You don’t need a lawyer to tell you that the Government should follow the law. It’s common sense. Unfortunately it’s not necessarily the practice of the tribunal at the Superintendent of Motor Vehicles office over in Victoria.
They’ve taken a lot of flack recently in BC Supreme Court decisions, which we think was well deserved. We don’t really see any change in the practices yet. In the Kenyon decision the Court was very critical of the tribunal because in the IRP review decisions they always claim that they are abiding by the Spencer case but the reasoning always indicates that they are completely disregarding the Spencer case and in fact doing the complete opposite. We wrote about this in May of 2012, and nearly two years later the tribunal continues to regularly do the opposite of what was directed in Spencer.
The criticism of the tribunal in Kenyon v. the Superintendent of Motor Vehicles is apt.
At this point the Court doesn’t know about some of the other ways the tribunal ignores or disregards the law.
Right now there are two binding BC Supreme Court decisions that state in no uncertain words that the in-house tribunal at the Superintendent of Motor Vehicles must revoke Immediate Roadside Prohibitions if the officer who served the IRP did not have a reasonable opinion that the driver was affected by alcohol in their ability to drive. The cases are Wilson and Richardson. We’ve written about them extensively before and we have a few dozen appeals in BC Supreme Court underway right now in relation to these arguments.
In each case, when we argue Wilson and Richardson, rather than rendering a decision in accordance with the law, the tribunal temporarily reinstates the person’s license and adjourns the time to render a decision to some unknown future date.
We’re not kidding.
The law is clear. If you or I refused to follow a decision of the BC Supreme Court, we would find ourselves in real trouble. Wilson and Richardson are the law. The interpretation of the law applies directly to the tribunal at the Office of the Superintendent of Motor Vehicles. And rather than follow the law, the tribunal appears to be looking for a way around it.
As lawyers, we’re actually embarrassed to tell you about this. Still, you might as well know that this is the state of our justice system in BC. For many British Columbians the tribunal at the Superintendent of Motor Vehicles is the one contact they’ll have with the justice system in their lifetime. To discover that justice is arbitrary and the tribunal is seeking a way to not follow the law is disturbing. It keeps us up at night.
Why are they doing this? They won’t tell us, but we know. Wilson is being appealed and we expect that Richardson will also be appealed. Their plan is to wait until the decisions are rendered by the Court of Appeal (that could be a year away) and then, they hope, the law will allow them to uphold the prohibitions. In other words, they’re hoping that the Court of Appeal overturns Wilson and Richardson.
If it doesn’t go their way at the Court of Appeal, then they’ll probably push the matter off until it is decided as the Supreme Court of Canada. Why do we know that this is what’s taking place? Because it’s exactly what they did with respect to the Murray decision.
The Government should follow the law
How would you feel if judges adjourned trials or decisions in the hopes that the law would change? How would you feel if they did this because they wanted to convict the person but the law said they were innocent? Would you not question the impartiality of a judge who did this? Would you have confidence in a justice system that operated this way?
When it comes to tribunals it is clear to us that there is a lack of transparency which allows this type of behaviour. The Government should follow the law but their in-house tribunals have the power to ignore the law if they disagree with the outcome.
Our plan:
We’re going back to court to seek mandamus orders to compel the tribunal to render decisions. We’re going to ask the BC Supreme Court to order the OSMV tribunal to render decisions in a timely fashion, as is their duty. This practice is BS and we want the Court to know what’s going on.
Will it work?
They might just continue to disregard the Court decisions, as we see with the Spencer decision.
Postscript:
It’s not quite the justice system we’d hoped for. It raises existential questions for us as lawyers. Our very realm is the justice system, and we work within it every day. We wonder if transparency could make a tribunal fair. We wonder if all tribunals have a bias and whether people of all sorts facing tribunals of all sort have been subject to this sort of justice. In this case the tendency is readily apparent — it’s been identified in court cases — but what about tribunals dealing with less exciting matters?
A while back we let you in on A Secret. We’re very worried about the trend toward tribunalization.