In Canada and the US courts are often criticized for being goal oriented. Right-wing and religious groups usually complain that courts have a “liberal agenda” — that they have goal-oriented adjudication that support a movement away from traditional Christian / Conservative values. It may be a valid observation. There is no doubt that courts, with the power to make decisions of fact, can craft judgments to achieve certain goals.
But from what we see every day, judges are very independent and it is unlikely that any agenda could be kept more or less under wraps. Judges have no boss. Although they are imperfect like everybody else, there is no one pressuring them to render a decision one way or the other.
Now the BC Government wants to take judges out of the equation and bring decision-making to tribunals in Government offices. We think it’s because they want to have influence over the decisions of the tribunals. They wish to create tribunals with the thin veneer of fairness where they can influence the result. Like in Russia or a third world dictatorship. How can they achieve this? How can they get the tribunal to render decisions that please the Government?
As we have noted, there are subtle ways of applying pressure to achieve the Government’s goals. In the last post we talked about how peer pressure has been used to get police officers to massage the evidence to support the issuance of an Immediate Roadside Prohibition (IRP). This, along with the opportunity to win recognition, influences the first tribunal — the police officer who has the power to affect punishment right there at the roadside. We know about this because brave officers came to us to provide this information. In the sequence, it is the first opportunity for the Government to influence decision-making.
Of course the Government can influence decision through the selection of tribunal members. The selection of tribunal members is self evident. Unlike judges, who have established their credentials for years while working as lawyers, the Government can merely hire people who it thinks might support the Government’s goals. Like in Russia or a third world dictatorship. And unlike judges, there are no public announcements of who will be appointed to most tribunals, so there is no public scrutiny if they appoint someone who has a particular agenda.
The next opportunity for Government mischief is training. We obtained training material for the OSMV. The material is surprisingly lacking substance. Many pages were devoted to finding the washrooms and imagining what type of super-hero type power you would have given the choice. What substantive material there was dealt almost exclusively with the topic of why and how people lie. This is important.
It appears to us that the material is designed to give adjudicators the tools to reject the evidence of applicants during the course of finding what facts to accept and reject. For IRPs the police evidence is mainly check boxes and prompts for 3-4 word answers, so there is no opportunity to assess the credibility of the police officer. However, if your training is about why and how people lie, that is where you would naturally place your focus. And the person whose credibility you have the opportunity to assess is the applicant seeking a review of a driving prohibition.
We noted in this set of training material that there was no material about wrongful accusations, wrongful convictions, how many occasions over the years that we discovered that the evidence we relied upon was faulty, how many cases have been thrown out because the police were lying, wearing blinders, motivated by an incentive, or just plain wrong.
So in training and the selection of tribunal members, the Government has a great deal of power to influence the decisions of the tribunal.
And then there is a great deal that doesn’t show up on paper. If you invite police to speak to tribunal members, or to demonstrate equipment, you are attempting to influence a tribunal of this sort. Remember, many police officers believe everyone is guilty. Giving them access to tribunal members is a simple method a Government can use to ensure that police evidence is accepted without question.
If a Government wants to influence adjudication and maintain the veneer of fairness, they can appoint people who they think will render certain types of decisions, they can manufacture the training material to direct certain types of decisions and they can provide an ongoing feed of one-sided commentators to educate the tribunal members in the one-sided view of the Government.
The question the people of BC should ask is why does the BC Government want the decisions rendered by an in-house tribunal rather than a court? Readers of our blog may have concluded that there is an inescapable answer. In BC the Government has been incapable of influencing the decisions of courts.
If you are just joining us now, you should take a few minutes and go back and read the postings that bring us up to today. Our current topic deals with the Government’s steps to remove decision making from the courts, i.e. the justice system, and to move it in-house so they can influence the results.
Here are some of the previous posts on this topic:
Tribunalization – Ousting the Courts
Rule of Law
The End of the Charter of Rights in BC
A Secret
Findings of fact to fit a result
Subtle pressure
Sources of inside information
In the next posts we will deal with how the Government can apply subtle pressure to the adjudication process and the often indistinguishable line between adjudication and prosecution.
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