The types of protection you don't have with an IRP are the types of protection you get if you are issued a speeding ticket, which is considerably less serious. It seems ridiculous that the more significant consequences of an Immediate Roadside Prohibition have fewer means to challenge them than a simple traffic ticket.
So what do you do if you have a witness to your IRP?
An Impaired Driving Lawyer
It has always been my belief that a lawyer who is experienced and knowledgeable about Immediate Roadside Prohibitions and DUI Impaired Driving cases can put you in the best position for success with your IRP case. Many times, clients have come to my office having conducted their own review hearings, wanting to appeal their unsuccessful decision. A common trend that I see in these cases is how witness evidence is provided to the tribunal, and the value that the tribunal gives to the evidence. A lawyer with experience in IRP cases knows how to best present the evidence of witnesses so that it will be accepted by the tribunal.
I have been involved with Immediate Roadside Prohibition cases since the legislation was introduced. My experience in this area has given me the opportunity to see all the various ways that witness evidence is dealt with. Which also puts me in the best position to assess the case and how witness evidence will help or not help, and what form that evidence should be in.
The Cases Dealing with Witness Evidence
To get an idea of how witness evidence is treated, it's useful to look at three cases: Scott v. British Columbia (Superintendent of Motor Vehicles) 2013 BCCA 554, Spencer v. British Columbia (Superintendent of Motor Vehicles) 2011 BCSC 1311, and Petrov v. British Columbia (Superintendent of Motor Vehicles) 2014 BCSC 274.
In Ms. Spencer's case, she provided a statement with the names and addresses of five witnesses who could confirm that she had not been drinking. She also provided detailed statements from those witnesses describing this fact. She argued at the hearing that she had not been drinking, and, implicitly, the officer's demand for a breath sample could not have been validly based. The evidence of the witnesses was rejected because it was about the event, and not about the interaction with the officer. Now, of course this seems unreasonable. And it was. The witnesses confirmed Ms. Spencer's evidence that she had not been drinking and could not have had an odour of liquor on her breath. Their evidence was relevant. But the tribunal ignored it, and also ignored the evidence of one witness who was with Ms. Spencer including during her time with the police.
The Scott decision dealt with a similar issue. Ms. Scott had provided witness evidence to say that she did not smell like alcohol. She did not comment on this, other than to say that she had not been drinking. Again, to say you have not been drinking is an implicit denial of an odour of alcohol. The adjudicator in that case found it unlikely that the police and two separate witnesses would fabricate or misinterpret their observations without considering the likelihood or unlikelihood that Ms. Scott would do so. The evidence of her boyfriend was ignored entirely.
This is something of a trend, it seems. If witness evidence supports the applicant's version of events, then it is ignored entirely. Otherwise, it is found not credible for some other reason. Take Mr. Petrov, for example. He and his witness provided Affidavits describing the events. Both of them used identical language in some parts. The adjudicator rejected their credibility for this reason. That is also ridiculous. Two people, providing written accounts of an event, who are describing the same event might well use the same language. There are only so many ways to say "The sky was blue." Or "Joe was not speeding." or "Mary did not drink alcohol." It would be one thing if there were oral testimony and the cadence and tenor of the words were the same, but with two written descriptions of events, that is to be expected.
In review decisions I've read, witnesses have also been rejected because their evidence makes no sense. For example, it makes no sense that a person would be paying attention to what alcohol someone consumed at a dinner or a party so that they could comment on that. Of course, if your description of what you drank is uncorroborated, then it's not credible because you have no witnesses to support you. The reasoning process that comes from the tribunal often smacks of a logical fallacy. Evidence is deemed not credible because it's corroborated but it's not corroborated so it's not credible. How can you win?
Other Mistakes with Witness Evidence
A common mistake with witness evidence lies in the assumption that the tribunal will do some investigation or follow-up. This is not an unreasonable assumption. There is very little information provided to the applicant regarding the process for the hearing. Applicants are not told that their witnesses will not be contacted, that their versions will not be investigated or verified in any way, and that exculpatory material will not be sought from police.
Too often, clients have come to me after losing their review hearing with a copy of the documents they sent to the Superintendent saying "The video will show I am telling the truth." Or "My witness is Jenny, who can be reached at 867-5309." But that gets you nowhere, because the tribunal doesn't have the power to seek out additional material, even if it is known to exist. And, in fact, the failure by the applicant to provide that can lead to an adverse inference. Or, witness evidence is rejected because it is not sworn. This is a downside of not having a lawyer: not providing a sworn version of events can lead to a conclusion that is less reliable. Particularly when the police evidence is sworn, as it is required to be in law.
Some lawyers also deal with witness and client evidence in ways that I do not normally support. While it may be possible to present evidence by simply telling the client's version to the tribunal, this evidence is not sworn and is often given less weight. I also discourage witnesses testifying orally, as there is no cross examination, people can become nervous, and the thirty minutes for the hearing are precious. Of course, everyone does it differently. I simply think that my track record of success speaks for itself.
A witness to your IRP is of fundamental importance in many circumstances. But you can render your witness pointless, or have your witness's evidence turned against you if your case is not properly handled. Only an experienced lawyer with expertise in this area can make the decisions that will put you in the best position to defend against your IRP and use your witness evidence to your advantage.
If you've received an Immediate Roadside Prohibition, call me and we can discuss your case and how to use witness evidence if it will help you.