Sarah Leamon: Bill 17's changes to traffic court add up to brazen denial of due process and access to justice

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      British Columbians are subject to some of the strictest driving regulations in the country. High insurance rates aside, ICBC’s strict penalty point system for traffic offences can result in harsh fines, driving prohibitions, and a bevy of other consequences. 

      And it’s about to get worse.

      On March 28, Attorney General David Eby quietly tabled Bill 17, otherwise known as the Miscellaneous Statutes Amendment Act. Sounds innocuous enough—but don’t be fooled.

      If passed, this bill will make some major changes to the way that traffic court matters are dealt with in B.C., and it could have some pretty serious implications for your rights as a driver.

      As of right now, a person who is issued with a traffic ticket has the right to dispute that ticket in person. The hearing takes place in a courtroom and the issuing officer is expected to attend. 

      If the matter goes to trial, the officer will provide evidence and be subject to cross-examination. The disputant then has an opportunity to present their case.  The presiding Judicial Justice of the peace will make a ruling after weighing the evidence and hearing legal arguments. Disputants can either represent themselves or have a lawyer represent them. 

      Aside from being a good example of due process, traffic court disputes are relatively thorough yet succinct. Traffic matters that proceed to trial normally start and conclude within just an hour or two.

      The vast majority of matters, however, do not go to trial. They are concluded within minutes. This allows traffic courts to have multiple sittings a day, hearing dozens of cases in each sitting.

      And while every system has its flaws, the traffic court system is a pretty good example of one that works—and works well. 

      Vancouver lawyer Sarah Leamon says if traffic court isn't broken, why fix it?

      But Bill 17 aims to overhaul that. 

      For starters, it would move some traffic matters—a mysteriously undefined category—out of our courtrooms altogether. It would put them online instead.

      Ask any lawyer—two years of virtual hearings over the course of the pandemic has taught us that moving things online does not necessarily translate into efficiency. Technological malfunctions and equipment issues are among some of the more common reasons why proceedings are derailed and delayed in an increasingly online world.  

      Moreover, online hearings are generally not conducive to the trial process.  Using an online platform to provide evidence, both orally and by way of exhibits, presents enormous practical hurdles. Even during the height of the pandemic, trials where such evidence was required were ordered to proceed in-person. 

      But the provincial government has overlooked these realities in Bill 17. And that’s not all. 

      The bill also seeks to regulate how online traffic court conferences take place.  For example, it would regulate who may appear for the prosecution, who may preside over the conference and who may—or may not—appear for the disputant. 

      There are two big red flags here. 

      First, traffic matters may no longer be decided by a Judicial Justice. This bill would make it possible for such matters to be decided by an administrative adjudicator with no formal legal training whatsoever. This is a troubling prospect, to say the least. 

      Secondly, the ability to prevent a category of persons from appearing on behalf of the disputant raises some pretty serious concerns about access to justice. 

      After all, it would not be possible for the government to exclude the disputants themselves—but, it would be possible for them to exclude their counsel. 

      If this legislation is aimed at eliminating lawyers from traffic court proceedings, your rights could be seriously undermined. 

      Indeed, the right to counsel is an important facet of our justice system. So much so, in fact, that it is a Charter protected right upon arrest or detention. 

      Lawyers help people navigate a sometimes complex and indiscernible legal system. They act as an important barrier between the state and their clients. They protect against government over-reach and ensure that your rights are protected.

      This is just as true in traffic court as it is anywhere else. 

      When you actually look at it, this seemingly innocent bill is anything but. It simply does not bode well for the rights of British Columbians. Restricting in-person proceedings, eliminating Judicial Justices, and prohibiting people from accessing legal counsel all boils down to the same thing—a brazen denial of due process and access to justice. 

      Bill 17 is currently in its first reading.