We have been contacted by a few people recently who told us that they have been deceived by the Government and consequently they lost their Immediate Roadside Prohibition (IRP) review hearing. They’re angry and they want to do something about it. And we’re sympathetic.
What these people are telling us is that they received a 90-day IRP and they wanted to dispute it because they felt that they were not guilty or that the police made mistakes that should cause the prohibition to be lifted. Doing their due diligence, they researched the matters on the internet, including the BC Government website.
The first thing to remember is that the Government has a motive for you to not succeed on the review. If you succeed, they must pay for the towing and storage. If too many people succeed, it exposes the IRP system as faulty and unreliable, causing the Government huge political damage. If you lose, the Government takes buckets of your money. So from the Government’s perspective, they want you to lose.
The OSMV has posted videos and some pdf documents on their website. They suggest that you can’t apply for review unless you believe that the police made an error issuing you the prohibition. This is not true. The Government material suggests that you need to know that there was an error before you can do anything. This is inaccurate. In our office we obtain the disclosure before doing anything to determine what defenses, if any, are available.
In most cases our clients are completely unaware of the error made by the police until we obtain the disclosure, review it, compare it with other material we have and researched any unique issues. We find defenses that no person on their own would ever spot. And so there is no reason a person needs to know the error before they decided to take steps to dispute their prohibition.
B.C. Government material says that you don’t need a lawyer to deal with the matter. We think that’s trickery designed to put you in a weak position.
The Government’s material suggests that you need simply explain your side of the story and everything will be fine. This is untrue the vast majority of the time. The adjudicators are skilled in searching out any tiny bit of evidence in your case that can be used to say that you are not credible, i.e. a liar. Unless you have something else, simply telling your side of the story will usually cause you to lose on review.
The Government’s material tells you to make sure you bring in any material you wish to rely on in support of your application for review of your IRP when you actually go in to file for review. This is bad legal advice. We don’t trust the government to give legal advice, and neither should you.
Until we have reviewed the disclosure and determined the defenses, no material whatsoever should be provided to the OSMV for your review hearing. We have had a number of clients over the years who gave the Government wrong or improper information before contacting us, and as a consequence they damaged their own case, usually gravely.
The Government material suggests that you cannot get the disclosure until after you have filed for review. This is not accurate. We obtain the disclosure in over 90% of all cases before our clients file for review.
One video suggests that the police will be on the other end of the line to explain themselves at the oral review. Not true. After the police submit the evidence, they are not contacted again unless the report is missing pages. Once the hearing starts, no one from the OSMV will contact the police to discuss the evidence.
Finally, the material suggests that if you lose it’s no big deal because you can simply file a Petition in BC Supreme Court to review the decision.
This is the thing: in most cases people are unsuccessful at the review hearing because the adjudicator simply finds that they are lying. The judge in BC Supreme Court knows that findings of fact, for example that you are a liar, are not something that they can normally overturn. We have a rule in Canada that the appeal court must generally accept the findings of fact at the original hearing. So your chance of success on a Petition to BC Supreme Court may be very slim.
Because oral IRP review hearings are not recorded, you may have no evidence on any later appeal to dispute the version as described in the review decision. In other words, you can ruin your own chances on appeal by conducting your own oral hearing.
Two of the people who contacted us last week conducted their own review hearings because they were encouraged by the material on the Government’s website. They told their side of the story at the review hearing, believing there was an error and that they should not have received the IRP. They received review decisions saying that they were disbelieved, i.e. that they were liars.
In both cases there were things that we would have done very differently to defend their IRPs. There was more evidence on certain points that could have been provided, and more information that could have been sought before the hearing. But these people relied on the Government for legal advice. Understandably, they feel deceived by the Government.
It’s important to remember that the Government is not in the business of giving legal advice. And we don’t trust this Government. As far as we’re concerned, neither should you.