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?
The short answer is nothing. The Government does not seem to care that there are these huge delays rendering decisions. Just look at the aftermath of the decision in Plouffe v. British Columbia (Superintendent of Motor Vehicles). I had argued that the indefinite delays were a violation of the Motor Vehicle Act. The BC Supreme Court judge agreed. He ordered that a decision be rendered within 60 days of the date of the judgment.
But my client in that case was not alone. Internal documents I have obtained by Freedom of Information requests show that there are literally hundreds of drivers who are affected by the indefinite delays. I received the judgment in that case on May 10, 2016. Despite this, all the other clients I represent who have indefinite extensions have now been told that they will receive decisions by the end of September, 2016.
So even though the Court told the Government that this was an unacceptable practice, and even though there was an indication from the Court that the practice needed to be completed and the decisions rendered within 60 days, the Government has ignored that aspect of the judgment and decided that it will just render decisions more than four months after the decision.
My winning case caused a big stir. There were several news stories about the delay. There was also extensive discussion in the Legislature. Solicitor General Mike Morris, the person who is responsible for the RoadSafetyBC office, told the Committee that adjudicators are now rendering decisions on the extensions and providing reasons for the delay in each case. When he said this, Sam MacLeod, the Superintendent of Motor Vehicles himself, was sitting right next to him.
But is that actually the case? Surely Mike Morris and the Superintendent would know what is happening in their own offices.
Except they don’t. And, now a month later, I have yet to see a case where a Notice of Extension tells me why my clients are getting the extension. Meanwhile, the Government has appealed the ruling in BC Attorney General v. Lee which might be a clue or might be a coincidence. I’ll keep my comments on that to myself for now.
Mike Morris expects the backlog to be cleared up in a year. But for files where I am arguing the case, I’m receiving extensions at an alarming rate. Approximately ¼ of all reviews conducted in 2016 have resulted in a Notice of Extension being sent to drivers, according to statistics that I have obtained. If that continues, the backlog will never be cleared. Hiring new adjudicators does little to solve the problems of old files still without decisions.
I don’t have a solution. I see this as representative of a greater problem. The Government wanted to funnel the issue of impaired driving prosecution out of the courts and into a tribunal. The problem they had was that the courts had former lawyers as judges, prosecutors to identify and resolve weak cases early on, and legally trained representatives on both sides of impaired driving cases. The majority of lawyers who handle these cases are highly skilled and knowledgeable about this particular issue. And all parts of the Charter are engaged in these investigations, so the litigation became complex.
This is what happens when you take lawyers who are highly skilled at litigating complex constitutional, scientific, and factual issues and you have them argue in front of adjudicators who are by and large not legally trained and who do not have the benefit of a prosecutor representing the other side and assessing the case before it lands on the adjudicator’s desk.
Simply put, the tribunal is not the right forum for these types of cases. In theory, it’s a noble idea. In practice, it’s been a foolish exercise that has cost the Government and innocent citizens money, damaged the lives of thousands of people, and taken as great a toll on our courts as before.
The delay is evidence of a systemic problem with what the Government is doing with the IRP scheme. And by addressing the problem they are admitting there is a problem. That’s something they are not willing to do.
Vancouver Criminal Lawyer with a focus on impaired driving, marijuana legalization and related issues, and immediate roadside prohibition defence.