One of the cruel ironies of the Immediate Roadside Prohibition scheme is that good people who have no history with the police are treated worse than people who drive drunk with some regularity. When you get pulled over and blow Fail on an ASD in BC, the police issue an IRP for good guys and a DUI for bad guys. It’s one of the most offensive parts of the IRP scheme that almost nobody talks about except police officers themselves. Many cops think the IRP scheme stinks for this very reason. Allow me to explain.
In BC good guys don’t get the benefit of the doubt and that’s very upsetting.
If the police pull a driver over in BC and conduct a drunk driving investigation, in the vast majority of the cases they will use an Approved Screening Device (roadside breathalyzer) to get an approximation of the blood-alcohol level. If the driver blows Fail, the police are instructed that they must check the driver’s history on a police database that they access from their cruiser. If the driver has no previous criminal DUI convictions or history of drunk driving offences, the officer is expected to notify the person of their right to a second test on another ASD, and then issue an IRP based on the result. If it’s a Fail, then the IRP will be for 90-days.
The Standard of Proof
In the last blog post we discussed the Burden of Proof in administrative law matters and how the Government will re-write the IRP scheme with their new law to reverse the burden of proof. In short, the burden of proof is the obligation one party has in a case before a court or tribunal to prove the essential elements of a case. In regulatory matters, as IRPs have been so defined, the burden is on the party that wishes to enforce a rule. The Standard of Proof is the next consideration.
For some reason many people have difficulty distinguishing in their minds Burden of Proof and Standard of Proof. Even the Wikipedia page is vague and fails to properly make the distinction. In the simplest terms, the Burden of Proof is the obligation of a litigant to prove something. The Standard of Proof is the degree to which something must be proven.
For example, in criminal case the crown prosecutor has the Burden of Proof concerning presenting evidence of the essential elements of the offence. The degree to which a crown prosecutor must prove the essential elements is Beyond a Reasonable Doubt. So the Standard of Proof is Beyond a Reasonable Doubt.
This is usually summed up by saying “the Crown must prove the case beyond a reasonable doubt.” This conflates the burden and the standard, which may be part of the reason people find this difficult to understand.
Beyond a Reasonable Doubt is a very high standard. If there is a doubt, based on an accepted piece of evidence, (a reason) then the court must find in favour of the defendant. That’s what we call the “benefit of the doubt” which is a phrase that arrived in common English through the criminal courts.
The Standard of Proof for IRPs:
With IRPs we use a much lower Standard of Proof. Administrative matters, as IRPs have been so classified, rely on a Balance of Probabilities Standard. The easiest visual analogy or metaphor is the scales of justice. If you can tip the scales in your favour, you have a case.
The Balance of Probabilities standard can be very effective in resolving disputes and providing certainty for businesses, but it has many failings. It’s easy for a tribunal or court to make spurious findings of fact to tips the scales. It’s fairly easy to have result-oriented decision making. The fact-finding role of the court and skilled lawyers can usually curtail result-oriented decision making when matters are in open court. It is a much bigger problem in tribunals where, for example, there is no full disclosure, no cross-examination of the accuser and limits placed on the type or amount of evidence that you can use to make your case. This is where the Balance of Probabilities standard can cause significant injustice.
In IRP review hearings, the adjudicator from RoadSafetyBC simply needs to find that it is more likely than not that: you were a driver; you blew Fail; you blew Fail again or refused a second test; and the test was probably okay.
There is no benefit of the doubt with an IRP. You are not extended the fairest Standard of Proof in law. If you get an IRP, you are only granted the Standard of Proof used in civil courts, where businesses fight over broken contracts, insurance companies argue that they don’t need to pay for losses under an insurance policy and former lovers fight over dividing their common assets.
The Standard of Proof for Criminal DUIs:
If you have a history of drunk driving including a drunk driving conviction, the police are instructed to arrest you if you blow Fail on an ASD. So there is a criminal DUI for bad guys and an IRP for good guys. Which Standard of Proof do you think the bad guys get?
That’s right! In BC the bad guys with a history of drunk driving are charged with criminal charge(s) of Impaired Driving and/or Driving Over .08. The bad guys get the benefit of the Beyond a Reasonable Doubt standard. Their matter is dealt with in criminal court where the crown prosecutor must prove the case Beyond a Reasonable Doubt.
The good guys, i.e. people without a history of drunk driving, are not given the benefit of the doubt. Instead they are issued IRPs. And the RoadSafetyBC tribunal applies the much lower standard of a Balance of Probabilities (more likely than not).
Why is this so upsetting?
We teach our children that if they’re honest, decent and truthful, they will be trusted and taken seriously if they find their behaviour scrutinized. We teach them that if they are good guys, they will get the benefit of the doubt if they’re ever in trouble.
But that’s not how it works. In BC good guys get the bad deal. They get the Standard of Proof that does little to protect them from a false or flawed allegation by the police.
In BC good guys don’t get the benefit of the doubt and that’s very upsetting. The bad guys get the benefit of the doubt and the good guys get the short end of the stick.