Around this time last year, a BC Supreme Court judge in Victoria heard a week’s worth of arguments in the constitutional challenge to the third version of British Columbia’s controversial Immediate Roadside Prohibition scheme.
Our office participated with another law office to bring about this challenge to the legislation.
As you may recall, in April 2016, the BC Government slyly amended the IRP law to reverse the burden of proof. This meant that rather than require the police officer to submit evidence to prove why the prohibition was to be upheld, a person affected by an IRP would have to submit evidence or argument to persuade the adjudicator why the prohibition should be revoked.
Our view was and still is that this created a situation of impossibility in many cases. Because the evidence that often can show your innocence is in the hands of the police, and because there is no obligation on the police to submit that evidence, meeting the burden was often something that many people could not do.
Rather than walking away after the constitutional challenge, Kyla was not done yet.
So the arguments were heard last December. Three lawyers from our office appeared, led by Kyla making the argument that was the centrepiece of the challenge: that the reversal of the burden of proof was unconstitutional and unjust. The other lawyers from our office argued issues that were before the Court of Appeal in another case, to preserve the remedy in the event that case was successful.
If you were watching the news around the end of May this year, you probably saw that the challenge was unsuccessful. And if you’ve been affected by an Immediate Roadside Prohibition, you’re probably wondering what comes next.
So here’s the update.
Big Issues To Be Decided
Since then, there have been some big changes at Acumen Law. We have added two new lawyers, Emma and Brandon. They are both smart and driven, but their focus is not Immediate Roadside Prohibitions. We were concerned about the importance of keeping the quality of work, so we’ve now limited the Immediate Roadside Prohibition work to Kyla. The lawyers that were with us at the challenge have gone on to other things.
We now have a dedicated and focused approach to handling these cases, to ensure a consistent approach across the board. We have seen an increase in the number of prohibitions revoked as a result. This is happy news for us and our clients, given our high success rate before.
At the end of the challenge, there were numerous files sitting in limbo. In fact, over three hundred petitions had been filed alleging constitutional violations. And for many of those Petitions, no clear plan was put in place to deal with them at the end.
But Kyla had a plan. Kyla knew that if the challenge was not successful she still wanted to pursue every angle possible for each client. For years, Kyla has been making numerous top-secret arguments in IRP cases, setting up arguments for appeal on certain issues. In many of her files, the arguments on these issues span several hundred pages of written material. Kyla dedicates her weekends and evenings to crafting these arguments, staying on top of the law, and pursuing every angle possible in each case.
Her dedication to these files is impressive.
Rather than walking away after the constitutional challenge, Kyla was not done yet.
In November, Kyla spent four separate days in BC Supreme Court, conducting hearings in three cases that raised a variety of these issues that affect a good percentage of the cases. Her intention was to make arguments on the issues in cases where they arose and to have the outcomes of those cases help the determination of those same issues in others. She has been planning this all along.
This was an issue Acumen Lawyers identified early on. When the Immediate Roadside Prohibition scheme was first introduced in September 2010, Acumen Lawyers sat down with the lawyers in the office at the time. He explained that in order to make the scheme fair, we would have to advance these types of challenges in BC Supreme Court and set up these arguments for judicial review.
Kyla was the one lawyer in our office who followed that advice. As a result, she has argued dozens of judicial reviews, with many of her successful decisions being the leading cases in this legal scheme. There have been numerous benefits to others as a result of Kyla’s dedication to this task. And many of the substantial cases she has argued have been done pro bono.
When the BC Supreme Court heard the constitutional challenge to the second version of the scheme, in Bro v. British Columbia (Superintendent of Motor Vehicles), the BC Supreme Court judge told us that judicial review was the way to fix many of these problems. So Kyla has upped the ante insofar as making substantive and substantial arguments in anticipation of judicial review.
We are now awaiting a decision from the Supreme Court judge on the cases she argued in November. Some of the arguments impact almost all the cases that are awaiting determination, and so if you are reading this wondering the status of your IRP appeal, you can rest assured that we are not done fighting for justice in your case yet.
Appeal Filed in BC Court of Appeal
In addition to the work we did to advance those arguments, we have also filed an appeal of the judge’s decision in the BC Court of Appeal. Last week, we filed the factum, which is a memorandum of argument, at the Court of Appeal. The government’s response is due in early January.
We anticipate a hearing on the appeal to be very contentious. We also anticipate the government will try to seek the costs of the hearing. We say this because after the constitutional challenge was dismissed, the BC Government applied for us to have to pay their legal costs.
We were successful in opposing that application. However, we anticipate the same request will be made of the Court of Appeal.
On the appeal, we are focused on only one main issue: whether the reverse onus creates a constitutional violation. We are working closely with another law firm to make this a strong argument that we hope will persuade the Court of Appeal to find the Charter is violated. If necessary, we are prepared to take this issue to the Supreme Court of Canada.
We will provide another update to our clients who are awaiting the outcome of this appeal when we have a hearing date set. For now, we are still in the filing stages. However, rest assured that the team at Acumen Law is dedicated to putting together the most comprehensive defence possible in any Immediate Roadside Prohibition case.