“It must be recognized that the scheme the Superintendent administers is meant to deter drinking and driving by the imposition of serious penalties on those who do not meet the standard set by the legislation. Within constitutional limits, it is the duty of courts to vindicate such legislation. If, however, the legislation supplements the imposition of penalties with the terrors of arbitrary state processes and foregone reviews, it is the duty of the courts to rigorously address those deficiencies and not to shield them.” (Kenyon v. British Columbia (Superintendent of Motor Vehicles), 2014 BCSC 168)
As lawyers dealing with the IRP legislation every day since it was introduced in 2010, our purpose has been to expose what’s really going on with this legislation and its application which is characterized by the terrors of arbitrary state processes and foregone reviews. As officers of the court, it is our preference to defend the laws of Canada and BC. We live in a democracy, and that is part of our role. However, early on with the IRP scheme we found ourselves incapable of defending the law. That would be dishonest, and we strive for honestly. It would be immoral to defend the IRP scheme because legal schemes that are characterized by the terrors of arbitrary state processes and foregone reviews are themselves immoral for that very reason.
Bruised yet undeterred, we carry on. And so we’re happy when we see a good decision from the court in a case which lays bare what’s going on with the application of the IRP DUI legal scheme.
On February 3, 2014, the BC Supreme Court rendered a decision in Kenyon v. British Columbia (Superintendent of Motor Vehicles). It was argued in court over a year ago. We expected a decision perhaps in the spring of 2013. It was a long wait, but it was worth it. It’s a good decision.
If you follow our blog you’ll see that the court can say all sorts of things we as lawyers can’t say. Here are a few of the most useful paragraphs:
This is a case that cautions against making credibility findings on a limited evidentiary basis. The point of the case is that “… credibility … is based on all the elements by which it can be tested in a particular case.” The statutory regime under which the Superintendent’s delegates operates subtracts most of the means by which credibility can be tested. These include the opportunity to see and hear witnesses, to confront them in cross-examination, to develop a full case, and to have an in-person opportunity to persuade the trier of fact.
I have noted before that the impoverished record on which the Superintendent’s delegates purport to make credibility calls must, if a balance of probabilities is properly applied, yield a larger number of cases in which the burden of proof is not carried, that is, that where the petitioner prevails, because the truth cannot be ascertained on the limited evidence permitted. The “efficiency” of such hearings necessarily has a cost in terms of the quality of proof allowed. The delegate purported to recognize this in incorporating a quote from Spencer into the reasons.
To illustrate what this means, one need only posit a system where due process was even further truncated such that the police and the petitioner had to give their evidence in only one sentence. So hypothetically, the police officer would say “the petitioner was driving and he was drunk.” The petitioner would say “I was not driving although I was drunk.” How, on that evidence, could a suspension ever be affirmed? Yet if we apply the test set out in Nagra v. British Columbia (Superintendent of Motor Vehicles), 2010 BCCA 154, the hypothetical delegate is, in fact, in a position to choose…
There are a number of things to note about the statutory scheme. The first is the summary nature of the process. Penalties begin immediately. Anyone who succeeds in having a prohibition set aside will, in any event, have suffered serious consequences for which there will be no redress.
The second is the serious limitation on full answer and defence in the review process inherent in the prohibition of cross-examination.
A third is the circumscribed nature of the enquiry on review. There are only two questions, whether the person was a driver and whether the approved screening device registered a fail (or the person refused to submit a sample).
The last is that if the answer to both questions is “yes”, the delegate must confirm the prohibition, and if “no” must revoke the prohibition.
This Court has described the Superintendent as “a discrete and special administrative regime in which the Superintendent has a specialized expertise … entitled to a high degree of deference” (see Park v. British Columbia (Superintendent of Motor Vehicles), 2008 BCSC 1332. This was, however, a connection with a discretionary exercise in assessing the length of a driving prohibition based on the appellant’s driving record.
Applying a functional analysis to the task of the Superintendent’s delegate in the present case, it is difficult to discern the application of expertise. The first task of the delegate was to decide whether the appellant was or was not a driver. That is quintessentially a lay decision, of the kind we entrust to juries.
