The laws I'm talking about are where a police officer can issue a 90 day driving prohibition immediately along with impounding your car. The troublesome aspect is the inadequate opportunity to appeal those accusations in a forum that has all the fact-finding tools available and used in our Courts.
These laws, which are administrative prohibitions, are impacting many, many drivers in BC.
It's not the penalties that are generating more buzz, but it's the process in which they're enforced ... or should I say lack of due process.
Before the new drinking and driving laws were enacted in the Motor Vehicle Act, in order for anyone to be found guilty of drinking and driving and have any penalty levied on them, they were entitled to a trial (or could plead guilty). The new scheme provides much less opportunity to thoroughly appeal the 90 day driving prohibition and other consequent penalties (points, vehicle impoundment, etc.).
In fact, the review Superintendent of Motor Vehicles, which is a bureaucratic body functioning as a Court.
When you're issued a 90 day driving prohibition under the new BC drinking and driving scheme, you have 7 days to file for a review. The review is performed by a delegate of the BC Superintendent of Motor Vehicles.
If you're not happy with the outcome of the review, you can appeal by way of petition to the B.C. Supreme Court.
We've done this for clients and it's a viable appeal process, but still it does not provide for nearly as much due-process as the former drinking and driving law regime where you could defend yourself in a trial.
In the recent B.C. Supreme Court decision Spencer v. Superintendent of Motor Vehicles and the Attorney General of British Columbia, 2011 BCSC 1311 [Spencer], the Honourable Mr. Justice McEwan made some comments that are not supportive of the review process.
In the Spencer case, Ms. Kristen Spencer was issued a 90 day driving prohibition on account of refusing to provide a breath sample without reasonable grounds for refusing. Ms. Spencer is a head injury victim who may be perceived as impaired at times. She explained this to the Review delegate and provided medical evidence supporting her head injury diagnosis. Still yet, the Review delegate did not accord this evidence sufficient weight to reverse the prohibition and consequent points on her licence.
Ms. Spencer's defence is that she did have reasonable grounds for refusing to provide a breath sample.
On review, the delegate stated "There is no reason for Cst. Steiger to provide inaccurate evidence on this point [i.e. that the petitioner did not refuse outright to blow; that the petitioner did not acknowledge consumption] whereas you [Ms. Spencer] have a vested interest in the outcome of this review [para. 36 Spencer, supra].
What this statement means is that the delegate of the Superintendent made a decision from a foundation of bias in favour of the police officer's evidence on the basis that Ms. Spencer has an interest in the outcome while the police officer did not.
The point of the Review process is the opportunity to more accurately and carefully assess the situation with consideration of all the evidence.
No doubt police officers make split-second decisions in the field, but when those decisions are faulty, the point of the Review process is to correct those faulty decisions.
In Ms. Spencer's case, no correction was made at the Review level.
Mr. Justice McEwan suggests that the present review process limits the opportunity for fact-finding in order for the decision-maker make an informed decision.
The review is performed in writing, not as an in-person hearing. There is no opportunity for cross-examination. The evidence is not sworn.
These are 3 tenets of our judicial system in presenting evidence and cases - in the criminal and civil realm.
Mr. Justice McEwan observes that people issued a speeding ticket have more opportunity and due-process available to defend the ticket than people issued a 90 day driving prohibition, vehicle impoundment and consequent points on a licence.
Mr. Justice McEwan ordered a rehearing with conditions on how the hearing should proceed, including before a new delegate.
The penalties resulting from an administrative driving prohibition are harsh enough to warrant more due process. In our society being deprived of the ability to drive results in harsh consequences for many people. Many jobs require a licence. I'm not saying there shouldn't be penalties, instead more due-process and the ability to fully defend such administrative charges is a welcome change to the present scheme.
As a lawyer who acts for people charged with administrative driving prohibitions, I see firsthand how the lack of process hurts people who have a defence to the charge. Not everyone who is accused of drinking and driving is guilty, yet the present process makes it exceedingly difficult to defend the accusation. All precautions should be taken in order to protect the innocent.
Police officers are forced to make tough, split-second decision in the field. Mistakes will be made. However, that is where due process comes in to play ... it's an opportunity to fix those mistakes.
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