Since the introduction of the random breath testing provisions, an old article has been making the rounds once again. It’s an important story, because it gets at the very heart of what the problems are with random breath testing and how it can railroad otherwise good people.
Many people are sympathetic to the story of Margaret MacDonald, a woman in her eighties who was given a roadside prohibition, while completely sober, after she was alleged to have refused a breathalyzer test. However, Ms. MacDonald did not refuse; due to her age, the cold weather, and the rough treatment by the police in that case, she was incapable of blowing properly.
What many do not know, however, is the rest of the story. And the rest of the story is just as important.
After Ms. MacDonald’s story went public, then-Attorney General Shirley Bond announced that she would review Ms. MacDonald’s case. While this seemed like a gesture of goodwill, it was not. In fact, Ms. MacDonald had hired a lawyer to dispute her roadside prohibition, and when the dispute was unsuccessful, that lawyer also sought judicial review of the prohibition in BC Supreme Court. As a result, the Attorney General was involved in the case. The office serves as counsel to the Superintendent of Motor Vehicles.
No gesture of goodwill; rather, a legal obligation.
At the time that the judicial review was filed, there was also a pending constitutional challenge to the IRP scheme. It was ultimately determined to be unconstitutional. As a result of the finding in the constitutional challenge, Ms. MacDonald’s case was remitted for reconsideration before the Superintendent.
Curiously, since the scheme was no longer valid the Superintendent probably did not have the authority to conduct a rehearing and render a decision, but I digress.
At the end of the work, Ms. MacDonald sought to review the bill from her lawyer. Her lawyer had charged her $300 per hour for work she argued was not necessary in the case.
The merits of whether the work was necessary aside, what is truly shocking to me about what happened to Ms. MacDonald here is how the matter was handled by the Attorney General. Despite the fact that the lawyer who was representing the Attorney General on the case was also the lawyer on the constitutional challenge, no steps were taken by him to advise Ms. MacDonald’s lawyer of the pending case.
And while lawyers certainly are not obligated to tell opposing counsel whether there is a judgment pending that may assist them, lawyers for the Attorney General should be held to a higher standard when dealing with a case that the then-Attorney General said she would review. Indeed, on the basis of the constitutional challenge decision pending, once Ms. MacDonald’s lawyer became aware of it, the opposing lawyer agreed to a temporary stay of her consequences.
So the poor innocent woman could be back on the road. Something they were opposing otherwise.
And in not informing the opposing counsel of the judgment, the government simply got their pound of flesh a different way. Rather than bleed Ms. MacDonald dry though the cost of the prohibition, fine, reinstatement fee, vehicle impound, and remedial programs, they instead got to sit back and collect the tax on those legal fees.
If they weren’t going to punish her one way, then they were going to punish her another: by making her incur unnecessary legal cost by withholding information from her counsel. Perhaps it is permissible, but the whole thing just leaves a bad taste in my mouth. Ms. MacDonald was railroaded by government on multiple levels and at no point did it appear that the government ever intended to treat her fairly.
Innocent people do not deserve to be treated this way. Unfortunately, one of the realities that we will see after random breath testing is that innocent people are treated this way. I am hopeful that our current government will try to treat those who are captured under this law unjustly more fairly than Ms. MacDonald was treated. However, only time will tell.
Vancouver Criminal Lawyer with a focus on impaired driving, cannabis legalization and related issues, and immediate roadside prohibition defence.