As we’ve explained before, and was clearly stated in the Spencer decision, the OSMV tribunal lacks many of the fact-finding features necessary to make reliable decisions when reviewing an IRP driving prohibition. The legislation prohibits cross examination of the officer. The OSMV tribunal made the decision, without anything in Motor Vehicle Act to back it up, to limit review hearings to 30 minutes. Lawyers are refused any request for disclosure beyond that which the Government wants to hand over. The evidence of the police is, almost without exception, accepted without question and the evidence of the applicant is often parsed and re-interpreted in what appears to be a system of exploiting a loophole in judicial reviews. As lawyers we view the IRP review process as a series of unsound methods to review, consider and ultimately decide what happened in any particular case. The result, from what we’ve seen, is that the review decisions appear to be reverse engineered to ensure that as few people as possible succeed on review.
As lawyers this is the antithesis of our very being. The question for us is how we can get this fact before the Court. In each individual appeal case the Court only considers the case before it. Even though we can establish a pattern beyond any doubt whatsoever, we can’t show this pattern to the Court. Unless we can expose this in some other venue or in some other type of hearing, it’s not something that we can use to defend people. In a particular case, such as Spencer, one may be able to show the Court what’s going on. But if the OSMV ignores the ruling, then what are our options?
As we’ve also said before, the OSMV tribunal has established a pattern of disregarding BC Supreme Court decisions. Court decisions, such as Buhr, Wilson, Murray and Spencer are binding on the tribunal. After all, it’s a tribunal with nothing like the power of the Court. It can’t decide the law. It’s supposedly lacking any authority to interpret the law. The Government makes the law, the Court is supposed to interpret it and the tribunal is supposed to apply it. The rule is that this in-house tribunal must follow the rulings of the Court if there is going to be anything approaching fairness in the system.
Of course, that’s not quite how it works in real life. The tribunal interprets the law all of the time — it’s inevitable, unavoidable and not necessarily a bad thing. What is a bad thing is when the tribunal interprets the law so that the tribunal can ignore it.
We have seen in the last few weeks perhaps the most disturbing example that one could imagine. In the Wilson decision the Court was clear that if the police officer did not have the grounds for the IRP, then the IRP is unlawful and must be revoked. What this means is that the prohibition is invalid if there was not a subjective opinion of the officer and objective grounds to justify that opinion. Simple, right? We thought so. That’s what the Wilson case says.
With great sadness we must report that the OSMV tribunal has made a policy to not follow the ruling of the BC Supreme Court. Whether you say they’re above the law, indifferent to the law, dis-concerned with the law — it doesn’t really matter. The point is that there is a BC Supreme Court decision telling them that prohibitions are invalid in certain circumstances, they are the tribunal tasked with adjudicating these prohibitions, and they have decided as a policy to disregard the Court’s ruling.
This is what they now write in the review decisions:
I have read and considered the Wilson case and I acknowledge you lawyer’s submissions with respect to the Courts ruling in this case. However, section 215.5(4) of the Act requires me to revoke a driving prohibition if I am satisfied of any of the specific grounds set out in that section. Whether an officer had reasonable grounds to issue the Notice is not a stated ground in section 215.5(4) of the Act, meaning that it is not a ground of review. Therefore, I have no statutory authority to revoke a prohibition on this ground.
The recently decided Murray case deals with a report that has not been sworn. This is also not a grounds for review under section 215.5(4) of the Motor Vehicle Act. In this BC Court of Appeal decision, the Court seemed concerned that the Government was disregarding the cautions from Sivia. [UPDATE: The OSMV tribunal is now ignoring the Court of Appeal decision in Murray. We’ll have more news on that later.]
The fact that the OSMV tribunal is following Murray and has made their own policy to ignore Wilson is particularly revealing. We’re telling you this because we believe that it’s important for the public to know that this BC Supreme Court ruling will be ignored if you try to rely on it at the appeal of your IRP.
The Court of Appeal was concerned that the OSMV tribunal was ignoring the cautions in Sivia. The tribunal is now claiming that it cannot give a remedy to people with Wilson-like facts, despite being the tribunal that deals with IRP reviews.
It seems to us as lawyers that the inexorable conclusion is that this is a tribunal with unsound methods. The cautions in Sivia and Spencer haven’t taken hold.
We often find that conducting an IRP review hearing is like a trip up the river; a terrifying journey to the Heart of Darkness, where logic and normal deference to BC Court decisions doesn’t apply. So be warned.