Fairness in DUI Hearings in British Columbia

If you’ve been following my blog or my firm‘s blog, you’ve probably read a little bit about fairness in DUI hearings in British Columbia. There are aspects of fairness that affect all levels of the Immediate Roadside Prohibition, from dealing with the police at the roadside, to obtaining disclosure, preparing your defence, presenting your arguments, and receiving your decision. But what about what happens after you receive your decision?

This is where another level of unfairness in the process comes into play.

Often, clients will come to me after they have done their Immediate Roadside Prohibition review hearing with another lawyer, or themselves. They are seeking my advice regarding judicial review of their unsuccessful decision. I have a strong track record with judicial reviews, so it is not surprising that they want my advice. Frequently, these clients have obtained some new evidence after the hearing that they believe will help their case.

What happens if you have new evidence after the hearing?
In the past, if you had obtained new evidence after the hearing ended but before a decision was rendered, you or your lawyer could submit the new evidence on your behalf. As of June 1, 2015, however, the Superintendent of Motor Vehicles introduced a policy change requiring all evidence to be provided in advance of the hearing. Now, with any ordinary tribunal this would not be a problem, but the RoadSafetyBC tribunal operates in an entirely different manner.

As you’ve probably read, you only have seven days to dispute your IRP. And you probably also know that a decision has to be rendered within twenty one days of the date you received it. The decision has to be in writing and has to be mailed to you and faxed to your lawyer. This means that practically speaking, your hearing will take place within fourteen days of the date you were pulled over. This is also covered in their own procedures manual.  This means that you have essentially fourteen days or less to prepare your defence.

If you cannot gather your evidence in that time frame, too bad.

But how is that fair?
This is what I ask all the time. For example, if you want to obtain copies of the police in-car camera video, you have to submit a request pursuant to the Freedom of Information and Protection of Privacy Act (for provincial police forces) or the Access to Information Act (for the RCMP, along with a $5.00 cheque) to obtain these recordings. One does not simply obtain video evidence from the police. This applies to any evidence you think the police might have that will help your case.

Under either the Freedom of Information or the Access to Information Act, the police have 30 days to respond with the records you seek. This doesn’t include weekends or holidays (but your seven days do, because the Government doesn’t calculate your IRP time fairly) and the police have every right to extend the time to respond to your request, if they need more time. Meanwhile, your hearing has come and gone, and a decision has been rendered before you even get notified about whether they will give you the records in the appropriate time.

It’s completely unfair.

Worse still, you may decide not to dispute your IRP on the basis of the evidence you can gather in seven days. But you might find new evidence after the seven days have passed. Too bad, even then, because RoadSafetyBC doesn’t allow extensions for the seven day window if you miss it. Not at all. Not ever. Don’t even bother asking, because they’ll just phone you and tell you to go away. Yes, this actually happened.

There is no system in place to protect you
The Government does not care that you cannot obtain the best evidence for your hearing in the time set out in the legislation. There is no law requiring the adjudicator to give you your license back if you’re looking for evidence, and to adjourn your hearing. Although the adjudicators are free to adjorn the time to render a decision themselves if they see fit. Not that doing so helps you, since you aren’t allowed to send in any more evidence after the hearing has commenced in any event.

The Government is well aware of this problem. Instead of choosing to put a system in place to protect drivers who find new evidence after their hearings have ended, they actually created a new policy change to prevent people from using this evidence. The Government doesn’t want a system in place to protect you. If you write to the RoadSafetyBC tribunal to ask for your hearing to be reopened on the basis of new evidence you’ve since obtained, you’ll be told the adjudicator is “functus” and your new evidence cannot be considered.

How can this be? What about our rights?
The law functions to make this the case. It is important to have finality to litigation in Canadian law. That makes sense. You should only get one bite at the cherry, and you should put your best foot forward. But finality in litigation should not come at a cost to the fairness of the litigation or administrative review hearing process. There is a difference between applicants who want to submit new evidence because an adjudicator found something lacking in their case and people who want the tribunal to consider evidence that could not have been obtained before the hearing through any possible means.

The law in Canada has never dealt with a situation where you aren’t given ample time to prepare your defence. If you are charged criminally, you have the benefit of being presumed innocent until your trial is over. Not so with IRPs. You can apply to adjourn your trial in order to obtain relevant evidence. Not so with IRPs. The prosecution is required to disclose all potentially relevant evidence. Not so with IRPs. Fairness doesn’t apply in your BC DUI hearing. Your rights do not matter.

Unfairness in practice
Take this example: Jane argues her IRP for refusing to blow, saying that she could not blow due to a broken rib because of a fall off her horse earlier that week. She does not provide a copy of her X-Ray or a doctor’s report to substantiate her claim. The adjudicator rejects her evidence, determining that the absence of this corroborating evidence leaves him unsatisfied that Jane had a reasonable excuse for refusing to blow.

If Jane then goes and obtains a doctor’s report, it is not unfair to say that she cannot have a new hearing even though she had new evidence. She knew what her defences were. She knew what she was arguing. She knew she had been to the doctor and suffered this injury. She is responsible for presenting her case. There is nothing wrong with applying the doctrine of finality to litigation in those circumstances. (Jane should have hired a lawyer, who would have told her what evidence to gather, but that’s another blog post entirely.)

But what about this: Jane argues her IRP for failing the roadside breathalyzer. She argues she only drank two glasses of wine, waited four hours and then drove. She believes the breathalyzer must have given an inaccurate reading. The adjudicator rejects her evidence finding that he does not believe her drinking pattern and that the calibration record provided by the police shows the breathalyzer was properly calibrated.

Two months later, Jane learns through the news that there was a problem with the calibration checks in her local police detachment. She requests calibration records through the Freedom of Information process and lo and behold, the offer who calibrated the breathalyzer she blew into it, before she blew into it, was using the wrong procedure. The results could not be found to be reliable. Jane could have had no way of knowing this.

In those circumstances, Jane should be entitled to reopen her hearing. It is only fair that she have the opportunity to present evidence on a potentially decisive issue that she could not have known about, and could not have obtained at the time of the hearing. Currently, however, the BC Government and the RoadSafetyBC tribunal take the position that Jane is out of luck in both situations.

Challenging Unfairness
This issue is important. It is important to my clients who have new evidence, and to British Columbians who may have received IRPs unjustly. If they cannot benefit from obtaining later evidence that could not have been obtained for the hearing, then we have created a process that not only foists a presumption of guilt on drivers, but also uses the unfairness of the process against people to generate revenue for the province and boost numbers that belie “successes” of a regime that, in my view, fails from a legal perspective.

I am currently awaiting a decision from the BC Supreme Court on this issue. But as it stands, if you receive a DUI in British Columbia you have only one shot to present the best case possible. A knowledgeable and experienced DUI lawyer can provide the expertise you need to present your best case today, and prepare you for any possible arguments that may arise tomorrow.

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