With Immediate Roadside Prohibitions (IRPs) coming back at the end of this week many of our clients, readers, and fellow lawyers are wondering how IRP hearings will change after the amended legislation takes effect. Our thinking is that they probably won’t change very much.
When we conduct hearings before the Superintendent, we frequently rely on case law from the criminal courts with respect to the reliability and admissibility of the approved screening device (ASD) results. Under the old regime, when we argued a position using a criminal case as our precedent, the delegates at the Superintendent’s office simply dismissed our argument by stating that the criminal cases were inapplicable. The criminal cases, according to the Superintendent’s office, rely on a standard of proof beyond a reasonable doubt. In an IRP review hearing, the standard of proof is balance of probabilities. Therefore, in the logic of dozens of decisions we received, the case law stemming from criminal courts could not be applicable in these review hearings.
We have two problems with this approach.
First, never before in Canada has an approved screening device result been relied upon as the basis for imposing penalties and punishment of this nature. So the best precedent out there is that which comes from our criminal courts, because nothing else exists. The Spencer decision suggests that perhaps it isn’t necessary to have perfect evidence but that a tribunal should benefit from the best evidence available. Certainly that argument can be extended to say that it isn’t necessary to have a perfect precedent with exact facts. The best precedent available should carry persuasive value. In our experience the Superintendent is inclined to disagree.
The second problem is this: the criminal case law with respect to reliance on an approved screening device result is not based on a reasonable doubt standard. This part of police investigations is decided in court on a balance of probabilities — the same as OSMV tribunal hearings.
When a police officer engages in a criminal impaired driving investigation, he or she is entitled to make an ASD demand if he or she has a reasonable suspicion that a driver has alcohol in his or her body and has operated a motor vehicle within the preceding three hours. The results of that test are inadmissible in court to prove anything other than the fact that the officer had reasonable and probable grounds to make an arrest and a subsequent demand for breath samples on a more reliable breathalyzer.
Reasonable and probable grounds have a subjective and objective component. An officer must believe the results of the test to be accurate. And as well an outside person looking in must also be able to rely on those results. This is not measured on the standard of proof beyond a reasonable doubt. The question the court asks in these circumstances is whether it is more likely than not that the ASD result was objectively reliable. This is a balance of probabilities standard.
The courts in Canada have spent years developing precedent addressing circumstances in which an ASD result is unreliable. The point of this precedent is to protect innocent people from being wrongfully convicted of drinking and driving offences. The problem now is that all of this precedent is being swept away by the tribunal for an unfounded reason.
We think it is arrogant to casually dismiss years of carefully thought out jurisprudence.
A few months ago we did an FOI request asking the Superintendent for all training and reference materials relied on by the tribunal to address the issues raised in the Spencer case. When we didn’t get a response (which was somewhat expected), we filed a complaint with the Information and Privacy Commissioner. The Privacy Commissioner investigated and got the following response: the only outcome of the decision was that the OSMV sought a legal opinion. There was no change made to the training material.
Given their response when we relied on Spencer in subsequent cases, we have a good idea what the opinion was. It appears to us that the legal opinion was that the Spencer decision is not binding on them.
One of the government’s stated purposes for creating this tribunal is to take pressure off the courts. Instead of dealing with these offences in the traditional court system, they can be dealt with through the Superintendent’s tribunal. This is cheaper for the province and will result in a decrease in the number of impaired driving cases clogging up valuable criminal court time. But from our perspective, that’s not what’s actually happening here.
The IRP and ADP rules are going to be forced to expand to deal with problems that have long since been resolved by the criminal courts. Open liquor in a vehicle, for example, is an issue on which there is a great deal of jurisprudence. There are no Supreme Court cases appealing IRP decisions that address this issue.
But since the tribunal has decided that decisions of other adjudicators are not binding there must be a binding directive from a higher authority. In this case, it’s the BC Supreme Court. Our concern is that we have a number of OSMV decisions in which the adjudicator writes that Spencer is not binding on their tribunal.
According to the tribunal, this important BC Supreme Court case isn’t binding on them. So the rules themselves can only evolve in each particular case, or so it would seem. This contradicts the purpose of the tribunal in the first place, since now if anyone is hoping to have a hearing that takes into consideration the issues that courts have long since decided, they will have to appeal their IRP decision to the BCSC. Or so it would seem.
One thing’s for sure: we’re not happy with the fact that years of careful jurisprudence designed to protect innocent people is being casually brushed aside. Criminal courts don’t entertain nonsense. Reasonable doubt is just that: reasonable. The case law that is the product of our courts is tremendously valuable.
Ultimately, the BC Supreme Court will need to re-visit many of these issues to bring the OSMV tribunal in line with established jurisprudence.