It almost feels like a bad joke at this point. Just when we adjust to a ridiculous policy change made by RoadSafetyBC and the Superintendent of Motor Vehicles, they roll out another one. The frequency with which their policy changes happen really does make it seem as though the Government actors at RoadSafetyBC are slowly trying to eliminate all of your procedural rights. The plan being that if each right is chipped away at one at a time, they won't suffer the same blow they did when the courts declared the IRP law unconstitutional after it was first introduced.
And so now we have another disturbing policy change to deal with.
RoadSafetyBC has implemented a new policy that requires an applicant to schedule their review hearing within 14 days of when the Notice of Prohibition was issued in an Immediate Roadside Prohibition cases. Given that you have seven days to file for review, and the police have seven days to submit the disclosure, this can mean that for many people the review hearing takes place within a day or two of receiving disclosure. This, in my view, is unacceptable.
Problematic Aspects of the Policy
This policy is particularly troubling given other policies in place at RoadSafetyBC. As I said, this is a slow erosion of rights rather than all the changes at once, in order to give the appearance that everything was this way all along.
Because RoadSafetyBC does (as of June 1, 2015) not allow for additional material to be provided after the time for the hearing has ended, you now have less time to prepare your case. Good luck getting an appointment with your doctor, obtaining medical records, or tracking down receipts from bars or security camera footage from restaurants. Now you've barely got time to understand what the police have said against you. This makes it all the more important to have a lawyer who understands these cases defending you, as they are better equipped to respond to the allegations in a short time. And if you can't get the documents you need to defend yourself in time? Sad for you.
The Supreme Court of Canada has said that you cannot backtrack on substantive promises created by setting up legitimate expectations without creating significant procedural rights. And yet here we see this tribunal, time and again, backtracking on the promises it has held out and revoking procedural rights in the process.
What if you find evidence after your review hearing that supports your case? Unfortunately you won't be able to submit it. You can apply to BC Supreme Court for an order reopening the hearing, but this requires you to show unequivocally that the ASD test results were not accurate. And good luck getting any of that evidence, particularly since we learned this week that the RCMP has the ability to change calibration records at any time, without creating a record of the change in any system. That's right. Magically disappearing calibration problems.
Remember too that as of April 1, 2016, RoadSafetyBC requires you to prove why your case should be revoked. And the Superintendent is allowed to rely on "Technical Materials" that support the prohibition, after you have finished your arguments and without notifying you. So not only do you not get to actually know the case you have to meet, but you also don't get to respond to their secret library of information because your hearing time has passed.
RoadSafetyBC's attitude to a fair review process that might actually lead to a successful decision? Sucks to be you. Never mind the fact that the majority of DUI cases happen on Friday and Saturday nights, meaning that the fourteenth day will often fall on the weekend. Subtract another two days from the time you have to complete your review preparation, because the Superintendent of Motor Vehicles has absolutely no intention of holding hearings on the weekend.
The Policy Violates the Charter Right to Counsel
As a Government entity, RoadSafetyBC is required to act in accordance with the Charter. While they do have the right to implement a policy, they do not have the right to implement a policy that violates the right to counsel or the right to counsel of choice. This is guaranteed under Section 10(b) of the Charter. Nor is a person allowed to be penalized for choosing to have a lawyer or choosing a particularlawyer.
RoadSafetyBC will only schedule oral review hearings at 9am, 10am, 11am, 12pm, and 1pm. During those hearing slots you have only 30 minutes to present your defence. For this reason, I often prepare and submit several hundred pages of written material on top of my oral submissions. Otherwise I would not have enough time to make the arguments I want and need to make in support of my clients' cases. But for a busy lawyer who also has courtroom commitments, that limits the amount of time available to conduct hearings. RoadSafetyBC is not adding new hearing times, or accommodating this.
It is clearly designed to prevent people from having lawyers, and to keep lawyers from taking on many cases. The reason I win so many IRP hearings and the reason our office succeeds in so many cases is because we do so many. We learn from doing so many what works and what does not, and we discover evidence from doing so many hearings that benefits clients in other review hearings. RoadSafetyBC knows this, and they want to stop us from winning.
A reasonable and respectable tribunal would accommodate counsel who are particularly experienced and effective in that arena by adding hearing timeslots, in the interests of ensuring that parties are fairly represented at the hearing. RoadSafetyBC would rather you be self-represented. Their propaganda encourages it. This policy is designed to limit your right to counsel.
But don't worry. Not only are we actively fighting this policy, but we are also adapting to it.
Even for the average person, the timing of the hearings is unfair. What if you cannot book the time off work with that little notice, so that you can make your submissions? Under the new policy, too bad so sad. Either call in sick, embarrass yourself in front of your co-workers, or sacrifice your right to the oral hearing. It's complete nonsense.
Curing Bad Optics Through Blaming the Victims
RoadSafetyBC has suffered some seriously bad press lately, as a result of the backlog in rendering review decisions. While the BC Government promised in the Legislature that they would eliminate the backlog, there is still a significant glut of undecided cases. The other day, I received a decision from an adjudicator who retired two years ago. Clearly she did not decide the case; it slipped through the cracks and they had to revoke it.
But what's an easy way to cure the bad optics? Blame the drivers. Just look at the policy that RoadSafetyBC wrote regarding this. Their whole tactic was to shift blame away from their disorganized, understaffed, and ineffective system and blame drivers for scheduling reviews too far in the future. If I had the time, I'd do a statistical analysis of all the hearings that were extended. I'd bet dollars to donuts the majority of those hearings that were extended were scheduled within the fourteen days in any event.
The Looming Threat of Non-Compliance
This policy is one of the more troubling moves by RoadSafetyBC because it comes with an implied threat. Drivers who do not schedule their review hearings in the fourteen day timeline will not have their vehicles released early or their licenses reinstated if RoadSafetyBC does decide to take one of its infamous extensions. This means that you could end up serving the entire prohibition you are trying to avoid simply because RoadSafetyBC wouldn't book your hearing time in the fourteen day window, or because you were otherwise unavailable.
Look, no one plans to be issued an Immediate Roadside Prohibition. People who get them often get them at a time where the prohibition interrupts their lives. Vacation plans are ruined. Holidays are destroyed. Jobs are lost. And now you have to accommodate their oppressive schedule. It is worth noting that there are less than twenty adjudicators at the RoadSafetyBC offices. These adjudicators have to deal with all the prohibitions that are disputed every month. With a maximum of five hearings a day, adjudicators who only work four days a week, and who are not scheduled to do that number of hearings per day, you can clearly see that they are not using their full resources.
And yet they expect you to drop everything and prepare your case in a panic rush.
And if you don't? Lose your car, lose your license until they render a decision. Which we know can take two years or longer.
This policy change is yet another erosion of your rights in a slow process to strip the rights of drivers in this province. If the Government slowly eliminates each of your rights, eventually you'll wake up with no rights and you won't have even seen it coming. We see it coming. And we are already taking steps to try to stop it.
Vancouver Criminal Lawyer with a focus on impaired driving, cannabis legalization and related issues, and immediate roadside prohibition defence.