Today we received the decision in our challenges to RoadSafetyBC’s policy decision not to follow the Segers decision, and not to grant extensions when the 7-days are up to apply for review of a 90-day IRP.
You can find the decision here.
The judge was in the unpleasant position of being able to see an obvious unfairness perpetuated by a government and feeling bound by legal constraints causing her to be unable to do anything about it.
In short: the challenge was unsuccessful. If you miss your seven days, that’s it. For now. But why?
Arguments on the 7-day extensions
There were several arguments we advanced on behalf of our clients. In particular, we were concerned about how they got the short end of the stick. One client retained a lawyer in Alberta, was given incorrect legal advice, and instructed his lawyer to appeal. Our other client was issued the IRP and arrested for breach at the same time; he was taken into custody and not released until after the 7 days. He had no practical ability to file for review or instruct someone to do so.
The judge sympathized with our clients’ situations. The Court commented at paragraph 68 of the decision that a seven-day limitation with no opportunity for extension is inappropriate in some circumstances. However, she found that it was for the Legislature to consider an amendment setting out an exception.
Unfortunately, the judge felt bound by a BC Court of Appeal decision pertaining to 24-Hour Prohibitions called MacNeil. She agreed with our submissions that the punishment was significantly different, but still felt compelled to follow the MacNeil decision.
Our clients were in an awful position. The judge was in the unpleasant position of being able to see an obvious unfairness perpetuated by a government and feeling bound by legal constraints causing her to be unable to do anything about it. We are in an awful position because we take it hard when we lose. We throw a lot of ourselves into these cases and we believe in the issues we bring to court. So we struggle with that.
It seems the only ones not in an awful position are Government. They just wrote an awful law that treats people unfairly.
Fairness isn’t a Right
So what do we do?
On the one hand, in the case of Bro vs. the Superintendent of Motor Vehicles the BC Supreme Court told us that the deficiencies in the IRP law could be dealt with by conducting judicial reviews. Now, when we bring something that is clearly a deficiency to BC Supreme Court we’re told that, despite the unfairness, the only way to fix it is a (very unlikely) legislative change.
The world is unfair, fairness isn’t a right and the courts will not make things fair. That’s the unfortunate reality.
As lawyers…
Being a lawyer is a fantastic thing in that you get to challenge bad Government behaviour and try to change the world for the better. To a significant extent we get to keep police and Government accountable to drivers and citizens of this province. But it’s also a difficult thing because despite our hard work, our creative challenges, our ideas, and our never-give-up attitude, there are some things we cannot challenge.
There are very limited ways to try to get the Government to write better laws when challenges to the laws themselves are not successful.
Losing is hard. It seems that most lawyers won’t discuss this. None of us are made of stone. And everyone loses sometimes. The thing about us is that we keep going. A client recently emailed us and suggested that Chumbawumba’s Tubthumping should be our theme song. It’s fitting. We get knocked down. But we get up again.
Many people in our shoes may have given up by now. Some have. Some lawyers chose not to continue with DUI defence right when the IRP law came into effect.
We’re not giving up. No way. We’re in this to the end.
Where are we going from here?
We are leaning toward an appeal of the decision, in the hopes that the Court of Appeal can sort out whether MacNeil is binding for people outside the 7 days with 90-day prohibitions. Win or lose, we knew that an appeal of this decision was probably in the cards.
Like we said, we’re not giving up.
There are many good things we can take from this decision. Every day in court is a learning experience, and every day we are becoming more refined in how we frame our challenges, what challenges we bring, and honing our legal arguments. We have many interesting legal challenges scheduled in the next few months, and much more evidence to advance our campaign.
Nothing is ever the end.
We see that RoadSafetyBC makes bad policy decisions based on laws that are bad. We sleep with one eye open so that we can see them coming. And we live to fight another day.