Recently, the BC Provincial Court had the opportunity to consider an important issue that has, heretofore, never been considered. And it was considered in traffic court, of all places. In the case of R. v. Sutton, the court considered the implications of a decision in an Immediate Roadside Prohibition review hearing and its impact on a traffic ticket issued in the same series of events.
I’m personally very excited by the legal developments that have been coming from our traffic courts and it is refreshing to see this level of court make so much progress in developing the law.
And while the argument did not work out in Mr. Sutton’s favour, the case raises a much more important issue. That is, how the RoadSafetyBC tribunal fails people in producing review decisions that do not properly outline the facts and law that led to the conclusion.
Mr. Sutton was ticketed for not having a driver’s license. He also produced a reading on an approved screening device that registered a “Warn” and was suspended for three days as a result. Mr. Sutton appealed this decision. His argument at the review hearing before the Superintendent, which was accepted, was that he was not driving but his girlfriend was. His prohibition was revoked and a decision was rendered reflecting this.
However, consistent with the ordinary practice in revoking prohibitions, Mr. Sutton’s decision did not reflect the reasons for revoking the prohibition, other than to say “I am satisfied you were not a driver…” No explanation was given by the adjudicator for why she was satisfied of this.
In traffic court, Mr. Sutton argued that his Immediate Roadside Prohibition review decision was sufficient to show that there had already been a determination that he was not a driver. In law, this is known as res judicata. But the traffic court judicial justice disagreed, noting as follows:
 Where the evidence of Mr. Sutton conflicts with that of Cst. Thompson, I believe the officer.
This case tells us two important things: first, an issue argued before the RoadSafetyBC tribunal and decided by them is not likely to lead to success on a traffic ticket unless the same witnesses testify and unless the underlying issue is relatively the same. It is conceivable that this could happen. For example, if a driver were ticketed for driving without due care and attention on the basis of an ASD test result (which, incidentally, is unlawful but common) and the adjudicator found the test result unreliable. But absent this close connection between the traffic offence and the IRP issue to be determined, it is doubtful that the adjudicator’s decision is of much aid.
The issue is narrowed but certainly not foreclosed.
The other important thing that this case tells us is that the courts are generally displeased with the manner in which the Superintendent renders revocation decisions. Where prohibitions are confirmed, the decision often span several pages. In my experience, my decisions are often fifteen pages or longer where the prohibition is confirmed. This demonstrates that the adjudicators have the necessary capacity to render thorough and reasoned decisions.
They choose not to do so.
And this is despite, as the court notes in Sutton, the obligation that the decision and the reasons for it be in writing and despite the fact that natural justice which requires the adjudicator to act fairly. Never mind the common law requirement that administrative decisions be transparent, justified, and intelligible and that the pathway to the conclusion be discernible such that its reasonableness may be assessed.
So why is it the case that the Superintendent of Motor Vehicles provides no reasons in review hearings?
The official answer from RoadSafetyBC is that it is an issue of workload. The adjudicators deal with a large workload and it is faster to render a decision that has no reasons revoking the prohibition than one with lengthy reasons.
But there is a lot that is not right with that.
First, this is inconsistent with the general turnaround time for decisions. Since I raised hell about extensions of the time to render decisions, I have seen that decisions are typically and frequently produced within the 21-day limitation period under the Motor Vehicle Act. That includes the lengthy fifteen-plus page decisions confirming prohibitions.
Second, if that were the case, I would expect to see decisions revoking prohibitions almost immediately or very shortly following the hearings. Instead, many revocation decisions are sent on the very last day to render a decision. This occurs even in cases where the hearing is only a few days after the prohibition was served, or in cases where the revocation is mandatory by operation of certain provisions of the Motor Vehicle Act.
For example, if a police officer does not submit a report within the seven-day limitation period for filing evidence, the prohibition is required to be revoked. And despite the fact that once that limitation period expires in my cases I immediately make a submission to that effect to the Superintendent, the revocation still does not commonly occur until the end of the twenty-one day period. This seems to run contrary to intention of the Act itself in relation to this, and suggests that it is not a workload issue after all.
And then there are cases where the prohibition is revoked after a lengthy extension. Frequently, adjudicators grant an extension of the time to render a decision and then revoke the prohibition later. Despite this, the written reasons are no better, even if the prohibition hearing took place six months earlier.
So what gives?
The cynic in me believes that this is a deliberate tactic. But there is evidence to support my cynicism. In the past, in my efforts to request information through the Freedom of Information process, the Superintendent has withheld information related to grounds for revocation of prohibitions. I even conducted a review with the Office of the Information and Privacy Commissioner over this, when the Superintendent claimed it was an arm of law enforcement and disclosure of that would harm law enforcement.
Spoiler alert: the privacy commissioner did not buy that argument. I got the disclosure I wanted.
But this practice of rendering decisions without reasons also did not always exist. It only started a few years earlier when our office began to use previous decisions as precedents. And it started curiously close in time to a BC Supreme Court judgment that required adjudicators to follow the reasons of other adjudicators unless the cases were factually distinguishable.
No facts, no obligation to follow the decision. No facts, no ability to use the case as a valuable precedent. Bully for you. Justice denied. Which is really what the traffic court justice in Sutton is getting at: justice is denied where no reasons are provided. Even Mr. Sutton could not really make out his legal argument because his decision was devoid of any legal analysis.
It is high time the Superintendent of Motor Vehicles started to give reasons for why prohibitions are to be revoked. This makes sense. This is, after all, a tribunal. They are a quasi-judicial body and their decisions (which are not publicly available) should be available to guide applicants in what arguments can and cannot be advanced, and to give them knowledge of how best to present the case on review.
The secrecy of tribunal hearings is a matter that is currently before the court in a constitutional challenge in Ontario. And I hope that our government will learn from the experience in Ontario and the comments of the court in Sutton and end this process, which is only detrimental to those who hope to access justice through a tribunal.
And that justice includes their right to natural justice.
Vancouver Criminal Lawyer with a focus on impaired driving, cannabis legalization and related issues, and immediate roadside prohibition defence.