Representing yourself for a judicial review of an IRP decision can be an incredibly risky thing to do. A recent case highlights the importance of having a lawyer for an IRP judicial review, given their complex nature.
Anthony Zamani appealed his IRP with the Superintendent of Motor Vehicles. A police officer issued him the a 90-day prohibition for failing to comply with an approved screening device (ASD) demand. Mr. Zamani said he did not comply because he suffered from panic attacks which limited his ability to provide a breath sample.
Mr. Zamani also submitted a video he took of his interaction with the police officer leading up to the IRP to the adjudicator.
The officer said he had formed the grounds for making an approved screening device (ASD) demand because Mr. Zamani had bloodshot eyes and there was an odour of liquor on his breath.
Mr. Zamani said he was smoking a cigar so there was no way the officer could have smelled liquor on his breath. He also denied having bloodshot eyes because the video recording he submitted showed his eyes were not bloodshot.
The Superintendent of Motor Vehicles even acknowledged that his eyes did not appear to be bloodshot at the time the video was recorded. According to the adjudicator: “Consequently, I find the Officer was at best mistaken and at worst has been dishonest with respect to his evidence on this point.”
The adjudicator said this affected the “reliability and credibility” of the officer’s evidence. Despite promising to take this into consideration the officer probably lied, the adjudicator found the officer did have the requisite suspicion to make the ASD demand and upheld the prohibition. It is concerning that an adjudicator could find an officer dishonest on one point but then still accept their evidence.
Mr. Zamani filed a judicial review of the decision and represented himself at the BC Supreme Court hearing. He raised the issue of the reliability of the officer’s testimony as well as his video recording and a doctor’s note saying he suffered from anxiety.
You might think this would be enough to overturn the IRP, however, IRP judicial review must give a significant amount of deference to the adjudicator. Also, the burden of proof is on the petitioner making the judicial review to disprove the evidence against them.
In this case, the petitioner offered evidence to support his argument that his anxiety prevented him from providing a breath sample. The Supreme Court judge said: “While the petitioner argues that it should be obvious to anyone that a person suffering from a panic attack would not be able to provide a breath sample, the onus is on the petitioner to establish that and he did not provide any evidence to that effect.”
The Supreme Court judge said the adjudicator provided “coherent and rational” analysis of the officer’s credibility and dismissed the judicial review.
Mr. Zamani was also did not provide case law to show why it would be unreasonable to acceot the officer’s evidence given the questions about his reliability. If he had been able to show how the path to reaching the conclusion about the officer’s evidence was wrong, he might have been successful. Mr. Zamani could have a good case for the Court of Appeal.
This case shows why you should hire a lawyer if you are going to argue something complex like am IRP judicial review.