Today, RoadSafetyBC made a major announcement regarding how it is going to start dealing with cases of street racing and stunt driving. You can read the announcement here.
At first blush, it sounds great for road safety. The Government makes it sound as though the current system allows only for fifteen-day prohibitions for street racing or stunt driving, and that these will now be replaced with longer prohibitions, between three and thirty six months, after this type of driving behaviour is observed. The problem with this announcement is that it sorely misrepresents the current state of affairs, and it misleads the public about why this action is being taken.
To understand this issue it’s necessary to understand the current system.
In my last blog post, I wrote about how the Government’s proposed changes to the drunk driving laws will reduce your defences by limiting the disclosure that is available to you. This week, I am going to write about another significant limit on your defences, and that is the fact that the Government is eliminating the defences related to when you drank, and when you drove.
By eliminating this, what we can see is that the Government wants you to have a criminal record for drinking and driving, even if you have done nothing wrong.
On Thursday, the Liberal Government revealed its plan for marijuana legalization. Surprising to many was the fact that the Liberals introduced this as part of an omnibus bill that makes amendments to other parts of the Criminal Code, including the impaired driving legislation. Omnibus bills were commonly criticized by them as tactics used by their predecessor to pass bad legislation. These proposed changes also hide some of the more disturbing aspects the Government has introduced in furtherance of its stated goal to legalize marijuana.
I am deeply disturbed by changes that the Government has proposed, in particular the proposal to conduct random breath tests of drivers.
Over the next few blog posts, I am going to share some of my views on this proposed legislation and why I believe it to be constitutionally deficient.
Police officers in British Columbia have significant obligations when they come across someone who appears to have committed an offence, but generally speaking they have broad discretion in how to proceed when it comes to traffic offences. When it comes to police discretion in issuing traffic tickets, it's important to keep in mind that the officer giving you the ticket has a great deal of personal authority. Consequently, how you behave after the fact can have major consequences for the outcome of your case.
Right or wrong, the cop who pulls you over for a Motor Vehicle Act offence is likely to issue you a ticket. Imagine for a moment that your job is to be a traffic officer.
As mentioned in two previous posts, there have been significant issues with delay in deciding Immediate Roadside Prohibition review cases.
This has resulted in substantial problems for drivers who are affected by the delay, as the prohibition remains on the driving record during this time. The drivers have been made to pay the towing and storage costs, and there are consequences that are specific to many individuals like increased life insurance premiums or termination from employment.
So what is the Government doing to address the problem?
Last week, the Provincial Government announced changes to the distracted driving laws in British Columbia. Essentially, they are increasing the fine amounts and adding penalty points so that each distracted driving ticket will automatically attract Driver Penalty Point Premiums and become a significant expense to drivers.
I had the opportunity to poll a number of police officers from the Lower Mainland last week about their views on the fine increase. Many of them were not for it, indicating their lack of enthusiasm at giving such a hefty financial hit to drivers who are clearly not able to pay the fine. This, in turn, will lead to the loss of licenses and insurance and a greater financial burden on the drivers who are unable to pay. I can’t help but agree with them.
However, I also see this as part of a long game, played by Government, to further their objective of eliminating traffic court.
The law can be difficult to understand, particularly for people who have limited encounters with the justice system. In order to ensure citizens are aware of the law, the Government is required to publish the law and make it available for people. You can't be presumed to know a law that you don't have access to. And the right to know the law isn't a privilege that is only due to those who can afford lawyers.
But the law isn't just what is written in statutes and legislation. The law is also, largely, controlled by the interpretation of those statutes and the rules around the application of legal principles. This is known as the common law. And this is where things become complicated in the Immediate Roadside Prohibition scheme. There have been numerous cases discussing the burden of proof, the assessment of credibility, inference drawing, and the interpretation of the Motor Vehicle Act in IRP cases. The problem is that the majority of those cases aren't publicly available.
How is this fair? How do people know what the law is, when they can't see it in action?
A recent article by News1130 suggested that drunk driving numbers are falling in Vancouver. The article cites statistics provided by the Vancouver Police Department spokesperson, Brian Montague to show that in 2013, 1317 IRPs were issued to drivers. In 2014, the number fell to 1100 in 2014, and by 2015 it was down to 1030.
At first blush the numbers appear to show a general decline in drunk driving in Vancouver, but these numbers do not tell the full story.
I receive a number of calls from clients who have been involved in accidents, or who have fled from police and who are later given a ticket by the police. It is not uncommon for officers to show up on someone's doorstep and serve them with a traffic ticket for something that happened days, weeks, or even months earlier. Most of these clients have questions about disputing these tickets, and questions about whether the police are entitled to serve a ticket after the fact, or for something they did not observe.
This blog post attempts to answer those questions.
Last week, we received a decision in a case we argued challenging the seven-day limitation period for Immediate Roadside Prohibitions. Our clients in the challenge had not filed for review in the first seven days. They asked for an extension from RoadSafetyBC, but due to a policy change in their office, RoadSafetyBC determined that it would no longer accept extensions of the seven-day time period.
We challenged that policy change but were unsuccessful. You can read more about it here. We have also already filed an appeal in the BC Court of Appeal. One of the things that was evident in the decision of the Court, however, was that the decision not to allow the extensions of the seven days is just plain old unfair. The Court wrote this:
Nevertheless, I agree with the petitioners that the seven day period permitted to seek a review of a 90 day prohibition is not appropriate in all cases as a matter of policy and can be too short a period. I also find that it would be appropriate for the Legislature to consider an amendment setting out an exception to the seven day period. Clearly this regime is to be considered in the policy context of rapid determinations in the context of an effort to address the problems of driving while intoxicated. Nonetheless, in unusual circumstances, it would seem to me appropriate to enable the Superintendent, in his or her discretion, to extend the seven day period to seek a review. In my opinion, the present period can be too short a window in all circumstances and the Superintendent should have at least a discretion to consider an extension in extenuating circumstances such as those of Mr. Isinger and Mr. Derkuch.
After we received the decision, the Justice Minister spoke to the media, stating that fairness was always something the Government was concerned about, and that it is important to constantly be looking at the legislation in order to enhance fairness for drivers.
So what has the Government done to make the law more fair, since the ruling last week?
Vancouver Criminal Lawyer focusing primarily on DUI, impaired driving, and Immediate Roadside Prohibition cases.