Update: 60 days to get the Interlock letter
At the end of September we started getting calls from people who had received a letter from the Superintendent of Motor Vehicles telling them they had 60 days to get the Interlock installed in their vehicle and enroll in the RDP program.
None of these folks were our clients or former clients, so this was new to us. It turns out that many people who received a 90-day IRP for Fail in the weeks before November 30, 2011, were never compelled to get the Interlock or take the Responsible Driver Program. The reason, it seems, is that the OSMV was holding back bearing in mind that their scheme was found to violate the Charter and it was unclear whether any of this was lawful.
When the court said that despite the law being unlawful, the Government could go ahead and punish people, the OSMV took this as a green light to force everyone in this group to get the interlock and enroll in the RDP. So they sent out these 60-day letters, and our phone started to ring.
So far the Interlock and RDP have been enforced as though they are mandatory consequences of receiving a 90-day IRP. The police are instructed to never tell people about it at the roadside. You learn about it after you missed your chance to put your best case forward at your review hearing. Careful – it’s a trap.
But the legislation suggests that these IRP consequences only come into play at the discretion of the Superintendent of Motor Vehicles. In other words, the OSMV must have an administrative process to look at the whole of the circumstances, invite the person to make submissions, and then decide using correct legal principles whether these consequences are necessary or appropriate in the given case.
There is no question that these consequences are discretionary. The only issue is that they are enforced as if they are mandatory. Everyone in this group got that letter. The letter said your file was reviewed and it is based on your driving record. This is rubbish. You got the letter because you got a 90-day IRP.
We said that we have a plan. Our plan was to select a person who simply shouldn’t be be forced to get the Interlock or suffer the RDP because they had no history of drinking and driving, had rehabilitated themselves and they posed no appreciable risk.
With this person as our test subject (we ended up with a few test subjects) we wrote to the OSMV to ask for reconsideration. We provided extensive written submissions and evidence to make our case. And we sent it in. And…
Nothing. You see, we knew that this is an issue they don’t want to deal with over at the OSMV. They want to say it’s discretionary so they can stand up in court and claim it’s being applied only in certain cases and with the greatest of fairness. But again, that’s rubbish.
Our letters were ignored, despite sending other letters saying they need to consider our submissions. So the next step was to apply for a mandamus order forcing the OSMV to do their job.
We’ve done this before. If a tribunal or government organization doesn’t do the job they’re tasked with, you can apply to court to get an order compelling them to do it. So this is the process we started.
But the process is frustratingly slow. The Government lawyers have time to respond, and then there’s a hearing date. It could take months. To speed things up we applied to get a rush order stopping the OSMV from invoking the Interlock and RDP for our clients. This made things happen much more quickly.
When we served the rush order application on the Attorney General’s lawyer, it’s fair to say they they were not pleased. This was the second time we’ve demanded that the OSMV do something it’s tasked to do. And in both cases, if we go to court, they will end up with an embarrassing court ruling.
So the lawyers for the Government told us that they have given the OSMV instructions to now consider our submissions. They have a week to render a decision in the cases in question.
What will happen in a week? We will either have decisions lifting the Interlock and RDP requirement for these clients, or we will appeal the decisions to BC Supreme Court.
Either way, we have forced the Government to concede that the Interlock and RDP are discretionary. And if you are being forced to get the Interlock and take the RDP you can dispute the decision to the OSMV and they must consider your submissions.
Our plan is working.