The prohibitions for street racing and stunt driving in BC have been significantly extended in an effort to combat these driving offences. At first blush, it looks like the penalties are a step in the right direction, but Vancouver lawyer Kyla Lee has some concerns.
CKNW: You wrote about this on your blog and raised many points of issues you have with this ... what is your concern with what the government has announced?
Kyla Lee: My biggest concern with what the government has announced is the lack of due process. this entire mechanism, which is actually already in place, just with shorter driving prohibitions. This entire mechanism depends upon the report of an officer, based on an officer charging a person with a driving related offence: driving without due care and attention or excessive speed as examples, and then submitting a report to the superintendent.
The decision to prohibit the driver is made before the ticket is determined in court, before the truth of the allegations are tested, and before the driver has an opportunity to respond and present their side of the story.
CKNW: Walk us through — I think it comes as a surprise to people too, the whole process in the hotline that an officer calls, and what actually happens at the side of the road when somebody is pulled over and is accused of street racing or stunt driving.
Kyla Lee: There's a secret phone number that the police have access to that the public doesn't know about its staffed 24/7 by somebody from RoadSafetyBC, when the police pull someone over who they believe is stunting or street racing, they call this hotline, they get to talk to an adjudicator directly, in a conversation that's not recorded.
They explain what they think happened and the adjudicator says, "OK, you issue them a 15 day driving prohibition right now, on the spot." The driver doesn't know this is happening, they’re not asked to provide their side of the story and those 15 day driving prohibitions are not reviewable at all by the Superintendent. The only way to challenge them is in BC Supreme Court.
CKNW: The process now then, replacing the 15-day driving prohibition, do you see this then the change being now when an officer calls and says, "I've just pulled somebody over, I think this person was street racing or stunt driving or even driving without due care or attention" ... Can we now see an adjudicator issue and say, "OK, issue that person and take away their licence for three years?"
Kyla Lee: No. That's not going to happen right at the roadside. What the adjudicator will say is, "OK you need to take these steps: You have to issue a ticket for one of these offences and then you have to submit a report to us explaining your case."
It’s actually going to be a written report as opposed to a hotline. And then it’s going to be sent to the driver, saying "You’re now prohibited from driving for up to three years, you have the chance to appeal this but the prohibition is already in effect."
CKNW: What's happened when you have challenged these prohibitions in court?
Kyla Lee: Every time I have filed a challenge to the 15-day driving prohibition, the Superintendent has conceded the appeal and the reason for that is because there’s no record kept of the interaction between the officer and the adjudicator.
And because there’s no actual decision rendered by the adjudicator, it’s just a direction over the phone. There's nothing for the courts to review. So the Superintendent sort of backs themselves into a corner by setting up a system that's not reviewable internally and also not reviewable at court. So every time I've challenged them they've just been removed from my client’s driving record.
CKNW: Do you think that's why were seeing this new announcement or this new mechanism replacing the 15-day prohibition, because they were losing these cases and they didn’t stick?
Kyla Lee: I think it's an effort to change something that was obviously broken and obviously was completely unfair and completely unconstitutional and had all the elements of a Star Chamber. Rather than admit that that's what they were doing, rather than tell the public that we have this whole secret process to take away drivers licences completely, they’re trying to spin the story as one of increasing public safety, when that’s not what they’re doing. They’re trying to fix a huge mistake that they’ve been doing for years.
CKNW: So do you find the new system then, that it requires a written report, is that an improvement?
Kyla Lee: It’s still not an improvement because it hinges on a driver being charged with an offence. Everybody’s right to be presumed innocent, who's subject to these prohibitions, is engaged. There's jurisprudence from the Alberta Court of Appeal that says that you can't give somebody an administrative prohibition on the basis of the fact that they’ve been charged with an offence and subject them to the consequences of that prohibition before the offence has been dealt with in court.
So it’s not an improvement. It's a different process but it’s still significantly constitutionally flawed.
Listen to the full interview on CKNW AM980:
Kyla Lee - Vancouver Criminal Lawyer
Vancouver Criminal Lawyer Kyla Lee is available to give interviews on all variety of criminal law topics, including drunk driving rulings and Immediate Roadside Prohibition legislation. Kyla Lee has appeared on Global BC, CBC, in the Vancouver Sun, and other media throughout BC. She is a leader in developments in drinking and driving law in British Columbia.