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“You have to wonder if anybody has had a fair hearing because you just don’t know,” says Paul Doroshenko with Acumen Law, after an FOI request returned documents showing the provincial government pressures the adjudicator on how to rule.
“This calls into question the integrity of the government to a level you are rarely going to see in modern Canadian history.”
Doroshenko says the province went to court to try and get the paperwork back and lost. But that wasn’t all.
“They also asked the judge for an order to keep us from being able to defend our clients. We had figured it out and the last thing they wanted was for us to be able to continue to defend our clients knowing that the system is rigged, which is really shocking. It is absolutely disgusting and its hard to believe that this takes place, but this all took place within the Attorney General’s ministry and the Justice ministry.”
Acumen Law says many people given roadside prohibitions may not have gotten a fair appeal hearing
He says his firm is out tens of thousands of dollars from hiring interim outside legal help for their clients.
“I don’t know what is going to happen. I don’t how they can handle it. Disband the tribunal? Set up something new? I think that there should be an inquiry. We are going to be writing to the Ombudsperson to ask for an investigation. You have to think that all of those people who paid their money for their hearing — that they have got to be wondering whether or not they got their value for money. Did they take their money, purportedly for a legitimate review hearing, and the people didn’t get it?”
Acumen Law says the fallout from this will be absolutely huge, including putting into question the tribunal process itself.
Kyla Lee. a lawyer with Acumen, says it also puts into question every single decision it’s made in its six years of existence.
She says there’s no question there are people who have been convicted of drunk driving, appealed, lost and now have suffered a driving prohibition and harsh ongoing punishment, including thousands of dollars in fines and associated costs.
“I don’t think it is a possibility, there is a certainty there are people out there who have been wrongly given immediate roadside prohibitions, that have been wrongly upheld on review because of the way these cases have been decided.”
Lee says anyone who thinks they were wrongfully convicted needs to dig out all the behind-the-scenes documents of their case.
“But I also think the government owes its citizens the responsibility to conduct an inquiry into the extent of this. To look through all of the emails that have been sent and to identify those cases where an injustice was done. Where cases were not decided for the facts, but were decided for political considerations.”
She’s calling on the province to own up to the mistake and make it right.
Every case now in jeopardy
The NDP says it’s not calling for government heads to roll — yet — amid allegations the Provincial government has rigged the appeal process for people accused of drunk driving.
Leonard Kroge — the opposition critic for the Attorney General, says every case where someone has been penalized is now in jeopardy.
“We’re talking about the possibility of hundreds of appeals, being set aside, and frankly, if the allegations are true they should be set aside.”
“If they are true and the documentary evidence is there to support it, it is not in accordance with the rights that all of us should enjoy under the constitution and at law generally.”
Doroshenko says the documents can’t be released to the public before 30 days have passed where the government can appeal a court decision rejecting its attempt to quash those documents.
Read More here: http://www.cknw.com/2016/05/02/law-firm-says-documents-prove-government-rigged-drunk-driver-appeal-process/#.VydquTPqq8E.twitter
Documents obtained from a freedom of information request show numerous B.C. motorists have been wrongly handed stiff Immediate Roadside Prohibitions for impaired driving as a result of improperly calibrated screening devices.
The drivers will receive some reimbursement but the lawyers who obtained the material claim it emphasizes a more insidious problem. The Office of the Superintendent of Motor Vehicles, which operates a supposedly independent appeal process for IRPs, is working so closely with police, these documents show, that even the appearance of impartiality has been destroyed.
“Never has it been disclosed to us for the hearing that the superintendent is on the B.C. Association of Chiefs of Police impaired driving advisory committee,” said Vancouver lawyer Kyla Lee, whose office made the FOI request on behalf of a Vancouver Island client. “That’s the part that strikes me as most disturbing about this (collection of emails, briefing notes and drafts).”
The B.C. Supreme Court, she explained, has criticized the government for not maintaining a robust appeal process separate from its enforcement and prosecution roles.
“They are supposed to be, as a tribunal, independent,” Lee said. “They are not supposed to be the prosecutor and the judge in their own case. But by being represented in this capacity on the committee, they are.”
Her colleague at Acumen Law Corp., lawyer Paul Doroshenko, said that more than 1,000 IRP appeals across the province in the last year have focused on the calibration process for the 2,000-plus approved roadside screening devices deployed by B.C. police agencies. Their office is handling about 300 of the files.
Within the 35-pages of interaction between the government and police released, the RCMP said it found between Jan. 23 and July 31 in Tofino, 39 invalid IRPs were issued.In Vernon, the RCMP said, they issued 13 invalid IRPs between June 13 and Aug. 3.
The problem is more widespread, Doroshenko insisted, and police say in the back-and-forth emails with the superintendent’s office they are undertaking a provincewide review.
Municipal departments may be affected, as well as criminal cases, because the same concern about the certification of gas used in the calibration process for roadside devices applies to breathalyzer machines, Doroshenko added.
In Aug. 15 notes, the minister was told to minimize the concern if it becomes public by saying the problem is fixed, drivers will be reimbursed, their records cleansed and, most importantly, the program that penalizes motorists blowing above .05 will continue to save lives.
