Funny doings in Victoria
We keep our finger on the pulse of the legislative action in Victoria when it comes to the proposed changes to the Motor Vehicle Act. Mind you, “action” probably isn’t the appropriate term because it suggests a level of intensity that just isn’t there. And “pulse” would suggest that there is one; as though democracy was alive and well and fulfilling the purposes we expect of it.
As a member of the opposition you may feel you have no choice but to vote for a bad law because you know your political fate hangs on how you deal with this particular trap.
In any event, we have elected representatives who go to work each day hoping to do good things for British Columbia. Same goes for police officers, lawyers and the staff of Government offices.
We’ve observed that very few people who have a role in the IRP scheme actually have a broad understanding of the IRP scheme. Police officers, for example, seem not to have much if any knowledge of the review process for IRPs. From time to time we hear of people at ICBC Driver Services giving legal advice about IRPs that completely misses the mark.
The law is complex so we don’t expect people to know how the IRP system works. Of course, not understanding the way the IRP scheme works can be much more damaging if you’re introducing changes to the law, as we now see taking place in Victoria.
Your MLAs in debate: Your tax dollars at work
For now, at least, parliamentary process includes debating proposed legislation in the legislative assembly. If you’re wondering whether the legislative process will be moved to some sort of internal government tribunal, your not alone.
Our elected representatives, the bright lights of our society – shining examples of wisdom, discuss proposed legislation by giving speeches to the provincial chamber in the hopes of inspiring discussion and making necessary changes to proposed laws. It’s a nice idea. But when there is a majority government it doesn’t really matter because it all comes down to the number of votes.
Majority governments don’t need to do anything but sit there. They can push through darn near any law. The tough part is being in opposition.
If you’re an opposition member you need to decide whether you will vote for any proposed legislation or oppose it.
Sometimes the law is clearly wise or clearly stupid. Then your choice as an MLA is easy. Other times it’s purely an ideological point. Usually in those cases MLAs vote along party lines.
Traps for our MLAs
In recent years we’ve seen the wide use of omnibus bills. In these cases there is good and bad which is a trap set by the government.
For example, as an MLA, if you vote against Bill 15, they’ll say you want to bring back the hated Aircare program and that you condone drunk driving or left-lane hogging. If you vote for it, you get to live your life knowing you were partially responsible for destroying our justice system.
An interesting dilemma. If you’re an MLA faced with such a vote you’ll probably decide to vote in such a way as to increase the odds that you might get re-elected.
That’s the trap. As a member of the opposition you may feel you have no choice but to vote for a bad law because you know your political fate hangs on how you deal with this particular trap.
It’s all very creepy. Now you know. Our blog isn’t going to change anything. But at least now the mechanisms should be clear to you. It’s always better to understand the world, even if it makes you sad.
Hansard: Your tax dollars at work
The debates of the legislature are available in near real time in the unedited version of Hansard. Rarely does anyone ever look at Hansard. From time to time, however, as lawyers we look at the discussion in the legislature to figure out what the hell they were thinking when they brought in some God-awful law.
The unedited (called Hansard House Blues) edition of the debate for the second reading of Bill 15 can be found here. It’s worthwhile to spend time reviewing the entire transcript. You’ll see a lot of unnecessary, albeit polite, discussion. You’ll read that there was no public outcry for some left-lane slowpoke law. You’ll see that the Government didn’t bother researching the left-lane offence change by getting an opinion of German road engineers to determine whether such a law makes sense in a province where exit lanes are on either side of the highway or where highways have occasional traffic lights.
I suppose that there’s no point in our Government using research to make informed decisions when they’ve been able to get away with half-assed lawmaking for so long.
I digress. My point was to bring you to the Hansard recording of the debate concerning the changes to the IRP scheme contained in the omnibus legislation that will soon pass regarding the Motor Vehicle Act.
Who has the stomach for this?
I know that many people haven’t the stomach to read the entire discussion. I sympathize. The world doesn’t need to be such an offensive place. To reduce the pain, I have distilled the debate and reproduced it here heavily edited to give you a sense of how it all went down.
The debate took place on Monday April 13th in the afternoon. Here are the (highly edited with some interesting comments underlined) somewhat interesting portions of the debate which I reproduce for your reading pleasure:
Hon. S. Anton: The main focus of this bill is to enhance and safeguard the life-saving benefits of several road safety programs, including the immediate roadside prohibition program, the vehicle impoundment program and remedial programs.
[superfluous verbiage redacted]
L. Krog: I’m delighted to rise and say a few words about the Motor Vehicle Amendment Act today. Of course, it has been announced publicly and emphasized over and over again by the government that it’s to attack left-lane hogs. I suppose, as a member of the left, I’m surprised we don’t have a right-lane-hog bill before the House. Maybe it’s because everybody wants to get over to the left, I suppose, because we’re making progress.
