If you receive an Immediate Roadside Prohibition, your first thought may be “how can I fight this?” Then you get online, and you start reading about disputes and the appeal remedy for a 90-day Immediate Roadside Prohibition (IRP). Some of the information the government puts out suggests that you can take your shot at their internal tribunal and if that doesn’t work, you can simply appeal to BC Supreme Court. This post is here to explain why this is simply wrong and misleading. The appeal remedy for a 90-day Immediate Roadside Prohibition is no remedy at all for most people.
90-day Immediate Roadside Prohibitions are issued in two circumstances. Either the police allege the driver blew Fail on a roadside breathalyzer (Approved Screening Device / ASD) or the driver failed or refused to provide a breath sample. If you wish to dispute the IRP there are thousands of arguments you could advance although the Government tried to boil them down to less than a dozen. They have their internal tribunal at the Superintendent of Motor Vehicles office which is the first step in challenging an IRP.
We deal with that tribunal every single day so we know exactly how it functions. As you can imagine, we’ve gathered a lot of information and experience dealing with them. This is where the actual opportunity to challenge your IRP happens, but often people come away with the wrong impression about the tribunal’s role. There are two main misunderstandings.
The first is that the Superintendent of Motor Vehicles tribunal can help you because of your personal circumstances. The fact is the tribunal is barred by legislation from considering the harm that the DUI prohibition will cause you. They cannot revoke a prohibition because you are a good person and this is your first time. They cannot revoke a prohibition because it will cost you your job or you will not be able to pay your mortgage. People often to fail to understand this and they try a do-it-yourself dispute. This is one of the reasons they lose.
The second misunderstanding is that if you lose, you can simply appeal to court and have a real hearing in front of a judge. This is the appeal remedy. It doesn’t work that way and we’ll explain why.
When you have a trial in front of a judge, the judge gets to make findings of fact. Basically, they can say this is what happened. Then they apply the law to the facts to make the conclusions about what results should flow. There are major flaws to this system, but this is the system we have. How judges make findings of fact is a concern. Whether they have the tools to make findings of facts with the information they have is another concern.
Courts get things wrong
If you look at the significant number of people who have been wrongly convicted of serious offences, you may extrapolate to conclude that an even larger number of people have been wrongly convicted of minor offences. That’s on the standard of proof “beyond a reasonable doubt.” Even with that standard, innocent people get convicted.
When it comes to IRPs, the “court” is the tribunal and the findings of fact are made just based on the paperwork before them with no further inquiry. And on top of that, they do not apply “beyond a reasonable doubt” but rather “a balance of probabilities.”
Think about that for a moment. Our courts make wrong decisions and wrongly convict people on a “beyond a reasonable doubt” standard. It reasonably follows that the courts and tribunals are wrong even more often when the standard is a mere “balance of probabilities.”
This is the type of thing that keeps lawyers awake at night.
The tribunal
The tribunal at the Superintendent of Motor Vehicles makes the findings of fact. When you have a trial in court, the court makes the findings of fact. But when a matter is appealed, either from a trial in court or from a hearing before the delegate of the Superintendent, the findings of fact are not revisited. In other words, at the appeal you are left with the findings of fact of the first hearing.
As we said above, the first hearing is where the adjudicator makes the findings of fact. Basically, they decide what happened. Then they apply the law to the facts to render their decision.
An appeal of an adjudicator’s decision
When it comes to an appeal of an adjudicator’s decision, the appellant court, which is the BC Supreme Court, does not allow new evidence and relies on the findings of fact made by the adjudicator at the tribunal. The court describes their role this way:
Judicial review is not a new hearing, but a review on the record of what was before the Adjudicator. This Court has a narrow role on this review. It is to supervise the Adjudicator’s decision to ensure that it was made within the confines of legal authority as established by the MVA. This Court’s role is to determine whether the Adjudicator’s decision was reasonable. The hallmarks of reasonableness is justification, transparency and intelligibility: Vavilov at para. 99. It is a deferential standard: Dunsmuir v. New Brunswick, 2008 SCC 9 at para. 28.
