The first version of the legislation was found unconstitutional in part by the BC Supreme Court, and is currently under consideration by the Supreme Court of Canada. The second version was determined to be constitutionally valid. And the third version is slowly being regulated into existence. One of the elements of the law that the government and the courts have praised is its rapid response to the social problem of drinking and driving.
But, ironically, this is the biggest failing of the law.
But there is a loophole in the legislation. The Superintendent is not required to actually render the decision. He is entitled to grant himself an extension, without a hearing on the merits of granting an extension, and render a decision at a later time. Better yet? There is no requirement for the Superintendent or any RoadSafetyBC staff to explain why an extension was granted. And while the legislation allows the Superintendent to reinstate the driver’s driving privileges, he is not required to do so. This means that you can theoretically serve your whole 90-day suspension even though you challenged it and have not been given a decision.
Now, to be fair to RoadSafetyBC adjudicators, it is not often that the driving prohibition is not put on hold until a decision is rendered. But even so – this is a big failing of the law. I have run out of space in my office to store files for people whose cases I have argued but whose decisions have not been rendered. Some of my clients have now been waiting more than two years for a decision. That, in my view, is absolutely unacceptable. There is no reason why anyone should have to wait that long for a decision.
Oh – and the hearings aren’t recorded. Any thrust to my submissions made orally over the phone is long gone now.
In the criminal law world, delays to have a case heard and decided that span this long are often found to violate a driver’s Charter rights. And in those instances courts are dealing with complex legal issues involving witnesses testifying, having an open courtroom in which to hear the case, Charter arguments and preliminary applications, and cross-examination. None of these elements are present in an Immediate Roadside Prohibition review hearing. In fact, you’re limited to 30 minutes for your submissions. So why does it take the adjudicator more than two years to make a decision?
I certainly cannot say. Among the stacks of files in my office are dozens of decisions where the adjudicator cannot even indicate when a decision might be made. Others are cases where the file is thick with copies of Notices of Extension that come every three months on the fax machine like clockwork. And the poor people who paid their $200 for an oral review to ICBC expecting a decision in the twenty-one day period still have no justice.
Man. If I paid $200 for something and I hadn’t received it two years later, I’d be pissed off. And I can understand why many of my clients are too. It’s hollow getting your license and your car back when you still don’t know whether and when the Government is going to swoop down and take it away again.
As if that isn’t bad enough, drivers who receive these extensions continue to be prejudiced by the Immediate Roadside Prohibition. They are required to pay the impound fees up front before their car will be released. The Government promises to reimburse drivers whose decisions ultimately come back favorable, but that money could be used for something else, particularly if the expense is not justified. Worse still is the fact that the IRP remains on the person’s driving record.
That’s right. Your driving record says you’ve had a DUI even though the decision on its validity hasn’t been made. That’s absurd. Even speeding tickets aren’t recorded on your driving record until the dispute is resolved. We know that the fact of this record on your driver’s abstract can then subject you to many of the 99 Consequences of a DUI in British Columbia. I’ve had clients who have been served further driving prohibitions, Driver Risk Premium invoices, and whose insurance rates have been increased or coverage denied all because RoadSafetyBC’s tribunal has failed to follow through on their obligation to make a decision. And don’t get me started on the referrals to Remedial Programs. Many of those letters have mistakenly been sent to clients whose decisions have not been made yet.
When I contact RoadSafetyBC to advise them of the problem I’m simply told they’re “aware of the problem” and “considering some options.” Of course, these issues are dragging on for some clients for two years. It’s pretty difficult to ascertain how they’ve been aware of the problem for this long and yet haven’t been able to find a workable solution.
My suggestion? If a Notice of Extension is issued, delete the IRP from the driving record. Re-enter the IRP once the decision is rendered, if the IRP is upheld on review. Took me about five seconds to come up with that one. And if it’s a problem of having systems in place, I could suggest some decent programmers who could put the code together quickly.
This is not to say that there aren’t many decisions rendered in the appropriate timeline. I’ve succeeded in countless IRP DUI reviews in the last two years. Heck, in June 2015 I won over fifty cases. There’s no shortage of decisions coming through the fax machine. So we know that the adjudicators are out there, working, and capable of rendering decisions. This really makes one wonder what the motivation is to refuse to render decisions in some cases.
Whatever the motivation, the notion that the IRP penalty is swift and severe is simply inaccurate. In some cases it might be. In many it is not. And in many others, the penalty wasn’t justified to begin with. This failure of BC’s DUI law is the biggest one out there. What’s the point of having an Immediate Roadside Prohibition regime that isn’t immediate?