Last week there was a SNAFU at the OSMV that we’re still trying to sort out. This affects some people with old IRPs.
If the driver received an IRP before November 30, 2011, and then had a lawyer secure a court order putting the driving prohibition into abeyance until Sivia is resolved, the driver may be affected by the SNAFU at the OSMV. We’re still piecing things together, but from what we can determine this is what happened:
Old IRPs in abeyance:
The first version of the IRP scheme was found unconstitutional on November 30, 2011. In the months leading up to that decision, and in the weeks that followed, many BC drivers who were issued IRPs hired lawyers to obtain a stay of the IRP driving prohibition pending the outcome of the inevitable appeals.
What this meant is that the driving prohibition would be lifted until the appeals were resolved. If the final appeal court said that drivers must serve the balance of the driving prohibition, then all of the people with a stay of the prohibition would then need to serve the balance of the driving prohibition.
On March 3, 2014, the BC Court of Appeal rendered its decision in the substantive appeal of the first IRP scheme. The Court confirmed that the first version of the IRP scheme violated s.8 of the Charter of Rights. The issue of the remedy that should be awarded to people who received an IRP under the unconstitutional scheme has yet to be argued before the Court of Appeal. We first explained the original court decision on the remedy issue here and we explained the implications here.
30 days from when?
The orders putting the driving prohibitions in abeyance speaks of lasting 30 days beyond a resolution of Sivia in the Court of Appeal. That could be April 2nd, or 3rd, or thereabouts, or some other date depending on what’s happening with the litigation. So when the decision came out on March 3, 2014, we wondered whether this could be the trigger. We’re not the law office who ran Sivia, so we can never know exactly what’s happening. The lawyers who are handling it are professional and skilled. We spoke to them and confirmed a few things:
a) the issue of remedies was still before the court,
b) the recent Court of Appeal decision would likely be appealed to the Supreme Court of Canada; and
c) if the Supreme Court of Canada refused leave to appeal, or merely confirmed the Court of Appeal’s decision, the issue of remedies would then be sorted out before the court.
This made perfect sense to us. It seems like the logical way of dealing with it without wasting court time. And bearing in mind that the law was basically repealed and was found unconstitutional twice, the real issue is whether people who were caught under the unconstitutional law should be punished. So without some other court decision that significantly changes things, the date that the court renders its decision on remedies should be the trigger to the 30-day count.
We asked in email and from the Government lawyers for a clear statement from the Government whether they take the position that March 3, 2014, was the triggering date for the 30 day period or whether the date will begin once the issue of remedies has been resolved. We did not receive a clear response. We were told that so long as the lawyers arguing Sivia filed at the Supreme Court of Canada, the stays would remain in place.
Shit, meet Fan.
On April 8, 2014, a client called to report to us that the police had him in their computer as a prohibited driver. We then learned that the OSMV had listed several hundred people as prohibited, on the assumption that the 30-day period from the most recent Sivia decision was the trigger to the 30-day countdown. We decided to investigate.
Our telephone calls prompted the OSMV to send out letters on April 10, 2014, stating that in each case they had marked the driver as prohibited as of April 3, 2014.
We learned that lawyers for the Government had informed the OSMV that they should consider Sivia a closed matter as of April 3, 2014. We learned that they came to this conclusion because the 30 days to file an appeal to the Supreme Court of Canada had gone by without any appeal filed on behalf of the drivers. And, because not much had happened regarding the remedies argument, the lawyers for the government told the OSMV that they could consider March 3, 2014 the triggering date.
Does that make sense? It might if you thought the appeal limitation to the Supreme Court of Canada is 30 days. In fact you have 60 days to file an appeal to the Supreme Court of Canada.
So it appears that the lawyers for the Government didn’t know that the appeal period was 60 days. And when 30 days went by without an appeal filed, they told the OSMV to go crazy and prohibit all of these nice folks from driving. Remember, this is for Immediate Roadside Prohibitions that are are now several years old.
The state of things
Right now hundreds of British Columbians, including a few dozen of our old clients, are listed as prohibited drivers in ICBC’s computer system and the police computers. It appears to us to be a big mistake.
We understand that the Government lawyers have been reminded or educated about the 60-day limitation period at the Supreme Court of Canada and about the process to which everyone apparently agreed to address these outstanding cases.
We understand that lawyers are going to court this week, but it hardly seems necessary. This is a SNAFU at the OSMV that arose when someone misunderstood the arrangement because they didn’t have in mind the 60-day limitation period.
Meanwhile, the shit is hitting the fan because people all around BC are receiving surprise letters from the OSMV that says they’re prohibited from driving.
We expect dramatic developments early this week. Either the Government will admit the mistake and simply fix the error in their computers, or lawyers will try to get hearings on right away to re-instate the status quo.
What about the Interlock and Responsible Driver Program?
In autumn 2012, we brought a challenge to the mandatory Interlock and Responsible Driver Program component of IRPs. As a result, the Government changed their policy and updated their policy manual.
The most recent Government policy says that IRPs issued before November 30, 2011, no longer trigger the Interlock or Responsible Driver Program requirements. Consequently, most people with an old IRP should now be exempt from having to install an Interlock and from attending a remedial course.