In the past, I have written several blog posts about delays in rendering decisions in Immediate Roadside Prohibition review cases. My complaints have been reasonable: drivers are not receiving their Immediate Roadside Prohibition review decisions in a timely manner, and are left in the dark about why the delay is occurring.
From a lawyer’s perspective, this is frustrating for two reasons. First, I feel that I am doing a disservice to my clients as I am not able to provide them with information they need in their cases. I cannot tell them why there is no decision, or what this means, or whether the extension they’ve been given will be the last extension or the first in a series. Second, it’s frustrating to know that the law requires transparency in decision-making but that drivers who are facing this review process do not receive that.
I thought there was hope.
I was wrong.
When the government changed in October, 2017, I waited with excitement for the announcement about who would be the Minister of Public Safety and Solicitor General. This office is the same office that oversees the Superintendent of Motor Vehicles. At the time of the announcement about who would fill this position, I was filled with hope because the position was given to Mike Farnworth, someone who had been vocal about the flaws in the scheme that have been pointed out by the courts.
Minister Farnworth was very concerned about the backlog that existed at the time the issue first reared its ugly head. And he brought this to the attention of then-Minister of Public Safety and Solicitor General, Mike Morris. Minister Farnworth asked then-Minister Morris whether the backlog would be cleared up and whether the Superintendent would commit to rendering decisions in the relevant timeline. He said they would. That once the backlog was cleared the decisions would be rendered in the time limit.
That did not happen. There were still extensions. The extensions were less lengthy, and there were fewer, but they remained common. Every week I receive multiple extensions of the time to render a decision, even now.
It’s frustrating for drivers and the public to see this. This was a problem that the Minister at the time promised would be rectified. It was a problem for the person who is now the Minister since there has been a change in Government. It is still not rectified. The resources are still not there to render decisions in the appropriate time.
But what’s more concerning is that then-Minister Morris advised that the Superintendent was giving reasons for the extensions. They weren’t. They aren’t. There are never any reasons for extensions and there never have been in any of the extension decisions. You can see an excerpt of the interaction in the below image.
But I never trusted the BC Liberal Party, and it’s possible that the Minister was misinformed by the Superintendent (who happened to be sitting right there at the time he made that remark).
So when Mike Farnworth took over the role of Minister of Public Safety and Solicitor General, I thought “Now, finally, we’ll see adjudicators giving reasons for the extensions.” But still, it did not happen.
It is so frustrating and disappointing that Minister Farnworth was this concerned about the delay, the transparency, and the fairness of the extension process when he was in the opposition but now, months after he has been in this role, those concerns appear to have all but evaporated. And while I understand not wanting to interfere with the independence of the tribunal, directing the tribunal to comply with their common law obligations in administrative decision-making seems to me to be not interfering but simply reminding the Superintendent that reasons are required, so that a decision can be judicially reviewed.
There’s a difference between directing the tribunal to an outcome, and directing them to explain their outcome, whatever outcome that may be.
And while that concern may seem small potatoes, there are other significant concerns. In the same exchange that has been excerpted above, Mike Farnworth warned that the failure to address this could lead to further court challenges. And he’s right. But Minister Farnworth also raised another concern, and that was with the seven-day limitation period to file for review of the Immediate Roadside Prohibition.
We challenged the seven-day time period in court. Once a person misses the seven-day time limit to dispute the Immediate Roadside Prohibition there is no remedy. The Court of Appeal upheld the BC Supreme Court’s ruling that the Superintendent lacked any statutory jurisdiction to extend the time limit for review. This is despite the fact that the Superintendent previously accepted the jurisdiction to do so. I wrote a blog post previously about the unfairness of this.
And Mike Farnworth seemed to agree. In his comments to the then-Minister, he cited the decision in the case that I argued.
He stated that this was a significant concern expressed by the Court and another concern that could lead to constitutional challenges. And he wasn’t wrong. In December, 2017, I participated in a week-long challenge to the legislation which included a challenge to the seven-day limitation period.
But since the NDP Government has been in power, and since Mike Farnworth has been the minister responsible for this office, no steps have been taken to introduce legislation to fix this. No steps have been taken to change the policy. Nothing has been done to correct the unfairness that Minister Farnworth was so concerned about then. Instead, lawyers for the Government stood up in court in December and defended the seven-day limitation period as constitutionally valid.
But it doesn’t end there. Minister Farnworth also expressed concerns about the fairness of the ability to review the case and make a decision about whether or not to challenge the prohibition.
Previously, drivers were able to obtain the police report in advance of filing for review. Drivers were able to review the report and determine whether it was worthwhile to file for review and ask that the prohibition be revoked. Around the same time the seven-day limitation period policy was changed, so too was this policy. The Superintendent stopped allowing drivers to see the case against them and determine whether the case was worth disputing, without first filing an application for review.
Now, in order to obtain the police report and challenge the prohibition, drivers have to file the application for review. Mike Farnworth identified this as an obvious problem.
The problem is that you tie up a hearing slot, and tie up the ability of an adjudicator to take on another case, by booking a hearing with someone who may decide not to proceed with the hearing. But there are other reasons why this policy is unfair. Given that there are no extensions of the seven-day limitation period, and the decision is to be rendered within 21 days, and the Superintendent’s policy is that the hearing must be booked within 14 days of when the prohibition was issued, it necessarily gives the driver less time to prepare the case. The less time you have to review and respond to the disclosure, the less time you have to mount a defence.
In a system where the onus has shifted to the driver, this stacks the deck further against them.
The Superintendent takes the position that this does not violate procedural fairness. Their response, when we raise these concerns, is that case law does not support that procedural fairness exists prior to filing an application for review. Yes, their position is that they don’t have to treat you fairly until you give them your money. Absurd. Wrong-headed. Unjust.
But again - since the election and since the change in power, this has not been rectified. Despite the fact that Mike Farnworth was against this policy while in the opposition, he has taken no steps that I can identify to try to change the policy and to make the process more fair to those who are seeking disclosure, which would then — as he identified — alleviate other burdens on the system.
Was the current Minister ever really concerned about fairness, transparency, and the ability to challenge the prohibition? Why have these concerns been ignored since the change in Government.
And what will it take to get a government to do the right thing?
I urge Minister Farnworth to address these issues. It would be encouraging to at least hear something from the Minister about why no changes have been made, or whether changes are coming. The status quo, however, was unacceptable to him then and it should still be unacceptable to him now.
Vancouver Criminal Lawyer with a focus on impaired driving, marijuana legalization and related issues, and immediate roadside prohibition defence.