It’s important to remember, if you’re charged with an offence or you’ve been issued an IRP, that the Government is your adversary. They’re not out to help you, they don’t want you to succeed and in fact, from their perspective your desire for justice is an impediment to their goals. The Government is your opponent.
You might think you have a great defence to an IRP. You might decide it’s so good that…
We’re not being cynical, misleading or somehow deliberately provocative. The sentiment is clearly expressed in Government documents that we collect and we know the truth first hand because we live it every day. In court on a criminal charge the case will be entitled “R.” (i.e. the Government) v. (against or versus) You. For example, a criminal case citation might be R. v. Smith.
In an Immediate Roadside Prohibition (IRP) case it’s You v. the Superintendent of Motor Vehicles. And the adjudicator is a designate (employee working in the office) of the Superintendent of Motor Vehicles (now mostly called RoadSafetyBC).
The reason that this comes up now is because of some internal Government documents that we obtained just last week. In briefing notes to the Justice Minister there was a discussion about what would happen if there is harsher punishment for distracted driving. One of the negative consequences was that more people might dispute their tickets.
In other words, people seeking justice in court is considered a downside of a proposed legislative scheme. Can you believe that?
No slack for amateurs
The other reason that this comes up now is because of a judge’s comments in a recent judicial review that Kyla argued.
Kyla appealed a RoadSafetyBC decision to BC Supreme Court where the person was self-represented at the original hearing. Of course, this person lost at the original hearing that they conducted themselves. No surprise there. What bothered us was that the adjudicator relied on information that would be essentially unknowable to our client because they were trying to defend their own IRP. In other words, because they tried to defend their own IRP without the help of an IRP lawyer, they didn’t know that the adjudicator would rely on their own esoteric knowledge to reject their argument or what that knowledge might be. Which is what happened in that case.
If you don’t understand the defences, should the adjudicator help you out? In the quest for fairness, should not the adjudicator speak up and explain what other information or specialized knowledge they’re relying on in your case to at least level the playing field a bit?
Kyla argued that self-represented people should get some assistance by the tribunal disclosing to the driver what specialized esoteric knowledge they might rely on in the hearing, particularly when the particular issue arises in an IRP hearing. This made sense to us because it would make the system fairer for people who represent themselves or who hire less experienced lawyers.
The Government argued that it is not their role to help people understand the internal information that would be used against them at the hearing. From their perspective, if you don’t know the way to the exit, they’re not going to show you their map of the burning building. There is no slack for amateurs.
Won a battle — lost a skirmish
Kyla succeeded on the judicial review. It was a blow-out success on the other arguments but not the one described above. For our client it doesn’t matter because Kyla succeeded with her other arguments and the IRP is well on its way to the dumpster. But from the big-picture perspective it affirms an unfortunate principle: it’s not the Government’s job to help you.
You might think you have a great defence to an IRP. You might decide it’s so good that you’re going to conduct your own review hearing without the help of an IRP lawyer. Unknown to you is that there is some internal information held by the adjudicator that completely defeats your argument. And the Government is not required, and probably not even allowed to tell you about it when you dispute your IRP.
Is that fair? We didn’t think so. But there’s no slack for amateurs. Just because you’re a good guy and you think you have a good defence, that isn’t enough.
A good argument that flopped
Kyla succeeded so we’re happy about that. But our argument that would have help self-represented people was completely rejected. We have feelings about that.
In our view, if you try to defend an Immediate Roadside Prohibition without an IRP lawyer, you’re a fool. The law is ridiculously complex, the science takes years to understand and the RoadSafetyBC tribunal has its own information and methods that are known only to a few. So if you try to defend yourself on an IRP you’re at a big disadvantage.
Having said that, we don’t think that’s appropriate. If you’re facing a criminal charge in court and the judge is going to rely on some principle or obscure but accepted knowledge to your disadvantage in the hearing, the judge will typically bring it to your attention. You might screw up in 1000 other ways, but at least it won’t be designed for you to fail.
What bothers us is that so much material produced by the Government over the last 6 years has been designed to lure people into a fundamental misconception about how the system works. The publications lure people into believing that the RoadSafetyBC tribunal will simply look at what the police say and what the applicant says to make their decision. That’s clearly not the case.
We hoped that, in the spirit of greater fairness, we could advance this appeal to change the law and put that onus on the Government. We wanted to make the system more fair. But it didn’t work.
Was the judge wrong?
Our sense was that the argument could have gone either way. Having heard the decision (it was an oral judgment and so it’s not published anywhere yet) we don’t judge the judge’s reasoning.
UPDATE: the decision can now be found here: http://www.courts.gov.bc.ca/jdb-txt/sc/16/06/2016BCSC0643.htm
Still, as it stands the way that the legislation is designed, the Government is your adversary and they are not mandated or even permitted to help people make the arguments at their hearing. The law is now clear that if you don’t know the law as established in all of the legal precedents or you are ignorant of the internal knowledge of the adjudicator, tough luck.
As for an appeal, we can’t appeal something we won so unless the Government appeals the entire case, on this point the law will stand. And so, right or wrong, we have a painful legal principle.
A painful legal principle:
The law is now clear: if you decide to try and dispute your own IRP, know now that there is no slack for amateurs. Although we succeeded for our client, the BC Supreme Court has confirmed that the adjudicator’s role does not include explaining to you why your ostensibly good argument will be rejected.