We’ve had some tremendous ups and down in the last few months, particularly with respect to strategic appeals. We’ve received decisions from BC Supreme Court that appeared on the face to be a loss, but that got us exactly what we hoped with respect to our ability to appeal IRPs at the RoadSafetyBC hearing stage. We’ve received decisions that appear to be glorious precedent-setting successes but nevertheless change very little because they are confined to their facts.
Having a number of lawyers working in concert, discussing cases, sharing information about police forces, collecting vast amounts of inside information and actually teaching each other their methods – it’s all incredibly useful.
We know that Kyla’s case from last week will have vast implications for quite a number of people who have already served their IRPs and for IRP defence in the future. Yet the judge didn’t grant the order Kyla sought. Instead he instructed RoadSafetyBC that they’re going to need to re-open cases with new evidence such as that very one. So we didn’t get everything we asked for, but we got everything we wanted. We won and everybody knows it. And the implications of this strategic appeal are beyond what we can reasonably predict at this point.
A loss can be a win with strategic appeals
In a recent blog post, we lamented the loss of a very important case we argued in B.C. Supreme Court. We knew it was going to be a tough challenge but we took it on anyway because we felt that RoadSafetyBC’s inflexible policy to refuse to extend the 7-day deadline to dispute an IRP –regardless of circumstance –is just plain unjust. Having a fair opportunity to dispute an IRP is a crucial right, and we know that many people are denied the justice that they should be fundamentally guaranteed. Intimidation by police, bad legal advice, miscommunication with ICBC agents, health emergencies, hospitalization, family emergencies, death, incarceration, financial hardship, and work demands are just some of the many reasons people may miss the deadline.
The judge agreed with us that RoadSafetyBC was indeed being unfair, but felt there was nothing she could do. It was a tough hill for us to climb because the legal parameters of judicial review are confined to the reasonableness of RoadSafetyBC’s interpretation of the law. Unfortunately, the Court considered itself bound by cases that stand for the principle that a tribunal like RoadSafetyBC is entitled to deference of the interpretation of its own law – no matter how unfair that interpretation is.
This is a huge deal. IRPs are issued at the roadside based only on the results of the ASD and the penalties are immediate and severe. It’s bad enough that the law authorizes police to punish you prior to your ability to dispute those allegations. But it’s even worse that you will be denied this opportunity altogether if you do not file your review within an arbitrarily short and inflexible deadline of only 7 days.
So what now? We aren’t taking no for an answer. We vowed to keep fighting and that’s exactly what we are going to do. We have filed our appeal of that decision and we stand by our argument that fairness ought to trump deference to RoadSafetyBC.
Constitutional tools
Meanwhile, we are seriously looking once again at launching a constitutional challenge to other aspects of the IRP scheme. We feel that this law must be scrutinized from both the inside and out.
The Canadian Charter of Rights and Freedoms guarantees many powerful rights. Laws passed in Canada must agree with those rights, and if a law impermissibly violates one of those rights, it must be declared of no force and effect. In a constitutional challenge, a Court doesn’t look at the law in terms of the reasonableness of the tribunal’s interpretation. Rather, the Court looks at the law from outside. It looks at the constitutional validity of the law from the larger perspective of the supremacy of Charter guarantees.
In a previous blog post, I discussed the constitutional challenge of the original IRP legislation. I was counsel on that case all the way to the Supreme Court of Canada and I assisted in the successful defeat of the government appeal. That law is now defunct.
In Goodwin, the Supreme Court of Canada agreed with the B.C. Supreme Court and the B.C. Court of Appeal’s finding that the original IRP legislation violated s. 8 of the Charter – the guaranteed protection from unreasonable search and seizure. The primary reason for the Charter violation was that the review process was inadequate and did not permit a driver to meaningfully challenge the results of the search. The Supreme Court of Canada concurred that for the law to be constitutional, the review process must permit drivers to meaningfully challenge the alleged results of the ASD tests.
Check out this key paragraph from the Goodwin decision:
[75] …I agree with the chambers judge’s conclusion that the absence of meaningful review of the accuracy of the result of the seizure, in light of the unreliability of the test, raises concerns about the reasonableness of the ARP scheme. Absent such review, a driver could find herself facing serious administrative sanctions without the precondition for the sanctions being met, and without any mechanism for redress.
[Emphasis Added]
Do you see what we see? We feel that this decision has obvious application to the unfair 7-day deadline provision. RoadSafetyBC doesn’t care why you missed the 7-day deadline – but if you did – even if it’s not your fault – then you are flat-out denied a review. This is, in my opinion, inconsistent with the binding decision of Goodwin and inconsistent with your right to procedural safeguards under s. 8 of the Charter to dispute your IRP.
Can this be corrected by permitting fresh evidence as the Court ruled in Kyla’s case? No, because if was clear that you were innocent all along but missed the 7 days, you would still have no remedy to your wrongly issued IRP.
The secrets I didn’t know
I’ve been challenging IRPs and appealing IRP decisions here in Victoria for years, but it wasn’t until about 6 months ago that I joined Acumen Law. I can tell you that the lawyers I now work with are passionate, inspired and bent on driving strategic appeals to chisel away at the weakness in the system. I was a smart hard-working IRP lawyer. But the tools and support that I now have at my disposal here at Acumen have taken me to a new level.
Having a number of lawyers working in concert, discussing cases, sharing information about police forces, collecting vast amounts of inside information and actually teaching each other their methods – it’s all incredibly useful. Now coming to the office every day is an absolute delight because I’m finally working with other lawyers who have a broader view of the scheme and a long-term strategy for strategic appeals. It blows my mind to think of how much I’ve learned in the last 6 months as part of the team at Acumen.
At Acumen Law we’re doing big things. Stay tuned for further updates.