If you served part of the 90-day prohibition and we had the remaining part of the prohibition along with the fines, RDP and interlock stayed, then this IRP update is for you.
Back on July 23, 2012, we first discussed the proposal that the Government lawyers put forward to try and pressure people who received 90-day Immediate Roadside Prohibitions under the old scheme to simply give up and accept the fines, interlock, RDP, etc. Of course, the Government still wants their pound of your flesh, preferably before an appellate court reverses the Sivia decision. The Government broke it down into two groups. For the purpose of simplicity we’ll stick with that.
Group two is:
2) People who served part of the prohibition and who have filed a Petition in court effectively staying the balance of the prohibition, RDP, interlock and fines.
These are the people for whom we had the driving prohibition and everything else stayed (suspended) after Sivia was set to be argued but before December 23, 2011. If we filed a Petition to appeal the adjudicator’s decision and obtained a court order for you to get your license back, then you are in this group.
The most recent court orders expire on November 30, 2012, which is why the Government lawyers set that date. It’s a reasonable time period, so we’re not quibbling over it. It does, however, put everyone in a bind because we now need to deal with the impending expiration of these orders.
In September we laid out the options for the people who are in Group 1. We did this at that time because we had to complete our work and notify the Government lawyers before September 21, 2012. We were pleased that darn near every client wanted to continue to resist the Government’s attempts to punish them under an unconstitutional law.
The options are similar now for the people for whom we managed to get the prohibition stayed:
1. If you wish to preserve your driving privileges as they stand, we can notify the Attorney General’s office that you intend to pursue the judicial review of your matter. The effect of this will be to further extend the stay of the driving prohibition and the suspension of your remedial requirements. There are legal fees and court filing fees that you will need to pay us. And there are likely to be more legal fees down the road.
2. If you wish to serve the remaining portion of the driving prohibition, pay the fines and fees and then comply with the remedial requirements (i.e. Ignition Interlock and Responsible Driver Program), there are no further legal fees at this time and you may instruct us to take no further action on your file for now. You must stop driving as soon as your court order expires. You should go to ICBC Driver Services and ask them when your license expires and how many more days you need to serve of the driving prohibition. They will tell you what steps you must take to have the interlock installed and enroll for the RDP as well as to pay any outstanding fines.
3. If you wish no longer to be represented by our law office on this matter, you can let us know and we will withdraw from record as your counsel. You or your new lawyer can take conduct of your file.
4. If you do nothing or instruct us to take no further action on your file at this time, you will serve the remainder of your driving prohibition from the day your order expires. Do not drive because you will likely face a charge of Driving While Prohibited. You will need to pay the fines, fees, register for the RDP and have an interlock installed before you can again drive, after you have served the balance of the prohibition.
We ask each of our clients in this situation to email or phone us before November 14, 2012, regarding which option they wish to pursue. Of course, all of this is still pending what happens in the appeals of Sivia, which we expect to go to the Court of Appeal no sooner than February 2013, and then possibly the Supreme Court of Canada perhaps when your great grandchildren begin their first year of university.
One thing we are doing differently this time around is that we are seeking to have some clients cut loose at this point to end the entire thing for them. The Government lawyers have told us that if the decision of the OSMV adjudicator is particularly unreasonable, i.e. more unreasonable than normal and the arguments from Spencer or Swaby v. British Columbia (Superintendent of Motor Vehicles) or other court decisions would apply such that the matter would go back for re-hearing, they may consent to the Petition. In other words, if your evidence was rejected by the adjudicator for some really ridiculous reason, for example, that you have an interest in the outcome of the hearing, then the Government lawyers will consent to a rehearing.
To get to this point we need to review the file and then write to the lawyers for the Government. Or we could set it down for a hearing on the Petition and get a decision from the court.
Either way there is one problem: the remedy may be a new hearing.
We still haven’t figured out how we can have hearings under a law that doesn’t exist because it was unconstitutional. As far as we can tell, the Government hasn’t figured out how this could work either. So we’re optimistic.
In any event, we need to review each of these files in consultation with our clients. So if you fall into Group 2, now is the time to send us an email or give us a call. We can discuss the options and figure out what is best in your personal circumstances.