A Vancouver lawyer is calling on B.C.’s solicitor general to walk the walk when it comes to making changes to the province’s impaired driving laws.
In 2010, the province introduced new, tougher laws around drinking and driving. The Immediate Roadside Prohibition program gives police the ability to issue fines and driving prohibitions to drivers who blow a “warn” or “fail” in a roadside breath test, or who refuse to give a breath sample.
Penalties range from a three-day driving ban and a $200 fine up to a 90-day driving ban, a $500 fine and a 30-day vehicle impoundment for drivers who fail the roadside breath test — blowing a “fail” indicates a blood alcohol level of more than 0.08.
For Vancouver lawyer Kyla Lee, the problem comes with the appeal process. Drivers have just seven days to request a review of the prohibition from the Superintendent of Motor Vehicles. A stipulation, she says, that is not obvious.
“We get a lot of calls from people who missed the seven-day time period because it’s not clearly articulated anywhere,” she said. “It’s in very, very tiny print on the face of the notice of driving prohibition so a lot of people don’t realize [it’s there].”
Lee said she unsuccessfully challenged the seven-day deadline in court in 2015 in a case where her client was unable to appeal the driving prohibition because he was also arrested at the same time.
“So he couldn’t even go challenge because he was in custody,” she said, adding that there are no exceptions to the seven-day rule.
“You could have people that are in a serious motor vehicle accident who are too injured to challenge the prohibition. You could have people who couldn’t do it for reasons of mental health or you’re on your way out of the country or you’re not from here and you go back home and then you don’t have the ability to get to ICBC.”
Lee said another concern is that under the current system adjudicators are not giving reasons for decisions.
In the case of an appeal, adjudicators are required to make a decision within 21 days. That deadline can be extended but only in certain circumstances and under the current legislation adjudicators don’t explain why they are, or aren’t, granting an extension.
“[Mike Farnworth] was very critical of the lack of transparency in the decision making process [when his government was in opposition],” Lee said. “Since he’s been in charge of Road Safety BC, since he’s been the Minister of Public Safety, he hasn’t given any direction to provide reasons. So people are in the dark and I get all these clients who are told ‘We can’t render your decision in time’ and they’re like ‘What’s happening?’ and I can’t give them an answer.”
She said that when the court denied her client’s appeal in 2015 the judge said it was a problem that would have to be fixed in the legislature.
“Which precipitated Mr. Farnworth’s comments when he was in opposition and it’s never been changed,” Lee said. “Not by the last government, not by this government.”
At the time, Farnworth brought the issue and the judgement up in the legislature, questioning then solicitor general Mike Morris.
“The government minister, at this particular time when this particular decision was rendered, came out and said that they would ‘make the system more fair.’ In other words, obviously they had seen this decision, and they were going to do something about it,” he said at the time, going on to point out that nothing had been done.
Lee said the change is simple — essentially the legislation just needs to say that the superintendent “may consider in exceptional circumstances an extension of the seven days.”
“That’s all they need to write and yet nobody is willing to step up and do this even though Minister Farnworth, when he was in the opposition, said that the government should be doing this.”
The Courier requested an interview with Farnworth and was told he was not available and the ministry would not be commenting on the issue.