I wrote earlier this week about traffic court in BC and the disturbing changes that are on the horizon that appear to be aimed at banning lawyers from traffic court hearings.
I’ve received a ton of feedback from members of the public, most of whom are increasingly concerned about the use of these administrative processes to strip away constitutional rights. But some people are also confused – genuinely – about why it would really matter if you did not have a lawyer in traffic court.
Here’s what I have to say about that.
The biggest place in which the government is taking aim at having a lawyer represent you under the Bill 17 changes would be in the pre-trial negotiation stage. This is, perhaps, where it is most effective to have a lawyer.
Lawyers Know How Points and Convictions Affect Your Right to Drive
First of all, a lawyer with expertise in driving law and traffic tickets will be able to tell you the implications of any resolution for your driving record. For example, certain convictions carry points and a certain number of points in a certain time period can trigger a host of consequences. You could end up paying driver penalty point premiums, driver risk premiums, or having your license suspended by agreeing to a deal you thought was in your favour but was
not.
And not all lawyers even know this – it takes specific knowledge and training and years of experience to understand the many ways in which ICBC and the Superintendent of Motor Vehicles overlap and share information, and how their information can affect you and your right to drive.
I have seen cases of lawyers advertising information about traffic tickets and the penalty points that are decidedly wrong; I have seen lawyers advertising information about traffic ticket consequences that are not accurate. So you need qualified legal representation because even lawyers get confused about it all.
There are also numerous cases where clients have pled guilty to lesser charges on the advice of lawyers, without knowing the full consequences they are facing. Similarly, and perhaps more often, police officers advise disputants in traffic court incorrectly about points or prohibitions and the disputants then plead guilty thinking they will be okay. Only to then find a surprise in the mail when they receive a driving prohibition.
While those pleas can be withdrawn under the current system, moving the resolution process to an informal administrative one also eliminates the ability to properly appeal the conviction if it is based on the wrong information. And if the conviction cannot properly be appealed, you may be out of luck if you were misinformed or unaware of the consequences.
This is why a dedicated driving lawyer is such an important asset in traffic court matters.
Commercial Drivers Have Notoriously Complicated Cases
The situation becomes even more complex in the case of commercial drivers. As certain offences carry penalty points but also Commercial Points (known as NSC carrier points) they can have an impact on your livelihood beyond just getting rid of the points or convictions that may prohibit you by the Superintendent. Not only that, but some convictions can affect your company profile.
This means that your company can get points even when you do not, and that can lead to suspensions of the fleet, fines, or the need for your commercial driving job to be terminated to protect the company.
Lawyers Know How to Analyze and Interpret Evidence
In addition, as dedicated driving lawyers know what evidence must be adduced to prove the nuances of a charge, they can advise you about whether a plea is actually in your best interests. For example, if an officer is missing certain information in a speeding case, depending on the method of measuring your speed, the officer may not be able to prove the charge. By reviewing the evidence and discussing the matter with the officer, a driving lawyer knows what the likely outcome of a trial may be. But if you go it alone in a resolution hearing, you may miss out on the chance to be acquitted where the case against you is not as strong as the prosecution or the police are making it seem.
Lawyers Protect You With Solicitor-Client Privilege
And then there’s the privilege that accompanies discussions with your lawyer.
Unlike anyone else you speak to about your traffic ticket – including those who hold themselves out as traffic court agents – your lawyer is not a compellable witness against you at the trial of your traffic court matter. The evidence you give your lawyer, the discussions you have with your lawyer and the admissions you make to your lawyer about what happened are totally protected by privilege.
But if you are representing yourself, what you say to the police is evidence. What you say to prosecutors or witnesses or other parties is all evidence that may be used against you in court.
After all, the legislation proposed in Bill 17 does not seek to make the discussions or evidence presented at a resolution conference inadmissible in a traffic court trial. So if no resolution is used, there is technically no bar on that information coming up in court and being used against you. While there may be common law bars on using certain information in the context of resolution discussions against you, those rules have a lot of nuances.
But if a lawyer says a certain series of events happened, that is not evidence they did. And so you could be protected legally by having a lawyer speak to the prosecution in the resolution conference.
Except the government is looking to ban this. The government is looking to ban the legal protection you can get by having a lawyer in traffic court. And by not building in any safeguards against this being used against you, the absence of a lawyer is a massive infringement on your rights.
Having a lawyer in traffic court is always important if you are worried about the potential to lose your license, pay massive fines, or receive penalty point premiums. When the government tries to attack the very essence of the right to defend yourself and your livelihood, you should be worried.
