The BC Supreme Court decision in Kenyon v. the Superintendent of Motor Vehicles has people in the BC Government all upset. In that particularly insightful decision, the BC Supreme Court Justice says a lot of smart things including that, in his opinion, the adjudicators at the OSMV are “attempting to rationalize desired results.” He notes a disturbing pattern. He says that normally the Courts need to give tribunals a high degree of deference. But then he says that the deference is “misplaced” with the OSMV tribunal because of the nature of the tribunal, and because of this disturbing pattern. The task of a tribunal is to look at the evidence, then decide. What the Court is saying in Kenyon is that the tribunal decides, and then looks at the evidence to rationalize the result.
We’ve been saying all along that this is a particular danger of tribunals. Anyone who questions the points we’ve made on our blog over the last few years need only read Kenyon to see confirmation of what we’ve been publishing here. A tribunal can exploit the high degree of deference by rationalizing desired results. As the Court noted, this tribunal pays lip service to the Spencer decision while then going on to disregard it entirely. It’s disingenuous to decide and then look at the evidence to rationalize the result. It’s also wrong in the minds of the good-hearted people of BC. And it undermines our justice system.
Look at the evidence, then decide
The issue at the center of this discussion is the weighing of evidence. If you make the decision and then rationalize the results in your reasons, you’re biased. If you approach the evidence with an open mind, i.e. you look at the evidence, then decide, you can smile at yourself in the mirror because you are both reasonable and decent.
And so now we have a test for you. In Ian Mulgrew’s article last week, there was a discussion of emails we uncovered in a Freedom of Information Request. The emails consisted of correspondence between RCMP officers, CBSA officers (Canada Border Services Agency) and some RCMP liaison person who works in the OSMV tribunal. The emails speak of preparing a statement to be used in the future for CBSA officers when they are involved in an IRP investigation.
One may argue that this is collusion to falsify evidence for the purpose of misleading the tribunal. The official response that Ian Mulgrew got from the spokespersons was that this was a “check sheet” that was not adopted.
Don’t decide. Keep an open mind. We want you to look at the evidence, then decide. Here is the “check sheet”. Is this the RCMP fabricating evidence or a check sheet?
CBSA statement re: IRP
On (date) at (****) hours. CBSA OFFICER (surname and badge #) was on duty, in uniform and working the (port name) border crossing north bound from the United States and located in (city), British Columbia. At that time he observed a (vehicle description – colour, make) motor vehicle showing (Province/State) license plate (number) drive up to his location which is on a British Columbia (BC) highway as defined. The driver produced photo (identity document type and #) identifying him as (full name and DOB). The driver matched the photo and Officer (surname) was satisfied with (subject name) identity. Officer (surname) noted the driver (surname to be alone in the motor vehicle or (there were # of passengers).
Officer (surname) detected an odour of liquor on the breath of (subject name) and formed a suspicion of alcohol in his body. When asked when his last consumed alcohol (subject name) replied (“—“)
(NOTE: WE MUST HAVE HIS EXACT VERBATIM REPLY AND NOT JUST A CALCULATED TIME).Officer (surname) had (subject name) exit the vehicle at the primary inspection lane. At (**** hrs) Officer (surname) read (subject name) the Approved Screening Device (ASD) demand. The type of ASD used was an Alco-Sensor IV DWF, which is an Approved Screening Device as defined by the Criminal Code. Officer (surname) is qualified in the use of the Alco-Sensor IV DWF. At (**** hrs) Officer (surname) received a suitable sample of breath from (subject name) directly into an Alco Sensor IV DWF ASD, serial number 123456, calibrated until (month/day/year) with annual maintenance due (month/day/year). The temperature displayed on the ASD for this test was (**) degrees C.
The displayed result from (subject name) sample was a FAIL. This indicated a blood alcohol concentration of at least 100 mg of alcohol in 100 ml of blood. At (****hrs) Officer (surname) arrested (subject name) for driving over the legal blood alcohol limit, advised him of his Charter Rights, Official Warning and read the Breath Demand (Vienna Convention rights if applicable). When asked if he wished to call a lawyer (subject name) stated (“….”).
At (****hrs) the RCMP were called to attend and a call was also placed to a lawyer of choice (name of Legal Aid) or lawyer of choice). (Subject name) spoke with (name of counsel) in private from (**** hrs until **** hrs).
At (**** hrs) Officer (surname) met Cst. (surname) who had attended the call. Officer (surname) briefed Cst. (surname) on the investigation.
Officer (surname), after turning the driver (subject name) over to Cst. (surname), completed their statement for this investigation and gave a signed copy to Cst (surname).
Signature block:
Signature:
Name:
Badge #
Date:
Time:
Our decision:
The OSMV sees the same police evidence repeated in many cases with just a few minor changes. Some things, like the police officer forming a suspicion of alcohol in the body of the driver, that the result was shown to the driver, the purported drinking pattern, the information about the second test, are repeated verbatim every time with some officers. Yet the OSMV tribunal accepts the police evidence in almost every case without question. In Kenyon the Court notes that the applicant’s evidence is subject to freaky scrutiny.
Knowing this, and seeing that there is no check sheet, and recognizing that the police never thought that we would catch them doing this, our decision, or rather our opinion, is that this is a clear case of the police falsifying evidence to mislead the tribunal (which the tribunal must invariably know about in any event) with the goal of ultimately misleading the Court on the judicial review of the OSMV review decisions.
That’s our opinion. What’s yours? Go back and look at the evidence, then decide whether this is a simple check sheet or whether the RCMP have been crafting a narrative for another organization to use as a stock piece of evidence in every case.