What is IRP and why does it work?

For decades impaired drivers were dealt with in the same way – a criminal charge. Months later, they may be in court pleading guilty but just as likely, they were in court fighting the charge. Impaired driving is one of the leading criminal charges every year and also one of the most heavily litigated criminal charges.

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These are people who were often in court for the first time in their lives. They have never been in trouble with the law or have a criminal record so the consequences of a criminal conviction are serious. A criminal record may mean they lose their job, it might limit international travel, they lose their licence for a year, etc. And because the stakes are so high for these otherwise “law-abiding citizens” fighting the charges is worth it. One reporter recently told me a lawyer she knew called impaired driving the cash cow.

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So what, you might say? If you don’t want a criminal record, don’t drive impaired. Makes sense. That’s the cost of illegal and dangerous behaviour.

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But what if there was a better way?

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In 2024, criminal courts are more overburdened than they have ever been and despite what some people say, it’s not all because of the pandemic. The Jordan ruling, in which the Supreme Court set time limits on how long cases can take to be dealt with, came down in 2016. Twenty-five years before that, the Supreme Court made a similar ruling in the Askov case which led to tens of thousands of cases being thrown out.

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The pandemic made the problem worse, but it did not create it. And the consequences of this situation are not academic - cases are being tossed because of delays and to avoid more cases from being stayed, accused people may be given opportunities to plead to less serious offences.

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Plea bargaining is not new and it is a necessary part of the system. Ideally, we want people to plead guilty and accept responsibility and as a result, most will see some benefit in terms of charges being dropped or sentences being reduced. But now we are seeing pleas offered because it might be the only way to secure some consequences for bad behaviour. For example, during the pandemic, Ontario directed Crowns to let drivers plead a criminal impaired driving charge down to careless driving, which is a provincial Highway Traffic Act offence.

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This decision was made because officials were concerned thousands of impaired driving cases were at risk of being thrown out if accused impaired drivers chose to go to trial. Pleading to careless was an incentive to avoid trials, which meant not being given a criminal conviction, in exchange for the driver being held accountable for something. This is still happening, by the way, although Crowns are not necessarily “directed” to take such pleas.

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Ontario is not alone in delays. Every province and territory are experiencing them, to greater or lesser extent. Serious cases have been stayed because of delays – sexual assault, cases involving child victims and at least one impaired driving causing death that I know about.

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There is no quick fix to this problem which has been developing for decades. But in terms of impaired driving, there is a way to remove cases from the criminal courts, thereby not having to worry about drivers avoiding consequences, and preventing impaired related deaths and injuries.

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In 2010, BC tried something different. As you know, most jurisdictions except Quebec and the Yukon have administrative penalties for drivers who test between .05 and .08 (.04 in Saskatchewan). These individuals are not charged criminally but we know the criminal level of .08 is too high so provinces target drivers below that level but who are still a risk to public safety.

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BC adopted a similar approach to drivers who were at the criminal level – these drivers would avoid a criminal charge and would be dealt with through an administrative program called Immediate Roadside Prohibition (IRP.) The sanctions were immediate, meaningful and serious like license suspensions, vehicle impoundments, remedial programs, etc. Police dealt with it at roadside, shortening their time from 4 hours (for a criminal charge) to half an hour. This meant they were back on the street quickly.

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Drivers were not required to go to court. Police were not spending time in courts, waiting to see if they had to testify. Crowns, judges and defence lawyers were not involved either. Some media have labelled it as decriminalization but that was never accurate – police could still, under certain circumstances, charge someone criminally – if they caused a crash or hurt someone, if they had a child in the car, if they had a really high BAC or they were a repeat offender.

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BC saved a lot of money. They removed thousands of cases from the criminal courts. They saved police resources and freed up Crowns and judges and court rooms. But most importantly – they reduced deaths and injuries.

One study found, “Driving after drinking decreased significantly following the introduction of IRPs. In particular, the percentage of drivers with blood alcohol concentrations (BACs) over 80 mg/dL decreased by 59 percent; drivers with BACs of at least 50 mg/dL decreased by 44 percent.” Researchers concluded, “The IRP program combined immediate short-term roadside suspensions with vehicle impoundment and monetary penalties to enhance the swiftness, certainty, and perceived severity of sanctions for drinking and driving.”[1]

BC found that there was an immediate and sustained reduction in alcohol-related fatalities after IRP was implemented. “As of the end of 2019, BC’s IRP program has helped save 522 lives and reduced alcohol-related fatalities by 50%.”[2]

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Alberta and Manitoba have followed BC’s lead. I know of one province that is planning on moving in that direction and spoke to officials from another province that has said it is on the radar. MADD Canada is encouraging all jurisdictions to consider moving to an IRP model. Not all will see the same kind of reductions that BC saw but any reduction is welcome.

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In its 2017 Senate report on delays in the justice system, the Legal and Constitutional Affairs looked at the BC IRP program and recognized the merit in evaluating programs like IRP.

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IRP programs can reduce police resources, court time, Crown resources AND save lives and prevent injuries, perhaps even more so when combined with high profile and consistent use of Mandatory Alcohol Screening. Some may be tempted to dismiss it because they see it as being soft on impaired drivers because they do not get a criminal record. Trust me, if getting a criminal record saved hundreds of lives, I would be writing about that instead. But there is no evidence of that. There is evidence IRPs can save lives and prevent injuries and they free up Crowns and courts so cases involving injuries and deaths are at less risk of being stayed.

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Sounds like a win-win to me.

[1] https://pubmed.ncbi.nlm.nih.gov/24372494/

[2] https://www2.gov.bc.ca/assets/gov/driving-and-transportation/driving/roadsafetybc/data/december-2019-alcohol-related-fatalities.pdf