I had the interesting experience in the last few weeks, while arguing a judicial review of an Immediate Roadside Prohibition decision, to gain some insight into the Government's position regarding whether police officers can be biased. In Immediate Roadside Prohibition cases, the police are required to send in calibration records for the machines that the officer used to test the subject. Those calibration records are prepared by police officers from the same detachment as the officer issuing the IRP. On some occasions, the calibration records are prepared by the officer who issued the IRP.
The arguments were largely extraneous to the issues in the court case, but it was interesting to hear what the Government's position seems to be.
The issue of police bias in Immediate Roadside Prohibitions is not new. This is something that has been before the courts since the law was brought into effect in September, 2010. In the case of Spencer v. British Columbia (Superintendent of Motor Vehicles), the adjudicator preferred Constable Steiger's version of events on the basis that she was a police officer and therefore had no reason to lie. The Court found that this was unreasonable, saying:
One of the purposes of review mechanisms like these, apart from attempting to do justice in individual cases, is to ensure that overreaching behaviour on the part of state agents is detectable and discouraged. This is certainly not possible if the tribunal starts from the proposition that the police have no reason to be careless or inaccurate or untruthful, and such a mindset will do nothing to discourage such behaviour if and when it occurs. Human nature being what it is, a tribunal that assumes that such things never happen virtually guarantees that they will.
The benefit of the courts, something that Justice McEwan recognized in another judgment involving IRPs, is that there is an opportunity to see and hear witnesses in person. This gives the tribunal a better glimpse into the credibility of a witness. That doesn't happen with IRP hearings, and so it is absolutely wrong to assume the police have no reason to lie.
Nonetheless, it seems that the Government does not want to back away from the notion that police officers are not motivated to be untruthful. Look, I'm not saying all police lie, or even most police officers lie. But some do. It's human nature. And that can be especially tempting when police are rewarded for issuing the most drinking and driving charges by being named to special teams or offered prestigious awards. And where the tribunal assumes a baseline of police competence and reliability, the temptation to lie is enhanced, knowing that one will be assumed truthful and that there are no mechanisms by which one can be caught.
In the arguments in court, the Government lawyer was arguing that evidence provided by an expert for our clients should be given reduced weight because of the expert's connection to our office, and an inference was appropriate that there was a profit motive. He suggested that there was no such evidence regarding the police. But while police are not retained and paid to provide expert opinions, for the purposes of IRP review hearings they do provide evidence about the calibration of the devices.
The Government seems to be operating under the assumption that the police should be trusted because they are police officers. It's funny. It's sometimes like the proponents of the IRP scheme are so enamored with the legislation that they cannot see the flaws for what they are. We know that police are given awards like being named to Alexa's Team. Some officers get widespread media recognition for pulling over the most suspected impaired drivers. Recently, a Chilliwack RCMP officer was given a prestigious national award for his contribution to the fight against impaired driving. I've even been told by members of a certain police force that they are informally disciplined if they do not hand out a particular number of impaired driving charges or IRPs every year.
Nobody wants to be disciplined at work. This isn't Office Space.
The problem with this is that rewarding the police for giving out the most drunk driving charges, without taking a step back and considering the role that these rewards play in creating an apprehension of bias simply neglects reality. It's fascinating to know that Government is of the view that police simply cannot be motivated to lie. The evidence that exists in the world supports the notion that there is a motivation to lie. The reality of human nature is that some people will not be able to resist the temptation to do so.
And that's where we run into problems. It's a shame the Government cannot recognize these realities, but it is, in many respects, unfortunately unsurprising.
Vancouver Criminal Lawyer with a focus on impaired driving, cannabis legalization and related issues, and immediate roadside prohibition defence.