If you’ve read some of the previous blog postings, you’ll see that we dug up a lot of material over the last 16 months concerning problems with the ASDs. We knew that it was a mistake to rely on them for harsh punishment. So we were encouraged when the Spencer decision came out a few months ago.
The Spencer decision largely foreshadowed the Sivia decision, which found the scheme unconstitutional. In Spencer the Court found that, if there was to be any confidence in the IRP review process, the tribunal should consider the best evidence. Because the police would typically not give the applicant the evidence, it was up to the OSMV to obtain it and disclose it.
After Spencer came out, we began to request disclosure that we knew the police had and that was relevant to the defence of our clients. We asked for the disclosure from both the OSMV and the police. Not surprisingly, the police refused to give us the information we requested. The OSMV response may come as a surprise if you are unfamiliar with dealing with the Government. Here is what they wrote us in an IRP review decision:
I denied the request of an adjournment, despite the opinion of the judge in the Spencer case. I believe that the remarks made by the judge are non-binding on this office. In my opinion, this office does not have to request or obtain additional evidence from the police, when requested to do so by an applicant. I will proceed with the evidence before me.
It appeared that the OSMV had made the decision to disregard the Court’s decision in Spencer, despite the fact that it was directed at their office.
We mention this because people are wondering why the Government hasn’t started writing cheques to refund the money that they shouldn’t have taken, and why the government hasn’t instructed ICBC to re-issue licenses.
The OSMV is still conducting review hearings on IRPs issued before December 1, 2011. In our opinion, the only finding that an adjudicator can make is that the law is unconstitutional and not saved by s.1, therefore there is no prohibition to revoke (therefore go get your licence back). Nevertheless, they are conducting review hearings and as far as we can see they are not applying Sivia.
It appears to us that the OSMV is taking the position once again that they believe that “the remarks made by the judge are non-binding” on their office.
The Globe and Mail notes that the Government has been uncharacteristically silent since its earlier declarations that the ruling is merely prospective. In our view, this declaration was wishful thinking. The Government took as much as $80 million from drivers for an unconstitutional scheme. It’s time to give back the money and licenses.