The BC Government often claims that it’s trying to facilitate “access to justice.”
What started off as a noble cause has become Orwellian doublespeak for impeding access to justice. We see it on a daily basis because we deal with criminal cases in criminal court all of the time.
What we see is governments trying to be unfair, i.e. trying to create unfairness and an unfair system for their advantage.
It’s important to remember that, although the government is your friend when it comes to protecting you from bad guys, they are motivated to strip you of your rights in the quest for power. This, again, is something that we see every day because we are criminal lawyers and it is our role to oppose this type of state behaviour.
Sadly, governments are always trying to find ways to disempower lawyers who are working in the private sector. And they’ve gotten a lot more clever in the last decade. Many of their successes have been cloaked in the deceptive veil of “access to justice.” We’re warning you now: if you hear or read the words “access to justice” assume that whatever government agency is wielding those terms is about to do the very opposite.
The BC Government, access to justice and the IRP scheme
The BC Government justified many of its decisions as somehow enhancing access to justice. We know well enough not to buy into their spin. The very opposite is almost exclusively true. There are countless examples of policy decisions that impede justice, particuarly in instances where the Government makes the rules in matters where they are one of the parties involved in the process. The IRP scheme is one of the glaring examples where the Government created policies to impede access to justice.
What we see is a Government trying to be unfair, i.e. trying to create unfairness and an unfair system for their advantage.
Know this: The Government is a litigant
The important thing to remember about RoadSafetyBC adjudication is that the Office of the Superintendent of Motor Vehicles is self-styled as an arm of law enforcement.
The police are an arm of Government. The RoadSafetyBC tribunal has refused to disclose information to us on the grounds that they are somehow an arm of law enforcement. The RoadSafetyBC tribunal is an arm of the BC Government deciding disputes between individuals and the BC Government. Moreover the BC Government desires that their law not be brought into disrepute. If the IRP law fails it would be costly and embarrassing.
RoadSafetyBC policy decisions
Recognizing the role of RoadSafetyBC and considering whether the BC Government is enhancing access to justice or impeding access to justice, we provide some examples in this and following posts of policy decisions recently made by RoadSafetyBC concerning IRPs. We invite you to read on to make your own decision about whether the BC Government is interested in access to justice or whether this is doublespeak and your rights are being stripped away.
Disregarding the Segers decision
Until December 2014, in IRP cases when the applicant/driver missed the seven day period to appeal (WATCH: (seven days from a drunk driving stop), the driver could write in and ask for an extension of the time. This was pursuant to the BC Supreme Court decision in Segers.
Segers was an ADP case. ADPs also have a 7-day appeal period and a 90-day prohibition but the prohibition doesn’t start until 21 days after the police serve it on the driver.
Segers set out a test allowing an applicant/driver to write to explain why the 7-day period should be extended if the applicant/driver didn’t manage to file in time.
In our view the Segers test is overly and unnecessarily restrictive bearing in mind that the appeal period is unnecessarily short and taking into consideration the harsh consequences of an ADP. As for IRPs, the consequences are harsher and the justification for the short period falls to the floor because the applicant/driver is prohibited from driving at all relevant times in any event.
A 7-day appeal period in itself is a barrier to justice. With IRPs there was no downside to the Government to be flexible if people miss the 7-days.
In fact, it only makes sense to be flexible on the 7-day appeal period. Firstly, it is a very short period, unnecessarily so. Secondly, there is no disadvantage to the Government in a longer period because the driving prohibition remains in place. Thirdly, it can be reasonably anticipated that some people will be unable to apply for review within the 7 days.
Consider, for example, people who are hospitalized or in jail. If you get bail on the 8th day or you’re in a coma, then a Segers application would typically allow you to file. What about people who get an IRP on the way to an airport to fly to a remote work site? What about when the power goes out at ICBC Driver Services and you’re in line on the 7th day? Or when the RoadSafetyBC computer is down while you’re waiting to file?
These are extreme examples, but all ones we have seen. Because of the huge number of IRPs issued, there will always be cases such as these. And right now in BC, RoadSafetyBC says that you can’t make a Segers application.
The Red Alert
Last December we issued a Red Alert because the BC Government sent us a letter telling us that as of January 12, 2015, they would no longer accept Segers submissions for people who missed the 7-days regardless of the reason.
To us this was a clear attempt to thwart justice. They wanted to impede people from accessing their tribunal which is the only way to challenge an Immediate Roadside Prohibition.
Why adopt a policy of no flexibility on the 7-day limit? The only possible reason is to impede access to an IRP hearing.
Postscript:
Of course we took this to court. We just completed 2 days of hearings in BC Supreme Court in an appeal of RoadSafetyBC’s decision to ignore Segers. We did this as a team effort with Kyla making the substantive argument and another lawyer making supplementary arguments. This was a big deal. We expect a decision around the end of October.
As for the BC Government impeding access to justice, we have two more posts in the works to provide further examples of how this plays out. We’re in a unique position. Because we are the point of friction with RoadSafetyBC, we’re the canary in the coalmine when it comes to the dissolution of our justice system through this type of administrative tribunal.
In upcoming posts we’ll explain that their next step to impeding access to justice was to implement a policy wherein you could not submit new exculpatory evidence or submissions. Then we’ll explain how our blog triggered a policy decision to stop giving people information they are lawfully entitled to have.
Of course we’re taking them to court.