My little cheeky remarks apart, the fact is that this is, relatively speaking, a fairly thin piece of legislation. One would be tempted, if it wasn’t such a hurtful topic to bring up, to say the government had run out of gas. Of course, we know that we don’t talk about liquefied natural gas in the chamber anymore, because that seems to be off the government’s agenda as well, and the last thing we’d want to do is remind them that we don’t see the plants bursting out of the geography of northern British Columbia nor investment pouring into the province to fulfill the Premier’s promise of a debt-free B.C.
That aside, there is another admission in what will be, I believe, the third formal attempt now by the government to actually make its immediate roadside prohibition program “legal”, to use the vernacular of the streets. How many times does one have to take a run at it before one realizes that perhaps there are some fundamental problems, notwithstanding the great desire to keep people who are impaired off our roads or, indeed, people who have been drinking any amount of alcohol at all off our roads and promoting public safety?
I think it’s rather surprising and somewhat disappointing that the Attorney General herself has commented, with respect to the possibility of constitutional challenges, and she says: “Yes, it may well be challenged. But we have great confidence in the program and in the good that the program does for safety on British Columbia highways.”
Obviously, there’s not a person in this chamber who would argue against anything that promotes public safety on the highways of British Columbia. However, as I said this morning in remarks to the motion made by the member for Vernon-Monashee, the government is expected, in a democratic society even more so, to meet a certain standard, not to use its power and authority in an abusive way, and to ensure that the laws that are passed by the Legislature or parliament, or municipal bylaws for that matter, all meet the Charter test, all pass the constitutional test and that regardless of how important the end is, the means have to be in accordance with the law.
This time we see a minor variation that will give the superintendent the authority and, indeed, require him to do things now that he formerly was basically doing in practice.
Now, many lawyers who act in the area of impaired driving and prohibition cases have made it fairly clear that although it has not been mandatory…. I quote Mr. Doroshenko, who’s a prominent lawyer dealing with this area. He said: “It has not been mandatory…but they’ve applied it as if it was mandatory. This is the government trying to find a way to justify doing this.” And essentially that’s what we’re doing.
The opposition pointed out the problems with this legislation twice before, warned them that there would be challenges, warned them of the potential of court cases. As much as one can’t dispute the results, arguably, in terms of public safety, assuming that we can point directly to the reduction in deaths and accidents related to alcohol consumption on our roads…. Notwithstanding all of that, surely the government has a duty to be able to say, with somewhat more confidence than that expressed by the Attorney General, that this legislation will in fact pass constitutional muster.
Otherwise, it’s very hard to argue about why people don’t vote and why people apparently, according to polling and other surveys and studies, hold politicians in such disrepute when politicians themselves are literally running something up the flagpole in this place, using their majority to pass it and then, when it’s struck down by the courts or even when it’s anticipated to be struck down by the courts, just sort of stepping back and saying: “Oh well, you know, it’s a good end. We don’t really care about the means.”
Surely the government has to conduct itself to a higher standard. Surely the government has a duty to act with care when preparing legislation. This is one of those examples. It is like the civil forfeiture legislation. Everybody loves the concept that people who may not be actually convicted of a criminal offence but have secured assets — profits, moneys, whatever the case may be — from criminal activity should be deprived of those. No, it’s hard to argue with that proposition.
But at the same time, if it’s not accomplished by a process that is regarded as fair, not abusive and in the public interest, then arguably, frankly, the government, in the eyes of many folks, looks no better than the people who are doing the very wrong acts that we’re trying to prohibit or stop. The same disrespect that we give to those who practise criminal behaviour in our society sometimes gets associated with governments that behave in ways that are seen as dictatorial, arrogant and arbitrary — and done in such a way that brings the whole legal system into disrepute.
I think we have to remind ourselves that we have a particular duty in this chamber — particularly the government, which has access to such significant resources — to ensure that we do things that are in accordance with society’s best interests but that are in accordance with the principles of fundamental justice and that we do not let ourselves rush headlong into some solution simply because we see the end as justifying it.
It’s rather like the terrorism legislation at the federal level. There’s some quote or remark being bandied about. I can’t remember who said it. It’s a fairly famous quotation. I can only paraphrase it — something to the effect that those who don’t cherish their freedom or aren’t prepared to defend it or who are willing to sacrifice it for expediency essentially don’t deserve to have it.
Again, I have significant concerns, notwithstanding the desire to ensure safety on our roads, that this legislation is going to be struck down again. At a certain point surely the government has to look in the mirror — the political mirror, so to speak — and admit that it really doesn’t know what it’s doing and/or perhaps this is not the best course to achieve the end. Those are big questions, but they are questions that I think are somewhat fundamental to the legislative process.
[more boring stuff redacted]
V. Huntington: I just want to briefly comment on the Motor Vehicle Amendment Act, Bill 15. When I look at it in the context of a number of other bills that the government has been passing, I agree with the member for Nanaimo that there is a fundamental shift here in the way government is allowing access to justice and in taking people’s fundamental rights to justice away from the citizens of British Columbia.
