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?
Accessing the Law
Recently, I made a Freedom of Information Request to the Ministry of Public Safety and Solicitor General for copies of every unsuccessful IRP decision from the month of May, 2015. I was curious to see the arguments being advanced by drivers, other lawyers, and the way the tribunal responded to those arguments. To my surprise, I received a fee estimate of $180.00. This meant that the Government intended to charge me $180.00 to have access to this information. Worse still, they required prepayment in full.
I paid the fee, albeit not without protest. Now I am waiting for the records.
There are numerous administrative tribunals in British Columbia. There is the Office of the Information and Privacy Commissioner tribunal. There is the Residential Tenancy Tribunal. There is the Employment Standards Tribunal. There is the Human Rights Tribunal. There is the Office of the Police Complaints Commissioner. The list goes on. One feature of all of these tribunals is that they maintain a database of publicly available decisions that applicants can use to prepare their own cases. These databases are free, accessible to the public, and available 24/7 at a few clicks away.
This is not the case with the Immediate Roadside Prohibition tribunal with RoadSafetyBC. Instead, the decisions are secretly held by the tribunal and are not released unless requested pursuant to the Freedom of Information Act. And then, as I have recently experienced, only after a hefty fee is assessed.
This, in my view, is a significant problem with access to justice in these cases. It runs contrary to good public policy. There is no opportunity for applicants before the tribunal to discover how their cases will be assessed and the standards expected of them within the time limits for their hearing. It takes a minimum of thirty business days to get a response under the Freedom of Information Act. The hearing concludes before 21 days from the date the prohibition was issued has elapsed. One judge characterized the assessment of credibility in these cases as being done using standards that are “unknown to and unknowable by” the applicant.
Refusing to make decisions publicly available belies the Government’s intention to continue with those standards.
Not Just Unsuccessful Decisions
There is also a significant problem in allowing people the information necessary to know how they might succeed. This isn’t about flouting the law. In a criminal trial for impaired driving, a search on CanLII will reveal information that might lead a self-represented person to learn that there is a defence in the roadside breathalyzer demand not being made immediately. This is a legal defence, and a person has the right to know that information and present similar cases in court.
Similarly, a person who is facing a driving prohibition ought to have a similar opportunity to know what defences are actually defences and to advance those. The problem is, however, that successful decisions do not contain any relevant facts or information. Just look at these successful decisions from June, July, and August 2015. By looking at them, it’s obvious there was a significant concern respecting the reliability of the breathalyzers. But what that concern was is absolutely unexplained. So no one can rely on this to mount their own defence.
Paul Doroshenko from my office tried to complain to the Minister of Justice about decisions that were rendered in this fashion. He received a terse letter in response indicating that there was not any obligation known to her for the tribunal to provide thorough reasons. It makes one wonder if she has read the case of Dunsmuir v. New Brunswick which requires administrative law reasons to be justified, transparent, and intelligible. If anyone can explain what is justified, transparent, or intelligible about those cases from June, July, and August 2015, I’ll give you a cookie. Heck, I’ll bake you a pie.
The Government doesn’t want people to know why IRPs are revoked. I’m not just saying this. They actually took that position in a hearing before the Information and Privacy Commissioner. You can read the decision in that case because it is thorough, transparent, intelligible, and justified. Oh, and publicly available. Their concern was that if people knew the defences to IRPs then they could tailor their interactions with police so that they would succeed. The Government characterized this as a law enforcement concern — claiming that the adjudicators with the Superintendent of Motor Vehicles and RoadSafetyBC performed a law enforcement function.
The Privacy Commissioner thought this was hogwash. I got the information I sought in that case.
Public Perception of Justice
There is an old saying that “not only must justice be done, but it must be seen to be done.” I get the sense that the Government is afraid of how people will perceive the administration of justice in Immediate Roadside Prohibition cases. Just look at the way they treated me for trying to defend my clients. Showing why IRP cases are revoked or upheld, as the case may be, might harm the way the public views the administration of justice. Not only will it show the prevalence of police misconduct and error, but it will also show the unfairness of some of the review hearings that take place before the tribunal.
I’m not saying every hearing is unfair, or even a substantial number of them. But there are documented instances of people who have not been given a fair shake. These are the people who have been brave enough, financially able enough, and willing enough to advance their cases to court. Common sense tells us that there are probably others out there. And this is what the Government is afraid of — that people will get the sense that the IRP scheme is not as successful as they claim it is.
And it isn’t.
There can be no other rational explanation for the Government’s refusal to make this information publicly available and accessible. And it’s shameful that the Government wants justice to be delivered in a secretive hearing, rather than to be seen in order to ensure that it is done.