But Doroshenko maintained recouping the roughly $5,000 in fees and charges it costs most drivers is little compared to the often expensive collateral consequences, such as loss of a job, that can result from an IRP.
More than 18,800 prohibitions are handed out annually under the scheme, which is credited with reducing drunk-driving casualties and the load on provincial courts while drawing criticism for trampling on civil rights and hurting too many innocent motorists.
“It’s another failing of the system that we are seeing,” Lee said.
“When you entrust police to do everything that has to be done in these investigations — to calibrate the devices regularly, to employ them in a reasonable manner, to follow all the steps of the legislation, to prepare the evidence, to submit it to the superintendent and then you don’t have the safeguards that we used to have when there were criminal prosecutions … .”
But efficiency and enhanced public safety have triumphed over procedural as well as fundamental fairness.
Lee said the latest, updated version of this legislation — passed but not enacted — envisions the superintendent and police working together like joined twins.
After hearing arguments earlier this year, the Supreme Court of Canada continues deliberating about the constitutionality of the original law and this way of doing business.
Prudence suggests waiting for that ruling before adopting a new iteration of the heavy-handed law.
“It’s not in effect yet and the superintendent shouldn’t be behaving as though it is,” Lee said.
“As far as I’m concerned, that law is absolutely unconstitutional and our intention is to challenge it at the first available opportunity.”
“We took a first step and increased the penalties last fall and now we’re looking at possible changes to the legislation, including more severe penalties. We want to ensure these are set at a level that is fair and effectively changes behaviour,” she says. Ministry figures estimate that at any given time in B.C., 9,500 drivers are using a hand-held device with 40 per cent texting or e-mailing.
ICBC figures record 88 fatalities on average per year from distracted driving (most are attributed to use of electronic device use) with the figure surpassing drunk drivers (86) and only second to speeding in roadway fatalities (105).
Anton called for a month of public consultation with feedback on electronic device use while driving and penalties either directed through the justice ministry’s website, by e-mail, or snail mail from June 16 to July 16.
Police report that in 2014, 55,100 tickets were issued to drivers for mainly electronic device use, up from 2013 when 53,000 were issued. B.C. introduced legislation prohibited the use of electrical devices while driving in 2010. In the fall of 2014, it increased the penalty and fines to $167 (the second lowest in Canada) and three demerit points. (Ontario recently passed legislation enabling the maximum fines to rise from $500 to $1,000).
As B.C. wrestles with the issue of how to get drivers adhere to s. 214.2 of the B.C. Motor Vehicle Act, ICBC has struggled with rising insurance claim costs with distracted driving adding $500 million to claims since B.C. first introduced the cell phone law in 2010.
“We don’t seem to want to give up our phones,” says Kyla Lee of Vancouver’s Acumen Law Corp., who represents an average of two individuals with such violations a week in traffic court.
She’s not surprised as distracted drivers have a higher fatality rate than drunk drivers.
“We are on our cell phone 24-7, while most impaired driving offences take place between midnight and 3 a.m.,” says Lee.
Most people, she says, pay the fine and accept the demerit points, but when it turns into a situation that impinges their driving ability, they walk through her door. The penalty for receiving more than one distracted driving ticket in a year is at least $634, the equivalent of two fines and a $300 penalty premium for accumulating six points.
Despite the potential to stack up points, B.C. drivers seem glued to their devices. “People are not getting the message,” Lee says, adding that she has had and heard of cases where individuals have gotten four and five tickets and “still won’t stop using their phone”
Vancouver criminal lawyer Cathryn Waker, with Mickelson and Whysall Law Corp., agrees. She is familiar with cases where the tickets have climbed to 10 or more.
Waker says she’s also seen many new drivers, who aren’t allowed to use a device even if it’s hands-free or voice activated, who are running afoul of the law. Those still under the 24-month probationary period of the graduated licences can also face licence suspensions in addition to regular fines and demerits.
Lee says the courts are tough on offenders. “The justices of the peace are giving that person a stern lecture as well as the fine,” she says.
She adds there isn’t much wiggle room in the way the law is written, even though clients argue that police can’t prove it was a cell phone being used. She says the excuses such as the driver claiming he or she had a bar of soap or a wallet in their hand is not flying in the courts. “Who holds their wallet to their face?” she says. “The courts seem to be quite tired of those excuses.”
As B.C. moves to be bring forward more punitive measures for drivers fixated on their devices, fighting such tickets are also expected to become more difficult. B.C. is in the process of taking traffic violations out of the courts with a two-step process with the first phase a move to e-ticketing, now being implemented.
With e-ticketing, once the police officer uploads it in his vehicle and gives the driver a ticket, the offences is immediately in the judicial system. Tickets are payable online.
For those who want to contest a ticket, it’s an appearance before Driving Notice Review Board. But before the hearing, the person must supply their own evidence. The police officer, or another officer, does not have to supply evidence beyond the ticket, says Lee.
The decision of the board is final with no recourse to an appeal or taking the issue into court, says Lee, who has been an outspoken critic of the new system. She claims it as strips motorists of their basic constitutional rights when charged with an offence.
No dates have been set for start-up of the new system.
Read the full article here: B.C. heading for stiffer distracted driving penalties by Jean Sorensen, Canadian Lawyer Magazine