There have been some significant IRP cases in court in the last few weeks, and decisions from court in some key IRP cases. It’s time for an update.
Wilson, Richardson
On Friday May 30, 2014, the BC Court of Appeal rendered a decision in the Wilson case, overturning the decision of the BC Supreme Court. Wilson came out last September, a decision of the BC Supreme Court in Kamloops concerning a Warn IRP. In Wilson the Court said that the legislation required the officer to form an opinion to issue an IRP. The opinion would have to be that the driver was affected in their ability to drive by alcohol. It’s not a difficult test. All the officer would have to do is say that they were of the opinion that the driver was affected in their ability to drive and explain the reason for the opinion. The reason might be as simple as the fact that they blew a “Warn” in many cases.
We think this is an important step in issuing an IRP. In candid conversations (usually in a doughnut shop) officers have told us that there were occasions where they had no confidence in the reading from the ASD, despite not knowing why it was wrong. Officers have told us that were not of the opinion that the driver was affected in their ability to drive DESPITE the reading on the ASD.
So the opinion is an important check on a defective process. Remember that ASD tests are not taken pursuant to the methods acceptable in the international scientific community when you’re using the results to punish people. If an officer is not of the opinion, or can’t express an opinion, that is a check on a faulty process.
We think that the Court of Appeal got it wrong in Wilson. In our view the logic in Murray should apply in the Wilson case with respect to whether or not it’s a consideration, and the Wilson requirement is an important check necessary to protect from the dangers of a faulty testing process. We didn’t argue the case, so we don’t know how it all went down. We have been in contact with the lawyers who argued it see about an appeal to the Supreme Court of Canada.
Many people have court orders putting the driving prohibition on hold because of the Wilson case. These court orders expire 30 days after the Court of Appeal decision, which probably means as of June 29, 2014 the balance of the 90-day prohibition will need to be served. We’ve been through this with Murray and Sivia. Our hope is that we have an indication within two weeks whether Wilson will be appealed to the Supreme Court of Canada. If so, we will seek to have the orders re-instated until a decision comes from the Supreme Court of Canada.
As for Richardson, the decision in Wilson tells us the position of our Court of Appeal on the issue. We may still argue it because we want to put our arguments on the table to explain why we think they got it wrong. If Wilson doesn’t go to the Supreme Court of Canada, it may be our only option. As of now, the Court of Appeal decision in Wilson is the law. Even if the Government doesn’t follow the law, we do.
Scott
On May 29, 2014 the Supreme Court of Canada rendered its decision on the application for leave to appeal the decision in Scott v. British Columbia (Superintendent of Motor Vehicles) 2013 BCCA 554. This is the second IRP decision in which both the BC Supreme Court and the BC Court of Appeal found the adjudicator’s decision to be unreasonable, and yet the Government insisted on filing a leave application.
The issue in the Scott decision was this: Ms. Scott was alleged to have refused to provide a breath sample. The adjudicator came to a decision that was reasonable in terms of it being “within the range of possible outcomes defensible in respect of the facts and the law.” However, the means by which the adjudicator arrived at the decision was unreasonable.
The police were given a presumed baseline of competence and reliability. The Court of Appeal summarized the significant errors in the reasoning process at paragraph 23:
(a) the adjudicator found it highly improbable that the officer, the other driver and the bystander would fabricate their observations without weighing the “possibly equal improbability” that the respondent and her witnesses would fabricate or misinterpret their observations, and it appeared that the adjudicator ignored the evidence of the respondent’s witnesses supporting her version of events (para. 37 and 38);
(b) the adjudicator’s negative assessment of the respondent’s failure to address two aspects of the officer’s report presupposed that the report had a baseline reliability which the respondent was compelled to refute (para. 38);
(c) the adjudicator used circular reasoning by rejecting the respondent’s evidence with respect to her call to her legal colleague based on the adjudicator’s finding that the respondent had refused to provide a breath sample as described by the officer (para. 39); and
(d) the adjudicator found the officer’s narrative to be compelling because it was detailed and did not assess the weight to be given to that narrative (para. 40).
Ultimately, the Court concluded that no adjudicator behaving reasonably (or rationally, in our view. Or fairly. Or impartially.) would have approached the assessment of credibility in that manner.
There has been some speculation in the legal community respecting the award of costs — not generally granted in leave applications — made against the Government. It is very unusual to award costs against the Government and this may point to the SCC’s feelings on the Government continuing to push the issue of these decisions when the lower courts have unanimously found RoadSafety BC’s decision to be unreasonable.
A final note: What’s in a name?
Is it bad press? Last week the Office of the Superintendent of Motor Vehicles quietly changed its name to RoadSafety BC. I guess if you want to get away from continued bad publicity, and the scourge of the driving public in this province, a name change is one way to do it.
Tobacco company Philip Morris was rebranded as Altria and private mercenary company Blackwater was rebranded first as Xe and then as Academi. And Karla Holmoka has a new name too.