You may remember our blog posts about the decision in Kenyon when it was first released: A good decision and Look at the evidence, then decide.
We pointed out that the Government was very upset about the Kenyon case and its implications. So when we learned that Kenyon had been appealed, we weren’t surprised. Not one bit. You may also remember that the Government’s tactic all along has been to appeal almost every successful judicial review decision.
It appears that the Court of Appeal saw through the Government’s end-run around fairness and objectivity in the review process
The Kenyon decision was appealed along with two other cases: Clark and Petrov. We assisted the lawyers in preparing the documents for the appeals, and I was asked (somewhat last-minute) to argue the Clark case when the lawyer for Mr. Clark became unavailable. So we have been closely involved this group of appeals.
We also have our own matters before the Court of Appeal, which will be heard in early 2016. I will be arguing three cases dealing with issues regarding the reliability of approved screening device results. As we said, this Government likes to utilize the Court of Appeal whenever it is unsatisfied with a judicial review decision.
Last week the Court of Appeal released the trilogy of judgments. It was a quick turnaround time, and after some of the comments in Court made by the Government and from the bench, we were anxious about how the cases would play out. In the end, the Court of Appeal reinstated the adjudicators’ decisions in Kenyon and Clark, but agreed that the case in Petrov was not handled correctly.
The Kenyon decision formed the main judgment of the Court of Appeal. The other two cases relied on commentary from that case for their analyses. We were curious to see what the Court had to say about some of the Chambers Judge’s frank comments about the inadequacy of the review process. Justice McEwan had commented that some cases may result in, effectively, a “tie” because there are not the ordinary means to discern the truth when you strip away procedural protections like cross-examination. We were worried that the idea that this is sometimes an inadequate review process might have been lost in the shuffle of material before the Court.
Here’s what the Court of Appeal had to say about that:
I acknowledge that the review process is far from perfect. There is no cross-examination of any of the parties, and the adjudicator is typically asked to make credibility findings on the basis of a written record… I agree there will be some cases where the written record will not permit the adjudicator to decide which version of events is true. In such a case, the adjudicator cannot be satisfied that there was compliance with the statutory requirements, and the driving prohibition must be set aside.
During the hearing, the lawyers for the Government also urged the Court to rule that the police could be presumed to have a credibility advantage because they have no interest in the outcome of the hearing (not true: The Police Never Have Bias… or do they?) and because they are trained to be objective observers. They also suggested that disbelieving an applicant because they have an interest in the outcome of the review would also be an appropriate basis to render a decision.
We were gravely concerned that the Court of Appeal would allow that argument. Imagine – a review process that is far from perfect, but which allows adjudicators to reject an applicant’s evidence because they applied for review and accept a police officer’s evidence because they are a police officer. Every case would be decided in favour of the police, every time. We know from prior experience that the BC Government is unconcerned with providing an adequate review process, and that they put up obstructions to justice in the way hearings are conducted, see: Justice — swift, severe and all in 30 minutes or less and The fine print on BC DUI driving suspensions and A new low for the BC Government and the IRP scheme.
There is no mention of that in any of the decisions. It appears that the Court of Appeal saw through the Government’s end-run around fairness and objectivity in the review process and found that those arguments were so beyond the pale that they weren’t deserving of comment.
And rightly so.
We are pleased that the Court of Appeal recognized that the review process is far from perfect. And we are pleased that the Court of Appeal did not reverse the law regarding the credibility assessment that must be done by adjudicators. Not all of these decisions may have been successful, but they will not have a wide-ranging negative impact on the review process for people waiting for their IRP decisions. And that is very important.
At this point many British Columbians know full well that the RoadSafetyBC review process is far from perfect. The BC Court of Appeal is starting to express their understanding of that now too.