British Columbia is a Province famous for its natural beauty, multiculturalism, and its expensive real estate. It has also recently become well known for its tough laws on those caught drinking and driving. In September 2010, the new Immediate Roadside Prohibition (IRP) scheme was unveiled. We all remember the controversy surrounding the strict legislation – severe consequences were handed down to those caught driving with a BAC (Blood Alcohol Content) of over .05. The citizens of B.C. were assured that these strict rules would, over time, greatly decrease the number of alcohol related deaths on our roads. What they weren’t told, was that this decrease in alcohol related fatalities, would cause an increase in unjust, unfair, and even fraudulent prohibitions for drivers caught in the crosshairs of the IRP regime. It wasn’t long after these laws were put into effect that British Columbians started to question the fairness of it all. The case of R. v. Sivia would eventually make its way to the Supreme Court of Canada, to be reviewed by The Honourable Mr. Justice Sigurdson. After months of review, Sigurdson agreed that parts of the IRP scheme were in fact unconstitutional. This led to an amendment of the B.C. Motor Vehicle Act. These amendments increased the onus on the police to follow proper procedure, and added an “adequate appeal process” for drivers who had been issued IRP’s. One of the most important amendments to the Motor Vehicle Act is Section 94.3, which relates to the duties of a Peace Officer when issuing an IRP:
94.3 A peace officer who serves a notice of driving prohibition on a
person under section 94.1 must promptly forward to the superintendent
(a) the person’s licence or permit to operate a motor vehicle, if the peace officer took the licence or permit into possession,
(b) a copy of the notice of driving prohibition,
(c) a certificate of service, in the form established by the superintendent, showing that the notice of driving prohibition was personally served on the person subject to the driving prohibition,
(d) a report, in the form established by the superintendent, sworn or solemnly affirmed by the peace officer, and
(e) a copy of any certificate of analysis under section 258 of the Criminal Code with respect to the person.
These amendments at first glance seem to provide relief to the issues previously noted in Sivia. However, continue scrolling through the Motor Vehicle Act, and you will find an absurd and blatant contradiction in regard to 94.3 (d). Section 94.5 of the Act reads as follows:
94.5 (1) In a review of a driving prohibition under section 94.4, the superintendent must consider
(a) any relevant sworn or solemnly affirmed statements and any other relevant information,
(b) the report of the peace officer forwarded under section 94.3 (d),
(c) a copy of any certificate of analysis under section 258 of the Criminal Code with respect to the person served with the notice of driving prohibition,
(c.1) any other relevant documents and information forwarded to the superintendent, including peace officers’ reports that have not been sworn or solemnly affirmed and the copy of the notice of prohibition.
Section 94.3 (d) and Section 94.5 (c.1) are clearly hypocritical of each other. The purpose of amending the Motor Vehicle Act was to provide a remedy to the unconstitutional parts of the IRP scheme. Legislators seem to have either made a careless mistake, or, more likely, they had crafted Section 94.5 (c.1) as a safety net for individuals appealing their IRP under the basis of a technicality, such as not having the officer properly swear or solemnly affirm their Report to Superintendent.
This is an issue that my office recently faced with a client who had received an IRP. In her case, the investigating officer who submitted the Report to Superintendent failed to have the Report properly sworn or affirmed. The Commissioner had mistakenly signed in the area designated to indicate whether the Officer was swearing or solemnly affirming, instead of signing the jurat provided for his or her signature. After reviewing the new sections of the Motor Vehicle Act, it seemed as though this client could have her prohibition overturned on the basis that the report was not in proper form, as per Section 94.3 (d). This was clearly argued in her written submissions done by our office. When the Adjudicator from OSMV (Office of the Superintendent of Motor Vehicles) rendered his decision on her Prohibition, he simply stated that there was “intent” to sign in the correct area; the Commissioner had simply been mistaken. The Adjudicator made no reference to the new legislation, even though it was provided right to him.
In my opinion, the Adjudicator’s ruling was unfair, unreasonable, and sent the message that if the police “intend” to do their jobs properly, they cannot be held responsible for making a procedural mistake. It makes me wonder what the point was of even amending the legislation. It almost seems like in this case, the legislation regarding duties of a peace officer was treated as a guideline to proper police work, rather than what it really is – a law.
The client has now made the decision to take her matter in front of a Supreme Court Judge for the purpose of a Judicial Review. The outcome of that hearing will be posted on our blog in the near future.