One thing that has always bothered us about the Immediate Roadside Prohibition legislation is the fact that the timelines are too short to be able to mount a proper defence.
The Application for Review must be filed within seven days, and there are no extensions. The decision must be rendered within twenty one days of the date you were pulled over, except if the Superintendent extends the time period. And in June, RoadSafetyBC unilaterally changed its policies so that after the hearing had ended, no more submissions could be provided. Even when they granted themselves long extensions of the time to render a decision.
If you can prove you are innocent, you should not lose that opportunity simply because you had to play by their unduly restrictive rules.
The problem with this is that you cannot get the evidence for your case in a reasonable time period. A person cannot request calibration records for the ASDs through Freedom of Information because those records will not be disclosed until 30 business days have passed, and even then sometimes longer. You may not be able to request audio or video recordings made by police, because those won’t be provided until months or years after, if at all. So what do you do?
You can’t prepare your defence, and so you fight it but you lose because you can’t prepare your defence. But if you don’t fight it then you can’t do anything about it when you do have the evidence in your defence. Talk about a Catch-22.
We struggled with this issue for a while, and ultimately determined that it was up to the Court to order that the Superintendent reopen the hearing on the basis of new evidence. We knew from attempts we had made in the past to have the Superintendent do this that it had been unsuccessful. So we had to turn to the courts.
New evidence in an old IRP case
We relied on the evidence in our defective breathalyzer case, and picked a client who could not in any way have known about the evidence because he had hired a different lawyer. (There is a reason we win so many IRPs compared to other law offices, every month). Kyla argued the case, asking that the Court find that there is discretion afforded the Superintendent of Motor Vehicles to reopen a hearing where fresh evidence is found after the decision is rendered.
The Superintendent’s counsel, quite fairly, conceded in the hearing that it was unsatisfactory to not allow a person to do so, but argued that there was no basis in law to reopen a hearing. Their lawyer also argued that there must be finality to the legislation so that the tribunal knows when the matter is ended. Finally, their lawyer argued that doing this would open a floodgate of applicants who have fresh evidence they wish to be considered by the tribunal.
The decision was a long time coming. Kyla argued it in BC Supreme Court in July, 2015. In October, 2015 the Court asked us for further submissions regarding a particular issue. Then, we waited. On Thursday we received the decision concerning new evidence in an old IRP case.
The Court heard the arguments Kyla made and agreed. There is a need for fairness in the review proceeding, and it is entirely unsatisfactory that the process prevents someone from obtaining relevant evidence to their defence. The Court determined that the Superintendent’s position was unnecessarily rigid and gave rise to real injustice. This was our concern all along.
If you can prove you are innocent, you should not lose that opportunity simply because you had to play by their unduly restrictive rules.
As for the floodgates opening, the Court determined that there has not been a flood of fresh evidence applications in regular court proceedings, which have allowed those types of applications for ages. The Court said:
There is no reason to believe that a different result would ensue before the Superintendent, or that a limited power to reconsider fresh evidence in limited circumstances, where fairness or justice require that result, would undermine the efficiency of the process…
And this is correct. While everyone probably should be trying to find their fresh evidence, not every person is going to have some determinative piece of evidence to prove their case. The Court determined that the IRP scheme’s purpose was not thwarted by allowing fresh evidence, saying as follows:
A cornerstone of the [IRP] scheme is the requirement that the ASDs used by the police function properly. Evidence that addresses the accuracy of these screening devices is, as the respondent accepts, both relevant and important. The imposition of a serious sanction, based on an improperly calibrated or improperly functioning screening device would be not only unfair, it would be wrong.
Today is another small victory in the war on IRPs. It represents our efforts to enhance the fairness of the process, and shows that they have paid off. It is pleasing when our hard work leads to results that will benefit many people in the future, and is for us one of the most rewarding aspects of our job.
If you were prevented from having your IRP case fully considered because you could not obtain relevant evidence in the time period for your hearing, please call us and we can take you through the steps you need to take to have that evidence considered now.
If you’d like to read the BC Supreme Court decision you can find it here: http://www.courts.gov.bc.ca/jdb-txt/sc/15/23/2015BCSC2318.htm
Postscript:
There are many different types of new evidence, but usually it has something to do with the way that the police handled your IRP case. New evidence is usually something that was unavailable to you at the time of your hearing.
Something that is generally known but not known to you will not be considered new evidence. For example, if you just learned today that you can get a positive alcohol reading on an ASD by eating a banana (which you can) it’s not something you could advance to re-open your hearing because it’s already something known to science and a handful of lawyers. Besides, we find better arguments than the “banana defence.”