An aspect of the Motor Vehicle Act that rarely gets discussed, but in my opinion deserves to be because it’s hugely unfair, is mandatory vehicle impoundment.
Under the Section 251 of the Act police have the power to impound your vehicle for a variety of reasons, including if they have reasonable grounds to believe you have a driving prohibition, your licence has been suspended, you have been racing or you have been driving at excessive speed (anything more than 40km/hr over the posted speed limit).
Your vehicle can be impounded by an officer at the roadside before you have an opportunity to defend yourself against any charges at trial. You then face the prospect of having to appeal against the decision in traffic court. I enjoy taking on and winning these types of cases but people who opt to defend themselves often find the chips are stacked against them.
For one, their cases are likely to be heard in an administrative tribunal as opposed to a court. Under the administrative system, the burden of proof is on the defendant to prove they are innocent of the offence, as opposed to courts where it is the Crown’s responsibility to prove the guilt of the accused. Secondly, the standard of proof is much lower in administrative trials. The prosecution just has to prove a defendant is guilty on the balance of probabilities, meaning it is more likely than not they committed an offence. This is much lower than the beyond a reasonable doubt standard of proof for most court proceedings. These two reasons make it much more difficult for someone to defend their name and have a vehicle impoundment overturned.
So when a case came along that addressed the issue of whether mandatory impounds infringe on our Charter rights, my heart skipped a beat.
Rather than getting to grips with these issues, this decision ended up feeling like a real missed opportunity.
The BC Appeal Court decision (BCCA)[http://www.courts.gov.bc.ca/jdb-txt/ca/18/02/2018BCCA0227.htm] concerned a driver named Ian Sisett who had been given a ticket for excessive speeding and subsequently had his vehicle impounded seven days. He had to hitch a ride with the tow truck driver to the nearest town where he had to spend the evening before his family could come and pick him up.
Mr Sisset appealed against the ticket at BCCA and in the process raised several constitutional issues to do with vehicle impoundment.
The driver and his wife, who represented themselves, cited multiple sections of the Charter to support their claim that their rights had been violated. All of them were dismissed but the one argument I felt had some merit but was sadly overlooked or not utilized to full effect related to s. 11(d) which protects the right of a person charged with an offence to be presumed innocent until proven guilty.
Having your vehicle impounded amounts to punishment. Having access to your means of transportation restricted is a punishment for many driving offences. Mr Sisett also claimed being deprived of his vehicle and being forced to spend the evening in a random location amounted to a “de facto imprisonment”.
The Appeal Court judges dismissed the s. 11 (d) claim because the MVA offence of excessive speeding Mr Sisset was facing was an administrative matter and not a penal one, which they interpreted to mean it was not afforded the same protections under the Charter.
This is a serious passing of the buck in my opinion and fails to acknowledge the inherent unfairness of the MVA provision regarding mandatory impoundments. By stating the offence is an administrative matter the Court is able to wave away questions of constitutionality but it fails to address the question of whether or not it is right and fair to be deprived of your vehicle before you’ve had a chance to prove your innocence.
The Appeal Court decision also made reference to there being existing scope within the MVA for the Commissioner to overturn the wrongful impoundment of someone’s vehicle. How exactly a wrongful impoundment can be redressed is not mentioned in the Act. If you have been deprived of your car for several days the harm has already been done so, how do you remedy that? Trials for excessive speeding can also happen months after the original ticket was issued meaning drivers may have to wait a long time for justice.
This highlights the manifest unfairness of having an undefined review power in the MVA which the Commissioner or Superintendent of Motor Vehicles can use to indemnify. Knowing they have a vague of a remedy arguably does little to comfort people when they have to wait six to eight months before they can seek it.
For the justice system to be fair there needs to be clearly defined accountability. Unfortunately, a lack of oversight has been ignored in this instance.
It is possible this case will make the next step to the BC Supreme Court, where perhaps the constitutionality of mandatory vehicle impoundments can be examined more closely and common sense might prevail.
Vancouver Criminal Lawyer with a focus on impaired driving, marijuana legalization and related issues, and immediate roadside prohibition defence.