We discussed in general the opportunity a tribunal has to change the evidence, if in fact their goal is to uphold an allegation. The reason that this can happen is a lack of transparency at the tribunal level. There is no substitute for the cold dispassionate hand of justice as you will find in the courts of this province. In court, transparency is part of the process. In our experience you will not find anything like this type of transparency at an in-house tribunal in Government offices.
Our current Government is not so interested in ensuring justice as it is in bringing in money and scoring political points. They seem bent on undermining the justice system. And because they lack awareness of the consequences of their decisions, they do not understand that in the long run a fair system is in everybody’s interest.
At a tribunal there may be very little by way of transparency. In court the judge knows nothing of the evidence until it is presented at trial. At ADP and IRP review hearings conducted before the OSMV, for example, the adjudicators regularly tell us that they’ve reviewed all of the police evidence before the hearing starts.
You may ask whether this is, in fact, a problem. To us there are obvious concerns — for example that the adjudicator may have already made up their mind before you make your submissions, or researched the law to figure out how to uphold the driving prohibition, or, in the most egregious cases, contacted the police to tell them to change their evidence so as to uphold the prohibition.
Think about that for a second. Imagine if a judge reviewed the evidence before it was even disclosed to the accused, and then had their staff contact the officer to tell them to change their evidence to support the allegation. It’s so offensive that it’s inconceivable to most people.
Earlier this year we noted in the disclosure package for an Administrative Driving Prohibition review hearing a fax from the OSMV to a police officer telling them to change their evidence in a case — pointing out the error that would lead to the prohibition being lifted on review and asking that the officer re-submit the report. And of course, the officer re-submitted the report, with the new evidence.
Unfortunately, the message to the officer is that they can change their evidence after the fact — that this is appropriate conduct for a police officer and appropriate conduct for a tribunal.
On the first occasion we did nothing about it because we knew we would succeed on another argument. Also, questioning the procedure at the OSMV may invite a dressing down at the hearing, which we prefer to avoid.
On the second occasion, we decided to confront the issue head on. To us it was clear that the tribunal was now seeking to be either an investigator, or taking advantage of the lack of scrutiny to invite the police to change their evidence contrary to any consideration of fairness. We were successful in arguing that the actions of the OSMV, contacting the police to tell them to change their evidence and re-submit it, suggested bias.
Although the tribunal always rules admissible and relies on evidence obtained in violation of the Charter of Rights, on this occasion (the only time we have heard of this in over 13 years) it decided to not rely on the evidence obtained in this manner. We suppose that this is because, in this case, it was the OSMV that was exposed doing something underhanded.
Shortly afterward we were contacted by a fellow who lost his review hearing because the OSMV had done the exact same thing — contacting the officer and asking him to resubmit his evidence after changing it to ensure that the prohibition would be upheld on review.
We were willing to appeal this. It is not often, due to the lack of transparency, that you can show a pattern of disregard for fair procedure as we had in these cases. When we took the first step, explaining our case to the lawyers who would need to argue it from the other end, the Government lawyers quickly instructed the OSMV to give our client a new hearing. And then instead of giving him a new hearing, they simply lifted the prohibition, saving the OSMV from further scrutiny.
The limited disclosure requirements in an ADP or IRP review hearing permitted us to identify what was going on in these cases. Of course, we have no idea how many people lost their ADP review hearing because they did not understand this legal argument. It is possible that dozens or even hundreds of people who should have their ADP lifted on review end up losing at their hearing because the OSMV contacts the police to ask them to fix their evidence.
If the world was fair, there would be an inquiry. But instead, it’s business as usual. In the cases we defended, we only figured out what was going on due to the disclosure of some faxes.
But what happens if there is no paper trail, or if the paper trail is not disclosed?
Shortly after the OSMV lifted our client’s prohibition in the third case, we received disclosure in another matter. In this case there were three copies of the evidence.
The first was the full disclosure material, but the evidence was lacking the required facts to uphold the prohibition. Noteworthy is that we have, in over 13 years of disputing ADPs, never seen the police officer re-fax the report unless requested to do so by the OSMV. In this case, however, there was no fax disclosed in the material showing such a request from the OSMV.
Then there was a third faxed copy fixing all of the problems with the evidence. Again there was no fax disclosed showing that the OSMV had contacted the officer to request that the material be re-sent.
Remember that the only reason the OSMV stopped contacting officers with a fax to tell them to fix their evidence is because we learned about it and made a stink when we saw the faxes. The jig was up, but only because we had the evidence by way of faxes from the OSMV to the police.
Bearing this in mind we believe that the officers are now being contacted in some other manner, so as not to produce any evidence that would need to be disclosed. We believe that this is what happened in this most recent case where three copies of the report were faxed, the last one being fixed evidence.
This would never happen in court. But with tribunals things are clearly different. Simply put, because we cannot cross examine the police officer we have no way of getting to the bottom of a matter such as this. How is it that an officer sends his disclosure once, the identical disclosure again a few days later and then sends in a greatly amended version of his evidence a few days later?
We cannot think of a reasonable innocent way that this would happen. We suspect it was a phone call or email that prompted the fix up. The point, however, is that this is the way things can and will happen if matters are not dealt with in court where transparency is guaranteed.
Without transparency, there are plenty of opportunities for mischief. In British Columbia trials in court are transparent. The court only hears of the evidence as it is presented and if the officer changes their evidence it will be revealed during cross examination. This fulfills the constitutional guarantee of a fair trial arising from a police investigation. You have no such guarantee in a hearing before a tribunal.
Keep in mind that the piece of legislation to create the tribunal to preside over Motor Vehicle Offences also eliminates the application of the Charter of Rights including the obligation under section 7 for a fair hearing.
Note:
Many readers have contacted us to request that we cover more issues concerning the Responsible Drivers Program (RDP) and Interlock requirement.
Ask and you shall receive. We will cover some of these issues in upcoming posts.
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