They are sort of hidden within administrative regulations that are done in respect of what the government has seen as the public good, but in effect, they are also fundamentally hindering and changing what the public understand as their rights to the courts and access to justice. I’ll come back to those comments in a little bit.
I do compliment the minister for trying to deal with the left lane issue. I think everybody in the province is looking forward to seeing that issue become much more readily understood and followed once the education programs are underway.
I just wish that the minister had also considered the issue of right lanes and trucks being required to proceed in the right lanes. In a municipality like my own or through areas of the Lower Mainland where so many of the trucks are moving containers in and out of the port, you’ll find that there is no discipline in this province with regard to trucks travelling in the right lane.
All you have to do is go across the border. Almost anywhere in the United States there is extraordinary discipline among the truck drivers. They always use the righthand lanes. They only use the left for passing, and you can be absolutely certain that that’s the case. It creates a much more robust sense of confidence when on the road as a citizen or in a non-commercial vehicle.
I do wish this act did look at the very sad levels of enforcement. I’m not aware, actually, whether trucks are required to travel in the righthand lanes in this province, but if they are, then the levels of enforcement are very poor. I would like to have seen that issue dealt with in this bill as well.
I also would like to join my many middle-aged friends, on their hogs, who are going to be extremely delighted with the new parking regulations for their motorcycles. I’m not sure this was one of the biggest things that we needed to tackle right now, but there will be those out there who will be very happy.
Meanwhile, speaking to the immediate roadside prohibitions, my comments, as I mentioned a bit earlier, just tend to centre around the removal, from my perspective, of what we understand commonly as access to justice and the courts. That is being removed entirely from the system, and I know that there’s a lot of discomfort out there about this, primarily because people see this as yet another attempt to slip-slide around the constitutional protections that we feel we have a right to enjoy.
Certainly the bill, the Motor Vehicle Amendment Act, and roadside prohibition have helped out there — I don’t think any of us will say that they haven’t — and that in general the problems with drunken driving are much better served as a result of many of the provisions of this bill. But the question is whether the costs to civil liberty, when coupled with this act and others…. Does the public truly understand that their access to justice is slowly being altered by this government?
I do not think that there has been a sufficient public discussion on this issue. People are stunned when they realize they have no access to the courts on some of these issues and do not understand that that was part and parcel of what’s been happening in the province.
There is a continued push by this piece of legislation to restrict and impede the review process. It is removing all discretion from the superintendent. It’s creating and instituting mandatory and very costly remediation penalties.
I just want to caution the government that I’m having difficulty supporting this act. When I supported the first Motor Vehicle Amendment Act that regarded roadside prohibition, I realized, much to my concern, what it actually meant on the ground.
I am very concerned that this is a continued push in all of the recent legislation, whether it’s administrative tribunals or whether it’s civil forfeiture. Numerous pieces of legislation over the last while have changed this fundamental understanding of access to the courts and to justice in this province.
I just wanted to get on the record that I am concerned. The lack of discretion, the lack of access to the courts and, in particular, changing the onus of the burden of proof — which is specific to this particular act — is enormously concerning to me. The public do not understand these things are before us, and I wish there had been a much larger and broader public discussion about the way in which this province is moving.
A. Weaver: I, too, echo the sentiments as expressed by the member for Delta South, particularly with respect to the burden of proof, which in several places in this legislation is being moved. “The burden of proof in a review of a driving prohibition” is now on the individual. This is not really consistent with what most British Columbians believe and want to happen in our province — that is, innocent until proven guilty. The implication here, of course, is guilty until proven innocent, and I wonder to what extent that actually would be held up under a legal challenge.
In fact, our Justice Minister admits that the government’s contentious drunk-driving penalties may again be challenged as unconstitutional. In the Vancouver Sun she was quoted as saying, “Yes, it may very well be challenged, but we have great confidence in the program and in the good that the program does for safety on British Columbia’s highways.”
I would hope that during third reading we’ll be able to explore this and determine whether or not the Minister of Justice, via the Minister of Transportation, would be able to clarify some of the rationale behind their government getting legal opinion that would support this as actually standing up in courts.
[this and that redacted]
Hon. S. Anton: I do appreciate the members’ comments on this important piece of legislation. I look forward to canvassing the issues during the committee stage. Although for the member for Oak Bay–Gordon Head, I’m not sure that we’re going to be able to deal with the middle-lane piece. But I’m confident that the other pieces of the legislation will be dealt with in an appropriate manner when the time comes.
With that, Mr. Speaker, I move second reading of Bill 15.
Hon. S. Anton: I move that the bill be referred to a Committee of the Whole House to be considered at the next sitting of the House after today.
Bill 15, Motor Vehicle Amendment Act, 2015, read a second time and referred to a Committee of the Whole House for consideration at the next sitting of the House after today.