In doing a large number of IRP Judicial Review cases, I get a good sense of the overall fairness of the scheme. The issue is not just one of procedural fairness – a legal term of art – but one of the visceral, very real fairness. And although we in the business of the justice system like to talk about fairness in justice, the sad reality is that often there are situations of real unfairness that cannot be remedied.
It seems the more stones we turn over, in the IRP scheme, the more unfairness we find. Our goal – always – is to remedy that unfairness as much as possible. Unfortunately, as we recently learned, that cannot always be done.
Courts are very willing to recognize in real unfairness when it comes to IRPs.
In Stenner, the court, for example, noted the very real unfairness in the truncated timelines for review and the manner in which these function to prohibit individuals from obtaining and submitting relevant evidence in time for review hearings. The result is that factually innocent individuals could have their prohibitions confirmed and have no recourse.
We recognized this unfairness, we wanted to correct it. It is not enough to say that a law firm can gather evidence and use it in future reviews. A legal system is broken and ineffective if it knowingly permits even one innocent person to be wrongly punished, without remedy. In this way, the IRP scheme is broken. And absent a legislative charge – it is incurably so.
While the courts in the two Stenner cases, as well as in Molberg, designed a system to allow for fresh evidence in IRP reviews. This was as of last week, gutted.
The BC Court of Appeal allowed the Government’s appeal in the Molberg case. However, it did not do so for the reasons the government argued in its factum. Instead, the Court of Appeal reversed the decision for jurisdictional reasons. Essentially, because the Court was ordering the Superintendent to do something it could not do on its own, this constituted an illegal order and it had to be overturned.
Rationally, this seems absurd. A court should hold more power than a tribunal. And in a case where the Court is ordering the Superintendent to consider whether a real injustice has occurred, it seems that this should be entirely consistent with the supervisory role of the Court on the judicial review. Apparently not. I’ve been wrong before, but it stings even more in this case since not only am I wrong, the system is also wrong. And it frustrates me that there’s a level of comfort with that the system being wrong is okay.
In criminal law innocent people do get convicted.
We would be lying to ourselves and the public to say they don’t. But we have safeguards in place to ensure that when it does happen, people can correct it. Appeal timelines can be extended. Fresh evidence can be allowed. Even years later, innocent people can be exonerated. The Government says that the panoply of procedural protections in the criminal scheme do not exist in the administrative sphere. But surely this placation does not go so far to say that our government is comfortable with the idea of factually innocent people being unjustly punished because of an inherently flawed review process?
Are they so comfortable with this idea that they won’t consider rewriting the IRP law to allow fresh evidence applications?
An IRP is a huge stigma.
The penalties last longer than the 90 days. Your driving record is forever. The Remedial Program points under section 25.2 of the Act last and continue to punish drivers for five years. The fact of the IRP or driving records forecloses employment and volunteering opportunities. It has impacted clients with cross-border travel and immigration. Police, intelligence and border service computer system checks reveal the fact of the IRP, and police, border, and intelligence agencies will therefore take this into account when detemining how to deal with someone. While it is not a criminal record per se, it has essentially become a de facto criminal record.
An IRP is simply not a transitional administrative penalty.
It is a life sentence. And one that can as a result of defective ASDs, bad policing practices, limits on timelines, and limit on cross-examination, result in innocent people being given this life sentence.
The fact that there is now no mechanism to correct this inherent flow in the scheme is troubling for the overall confidence the public can have in the IRP scheme. Justice must be done, and it must be seen to be done. With this lack of statuary jurisdiction, tying the court’s hands to prevent it from compelling the Superintendent to do the right thing, justice cannot be done.
I urge the government to do the right thing. It is a simple amendment to the legislation that would show a genuine intention to treat people fairly and to show that the IRP scheme is more than a way to extract cash form drivers and line the Government coffers. What other purpose could be achieved by preventing truly, factually innocent people form an opportunity to gather and present the evidence that shows that?
But for now, the innocent get caught up in this broken system. And that just stinks.
Vancouver Criminal Lawyer with a focus on impaired driving, cannabis legalization and related issues, and immediate roadside prohibition defence.