Proposed legislation will strip presumption of innocence: Defence lawyer

KAMLOOPS – New legislation proposed by the B.C. Liberals this week throws out the presumption of innocence and instead presumes people accused of impaired driving are guilty until they prove otherwise, says a Vancouver defence lawyer specializing in impaired driving.

Amendments to the Motor Vehicle Act strengthen the government’s controversial Immediate Roadside Prohibition, which avoids the scrutiny of court and criminal sanction. Instead, accused drivers or their lawyers, call in to plead their case through a tribunal phone conference. The proposed amendments to prohibitions were introduced by Justice Minister Suzanne Anton in the B.C. legislature March 23.

Prohibitions were introduced in 2010 as a tool to curb the amount of drinking and driving infractions by stripping drivers of their licenses for a set number of days and impounding vehicles after a warning or fail registered on a breathalyzer. The roadside prohibitions have essentially decriminalized drinking and driving in favour of fines and vehicle impoundments. Impaired driving charges in the province have dropped 37 per cent since the introduction of the roadside prohibitions. 

Lawyer Kyla Lee says the proposed legislation must be challenged.

"In every case now people are basically going to have to provide persuasive evidence about their drinking pattern and about what their blood alcohol level would be. It’s an incredible burden to put on people," Lee says adding she and co-workers plan to challenge the law’s constitutionality if it passes.

If a person is served with a prohibition, he or she has seven days to appeal it before an adjudicator via conference call. The calls are not recorded or available to media, Lee says.

“Our courts are open to the public but this tribunal is not,” she says. “The oral hearings are conducted over the phone. (The adjudicators are) in a room with closed door, nothing is recorded other than their own notes.”

Lee argues the issue is complicated when the adjudicator reviewing the case decides what constitutes evidence. Further amendments will allow the Superintendent of Motor Vehicles, Sam MacLeod, to decide on his own initiative what technical, medical or scientific materials can relate as evidence to the applicant's case.

“This change will allow the superintendent to consider expert technical evidence about (breathalyzers). Previously, a B.C. Supreme Court decision found that under the legislation, the superintendent could only consider evidence submitted by the applicant or the police in an IRP review,” MacLeod says in a statement released by the Ministry of Justice communications department.

Lee argues the legislation would grant the superintendent more power to discern evidence.

“They can point to anything in the regulation and call it a technical document. In theory, they could create a report that says whatever they want and as long as it’s prescribed in the regulation as a technical document the superintendent can consider it,” Lee says. "They’re putting restrictions on the type of evidence people can provide and how the evidence can be provided. They’re also opening it up so that the superintendent can go out and create (his) own evidence and seek out evidence. It completely interferes with the whole process of having an independent tribunal."

Previous appeals show reviews of police breathalyzers to determine if a proper reading was recorded. Successful revocations were based on evidence that demonstrated breathalyzers were improperly calibrated, or not documented properly. Lee says if the bill is passed into law, that argument may no longer be applicable.

“They’re setting it up so that everybody’s evidence is rejected," she says.

If an applicant wishes to draw on previous cases for reference, he or she will need to file a Freedom of Information request; adjudicator decisions are not publicly available.

Requests to interview Justice Minister Anton were denied by her communications department. An unattributed emailed statement was offered by the communications department but was refused by Infonews.ca

At this point it is unknown if and when Bill 15 could be passed into law.

Lee is arguing an immediate roadside prohibition case from Kamloops in the Supreme Court of Canada this May.

To contact the reporter for this story, email Glynn Brothen at gbrothen@infonews.ca or call 250-319-7494. To contact the editor, email mjones@infonews.ca or call 250-718-2724.