When the rulings in Goodwin and Wilson came out, I wondered what would happen to Bill 15, the Motor Vehicle Amendment Act. I wrote about this bill and the changes that it would bring to Immediate Roadside Prohibitions in an earlier blog post. Originally, I had thought that the Government might back away from the changes, since the Court commented in Goodwin about the inadequacy of the review process, and the thoroughness of the right of review under the current scheme.
But when I saw the Government's spin on Immediate Roadside Prohibition laws being "upheld" I started to question that belief. After discussion with some colleagues, I quickly realized that the Government was not going to back down. Rather, they were going to do what they had originally intended with the amendments.
The BC Government wasted no time in implementing some of the more disturbing changes to the BC Motor Vehicle Act. The Goodwin and Wilson decisions were released on October 16, 2015. The changes to the Act were enacted by regulation almost immediately afterward, to take effect on November 2, 2015. And very unsurprisingly this was all done with no announcement or fanfare. Not even a blip in the BC Government News Twitter Account.
Of course the Government decided to pass this quietly. They wanted to quickly change the law while people were still distracted by something else, and then use it to their advantage. It's disheartening that our Provincial Government is effectively plotting against the people, but that seems to be the status quo between deleted emails, secretly passing legislation, and celebrating a law being upheld when it was (at least in part) not.
The Government has not yet enacted all of the changes to the Motor Vehicle Act that were passed. The major change comes to Section 215.49 of the Act, which pertains to what the Superintendent of Motor Vehicles may consider in a review hearing. Before the amendment, the RoadSafetyBC Adjudicator was only entitled to consider the information provided by a peace officer, or information provided by the applicant. The adjudicators could not rely on their own internal evidence, such as the Superintendent's Report on ASDs. Of course, there was a time that they did. But the BC Supreme Court found that was contrary to the legislation in a case I argued. Now, the Superintendent can rely on its own internal evidence for the purposes of the review hearing.
The disturbing changes to the Immediate Roadside Prohibition scheme, however, are the manner in which the Superintendent can rely on this evidence. It isn't a situation in which the evidence is provided to the applicant to allow them to address deficiencies in the police report, or to better understand how to advance an argument. No, that would be too fair to drivers. Instead, the change limits the Superintendent's reliance on these documents to determining issues raised by the applicant.
That's right, the purpose is to allow the Superintendent to deal with arguments advanced by an applicant. To reject their evidence.
What's also disturbing about this is that it authorizes the Superintendent to create his own medical, scientific, or technical evidence for the hearing. Which means the Superintendent has the right to be a doctor, a scientist, and an ASD calibrator/operator and expert. This change is frustrating because many times evidence I have submitted on behalf of my clients has been rejected because it's not from an expert source, or some other garbage like that. And yet someone whose skills and training in these areas appear (based on what limited information you can find via Google) to be nonexistent, is now permitted to act in that capacity. For the sole purpose of eliminating arguments.
Even worse, the Superintendent implemented a policy as of June 1, 2015. They no longer accept submissions made after the hearing has closed. My concern, based on experience, is that the Superintendent will attempt to use its own "technical materials" after the hearing has ended, and the applicants will be prevented from making submissions on those technical materials. In any event, even if you could respond to a defect in them, the Superintendent still has the power to write evidence to counter that. It's the ultimate "last word" card. And it's disturbing.
These changes only apply in cases where the prohibition was issued after November 2, 2015. This means that if you got an Immediate Roadside Prohibition this weekend, you are in danger of having the new law used against you. Contact me at my office and I will be able to assist you. I've been working on a strategy to deal with this since the legislation was introduced.