We explained the other day that people who disputed their IRP issued in November 2011 have been getting letters from the OSMV saying that they want them to have another hearing. In most cases the hearing was already conducted, but the letter says that the adjudicator no longer works there (not always true) or that there is some other reason that they need to re-conduct the hearing.
Of course it’s contrary to natural justice to unilaterally put the case over for a year, and it’s yet more offensive that all of these people have had this hanging over their heads. And a year later, now, if you lose your review hearing, you will need to pay the money and serve the punishment. What kind of garbage is that?
Okay, but which law applies?
So this is completely unfair. That doesn’t surprise anyone. What we want to know is what law they intend to use at the IRP hearing? Which law applies?
The old IRP law
The old IRP law no longer exists. It was struck down and then replaced by new legislation. Can you conduct a review hearing under rules and a law that no longer exists?
When considering questions such as this courts typically look at the law to determine if the change is procedural or substantive. If the offence itself doesn’t change, then it’s probably considered procedural. Substantive changes need to impact a preexisting right. In the case of the new IRP laws, the offences remain the same but the changes expand to some extent on the barely discernible rights you have when you get an IRP.
And then you’ll remember that in the Sivia decision the BC Supreme Court found that the IRP review procedure was flawed. It was a section 8 violation because the procedure guaranteed that innocent people would not succeed in the review of their IRP.
So what are we left with? The OSMV cannot apply the old law because the new law is a procedural change primarily designed (they say) to address the concerns of the Court in Sivia. The main concern of the Court in Sivia was that the procedure in the old law was grossly unfair.
If, however, the new IRP law is applied, it may be that everyone wins because the new IRP law demands that the police provide evidence on certain matters, like the maintenance of the roadside breathalyzer (ASD), that is not before the OSMV.
Transitional legislation saying which law applies
If the Government was honest, they would have written in the new law a transitional provision to deal with this issue. They could have addressed the issue when they rammed the legislation through the last legislative session. They knew about this. It was on their radar. Instead, perhaps, they hoped than no one would notice as they tried to pull a fast one.
We’re on to them. If they try to apply the old version of the IRP law, we’ll get the appeal going within days. If they apply the new law, as we say, it may be that everyone wins.