Regular readers of this blog will be well-aware of our concerns with the adjudication of driving prohibitions by the Superintendent of Motor Vehicles. Salient legal arguments in Immediate Roadside Prohibition disputes regularly appear to be disregarded or particular issues are scrutinized to the point that other issues are ignored. Perhaps it has something to do with the fact that adjudicators are technically civil servants and not legal professionals.
Our concerns appear to have been shared by the BC Supreme Court in two recent decisions where driving prohibitions that had been upheld by the Superintendent’s office were then overturned by the court. Acumen Law’s Kyla Lee can add these cases to the list of successful judicial reviews against RoadSafetyBC. Kyla files appeals of each decision if there is a likelihood in law of succeeding and her client gives her the instructions to proceed with the appeal. She has taken a handful IRPs to the Supreme Court of Canada. Earlier this year she succeeded in a judicial review before the BC Court of Appeal. If there is a good argument to be made, Kyla won’t back down.
“It is more important than ever for adjudicators to apply a fair and consistent level of scrutiny to the submissions of an applicant on review.”
Madden v British Columbia (Superintendent of Motor Vehicles)
In Madden v British Columbia (Superintendent of Motor Vehicles), the BC Supreme Court quashed a driving prohibition that had been upheld by RoadSafetyBC on the grounds that the adjudicator had failed to consider a defendant’s testimony that he had been subjected to race-based harassment. The driver had been charged with failing to provide a breath sample after being pulled over. The driver believed the officer who pulled him over had mistaken him for his brother, who had a history of involvement with the police. He initially refused to provide a breath sample, which he said was due to his belief he was not being treated fairly. Eventually, more officers arrived and he felt more at ease. By that time, however, the officer said it was too late.
Kyla brought the 90-day prohibition before the BC Supreme Court. She argued the adjudicator had not taken the allegation of race-based harassment into account when forming a decision and raised the question of whether this amounted to a reasonable excuse for initially refusing to comply with an ASD demand. The Judge saw merit to this argument and quashed the driving ban.
Lemieux v British Columbia (Superintendent of Motor Vehicles)
A separate case Kyla was involved in highlights the other end of the spectrum when it comes to flawed RoadSafetyBC decision-making. Whereas Madden showed how adjudicators can fail to take an important issue into account, Lemieux v British Columbia (Superintendent of Motor Vehicles), shows a worrying tendency to fixate on certain details while disregarding others.
The BC Supreme Court judge found the adjudicator had applied an unrealistic level of scrutiny to the petitioner’s version of events and Kyla’s submissions relating to them but failed to treat the investigating officer’s version of events with similar scepticism.
The Judge said: “It is more important than ever for adjudicators to apply a fair and consistent level of scrutiny to the submissions of an applicant on review.”
If we are going to put our trust in a regulatory system to make rulings on serious matters, drivers need to know they are not going to be ignored. We have said all along there are serious flaws in the IRP appeal process, particularly with respect to the weighing of evidence. This is one of the major dangers of taking serious matters from the courts and putting them in an in-house administrative tribunal that lacks transparency. These cases will continue to be open to challenges in the BC Supreme Court but until that time we will keep challenging these cases if nothing else to ensure there is proper oversight of the Superintendent’s office.
Good news for BC drivers
These cases highlight the responsibility of the Superintendent of Motor Vehicles to make balanced decisions that do not simply treat police testimony as fact. If we are to have a system that works for all, the driver’s version of events needs to be treated fairly.
From these two decisions, it would appear that checks are still needed on the decision-making capacity of RoadSaftetyBC. But on the brighter side, it would also appear that the courts are becoming more alert to this issue.
If you’re planning an appeal of a 90-day IRP, it is important you are treated fairly. At Acumen Law we have protected the driving privileges of thousands of British Columbians. If you want us to help you with your case, call us now.