The past week marks another step in our ongoing quest to expose the true functioning of the IRP scheme and to protect the integrity of our justice system.
Back in November 2015, Kyla received a package back from the government on a Freedom of Information request containing information that questioned the integrity of BC’s IRP system. Inside the package were pages of confidential material the Government didn’t want us to see (known as the Victoria Papers). The material included a conversation where a lawyer working for the Ministry of Justice appeared to give orders to an IRP adjudicator describing how she should decide her case.
There’s only one problem with that: solicitor-client privilege only applies if a lawyer is giving legal advice.
Why can’t BC Government interfere with the IRP system?
There are many reasons why this is not acceptable. The BC Government should not be interfering with the decision-making of IRP adjudicators who are supposed to be independent and impartial. By interfering, the BC Government puts the integrity of the entire IRP review process at stake. Based on what we discovered, we concluded that people who apply for a review of their licence suspension were not getting fair hearings, because the adjudicator could be following orders rather than the evidence presented. In our view, these documents suggest government lawyers are acting as backseat drivers to adjudicators when they decide whether or not a driver’s licence suspension should be upheld or revoked.
Instead of assessing licence suspensions by the strength of evidence, the government may have already made the decision for the adjudicator.
What is Acumen doing to protect the integrity of the IRP system?
We often talk about how we want our clients to achieve the most fair result possible. After all, fairness, and ensuring your rights are represented after you receive a Driving Prohibition, are why we are here. That’s why it’s so unfortunate that, even after a BC Supreme Court judge allowed us to use these secret documents demonstrating government interference, the Government filed an appeal to keep us from using those documents. To dispute their appeal, we had to hire outside counsel – well-respected Vancouver lawyer Joseph Arvay – to represent our team at Acumen Law at our own expense. It was not something we wanted to do, but we were left with little choice. The integrity of the IRP system is at stake.
Were the secret IRP documents truly confidential?
On Friday, their lawyers were in the Court of Appeal arguing that the information inside the FOI package is protected by solicitor-client privilege. There’s only one problem with that: solicitor-client privilege only applies if a lawyer is giving legal advice. In our view, what the BC Government lawyer did was not give “legal advice.” Instead, BC Government eroded the integrity of the IRP system by telling a statutory decision-maker what to do and by usurping that decision-maker’s function.
The documents would cause any reasonable person to conclude that the statutory decision-maker did not want to do what the BC Government lawyer asked, but she ended up following orders anyway. We argued that when you take the decision-making away from the people who are statutorily appointed to make these decisions, you’re no longer giving advice. You’ve seized the steering wheel.
The BC Government also argued that the documents were released as an honest, inadvertent mistake as a reason we can’t use them. We thought it was pretty unbelievable that BC Government would release such damaging material ourselves, but we didn’t think for a minute that they were relying on privilege when we set out to use them to defend our clients. However, the real problem with their argument is that all documents released through FOI are reviewed by very senior people in government. If it’s true that a senior official reviewed the apparently confidential information, and released it knowing this, then even if there were solicitor-client privilege, it would been waived by the client volunteering to release the information. If senior officials neglected to review the information package altogether, then that suggests maybe the information shouldn’t be confidential after all.
We’ve opposed the IRP system from the start but as long as the law is in place, to us it’s important to protect the honesty of the system because this is a corner of the justice system where we regularly practice.
The BC Court of Appeal heard arguments for both sides in this case on Friday May 20, 2017. We expect that it will take a few months before we get a decision.
Well done. The B.C. gov’t has taken the position that they’re going to hammer drivers whether the evidence is valid or not. Seems they want to “send a message” about impaired driving. It’s time the courts send a message back about due process and Charter rights.