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On Thursday, the Liberal Government revealed its plan for marijuana legalization. Surprising to many was the fact that the Liberals introduced this as part of an omnibus bill that makes amendments to other parts of the Criminal Code, including the impaired driving legislation. Omnibus bills were commonly criticized by them as tactics used by their predecessor to pass bad legislation. These proposed changes also hide some of the more disturbing aspects the Government has introduced in furtherance of its stated goal to legalize marijuana.
 
I am deeply disturbed by changes that the Government has proposed, in particular the proposal to conduct random breath tests of drivers.
 
Over the next few blog posts, I am going to share some of my views on this proposed legislation and why I believe it to be constitutionally deficient.

It almost feels like a bad joke at this point. Just when we adjust to a ridiculous policy change made by RoadSafetyBC and the Superintendent of Motor Vehicles, they roll out another one. The frequency with which their policy changes happen really does make it seem as though the Government actors at RoadSafetyBC are slowly trying to eliminate all of your procedural rights. The plan being that if each right is chipped away at one at a time, they won’t suffer the same blow they did when the courts declared the IRP law unconstitutional after it was first introduced.

And so now we have another disturbing policy change to deal with.

I’m curious about how many people who have been through BC’s Administrative Justice process with the Immediate Roadside Prohibition scheme feel they’ve been given a fair shake at the hearing. I’m curious to know how many people felt they had a proper opportunity to tell their story, and have their arguments considered by the adjudicator.

The BC Government measures the success of the IRP scheme in terms of tax dollars saved on the cost of court, and in terms of the number of people who didn’t die this year (without discussing really why). But how is administrative justice measured by those who had to access it? Do these people think that this system is as successful as the BC Government believes it to be? Is the system effective for more reasons than saving money? Do the ends justify the means?

Below the link, you’ll find a survey. If you’ve been through the IRP process and you’ve been given a decision then I want to know how you felt your case was handled by the Superintendent of Motor Vehicles. Do you think you got a fair hearing? Do you think you had enough time to prepare? Do you think you had the right ways to challenge the evidence?

Police officers in British Columbia have significant obligations when they come across someone who appears to have committed an offence, but generally speaking they have broad discretion in how to proceed when it comes to traffic offences. When it comes to police discretion in issuing traffic tickets, it’s important to keep in mind that the officer giving you the ticket has a great deal of personal authority. Consequently, how you behave after the fact can have major consequences for the outcome of your case.

Right or wrong, the cop who pulls you over for a Motor Vehicle Act offence is likely to issue you a ticket. Imagine for a moment that your job is to be a traffic officer.

I recently wrote about entrapment and what counts as entrapment in traffic cases. I’ve been thinking a lot lately about entrapment as the Creep Catchers have bee present in several news stories.
 
It gets me wondering whether Creep Catchers cases may give rise to a defence of entrapment. I believe it might.
 
The theory behind entrapment is rooted in an abuse of process. Essentially, it is wrong for the state to coerce citizens into committing crimes, or to set out a plan by which they wind up committing an offence. As I described earlier, a morality test constitutes entrapment.
 
But where do groups like Creep Catchers fall on the issue?

As a criminal lawyer who deals with driving issues, I get a lot of calls from clients who feel that they are victims of police entrapment. Many people seem to have a misconception, which I believe is informed by American television, about the concept of entrapment. The understanding appears to be that entrapment exists where the police provide an opportunity to commit a crime. But the actual law on entrapment is not that simple.

In this blog post I am going to try to explain the issues that arise in entrapment cases, and why common driving issues called “entrapment” are not, in fact, entrapment.

Like most sensible people living in the Lower Mainland I have a dream of owning a house. A dream that I know is probably an impossibility. It is no secret that the real estate market in the Lower Mainland is out of control. People across the province have been calling on the Government to do something about it. Even Vancouver mayor Gregor Robertson told the Government that if they don’t start taxing vacant homes, he will.

And so the Government came up with a brilliant response. I say that dripping with sarcasm. Their idea: end self-regulation of realtors.

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.