This is highly problematic, and may verge on being unconstitutional.
Section 11(i) of the Charter guarantees that if a person is found guilty of an offence, they have the right to the lowest punishment in place for that offence. I wrote about this principle recently in a blog post about marijuana legalization, and a recent Court of Appeal decision pertaining to the application of Section 11(i) of the Charter.
It is also one of the principles of procedural fairness and the right to a fair trial that a person know the potential consequence they are facing if they violate the law. Particularly so, I say, with traffic offences where the offences are often committed willfully or in a way that is willfully blind. Take speeding for example. Most people don’t set out to speed, but they also deliberately don’t look at their spedometer to know whether they are exceeding the speed limit. Or stop signs. You may not want to run a stop sign, but coming to a complete stop when you can see that no one is coming and the coast is clear may not make sense.
For this reason, many traffic tickets are either strict liability or absolute liability offences. The intention to commit the offence does not matter. The Supreme Court of Canada defined an absolute liability offence as an offence where a person is not open to exculpate onself by showing the absence of fault. But that’s a complex issue that is really best left to another blog post.
When you make the decision to speed, or when you roll through a stop sign, or when you accidentally enter an intersection on a yellow light, you should know what the potential consequence will be for your actions. A person should not have to face the potential of a $368 fine today, and a $368 fine and three penalty points, for example, if the penalty changes over time.
The question is whether an increased consequence in insurance rates or penalty point premiums constitutes a punishment for the offence. And if an intrepid traffic ticket lawyer were to challenge the imposition of retroactive insurance consequences for tickets, the argument would have to rest on whether these consequences are collateral to the offence or a direct result of it.
But the reality is that the offence — be it speeding or running a stop sign or using an electronic device — is the very thing that triggers the consequence the driver is now facing. This makes it very hard to separate the conviction for the Violation Ticket from the imposition of increased insurance rates as an administrative decision.
And the Government has not taken into consideration the perception of drivers who have had tickets in the past. Most people think they are good drivers and everyone else is a bad driver. This is a psychological phenomenon known as illusory superiority. And while most British Columbians are apparently in favour of these increased penalties, I cannot imagine that most people are in favour of paying them themselves. Had the Government asked people whether they think they should be punished today on the basis of a ticket that was issued and paid six months ago, I expect most would have disagreed. Particularly if the question was about surprise penalties.
And with it being impossible to dispute a ticket after it has been paid, any person who was suckered into paying their ticket by thinking it’s only one ticket, it won’t affect me, may be sorely mistaken. That those individuals will have no recourse to dispute a penalty imposed after the fact is appalling and unjust. Look, even if the consequences are purely administrative, they violate the rule of fairness that if a certain procedure is reasonably expected by a party at the time of an administrative action, that procedure will be required. And if there is a backtracking on substantive promises, then significant procedural rights must be allowed.
Hiding behind the guise of an administrative decision only opens the government up to challenges of procedural unfairness in the administration of its licensing and mandatory insurance scheme, which too could result in the legislation being rendered toothless. Or, alternatively, the opportunity for any person affected by this to dispute those tickets in traffic court, even if they were paid. What a nightmare that would be for the justice system, police, and administrative staff.
But there’s an easy out for the Government here. It’s really quite simple. If and when they introduce this legislation, they must make it prospective in application only. Any retrospective or retroactive application of the legislation could lead to a constitutional or administrative law challenge.