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.
A few months ago, I wrote about the awful amendment to the Motor Vehicle Act that allow the Superintendent to prepare their own material, under the guise of “technical materials” to determine cases. This material, pursuant to the legislation, is only to be used for the purpose of determining issues raised by the applicant.
The problem with the Superintendent being able to do this was that the Superintendent is then presumed to be an expert on issues which he is, frankly, not. At the time, I predicted that the Superintendent would simply rewrite science in order to advance the goal of upholding IRPs. And, unfortunately, I was right.
Today, I received word on an IRP hearing that the Superintendent would be relying on Technical Materials, including a new version of the ASD manual that was posted on their site today. I dropped everything to read this new version of the manual, and I saw something I expected to see.
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?
One of the biggest concerns that the public has when it comes to impaired driving is the problem with repeat or chronic offenders. You probably remember the story of the Victoria woman with 19 drunk driving prohibitions, who was recently found guilty of another offence related to impaired driving. The public was, rightly, outraged that this person can still drive and is still driving drunk.
The Government, for its part, has touted the success of the Immediate Roadside Prohibition legislation as the mechanism to reduce the carnage caused by impaired drivers on the road. It frequently points to the reduction in drunk driving deaths as evidence of the success of their anti-drunk driving legislation. But what they've been keeping mum about since the introduction of the scheme is whether there is any reduction in repeat offenders for impaired driving.
In short, do the swift and severe sanctions prevent people from making the same mistake twice? The answer might surprise you.
A few months ago, I wrote a post about the biggest failing of BC's drunk driving law. I wrote about how despite the requirement that the adjudicators render decisions 21 days from the date the prohibition was issued, that this did not occur. The Superintendent has said that decisions are routinely rendered in the required time period, but in reality they are not.
In the last few weeks, I have uncovered more evidence about the significance and expansiveness of this problem.
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?
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?
When the rulings in Goodwin and Wilson came out, I wondered what would happen to Bill 15, the Motor Vehicle Amendment Act. I wrote about this bill and the changes that it would bring to Immediate Roadside Prohibitions in an earlier blog post. Originally, I had thought that the Government might back away from the changes, since the Court commented in Goodwin about the inadequacy of the review process, and the thoroughness of the right of review under the current scheme.
But when I saw the Government's spin on Immediate Roadside Prohibition laws being "upheld" I started to question that belief. After discussion with some colleagues, I quickly realized that the Government was not going to back down. Rather, they were going to do what they had originally intended with the amendments.
The Immediate Roadside Prohibition scheme in British Columbia has been criticized for its failure to provide many of the ordinary means by which the truth is discovered. Rather than allowing for witness testimony, cross-examination, and face-to-face hearings, the British Columbia law only allows drivers to provide their evidence in written form. If you select an oral hearing, you can testify. But your testimony and your arguments are limited to 30 minutes. This barely gives enough time to cover the material, much less provide a full case to the adjudicator.
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?
Today we got word from the Supreme Court of Canada that they will be giving their decision in the Wilson v. British Columbia (Superintendent of Motor Vehicles) and Goodwin v. British Columbia (Superintendent of Motor Vehicles) cases on Friday morning. This news confirms my earlier predictions and suspicions that the decision would be rendered in October.
We will finally have an answer from Canada's top court on the legality and proper process of British Columbia's DUI law.
Vancouver Criminal Lawyer focusing primarily on DUI, impaired driving, and Immediate Roadside Prohibition cases.