As we chronicle our clash with the BC Government and their IRP law, every once in a while we step back to look at the bigger picture. There are many threads that seem disconnected at first blush. We pull in information from diverse sources: Freedom of Information disclosure, confidential informants, Immediate Roadside Prohibition police reports, third party documents that mysteriously land in our office — you name it. And the information we’ve accumulated covers all aspects of the IRP scheme.
It’s a shoddy legal scheme and we’d figured out how to expose it. In a desperate attempt to hide Government incompetence in designing…
Examining all of the material we collect about the IRP scheme we can come to significant conclusions about aspects of the process and the general unfairness of it. But from a larger sense there is one overriding theme and that is high level government incompetence. When it comes right down to it, the people in this BC Government managing and making the decisions at the top have screwed things up every step of the way. Which brings up back to the Government suing us.
Government suing us over their own incompetence
There are many interesting twist and turns to the Victoria Papers. They were disclosed to us by mistake (because of government incompetence) and at first they did very little to try and retrieve them, again because of apparent incompetence. The purpose of the secret communication is what’s really interesting. Essentially we found so many defences over the years that the Government was (and probably still is) secretly turning to its lawyers after the hearings were concluded to find out some way to uphold individual IRPs and head off court challenges.
Why were they so desperate? The law was so badly drafted that you can’t get a fair hearing. You can’t obtain the evidence necessary to conduct a proper inquiry into the case. By virtue of the unreliable investigative procedures, many innocent people are issued IRPs.
It’s a shoddy legal scheme and we’d figured out how to expose it. In a desperate attempt to hide Government incompetence in designing and implementing the scheme, they turned to their lawyers who were willing to overstep the boundaries of legal advice.
Now think about this for a minute. What this means that tribunal members, their supervisors (yes they have supervisors) and the lawyers were searching out ways to come to specific conclusions in IRP cases. There was twisting and turning, machinations and deception to render IRP case decisions.
We’re not speaking of prosecutors here. We’re talking about the tribunal. We’re talking of the tribunal members who are supposed to be independent with the power to stand in between an individual and the Government. Yet they were getting secret marching orders from the Government (and there is nothing to show this isn’t still happening).
It’s beyond shocking. And somehow a large group of people persuaded themselves that this was okay — it was something they should do, a means to an end to hide government incompetence.
Why didn’t we tell you sooner?
We knew it was a nefarious system — crooked. Knowing it is one thing. Being able to provide the objective evidence on paper that would persuade someone else was the bigger hurdle. Standing in our way was our duty to courts and tribunals under the lawyers Code of Professional Conduct. Simply put, we have conflicting duties as lawyers. On the one hand we need to encourage respect for courts and tribunals. That’s our obligation. On the other hand we need to fulfill our duty to our clients and society honestly, resolutely and with self-respecting independence. Which means, if a tribunal lacks independence, acts as a Government puppet and spends its time trying to protect the Government from embarrassment by reverse-engineering decisions to uphold IRPs, we need to call it out.
So although we had substantial evidence, and although our duty is to call out a puppet tribunal, we had to weigh that with our obligation to tribunals generally.
We explained how the Government could influence a tribunal. We explained how a tribunal can get away with all sorts of misdeeds. We laid out the structure and practices of the tribunal which sets up the framework for the very type of underhanded double-dealing we ultimately confirmed. But we felt until we had the literal smoking gun, we could only lay out the problems. We held back because of our duty to courts and tribunals. Of course, now we have the smoking gun.
Where does it go from here?
The Chief Justice of the BC Supreme Court found that the Victoria Papers clearly show that Government through its lawyer, managers, supervisors, tried to influence the tribunal. In fact, the decision was in one of our cases, and the RoadSafetyBC adjudicator followed the orders handed down by the Government. That the Government was actively trying to influence the tribunal was a finding of facts made by the Chief Justice.
When the matter was brought up in the BC Legislative Assembly the Attorney General stuck to a script and denied the facts as found by the Judge. This approach is ridiculous. Either the Attorney General hasn’t actually looked at the disclosure (there’s no denying that the lawyer and supervisors were telling the RoadSafetyBC adjudicator what to do following in depth machinations) or the Attorney General is making a Hail Mary pass. Essentially she and the Government may be hoping that they can keep this in the courts by appealing and appealing.
Appealing judgments to hide Government incompetence. Appealing so they can continue to deny the truth.
To us this is unbecoming of an elected official. Such is the state of things.
The appeal of AG v. Lee
On May 19th, the Government filed to appeal the Chief Justice’s decision. They did it on that date because the legislative session was over and they could avoid facing questions in the Legislative Assembly. Is that dirty? Oh, we think so.
But considering that they either didn’t answer or gave wrong answers regularly, it hardly matters what questions are put to this Government in the Legislature. They seem to have disdain for the people of BC.
Politics is a game. Their only goal is to conceal Government incompetence and thereby retain power.
Our second court success in this case
The Chief Justice could see what’s going on: the Government was trying to influence the tribunal. That’s why we succeeded in British Columbia (Attorney General) v. Lee. The court found that the important documents were free for us to use for our clients. Any other smart lawyer might not have the documents (only we’ve got them right now), but in defending their client on an IRP they can certainly rely on the court ruling.
In a second ruling released Thursday June 2, 2016, the Chief Justice went further to say that the Government’s behaviour in trying to shut us down was unnecessary and excessive, and deserving rebuke in the form of a partial order of special costs. You can find that case here: #2 British Columbia (Attorney General) v. Lee, 2016 BCSC 974
As far as we could tell, the decision to try and silence us (hey, what about that Charter of Rights) was another example of high-level Government incompetence.
Although the court awarded us special costs, it’s only a fraction of what we’ve spent on this. Why are we doing it? Our obligation to courts and tribunals extends to protecting our justice system and the integrity of courts and tribunals. That’s why we fight.