The B.C. government is shifting traffic violations out of court in a move lawyers fear strips motorists of constitutional rights.
The Liberals are implementing amendments passed with no fanfare in 2012 to establish a new process for handling offences under the Motor Vehicle Act, similar to the paradigm shift made dealing with drunk drivers in 2010 when most impaired charges and trials were eliminated with a heavy-handed Immediate Roadside Prohibition (IRP) regime.
The Ministry of Justice and Public Safety confirmed Tuesday that a two-stage rollout is planned to shift MVA violations from the criminal system.
Work is underway on Phase 1, it said, bringing in an electronic ticketing and online payment system; the new hearing system will follow.
Though the implementation date has not been set, the ministry maintained in an email that the Road Safety Initiative to transfer traffic disputes out of court “will create system efficiencies and make processes more accessible for citizens.”
“E-ticketing, coupled with a faster dispute resolution process, will mean that driver infractions will be recorded against driving records more quickly, thereby enabling interventions for high-risk drivers to be applied in a more timely manner,” the ministry stated.
However, lawyers who opposed the IRP scheme say this new plan is similarly offensive.
“It’s a frightening piece of legislation,” warned Vancouver lawyer Kyla Lee.
The IRP legislation is being challenged in the Supreme Court of Canada because it is a novel use of administrative law to address a criminal problem, which makes it easier for police, less expensive for government and dramatically increases fine revenue.
Aside from the concern of the province encroaching on the federal government’s criminal law-making responsibilities, the key change is that constitutional guarantees and defences available in a criminal prosecution are unavailable in an administrative context.
Under the amended law, police will stop writing “tickets” and electronically issue what are called “driving notices.”
“If you have a B.C. driver’s licence or have ever held a B.C. driver’s licence, you get a driving notice and are handled under the new scheme,” Lee said.
“If you are visiting from Alberta on vacation, you still get a traffic ticket, you get the right to have the usual court system.”
That’s one reason it’s unconstitutional, she believes, but adds the dispute and appeal process is similarly problematic.
Under the proposed plan, disputing a notice is a three-part process.
Initially, adjudication officers with the superintendent of motor vehicles provide an opportunity for drivers to plead guilty.
“They can offer you incentives to plead guilty, a fine reduction or giving you time to pay,” Lee explained. “It’s designed at the first instance to goad people into pleading guilty by giving them an incentive to do so. If you don’t do that, then you get to go to a hearing before the Driving Notice Review Board. That can be in any manner: it can be oral, it can be written, it can be in person, it can be in some kind of electronic form, or some combination of those.”
Before you have your hearing, though, Lee added, there is a pre-hearing where the accused must provide evidence.
“Now you don’t have a right to keep your defence a secret and have your witness come and have them testify that ‘he wasn’t speeding, I was in the car with him,’” Lee said. “You have to disclose all of your witnesses and your witness statements to the Crown.”
The police officer must submit his or her evidence by way of a sworn report, but if the officer who issued the driving notice can’t do it, any other officer can.
“Reading the legislation, the officer who issued the ticket isn’t even required to provide evidence other than the ticket itself,” Lee said.
“It’s insane. The decision of the board in the legislation is final — you cannot appeal the decision of the board to any court and you can’t seek judicial review.”
Although traffic tickets are misdemeanours, Lee insisted the consequences can be large, ranging from significant financial penalties and lengthy driving prohibitions to the forfeiture of a vehicle.
What the government is doing is trying to eliminate the ability of people to defend themselves, Lee maintained.
She said she and her colleagues are waiting for the new scheme to be implemented to launch a constitutional challenge:
“I think the government is trying to lull people into a false sense of security, where they feel that these changes are for the good of the public, but it appears to be for the good of government coffers.”
Read more: http://www.vancouversun.com/news/moves+eliminate+court+trials+traffic+violations/10953200/story.html#ixzz3WjXew9fo
You may be wondering why you haven’t heard about these changes. That’s because the BC Government has been watering down the truth of what’s behind this legislation. There are sweeping amendments to the Motor Vehicle Act, most of which are being sold the public as the changes to stop left lane hogs and finally eliminate AirCare. These are amendments that British Colombians want, so nobody is putting that much effort into looking behind what else is in Bill 15, the bill bringing about the changes.
