Kyla Lee

One of the biggest concerns that the public has when it comes to impaired driving is the problem with repeat or chronic offenders. You probably remember the story of the Victoria woman with 19 drunk driving prohibitions, who was recently found guilty of another offence related to impaired driving. The public was, rightly, outraged that this person can still drive and is still driving drunk.

The Government, for its part, has touted the success of the Immediate Roadside Prohibition legislation as the mechanism to reduce the carnage caused by impaired drivers on the road. It frequently points to the reduction in drunk driving deaths as evidence of the success of their anti-drunk driving legislation. But what they’ve been keeping mum about since the introduction of the scheme is whether there is any reduction in repeat offenders for impaired driving.

In short, do the swift and severe sanctions prevent people from making the same mistake twice? The answer might surprise you.

This past week, the Middelaer family is again in the news. Not only were the announcements made about the winners of the Alexa’s Team Awards – a foolish way to encourage sloppy policing – but Alexa’s Bus was processing impaired drivers over the weekend. Or so the Government would have you believe.

If the British Columbia government spent $300,000 on a Skytrain line that was never used by passengers, citizens would be up in arms about irresponsible government spending. If they fundraised the $300,000 for the Skytrain, and then paid taxpayer money to staff it, maintain it, and ensure that it was functional and operational, the public would be furious.

The same situation exists for Alexa’s Bus.

A few months ago, I wrote a post about the biggest failing of BC’s drunk driving law. I wrote about how despite the requirement that the adjudicators render decisions 21 days from the date the prohibition was issued, that this did not occur. The Superintendent has said that decisions are routinely rendered in the required time period, but in reality they are not.

In the last few weeks, I have uncovered more evidence about the significance and expansiveness of this problem.

The law can be difficult to understand, particularly for people who have limited encounters with the justice system. In order to ensure citizens are aware of the law, the Government is required to publish the law and make it available for people. You can’t be presumed to know a law that you don’t have access to. And the right to know the law isn’t a privilege that is only due to those who can afford lawyers.

But the law isn’t just what is written in statutes and legislation. The law is also, largely, controlled by the interpretation of those statutes and the rules around the application of legal principles. This is known as the common law. And this is where things become complicated in the Immediate Roadside Prohibition scheme. There have been numerous cases discussing the burden of proof, the assessment of credibility, inference drawing, and the interpretation of the Motor Vehicle Act in IRP cases. The problem is that the majority of those cases aren’t publicly available.

How is this fair? How do people know what the law is, when they can’t see it in action?

In principle, the #IBelieveSurvivors crowd is absolutely correct. And when it comes to accessing victims’ services, counselling, support, and simply being taken as credible amongst friends, family, by the police and by prosecutors — when it comes to all that, there is no reason to discount the #IBelieveSurvivors rhetoric. Since the verdict in Jian Ghomeshi’s highly publicized criminal trial for sexual assault, many people have criticized the justice system for failing to follow the basic premise that survivors of sexual assault will not fabricate their accounts.

But that same rhetoric has no place in a criminal trial. It is contrary to the fundamental principles of justice in this country, and contrary to any fair and just system of criminal law. As difficult as it may be to accept, we have to stop trying to think about a criminal courtroom as a space that either belongs to or should belong to victims of crime. Rather, the criminal courtroom is a space that belongs to society as a whole.

I’d like to take this blog post to write about why it is dangerous to allow that type of thinking in a criminal courtroom.

Both myself and my colleague, Paul Doroshenko, are known for the ways in which we stick our necks out in the interests of justice. Doing so has its benefits, mostly because we know we are sticking up for the little guy and there is great satisfaction that comes from fighting for a cause that you believe is just. I am particularly active in defending Immediate Roadside Prohibition cases, and have advanced numerous complex, technical, and creative legal arguments. I do not always succeed, but I do cause the Superintendent of Motor Vehicles some difficulty.

However, there are also downsides to doing what we do. And if you’ve noticed the silence in my blog as of late, the downsides are part of the explanation.

The reality is that not all lawyers are Denny Crane. And Denny Crane’s motto of “Never lost, never will” was qualified all the time. In fact, that was one of the running gags in Boston Legal. Even the best lawyers lose some cases. But just because your lawyer lost your case (or you argued it yourself and were unsuccessful) does not mean that you should count yourself out.

Under British Columbia’s Immediate Roadside Prohibition legislation, the deck starts out stacked against you. You’re serving the penalties before the matter is decided. The police have an advantage in that their evidence is set out in pre-printed forms and tailored to answer all of the questions. If you are unfamiliar with defending an IRP case, you are not likely to know how to best respond to their version of events. Even the adjudicators have powers to seek out other material for the sole purpose of rejecting your arguments.

This is what makes an appeal of an unsuccessful IRP case all the more important.

Limitation periods are tricky. As lawyers, one of the first things we are taught is to pay close attention to limitation periods, because when you miss them the consequences can be devastating. And there are various limitation periods for various issues, so keeping track of them can be hard.

For traffic tickets, you have 30 days from the date you are served with the ticket to dispute it. If you’re served the ticket after the offence, this means from the date the officer issues the ticket, not the date of the driving incident. Remember too that traffic tickets are different from Immediate Roadside Prohibitions, 24-Hour Driving Prohibitions, or Administrative Driving Prohibitions, which have different time periods for dispute.

But what happens when you miss the time to dispute your traffic ticket? This blog post attempts to explain what to do in that situation.

A recent article by News1130 suggested that drunk driving numbers are falling in Vancouver. The article cites statistics provided by the Vancouver Police Department spokesperson, Brian Montague to show that in 2013, 1317 IRPs were issued to drivers. In 2014, the number fell to 1100 in 2014, and by 2015 it was down to 1030.

At first blush the numbers appear to show a general decline in drunk driving in Vancouver, but these numbers do not tell the full story.