Sarah Leamon: Emails between government lawyers and RoadSafeBC raise grave questions about procedural fairness

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      Our provincial government is crooked—and we have the documents to prove it.

      This all began shortly before Christmas.

      Around that time, the law office where I work—Acumen Law Corporation—received some government documents that we had requested under the Freedom of Information and Protection of Privacy Act.

      These were documents related to a government tribunal, specifically RoadSafetyBC, which is tasked with adjudicating cases involving 90-day immediate roadside prohibitions.

      For those readers who may not know, a 90-day immediate roadside prohibition is colloquially referred to in this province as a "DUI". It is issued under the Motor Vehicle Act, rather than the Criminal Code, and therefore does not carry the jeopardy of a criminal conviction, even though the penalties associated with it are severe and exacting.

      The recipient of a 90-day immediate roadside prohibition has their licence prohibited right away, on the roadside, and not returned for a period of 90 days. Their vehicle is towed and impounded for 30 days—which they will be financially responsible for along with a referral to the responsible driver program and in many cases the ignition interlock program, all of which is very costly, time-consuming, and stigmatizing. Not to mention the $750 in fines and licence-reinstatement fees and not to mention the driver risk premium.

      This law is undeniably tough—and that is its selling feature. The B.C. government has taken great pride in touting it as the toughest drunk driving law in Canada.

      Now, I have said it before and I will say it again—I am not for drunk driving. No one in their right mind is. However, what I am for is due process and procedural fairness. I believe that when someone is accused of wrongdoing, they should be afforded the basic opportunity to dispute the allegations against them. This is a fundamental tenet of our legal system and a cornerstone of civil society.

      A person accused of drinking and driving and given a 90-day immediate roadside prohibition, however, doesn’t get their day in court. Instead, they get their chance to plead their case to an adjudicator at RoadSafetyBC. The adjudicator is then left with the exclusive task of weighing the evidence and making a fair, impartial, and independent decision.

      This process is nothing new to our province. Administrative tribunals, like RoadSafetyBC, have been around for a very long time and play a pivotal role in implementing legislative policy. They are expected to function at an arm's length from government and must be able to exercise their role in a nonpartisan fashion.

      In order to function properly, administrative tribunals must be free from corruption and the undue influence of government officials.

      ...which brings us back to that infamous freedom-of-information request.

      You see, lawyers in our office routinely make these types of requests for a multitude of reasons—one of which is to investigate whether the administrative process at RoadSafetyBC is fair and free from malfeasance. Our experience told us that it was not. And our suspicions were confirmed.

      The documents that we received were mostly internal emails. Many of these emails were exchanged between various members of RoadSafetyBC, including adjudicators, and government lawyers. Many discussed specific cases—people with 90-day immediate roadside prohibitions who had applied for their prohibitions to be reviewed—and some of them crossed the line between authorized legal advice and coercive coaching.

      In one email, an adjudicator is blatantly instructed to make a particular finding, against her own determination. In spite of her protest and concerns, she is told to do the exact opposite of what she felt was appropriate in the circumstances. And she followed orders.

      This is damning. It is in direct violation of procedural fairness. It goes beyond simply impugning the 90-day immediate roadside prohibition review process—and by virtue, the entire scheme—and exposes a form of corruption at the very core of our provincial government.

      This is why the government wanted to shut us down and lock the documents back up so that they would never become public. It wanted to do this under the guise of client-solicitor privilege. It has already spent a great deal of taxpayer dollars trying to accomplish this goal. After all, it knows how bad it looks, and it doesn’t want the public to know what’s really going on behind the scenes.

      Lucky for us, though, the B.C. Supreme Court ruled that the controversial part of the document in question is not protected by privilege. You can read the court decision here.

      But this ruling hasn’t deterred the government. It is already appealing the decision—and in so doing, spending even more of your hard-earned money. This is something that could reasonably go all the way to the Supreme Court of Canada...and taxpayers like you and I are the ones who will be footing the bill.

      So if you think this is no big deal—after all, it only affects people who drink and drive—you are dead wrong.

      Our government has a duty to its citizens to pass good laws and to uphold them in a fair and transparent manner. A government that does the very opposite no longer deserves to govern.