What most people have not realized, however, is that these changes also include changes to the Immediate Roadside Prohibition legislation that are designed to make it impossible for applicants to succeed in the review hearings.
I recently had the opportunity to discuss some of the changes the I feel are the most sinister with InfoNews.ca in Kamloops. The changes pertaining to the BC DUI Laws are also outlined on the VancouverCriminalLaw.com blog. I won’t go over them in detail here, but I do want to give a brief summary of the scariest ones. They are:
- Shifting the onus of proof from the officer to the driver;
- Placing limits through regulation on what an applicant may provide as their evidence and submissions; and
- Allowing the Superintendent to seek out, create, and provide his own expert technical evidence in response to submissions raised by the applicant.
All of this is terrible. I also believe it is unconstitutional and I wholly intend to challenge this legislation at the first available opportunity.
When asked about the changes to the law, the Government does not want you or the opposition to see what they are trying to do. They try to explain away the changes as though they are positive. The focus when questioned by the media about the changes has been that the Superintendent will now be required to revoke a prohibition if the officer does not send in a sworn report in the first seven days. That’s great, but according to two recent decisions that is already the state of the law in British Columbia.
Look no further than Hansard debates on the subject for evidence that the Government either fails to understand the implications of this law, or that they are trying to obfuscate their true intentions. When introducing this Bill, Suzanne Anton had the following to say about the parts that pertain to impaired driving law in BC:
The elements in this bill relating to road safety programs aim to improve the operational efficiency of the existing administrative review processes and allow for timelier resolution of reviews by the following.
Requiring the superintendent to revoke prohibitions on review if certain police documents are missing. This provision will help decrease delays during the review process.
Secondly, clarifying the general legal principle that in administrative matters, whoever asserts a proposition bears the burden of proving it. What this means for an IRP is that if an officer has complied with the statutory requirements and provided the required documents, then in a review the onus is on the applicant to prove one of the grounds of revocation.
Third, allowing the superintendent to obtain and consider other relevant information, such as an expert report or technical materials in a review. This will ensure that all relevant information can be considered, allowing the superintendent to make the most fair and informed decisions possible.
Lastly, enabling regulations to place page limits on an applicant’s legal argument in an IRP review and establishing deadlines on the applicant’s submission of argument and evidence in an IRP review. This provision will provide the applicant with a maximum amount of time to present a clear and concise argument while ensuring the superintendent has sufficient time to make a fair and timely decision.
That is simply not a true and accurate depiction of how the law will operate.
To say that the law clarifies the legal principle in administrative matters that whoever asserts a proposition bears the burden of proving it neglects exactly what has been done here. The officer is, by necessity, asserting the proposition that the individual served an Immediate Roadside Prohibition was a driver, blew over the limit, took a second test on a different device, and had reliable readings anytime an IRP is issued. And yet the Government appears to believe that so long as the officer provides the required paperwork, then they have proven that to be the case.
How absurd is that? What happens to the principle that “he who says it must prove it” when the officer is, in effect, given a baseline presumption of competence, reliability, accuracy, and proof. If you assume that the officer did everything correctly based on the fact that the prohibition was issued and the officer provided some paperwork, you erode the purpose of having a review mechanism.
In Administrative Law, that principle is supposed to function so that a person asserting a fact in a factual dispute must provide evidence to say that it is true. For example, in a residential tenancy dispute seeking return of a security deposit, the person seeking the deposit back must first prove that it is paid. There is no presumption of regularity that applies to all rental contracts where it is assumed that a proper security deposit was indeed paid to the landlord. What the government has tabled is not clarifying an administrative law principle. It is eroding one.
Allowing the Superintendent to obtain and consider other relevant information also erodes administrative law principles. If you were to look at the actual wording of the provision, the Superintendent only derives the authority to do this in response to the submissions of the applicant. That means that the Superintendent is allowed to seek out evidence to use to reject your submissions, and only for that purpose. That provision is not designed to help, but to hinder.
