any other relevant information;
the report of the peace officer;
a copy of any certificate of analysis under section 320.32 of the Criminal Code without proof of the identity and official character of the person appearing to have signed the certificate or that the copy is a true copy; and
where an oral hearing is held, in addition to matters referred to in clauses (a), (b) and (c), any relevant evidence and information given or representations made at the hearing.
After the hearing, the registrar must make a decision in writing within 7 days. At the hearing, the registrar is not allowed to consider issues like personal hardship or why you need to drive or can’t pay the fines. The registrar is limited to consider the issue of how the prohibition was imposed and if that was done correctly or not by the police.
Although you are not required to have a lawyer represent you at a hearing with the registrar, I would say it is a good idea. This legislation is complicated and drive impaired law, in general, is complicated. However, because a major part of my practice included drive impaired related charge, I have taken the time to review the Manitoba legislation and the only textbook on the subject area in detail to understand the ins and outs of immediate roadside prohibitions.
If you need help with a IRP, you can contact Michael Dyck immediately at 204-318-6116.
