We knew this would happen. We knew it was only a matter of time. As a scandal about hiding evidence swirls around them, we have a new low for the BC Government and the IRP scheme. And it’s another trick.
We believe this is unconstitutional. We believe these provisions of the Motor Vehicle Act create a bias, in that the Superintendent is now an investigator and prosecutor in his own case.
The BC Government has enacted by Regulation another round of the amendments to the Motor Vehicle Act that were set out in Bill 15.
Although there are several amendments that are still yet to be enacted by Regulation, some of the more nefarious and frightening amendments have now been written into law.
The particular amendments that have been enacted by the BC Government pertain to the Superintendent’s ability to provide their own evidence, on their own initiative, in a review hearing. Essentially, the Superintendent is allowed to create its own evidence for the review hearing.
I won a case where the Superintendent had been doing this back in August 2013. The Court agreed with my argument that the Superintendent did not have the authority to consider material that was not provided by either the Applicant or the peace officer. This amendment is designed for the sole purpose of getting around that decision.
The new wording of the Motor Vehicle Act allows the Superintendent to consider any “technical materials” that might assist the Superintendent in determining issues raised by the Applicant. Technical materials is defined as follows:
(6) In subsection (5), “technical materials” means technical, medical or scientific evidence or information and includes
(a) manuals and training materials relating to, and documents provided by the manufacturer of, an approved screening device,
(b) summaries of technical, medical or scientific evidence or information that are prepared by the superintendent, and
(c) documents that are prescribed or in a prescribed class of documents.
Perversity in the Proceedings
There are several perverse elements of the legislation. The first is that it allows the Superintendent to do this on his own initiative, and only in response to the arguments raised by the Applicant. So, for example, the Superintendent may hear an argument that the approved screening device was calibrated using expired gas. But this could simply be a clerical error in the expiry date. The Superintendent, in response to that argument, can go seek out material to show a different expiry date and rely on that.
The whole purpose is designed to prevent applicants from winning Immediate Roadside Prohibition review cases. It is not designed to address deficiencies in police evidence, but instead allow the Superintendent’s office to compensate for them.
Worse still is that we do not expect that this material will be disclosed to the Applicant before the hearing. It will be secret information relied on by the Superintendent when necessary. This offends against rules about procedural fairness, which include the right to know and respond to the case against you. But in circumstances where the response to the case against you can then be met by a case by the Superintendent then this is eliminated.
We believe this is unconstitutional. We believe these provisions of the Motor Vehicle Act create a bias, in that the Superintendent is now an investigator and prosecutor in his own case. The Superintendent becomes a witness and a party to the proceedings. But he is also responsible for deciding the case. All of it is wrong.
It is doubtful that there will be an opportunity to make supplemental submissions on any “technical material” the Superintendent decides to rely on. The reason for this is because as of June 1, 2015, the Superintendent created a policy by which applicants are no longer able to make any submissions after the time of the hearing has passed.
Talk about unfair. The Superintendent of Motor Vehicles RoadSafetyBC tribunal is looking more and more like the Star Chamber every day.
Another perverse element of these changes is that they allow the Superintendent to prepare the evidence himself. This means he can hunt out the material that supports the prohibition, summarize it, and provide that evidence to himself for the hearing. The Superintendent is now an expert in technical information, scientific information, and medical information.
Wow.
I sure hope the Superintendent of Motor Vehicles has several advanced degrees and internationally recognized expertise. But according to his LinkedIn page, his only experience is as the Superintendent. Research shows he was also the RCMP Superintendent at one point. Think about that background for a while and how it will play into his new opportunity to create evidence.
Secrecy
No surprise here is that the Government enacted this in secret. While everyone was still recovering from the news about the Goodwin and Wilson decisions, the Government met, enacted this legislation, and snuck away quietly. They didn’t publish or circulate any news releases.
The only reason for this that we can see is that they wanted to slip it under the rug. They wanted to take people by surprised. Just when everyone was used to the status quo, the Government wanted to sneakily change the legislation so that people wouldn’t be prepared.
We caught them in the act.
What does this mean for me?
If you received an Immediate Roadside Prohibition on or after November 2, 2015, these amendments will apply to you. If you received your Immediate Roadside Prohibition before November 2, 2015, you do not need to worry.
We knew this change was coming for a long time, so we’ve been prepared for how to deal with it. If you’ve received an Immediate Roadside Prohibition give us a call and we will do what we can to have it revoked for you.
A new low for the BC Government
When the Supreme Court of Canada decisions came out a few weeks ago the BC Justice Minister came out and said it confirmed for them that the current version of the IRP scheme was constitutional. Meanwhile they had plotted to change the law to make up their own evidence. They waited until after the Court decision.
It’s surreptitious. It’s nefarious. It’s a new low for the IRP scheme and the BC Government. It’s creepy.