Unprepared IRP adjudicators could hurt drivers

A recent case argued in the BC Supreme Court by our own Kyla Lee affirms what we have said all along: Immediate Roadside Prohibition adjudicators may not be sufficiently prepared in the areas of law they preside over.

In this case, the court identified an adjudicator’s lack of understanding of the law that could have resulting in serious consequences to our client. In our view, the adjudicator’s understanding of the law was sufficiently flawed that the judge directed the adjudicator to review case law on the issue.

Who or what is an IRP adjudicator?

An IRP adjudicator is a person delegated by the Superintendent of Motor Vehicles to oversee disputes in drinking-driving prohibitions. When a driver receives a Notice of Prohibition from an officer for a alleged IRP DUI, the driver has seven days to file an Application for Review. The person conducting the resulting review is the IRP adjudicator. These hearings are conducted either orally or in a written form. At the end, the IRP adjudicator may choose to either uphold a driving prohibition, or accept the grounds on review and revoke the prohibition.

Why was the IRP adjudicator’s mistake an issue?

This case involves a client pulled over and given a driving prohibition for allegedly refusing to provide a breath sample. We take the position that our client was never told that police were investigating him for drinking and driving, contrary to section 10 of the Canadian Charter. Unfortunately, the adjudicator did not appear to be familiar with this area of the law, and we were restricted from being able to argue our client’s Charter rights had been breached.

Section 10 of the Charter states:

Everyone has the right on arrest or detention:

1. to be informed promptly of the reasons therefor;

2. to retain and instruct counsel without delay and to be informed of that right

and

3. to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

There was no confusion to the BC Supreme Court that we were raising a specific Charter issue. The issue was how our client has the right to know the reason he was detained, and that he had a right to consult a lawyer. This is not a convoluted area of law. It’s the Canadian Charter of Rights and Freedoms. It’s the same document that covers the essential rights available to citizens of Canada.

An adjudicator is supposed to decide whether or not someone has the right to drive on the basis of law. But confusingly, the adjudicator said:

“Ms. Lee made a statement that you have the right to know why are you being detained and that this is a Charter Values issue. Ms. Lee did not provide any further information to specify which section of the Charter was breached or what specific behaviour, on the part of the officer, caused a breach.”

How unprepared IRP adjudicators could hurt drivers

Fortunately, our client retained the services of an experienced IRP lawyer who was able to identify the issue in arguments before a judge. This case demonstrates one of the issues with BC’s IRP scheme. Adjudicators are supposed to know and use the law to determine whether or not drivers are suspended. But when there are cases that demonstrate lack of preparedness in adjudication, it can be difficult for appellants to expect consistent, fair and accurate decisions.

In the BC Supreme Court decision, the judge correctly determined that the arresting officer “did not inform the driver of his ss. 10(a) and (b) Charter rights.” Without an experienced IRP lawyer, our client would likely have been stuck with a 90-day driving prohibition, in spite of the violation of his rights.