It is well-settled law that a person may not be investigator, prosecutor, and adjudicator in the same proceeding. To do so gives rise to a reasonable apprehension of bias against an applicant. But what is set out in this legislation accomplishes just that. Again, offending very basic principles of administrative fairness and a certain standard that we have come to expect and deserve as Canadian citizens living in a free and democratic society.
And the last part that the Government touts as a wonderful change to the legislation? Placing page limits on an applicant’s legal argument. This violates another principle of administrative fairness: the right to be heard. It is impractical and unjust to tell a person that they may only present their evidence in the first instance in a certain number of pages. Many of my submissions to the Superintendent of Motor Vehicles end up being hundreds, even thousands, of pages. You will note that there is no corresponding limitation on how much evidence the police may provide for the hearing. How is it fair that one party can provide whatever they want and another is subject to strict limitations?
The answer is that it isn’t.
This law is not fair. It violates administrative law guidelines, principles, and the constitution. It takes the Immediate Roadside Prohibition system back to a place worse than when it was first introduced and found unconstitutional. It has no place in a free and democratic society, and its flaws are revealed by the very fact that the Government does not want people to know what they are really trying to do with this law.
Amendments to the Motor Vehicle Act strengthen the government’s controversial Immediate Roadside Prohibition, which avoids the scrutiny of court and criminal sanction. Instead, accused drivers or their lawyers, call in to plead their case through a tribunal phone conference. The proposed amendments to prohibitions were introduced by Justice Minister Suzanne Anton in the B.C. legislature March 23.
Prohibitions were introduced in 2010 as a tool to curb the amount of drinking and driving infractions by stripping drivers of their licenses for a set number of days and impounding vehicles after a warning or fail registered on a breathalyzer. The roadside prohibitions have essentially decriminalized drinking and driving in favour of fines and vehicle impoundments. Impaired driving charges in the province have dropped 37 per cent since the introduction of the roadside prohibitions.
Lawyer Kyla Lee says the proposed legislation must be challenged.
“In every case now people are basically going to have to provide persuasive evidence about their drinking pattern and about what their blood alcohol level would be. It’s an incredible burden to put on people,” Lee says adding she and co-workers plan to challenge the law’s constitutionality if it passes.
If a person is served with a prohibition, he or she has seven days to appeal it before an adjudicator via conference call. The calls are not recorded or available to media, Lee says.
“Our courts are open to the public but this tribunal is not,” she says. “The oral hearings are conducted over the phone. (The adjudicators are) in a room with closed door, nothing is recorded other than their own notes.”
Lee argues the issue is complicated when the adjudicator reviewing the case decides what constitutes evidence. Further amendments will allow the Superintendent of Motor Vehicles, Sam MacLeod, to decide on his own initiative what technical, medical or scientific materials can relate as evidence to the applicant’s case.
“This change will allow the superintendent to consider expert technical evidence about (breathalyzers). Previously, a B.C. Supreme Court decision found that under the legislation, the superintendent could only consider evidence submitted by the applicant or the police in an IRP review,” MacLeod says in a statement released by the Ministry of Justice communications department.
Lee argues the legislation would grant the superintendent more power to discern evidence.
“They can point to anything in the regulation and call it a technical document. In theory, they could create a report that says whatever they want and as long as it’s prescribed in the regulation as a technical document the superintendent can consider it,” Lee says. “They’re putting restrictions on the type of evidence people can provide and how the evidence can be provided. They’re also opening it up so that the superintendent can go out and create (his) own evidence and seek out evidence. It completely interferes with the whole process of having an independent tribunal.”
Previous appeals show reviews of police breathalyzers to determine if a proper reading was recorded. Successful revocations were based on evidence that demonstrated breathalyzers were improperly calibrated, or not documented properly. Lee says if the bill is passed into law, that argument may no longer be applicable.
“They’re setting it up so that everybody’s evidence is rejected,” she says.
If an applicant wishes to draw on previous cases for reference, he or she will need to file a Freedom of Information request; adjudicator decisions are not publicly available.
Requests to interview Justice Minister Anton were denied by her communications department. An unattributed emailed statement was offered by the communications department but was refused by Infonews.ca
At this point it is unknown if and when Bill 15 could be passed into law.
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