The second was to correctly apply the burden of proof. That is the application of a legal test, not an application of discretion. It is simply the task of ascertaining whether on the limited evidence presented, the officer’s version of events is more probable than that of the petitioner.
The role of the Superintendent’s delegate is to stand between the police on the one hand and the suspended driver on the other, and to adjudicate fairly between them. The only adequate description of this activity, limited as it may be, is that it is judicial and that, as such, the obligation of procedural fairness is, according to Bell, “stringent”. The point in Bell is that although a single standard of reasonableness may be said to apply to judicial review, there is a spectrum in its application. What is reasonable varies with the location of the tribunal on that spectrum, from those that are purely executive, to those that are, in all but name, judicial. Where a tribunal performs an essentially judicial, and not a policy driven function, reasonableness may be tantamount to correctness. The logic of this is evident wherever work the courts would otherwise do is lifted from them and placed in a tribunal. In Khosa, reasonableness is said to imply deference. But unless, in practical terms, reasonableness equates with correctness at the judicial end of the scale you create the anomaly of a more deferential standard being applied to a tribunal than to a court doing exactly the same thing.
The Superintendent’s delegates have no discretion as to penalty. Their task is simply to make an evidence-based finding (in a context where automatic consequences have already begun) as to whether the prohibition was justified or not. There is no “range of possible acceptable outcomes” in such a limited enquiry: there is only a proper application of the burden of proof to contested facts. If the petitioner did not have the means to put his vehicle in motion, there is no “possible acceptable outcome” that includes a finding that he did. Moreover, if a hearing is so circumscribed that the ordinary means of getting at the truth are eliminated, it does not become easier to decide, but harder, and the range of cases that cannot be decided becomes greater.
In Spencer v. British Columbia (Superintendent of Motor Vehicles), 2011 BCSC 1311, the Superintendent’s delegate was specifically critical of the petitioner’s evidence on the basis that she found “that the RTS [Report to Superintendent] completed on the day of the incident to be more credible than your statement made at a later time after you [had] been able to consider the evidence presented against you.” In that case this Court found that such a finding effectively reversed the burden of proof. The fact is, however, that if you create a document-only regime with no opportunity to cross examine, you create a regime where the thing the delegate in Spencer imagined – that the story was tailored – may be possible. The limitation on the allowable evidence will often make it impossible, on a principled basis, to determine whether this is what happened. Whatever the presumed efficiency of this form of hearing is, its drawbacks are intrinsic as well.
Many of these cases, including Scott, are, in my view, examples of delegate’s attempting to rationalize desired results, rather than to face the fact that a paper case where each point on one side is met by one on the other will often contain too little evidence to render one version more likely or probable than the other. In such cases the temptation to simply choose to prefer some evidence – which is certainly what the Superintendent thinks Nagra authorizes (See Scott at para. 28), ought not to be encouraged on judicial review. The danger in allowing a relaxed standard of proof to accommodate the low standard of evidence is that arbitrary police action will be encouraged rather than deterred.
Upon a superintendent’s review, the police action must be shown to have been justified in fact, and not to have been wrong or arbitrary. This calls for scrupulous attention by the reviewing court, particularly in light of the tribunal’s lack of the indicia of independence, the judicial nature of the task involved, and the serious consequences of their decisions. The concept of “deference” is misplaced when one functionally analyzes the actual task assigned to the Superintendent’s delegates and the limitations placed on their ability to get at the truth.
In summary, the delegate in this case was confronted with an evidentiary record that lacked crucial evidence as to whether the petitioner had the means to put the vehicle in motion.
The delegate’s resort to a series of peripheral credibility tests was both methodologically and substantively unsound. This is a case that cannot safely be decided on the evidence available. It will not get better, because there is no means for it to be heard on any other basis than on the existing material.
With respect to Ian Mulgrew’s article in the Vancouver Sun about this and some of the upsetting police practices that we recently uncovered, we will give you the evidence in the upcoming days and let you, our readers, act as the tribunal to decide whether the RCMP are guilty of misconduct.