The first IRP case at the Supreme Court of Canada
On Thursday, January 23, 2014, the decision was rendered in the first IRP case at the Supreme Court of Canada. We’re celebrating the decision and the quality of our work and contribution to the case.
Followers of our blog may recall that back in August 2013, the BC Court of Appeal confirmed an earlier decision regarding the requirement of the police to submit a sworn report in connection with an IRP. Of course, the first version of the IRP scheme was found unconstitutional with respect to Fail IRPs. The second version was introduced to address the Charter violations of the first version. One of the changes introduced was to require the police to submit a sworn report. However, the language that was used suggested that the OSMV could let the evidence in the back door.
We thought (and still believe) that this was a disingenuous and surreptitious attempt to get around the earlier ruling of the Court. When the Justice Minister introduced the changes to the IRP DUI law, we openly mocked them because we were certain that they had written the law so they could simply get around any requirement of a sworn document.
We predicted it and that’s exactly what happened. The police would submit unsworn reports and the OSMV tribunal would just consider it anyway. We felt that they had no intention of following through on the promise to create a fairer system. It was all window dressing and nobody questioned it but us.
Then the Murray case came along from the BC Supreme Court. Counsel, Michael Lefebure, argued that there was no reason to create that requirement if they weren’t going to follow it. The Court agreed and from our perspective the law was now clear. The OSMV tribunal could not consider an unsworn report and if the report was not submitted before the hearing, that was the end of the matter.
As we’ve noted before, the OSMV often does not always abide by the decisions from the BC Supreme Court, at least as far as we interpret the law particularly in these cases where the Courts make very clear statements of the law. The Murray decision was acknowledged and disregarded in IRP review hearings we argued.
We surmised that the OSMV had decided that they could ignore the Court so long as the matter is under appeal. We’re not sure where they got this advice. We don’t encourage our clients to disregard laws because they’re under appeal. That the Government does this undermines confidence in the justice system.
In any event, what we’ve seen is that, in cases where our client would succeed based on the court ruling, the OSMV adjourns the case for as long as it suits their goals if the matter is under appeal. And that’s what they did with unsworn reports. People have been in limbo for months on end because the OSMV took the arbitrary step of delaying issuing IRP decisions. In many cases the OSMV unilaterally and without an adjournment hearing or hearing of any sort simply adjourned the actual IRP hearing indefinitely!
These practices make us cringe. There is nothing in the Motor Vehicle Act that permits the OSMV to unilaterally adjourn the hearing before the hearing takes place. It seems to us that they are just making up the rules. Worse still is the purpose of adjourning the hearing was to wait in the hopes that the law would get better for the opposing party, i.e. the Government. Worse still is that the OSMV used this extra time to act like an investigative tribunal writing to the police to suggest they need to get in the sworn report.
It’s all very disconcerting.
When the OSMV appealed the Court of Appeal decision in Murray to the Supreme Court of Canada we spoke with Mr. Lefebure and offered to assist with the case. An appeal to the Supreme Court of Canada is a massive undertaking. The BC Government has unlimited funds to press the appeal and for tactical reasons we believe that they wanted this case decided at the Supreme Court of Canada before the Sivia case gets there.
We have the tools to take on cases like this, so we agreed that our law office would finance the Murray appeal to the Supreme Court of Canada and Kyla Lee agreed to put together the substantive submissions contesting the application for leave to appeal.
We worked on the submissions in our office with Michael and we hired a law firm in Ottawa to deal with the court filings and final review. We were pleased that the argument we put forward required no substantive revision. We worked hard on it and with the input of the appellate firm in Ottawa, we put together a bullet-proof argument.
Now the Supreme Court of Canada has affirmed the decisions of our Courts. A 3-member panel of the Supreme Court of Canada rejected the OSMV’s application for leave to appeal. The Court preferred our argument.
DISMISSED WITH COSTS / REJETÉES AVEC DÉPENS
Superintendent of Motor Vehicles et al. v. Colin Roy Murray (B.C.) (Civil) (By Leave) (35581)
Coram: McLachlin / Cromwell / Wagner
Here’s the citation for the news release and here is the summary: Superintendent of Motor Vehicles, et al. v. Colin Roy Murray
The Court of Appeal decision is the law. It is confirmed as having been the law since June 15, 2012. If you had an IRP decision where the report was not sworn by the officer, and you applied to review it, the OSMV has failed to abide by the law if they did not revoke the IRP.
Michael and Kyla deserve our thanks for the significant work that they put into this case. We’re celebrating our big win. And, having been awarded costs, we may even cover a small portion of our investment.
We also add Mr. Murray to our roster of valiant heroes who stepped forward to challenge the application of the IRP scheme.
Our tactical decisions in IRP appeals:
As you may know, for tactical reasons we’re not setting down hearings in BC Supreme Court on many IRP appeals pending court decisions on the legality of the schemes. We financed this particular case and argued it because of our view that sometimes we have an obligation as lawyers to conduct public interest advocacy to protect our justice system. And tactically we were of the view that it needed to be argued at this point in time.
Of course, we don’t need to do this. But, like our readers, we know sometimes you need to step up and do what’s right. We think we have an obligation as lawyers to do what’s right and call the Government out. We feel that clear thinking people who know as much as possible about how the IRP scheme works will recognize that the IRP scheme is antithetical to our recognized concepts of fairness.
We’re happy to report that we succeeded in the first IRP case at the Supreme Court of Canada. Now it’s time to have a glass of champagne. In the next few days we’ll try and sort out what this means for people who received IRPs since June 15, 2012.