At the May 19, 2015, Supreme Court of Canada hearings into the first version of the Immediate Roadside Prohibition scheme, the Government took a position that the RoadSafetyBC tribunal could provide a remedy under section 7 of the Charter of Rights. The lawyer for the Government said that fairness at IRP hearings could be raised before the adjudicators.
At our office we don’t hang our hat on any Charter argument because we knew of the instructions to their adjudicators.
We’ve been doing IRP review hearings since the law was introduced and this is the first we’ve heard of this.
In speaking of whether an IRP was reviewable and could be revoked on section 7 of the Charter of Rights (fairness) grounds, Justice Cromwell, following up on a question from Justice Moldaver, said (approximate video time: 249):
I don’t think we’re interested in possible arguments. What I would like to hear is a straight answer to Justice Moldaver’s question, yes or no?
The lawyer for the Government responded as follows:
Well, yes you’re entitled to raise fairness before these adjudicators. The overriding unfairness concern arising from officer misconduct or error. Or any other grounds.
There’s no restriction to what any Petitioner can produce before the adjudicator.
We found this fascinating.
Another thing the lawyer for the Government said was:
So your complaint is a section 7 complaint about procedural fairness. The ability to review these searches within the parameters of the scheme — it’s there — it’s latent. That would address the reviewability concerns.
What the lawyer for the Government told the Supreme Court of Canada was that you could advance a section 7 Charter of Rights argument to the adjudicators at RoadSafetyBC for your IRP review hearing. This runs contrary to the RoadSafetyBC adjudicators IRP and ADP training manual which I regularly bring to the attention of lawyers whenever I give lectures on IRPs.
Here is the important excerpt on advancing Charter arguments:
No Jurisdiction for Charter of Rights
If an applicant’s constitutional rights have been allegedly violated, the decision in Buhlers v. British Columbia made it clear that an adjudicator has no jurisdiction to hear Charter of Rights and Freedoms arguments. Therefore, you have no authority to remedy perceived Charter rights violations by excluding evidence (such as a Certificate of Analysis). Criminal law lawyers who argue that their applicant’s Charter rights were violated are usually unaware that following this strategy will not result in evidence being excluded in reviews.
You can click here and view a screenshot of the page of the manual which we in our office obtained with the help the BC Privacy Commissioner.
So the RoadSafetyBC tribunal does not recognize the Charter of Rights and they provide no remedy if a Charter Right is violated. Still, lawyers, ourselves included, have made Charter arguments in hundreds of cases because we felt it was the right thing to do. Mind you, at our office we don’t hang our hat on any Charter argument because we knew of the instructions to their adjudicators and we want to succeed for our clients by way of an accepted viable defence or other legitimate defence that may succeed.
Also interesting is that we obtain all of the successful IRP review decisions each month and you won’t find any (not a single decision in nearly 5 years) where a Fail IRP was revoked for a Charter violation.
It seems that the Government lawyer wasn’t told of this.
At one point he told the court this (250:13):
This is an understanding that didn’t always permeate the way the scheme was approached. But it didn’t permeate the understanding — the drivers never raised it, uh, it it it’s something that we saw develop in a neighbouring jurisdiction and we think supplies the right answer. And it remains there to be argued before the adjudicators.
This is wrong. Lawyers, including ourselves, have argued section 7 fairness concerns for Fail IRPs for nearly 5 years. I myself argued it in my first 3 IRP hearings before realizing that I was wasting my breath and adjudicators indicated to me that I was insulting them by saying that the tribunal needed to be fair and apply concepts of fairness or no one would support the IRP scheme.
Charter remedies are not provided for Warn or Fail IRPs under the version 1 or version 2 of the law.
My challenge to the Government: Show us the fairness!
I challenge the Government to disclose an IRP decision where the reasons of the adjudicator show that the Fail IRP was revoked due to a section 7 unfairness argument.
There are none. Not one decision. And so, challenge declined.
So what do you think when a Government lawyer says that there have always been Charter rights at IRP hearings?
Hogwash.
Most lawyers who defend Immediate Roadside Prohibitions will tell you that fairness at IRP hearings is more elusive than the Sasquatch.
A final note:
The Government decided long ago not to grant section 7 remedies for unfairness, but it seems to us that the comments of their lawyer on video means they have no choice but to do a 180. In fact, much of what was said as the official position of the Government runs completely contrary to the actual practice of the RoadSafetyBC tribunal.
Our new favourite is:
There’s no restriction to what any Petitioner can produce before the adjudicator.
We’ll try to discuss that in the next blog post, time permitting. If you want a hint, you may want to review Bill 15 section 215.48(3), section 215.49(1)(a) section 215.51(e).