You may be wondering why you haven't heard about these changes. That's because the BC Government has been watering down the truth of what's behind this legislation. There are sweeping amendments to the Motor Vehicle Act, most of which are being sold the public as the changes to stop left lane hogs and finally eliminate AirCare. These are amendments that British Colombians want, so nobody is putting that much effort into looking behind what else is in Bill 15, the bill bringing about the changes.
What most people have not realized, however, is that these changes also include changes to the Immediate Roadside Prohibition legislation that are designed to make it impossible for applicants to succeed in the review hearings.
I recently had the opportunity to discuss some of the changes the I feel are the most sinister with InfoNews.ca in Kamloops. The changes pertaining to the BC DUI Laws are also outlined on the VancouverCriminalLaw.com blog. I won't go over them in detail here, but I do want to give a brief summary of the scariest ones. They are:
- Shifting the onus of proof from the officer to the driver;
- Placing limits through regulation on what an applicant may provide as their evidence and submissions; and
- Allowing the Superintendent to seek out, create, and provide his own expert technical evidence in response to submissions raised by the applicant.
All of this is terrible. I also believe it is unconstitutional and I wholly intend to challenge this legislation at the first available opportunity.
When asked about the changes to the law, the Government does not want you or the opposition to see what they are trying to do. They try to explain away the changes as though they are positive. The focus when questioned by the media about the changes has been that the Superintendent will now be required to revoke a prohibition if the officer does not send in a sworn report in the first seven days. That's great, but according to two recent decisions that is already the state of the law in British Columbia.
Look no further than Hansard debates on the subject for evidence that the Government either fails to understand the implications of this law, or that they are trying to obfuscate their true intentions. When introducing this Bill, Suzanne Anton had the following to say about the parts that pertain to impaired driving law in BC:
The elements in this bill relating to road safety programs aim to improve the operational efficiency of the existing administrative review processes and allow for timelier resolution of reviews by the following.
Requiring the superintendent to revoke prohibitions on review if certain police documents are missing. This provision will help decrease delays during the review process.
Secondly, clarifying the general legal principle that in administrative matters, whoever asserts a proposition bears the burden of proving it. What this means for an IRP is that if an officer has complied with the statutory requirements and provided the required documents, then in a review the onus is on the applicant to prove one of the grounds of revocation.
Third, allowing the superintendent to obtain and consider other relevant information, such as an expert report or technical materials in a review. This will ensure that all relevant information can be considered, allowing the superintendent to make the most fair and informed decisions possible.
Lastly, enabling regulations to place page limits on an applicant's legal argument in an IRP review and establishing deadlines on the applicant's submission of argument and evidence in an IRP review. This provision will provide the applicant with a maximum amount of time to present a clear and concise argument while ensuring the superintendent has sufficient time to make a fair and timely decision.
That is simply not a true and accurate depiction of how the law will operate.
To say that the law clarifies the legal principle in administrative matters that whoever asserts a proposition bears the burden of proving it neglects exactly what has been done here. The officer is, by necessity, asserting the proposition that the individual served an Immediate Roadside Prohibition was a driver, blew over the limit, took a second test on a different device, and had reliable readings anytime an IRP is issued. And yet the Government appears to believe that so long as the officer provides the required paperwork, then they have proven that to be the case.
How absurd is that? What happens to the principle that "he who says it must prove it" when the officer is, in effect, given a baseline presumption of competence, reliability, accuracy, and proof. If you assume that the officer did everything correctly based on the fact that the prohibition was issued and the officer provided some paperwork, you erode the purpose of having a review mechanism.
In Administrative Law, that principle is supposed to function so that a person asserting a fact in a factual dispute must provide evidence to say that it is true. For example, in a residential tenancy dispute seeking return of a security deposit, the person seeking the deposit back must first prove that it is paid. There is no presumption of regularity that applies to all rental contracts where it is assumed that a proper security deposit was indeed paid to the landlord. What the government has tabled is not clarifying an administrative law principle. It is eroding one.
Allowing the Superintendent to obtain and consider other relevant information also erodes administrative law principles. If you were to look at the actual wording of the provision, the Superintendent only derives the authority to do this in response to the submissions of the applicant. That means that the Superintendent is allowed to seek out evidence to use to reject your submissions, and only for that purpose. That provision is not designed to help, but to hinder.
It is well-settled law that a person may not be investigator, prosecutor, and adjudicator in the same proceeding. To do so gives rise to a reasonable apprehension of bias against an applicant. But what is set out in this legislation accomplishes just that. Again, offending very basic principles of administrative fairness and a certain standard that we have come to expect and deserve as Canadian citizens living in a free and democratic society.
And the last part that the Government touts as a wonderful change to the legislation? Placing page limits on an applicant's legal argument. This violates another principle of administrative fairness: the right to be heard. It is impractical and unjust to tell a person that they may only present their evidence in the first instance in a certain number of pages. Many of my submissions to the Superintendent of Motor Vehicles end up being hundreds, even thousands, of pages. You will note that there is no corresponding limitation on how much evidence the police may provide for the hearing. How is it fair that one party can provide whatever they want and another is subject to strict limitations?
The answer is that it isn't.
This law is not fair. It violates administrative law guidelines, principles, and the constitution. It takes the Immediate Roadside Prohibition system back to a place worse than when it was first introduced and found unconstitutional. It has no place in a free and democratic society, and its flaws are revealed by the very fact that the Government does not want people to know what they are really trying to do with this law.