The BC Supreme Court rendered its decision Monday with respect to whether the second version of the IRP scheme adequately addresses the concerns in Sivia v. The Superintendent of Motor Vehicles. We participated in this Charter challenge, although we were in an unusual position because our client, regardless of the Charter challenge, will succeed on the re-hearing due to the merits of the particular case. So for us it was an intellectual exercise. Moreover, we were of the view that, two years into IRP 2.0, we needed the constitutional status of the law to be made clear. And now it is. For now.
In the decision of Bro v. The Superintendent of Motor Vehicles the BC Supreme Court ruled that the changes introduced in the 2012 version of the law go far enough to address the Court’s concerns in Sivia and therefore the current version of the law does not violate section 8 of the Charter of Rights.
The immediate implications:
Many drivers in BC obtained stays of their IRP driving prohibition pending the outcome of the Bro decision. If this is you, now is the time to pay close attention to what’s going on.
Our goal with IRPs has been to do our best to succeed at the hearing before the RoadSafetyBC tribunal (A.K.A. the Superintendent of Motor Vehicles) with each case. Even if you think you’re guilty, we can often find a viable legal defence. You may be innocent, but often that’s not a successful defence to an IRP.
We tell our clients what their defences are and what the odds are before we agree to conduct an IRP review hearing. In a handful of cases, even when we were aware that the client would lose often due to the truncated review process, we took instructions to conduct the hearing in any event. In those cases we did it, knowing and explaining to our clients that everything hinged on the decision in Bro. After receiving the IRP review decision from RoadSafetyBC we appealed for our clients to BC Supreme Court on the same grounds as in Bro. The lawyers for the Government then consented to a court order that suspended the driving prohibition until 30 days after the decision was rendered in Bro.
Our reluctance:
Generally we’ve been reluctant to take this sort of approach. Our concern has been that the uncertainty is a major problem and it’s possible that people would be forced to serve out their driving prohibition in the cold months. We didn’t know when Bro would be decided.
On the other hand, we’ve determined that the most fruitful strategy over the last 4 years of the IRP scheme is to challenge the prohibition at every step. Most of our clients who appealed and kept the matter going under the first version avoided the RPD and Interlock. Some people got cheques from the Government. Others have had the IRP lifted entirely because of changes in the law.
So it makes sense to take all steps in law to challenge the IRP. For so many of our clients, it was the best decision they ever made.
We know that some other lawyers or law offices focused less on possible lawful defences to the IRP. Instead they simply promised to get people’s licenses back by appealing to the court and getting the IRP put on hold while Bro was decided.
For a number of reasons we took a different strategy. It was a reasonable strategy bearing in mind the history of the IRP scheme. Nevertheless, we still felt that we were better, whenever possible, to focus on the merits of the case so that we could succeed at the earliest point in the proceedings.
The forensic audit:
Conducting our own forensic audit, we think our approach was correct. Obviously it did not succeed for everyone, but it was the right way to defend IRPs.
We have many clients who appealed their IRP review decision issued by RoadSafetyBC. Wherever possible we argued the merits of the case. In a great number of them, because of changes in the law that have taken place during the delay provided by Bro, we will now succeed in the appeal of their IRP review decision. So the strategy of challenging the prohibition at every level worked for those clients. It was the right way to defend an IRP.
On the other hand, we also have clients who had no recognized defence or chance of success on their IRP. In some cases we took instructions to appeal the RoadSafetyBC review decision so that we could hook them up with Bro. The purpose was to get their license back and hope things went the way we all wanted in Bro. In some cases, there has been no change in the law that will help these people. And time is now ticking.
The Cinderella moment:
If your lawyer appealed the losing IRP decision by filing a Petition in BC Supreme Court and your lawyer then secured a court order suspending the prohibition pending the decision in Bro, you should be prepared for your chariot to turn into a pumpkin. The court orders expire 30 days from the decision in Bro. At that time, unless there is some action on your case, the driving prohibition kicks in and you are prohibited for the balance of the IRP. So, 30 days from Monday September 8, 2014, the order expires and the IRP is back.
We’re lucky:
We almost always argued the merits of the case and we succeed very often. As well, in many cases we can succeed on the merits of the appeal by virtue of the fact that we argued the merits when we first conducted the review hearing. Still, we have a handful of clients who will be walking home from the ball. The Bro decision has started the clock, and in 30 days some people will be facing the resumption of their IRP. For some, this is inevitable.
Does the slipper fit?
We will contact our clients whom we feel have solid grounds to appeal to then offer to continue the appeal of the RoadSafetyBC decision. Of course, we will only continue the appeal if that is what our clients instruct us to do. If it appears that there is now a decent chance of success, i.e. the slipper fits, then we will forge on.
If, in our opinion, you have no chance of success, then we won’t continue with the appeal. We’re not interested in accepting payment or working when there is no likelihood of obtaining the hoped-for results. In some cases you’re better off spending your money on a pair of comfortable shoes.
The up side:
By arguing all of these case rather than simply hoping for Bro, we honed our skills. We are good at what we do. Like a frickin laser. The other good thing is that, having set the stage by arguing the merits of the cases, we expect to succeed in a number of these cases that were hanging. By waiting for the decision in Bro, the tides turned and things are looking up.
And finally…
The lawyers for Bro didn’t call us back yet, but news reports indicate that they intend an appeal.
We’re not sure where that will go. We’re not encouraging anyone to place their hopes in the ever-elusive Prince Charming.