When a case is handled in court there is always an obligation on one of the parties to prove something. For example, if you’re alleging that another party is negligent, you need to go to court and present the evidence to persuade the court of your allegation. The burden of proof is on you.
The onus under the new law is on the driver to prove, even without evidence from the other side, that they are in fact innocent.
In a criminal court, the burden of proof is on the Crown prosecutor to show that the accused committed the crime. If the defence claims that the police violated the accused’s rights under the Charter, the burden is on the accused to call that evidence to show the violation of Charter Rights.
It is considered a principle of natural justice that the necessity of proof always lies with the person who lays charges. In administrative cases the proponent of a rule or order has the burden of proving the allegation.
When it comes to IRPs, the burden of proof lies on the police officer to provide the evidence to justify the issuance of the Immediate Roadside Prohibition. This is in accordance with principles of natural justice in that the party alleging the wrong must establish their case.
Easy task
Of course, for the police this is ridiculously easy. They are provided with printed forms that prompt most of the essential elements of an IRP in check boxes. They have a stock narrative they can work from. The entire disclosure package can be as little as a few pages and that will typically satisfy the burden.
In addition to having forms created by the police forces and the Government, the police are the keepers of the evidence and they are required to disclose next to nothing. They can hide evidence that they don’t want to disclose. They are permitted to conceal exculpatory evidence. If the officer decides to lie they can do that too because you can’t get disclosure to demonstrate that they’re lying and you don’t get to cross examine them.
This is a system designed to the benefit of the police with inconsequential and often meaningless protections to the public. It’s a lopsided system and we’re embarrassed that we have this now as part of the justice system in Canada.
Still, despite the obvious advantage held by the police and meaningless oversight, the Government wants to turn the tables. They want to completely rewrite the Immediate Roadside Prohibition legislation with a few lines of text in Bill 15.
Guilty without evidence
Check out these disingenuous lines in this proposed new version of the IRP law:
Decision of superintendent after review under section 215.48
215.5 (1) The burden of proof in a review of a driving prohibition under section 215.48 is on the person on whom the notice of driving prohibition was served.
(4) If, after considering an application for review under section 215.48, the superintendent is satisfied by the person that
the person was not a driver within the meaning of section 215.41 (1) or is satisfied by the person that
What does it mean? Not satisfied that the police are the holders of the evidence and applicants must pay to have a hearing, the Government wants to take it one step further and reverse the burden of proof. No longer does the police officer have an obligation to present evidence to support the issuance of the IRP. A signed blank IRP report form will suffice. The onus under the new law is on the driver to prove, even without evidence from the other side, that they are in fact innocent.
The police officer is alleging the wrong but they don’t need to present any evidence to prove it. The driver is presumed to be guilty, even without any evidence to support guilt.
You’re gasping, but that’s the meaning of this section.
If the police officer has no evidence that you were a driver, it doesn’t matter because you need to prove that you weren’t a driver. If the police officer has no evidence that you blew Fail, it doesn’t matter because you need to prove that you didn’t blow Fail.
Sneaky Pete
We think that the IRP scheme marks a new low in the relationship between the Government and the people in modern Canada. We’ve said before that they’ve tried to legislate, dictate and structure the IRP scheme to make it fundamentally unfair in application. The Government has managed to blow it past the courts because something might look fair enough in legislative form. When it comes to the application of the legislation, the court never gets the full picture.
When it came to the Murray case, the court got a taste of how the Government really behaves. The Government said that police reports would need to be sworn to uphold an IRP under the first big amendment to the IRP scheme. Then when the law came into effect, the RoadSafetyBC tribunal of the Office of the Superintendent of Motor Vehicles simply continued along as before. With the full support of the Government, they didn’t apply the law.
It was all a lie. It wasn’t about fairness. They were claiming one thing in public and for the court and then doing the precise opposite. Luckily it was one of the occasions where the disingenuous behaviour of the Government was clear on the face of the record and the court in Murray put a stop to it (except that it didn’t stop it and the OSMV continues to disregard the direction of the court in Murray by other means).
Switching the burden of proof: A new low
If you thought the IRP scheme was a new low, you need to take a step down to consider these proposed amendments. With the current IRP scheme there is a a presumption of guilt by virtue of the fact that you’re punished before having a hearing.
With this proposed new version of the IRP scheme, guilt is established without the necessity of evidence. By virtue of the fact that you were issued an IRP, you are guilty under this new proposed version of the law.
One foul baby
Of course the reason that they’re doing this is because of court decisions that have tried to inject some fairness into the system. We now succeed in a lot of IRP reviews and we appeal cases to BC Supreme Court when that’s the right thing to do. The Government doesn’t like to lose so they’re changing the rules.
Last summer when we made our arguments to the court to say that the new version of the IRP scheme was nothing more than a gussied up version of the old scheme with almost no meaningful changes, the judge asked us if we could just fix the problems we identified by litigating the issues as they arose. We tried to explain that this baby was so foul that it should go out with the bath water.
The judge didn’t buy that argument. He upheld the law. We decided to litigate the issues as he suggested. As we worked to make the system more fair, the Government has backed away from the direction of the court in Sivia and the changes to the law that were considered last summer.
We still think that the IRP baby should have been thrown out with the bathwater. The Government is about to pass a law to make both the baby and the bathwater that much more offensive.
Astounding implications
The implications of this change will be freaky. If we can find the time we’ll go through it and other aspects of Bill 15 in some blog posts in the coming weeks.