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I’ve written before about the process of appealing an unsuccessful Immediate Roadside Prohibition review decision. I conduct countless judicial review hearings in BC Supreme Court, and file innumerable Petitions to the Court. The majority of my appeal cases are resolved without having to make arguments in court, and in favour of my clients.
 
While plenty of the cases I take to court deal with routine issues, such as how an adjudicator resolves a credibility issue or their interpretation of the evidence there are a significant number of judicial reviews that I advance that deal with far more significant issues.
 
You may have read my recent post about my success rate in these types of cases. Part of the reason I won so many hearings in summer 2015 related to finding certain pieces of evidence that called into question numerous breathalyser calibration certificates. In order to respond to this, the police amended a standard form that was submitted for every hearing with declarative information indicating that what they said was correct.

What happened next was very interesting.

As mentioned in two previous posts, there have been significant issues with delay in deciding Immediate Roadside Prohibition review cases.
 
This has resulted in substantial problems for drivers who are affected by the delay, as the prohibition remains on the driving record during this time. The drivers have been made to pay the towing and storage costs, and there are consequences that are specific to many individuals like increased life insurance premiums or termination from employment.
 
So what is the Government doing to address the problem?

Today, the BC Court of Appeal released its ruling in Jaswal v. British Columbia (Superintendent of Motor Vehicles). This case was the appeal of whether drivers who were issued an Immediate Roadside Prohibition that was unconstitutional are entitled to have the IRP removed from their driving record, and to have their fines and penalties reimbursed.

The Court has upheld Justice Sigurdson’s initial ruling that despite the fact that the IRP law was unconstitutional from September 2010 to November 2011, there will be no remedy for those affected by it. Many drivers are out thousands of dollars, have lost their employment, and have their driving records permanently marred by an unconstitutional law that continues to affect them to this day. The judge found — and the Court of Appeal confirmed — that the ruling represented a substantial change in the law and did not entitle drivers to a remedy.

Last week, the Provincial Government announced changes to the distracted driving laws in British Columbia. Essentially, they are increasing the fine amounts and adding penalty points so that each distracted driving ticket will automatically attract Driver Penalty Point Premiums and become a significant expense to drivers.
 
I had the opportunity to poll a number of police officers from the Lower Mainland last week about their views on the fine increase. Many of them were not for it, indicating their lack of enthusiasm at giving such a hefty financial hit to drivers who are clearly not able to pay the fine. This, in turn, will lead to the loss of licenses and insurance and a greater financial burden on the drivers who are unable to pay. I can’t help but agree with them.
 
However, I also see this as part of a long game, played by Government, to further their objective of eliminating traffic court.

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.