We’ve been sitting on some really big IRP news for the last few months and we weren’t allowed to tell you about it. At this point we can give you some of the information, but you’ll need to come back to see the rest because right now we can only use this secret information to help our clients. But it’s amazing. It will blow your mind.
We are on fire and we’re going to blow the lid off of this.
Cast your mind back to November, 2015. We received disclosure from a Freedom of Information request that Kyla made in the summer. The Government didn’t disclose it to us in the required time period. We were told that they needed more time to evaluate the disclosure in order to ensure there were no documents in the package that they would withhold from us under one of the sections of the Freedom of Information Act.
When we got the package we could see it was mostly documents concerning one of our clients. As is often the case, the words “Privileged and Confidential” were interspersed throughout but this is quite common in documents that they send to us or even publish on the Open Information site. Some of the information was from a lawyer discussing our client’s file before the decision had been rendered.
A few years back we would have found this very disturbing — a lawyer from the Government discussing a particular client’s file BEFORE the decision had been rendered. But for a long time we’ve known that there has been ongoing contact between the RoadSafetyBC tribunal and Government lawyers that makes us cringe and would cause most people to think something very wrong is going on. This discussion about our client’s case was, unfortunately, not news to us or particularly useful.
What was really big IRP news was what followed. There was talk of conference calls, memos, disagreements and ultimately instructions to the RoadSafetyBC adjudicator on how they were to decided the case in an attempt to manipulate the course of the law.
The WOW moment
Obviously we focused in on this. We’ve known for years that RoadSafetyBC lacked the independence necessary to ensure a fair hearing. Knowing it as a lawyer is one thing. Having the indisputable evidence was another matter entirely.
One insightful judge figured it out very quickly. BC Supreme Court Justice McEwan noticed that the decisions in the cases before him were reverse engineered — constructed by the adjudicator starting with the conclusion and then searching and misconstruing evidence to make the conclusion something close to justified. We knew he was right. We’d seen it first hand over several years. But there was a problem.
The function was very similar to what took place with the astronomers who first identified the existence of dark matter. They couldn’t persuade their colleagues of the existence of dark matter because it was something unseen. Like dark matter, what goes on behind the doors of RoadSafetyBC is invisible to the public. We can see the results (gravity affecting bodies in space or reverse-engineered IRP decisions) but others often simply can’t conceive of that which they can’t see.
Well, dark matter has been identified and we now have the evidence of what’s going on at RoadSafetyBC.
Let’s show you the evidence!
Not so fast. We’ve been sitting on it for months and you’re going to have to wait a little longer to see the evidence behind the really big IRP news. But we can now tell you about the mostly secret court case in which the Government sued us to try and put the cat back in the bag.
After we got our hands on this FOI material we had no question that they intended to give it to us but we figured that they hadn’t realized the implications. We knew it had been looked at by mid-management and vetted before it was given to us. We weren’t concerned at all about the material marked “Privileged” because that case was over and it was our case in any event. One of us speculated that they must have been drunk.
What shocked us was that they let slip what actually goes on after you make submissions in an IRP hearing. We now had indisputable evidence that after you make your submissions to the RoadSafetyBC adjudicator, they go to their bosses who talk to Government lawyers and craft some plan that leads to the decision. None of this is disclosed to the driver or their lawyer. In fact, it’s all a big secret.
We decided to take a few days to think about the implications of this. We thought about our options.
We considered just going to the media. We worked through a number of scenarios and ultimately we decided that it was in the best interest of our clients to keep it for our exclusive use. We had the most useful tool we could imagine to deal with RoadSafetyBC for the advantage of our clients. We weren’t going to let the opportunity pass to do the best job we could for our clients.
Our plan was to hang on to the disclosure a little longer with the intention of ensuring it could have maximum effect. Unfortunately, two clients came with facts in their IRP cases that more or less forced us to speed up the process. Kyla submitted the FOI disclosure for an IRP hearing and the shit hit the fan.
The Government’s attempt to hide the truth
How would the Government even know what facts and evidence is put before an adjudicator at RoadSafetyBC? If it were an independent tribunal, that would be your first question. Interestingly, that was one of the first questions the Justice hearing the matter put to the lawyer for the Attorney General.
In any event, somehow they found out that we had their secret. We had indisputable evidence that there was unlawful backroom action at RoadSafetyBC. They were breaking the law.
There was some back and forth, and ultimately we told them that if they wanted to try and hide the truth from the world, they needed to apply to ask a BC Supreme Court Justice for an order. We set a deadline. Then we got the matter into court as soon as possible. The hearing took place in the beginning of March, 2016 and the Judge issued his decision late last week.
We got what we want and what we need
We’ll have a lot more to say about this in the coming weeks. There are twists and turns to the story, and ultimately in the end we’re going to be able to show you the evidence. The Judge in his decision allowed us to use the evidence we wanted and needed and chose the cautious route with the bits of evidence that would likely have been protected by solicitor-client privilege when written. He also only made cryptic reference to that which we may use because the Government can still appeal the case to try and hide the truth from everyone.
The Government wanted an all-or-nothing arrangement and they tried all sorts of legal threats. In the end we got exactly what we wanted but for us it was a brutal battle in many respects. If you want to get a sense of what we’ve been through in the last few months, go back and read some of our recent blog posts. You can read the BC Supreme Court decision here: http://www.courts.gov.bc.ca/jdb-txt/sc/16/07/2016BCSC0707.htm
The future and now
Right now, i.e. today, we’re starting to send in the allowed material to defend our clients in Immediate Roadside Prohibition hearings. We call them them #VictoriaPapers. This is the limited use we have for this material at this moment. We can’t give it out. We can discuss it, albeit still somewhat cryptically. But we can use it full-on to defend our clients, and that’s what we’re going to do.
Over the next few weeks and months this will play out in ways few can expect or imagine. The Government has been in damage control already for a few months now (sorry we couldn’t tell you about this) and there is much to come. And there will be cases before the BC Supreme Court.
How about this for an issue: Is a legal scheme constitutional if it is operated in an unconstitutional manner?
We have the evidence now. We are on fire and we’re going to blow the lid off of this.
This is what’s been happening. It’s really big IRP news.