What this means is that the court hearing the appeal won’t upset findings of fact made by the tribunal and it won’t consider or allow a party to argue new evidence before it. The court limits its consideration to where the tribunal was wrong in law, and even in that scenario it may defer to the tribunal because of the tribunal’s particular role. The only exception is where the finding of fact amounts to an error of law. The court will not reweigh the evidence.
At this point you have probably started to see that the appeal remedy for a 90-day Immediate Roadside Prohibition via an appeal of the tribunal decision is no remedy at all. The facts are already fixed in stone. The court hearing the appeal takes a narrow approach and defers to the tribunal. Add to that this disturbing part of the process: if you are successful in appealing the tribunal decision to BC Supreme Court, the judge orders that the matter go back to the tribunal for a new hearing!
The perverse incentive and the corrosive effect on the justice system
We are naïve. For the longest time we all assumed that police officers just told the truth. Some people still think that but video recordings of so many police interactions tell us we can’t rely on this naïve assumption.
The practice of deference to the findings of fact are heavily informed by ongoing naivety. The justice system operates on the assumption that every judge and tribunal maker isn’t making findings of fact to fit a particular result. We assume that every judge or adjudicator isn’t approaching their task by making findings of fact that would fit the legal test that they want to use to get to the particular decision that they personally would like to see. Still, knowing that this is how the system works provides an incentive to do just that.
For example, in the case of an IRP review, the adjudicator may dismiss errors made by the police to then say the police evidence is reliable and yet focus on misstatements or minor inconsistencies made by the applicant to say the applicant is not truthful. This may get to the ultimate result of upholding an IRP. The adjudicator knows, if the IRP is appealed, the court hearing the appeal will defer to the findings of fact.
That they know this, that the appeal court will defer to the findings of fact, provides a perverse incentive to the adjudicator or the judge as the case may be, to make certain findings of fact to make the decision go one way or another.
It is naïve to assume all judges and adjudicators approach their job without these considerations in mind. It may be our naïve assumption but we assume tribunals and courts caution themselves not to make decisions in this way. Nevertheless, it must be in the back of one’s mind. One cannot help but be influenced by knowledge of the process.
When those in the justice system adopted this approach, piece by piece over the years, they apparently failed to consider that entrenching this rule would provide a perverse incentive for judges and adjudicators. Even those who deeply internalize their role to be objective cannot but be influenced by this mechanism.
Courts are not perfect
Courts and tribunals make mistakes. If you look at the number of wrongful convictions, you can conclude that they make mistakes. When you consider that the findings of fact can’t be appealed, you must conclude that courts and tribunals make mistakes in concluding the facts and often there is no appeal remedy.
The lessons from this
The world isn’t fair and the justice system has some systemic flaws. If engineers operated with a system similar to our justice system, bridges would be collapsing on a daily basis. There is inadequate reflection in the justice system in our view and risks if you question the status quo. When people are found to have been wrongly convicted, they get some money and we say it was justice delayed. Those whose wrongful convictions are never corrected just live with knowing they did not receive justice.
Take your best shot at the tribunal level
When it comes to IRPs, the lesson is that you need to do everything possible to make it so the government tribunal cannot make findings of fact to get to the result the government would like to see. The way to do that is to advance the best case possible at the hearing level. When you conduct your IRP review hearing at the Superintendent of Motor Vehicles you need to take your best shot. You must be cognizant that a further appeal is not likely to provide a remedy.
Preparation and the conduct of IRP review hearings is an onerous task but something IRP lawyers know very well.
If you have been issued an IRP, you should speak to an IRP lawyer. Paul Doroshenko, has been defending 90-day DUIs for nearly two and a half decades. Kyla Lee wrote the textbook on defending Immediate Roadside Prohibitions in Western Canada.
If you would like to discuss your case with an IRP lawyer, we’re just a text, email or phone call away. Contact us now.