The BC Supreme Court seems to be taking an increasingly dim view of the decision making process at the OSMV. Just last Thursday the Court terminated a 1-year driving prohibition because “[i]t was arbitrary, and completely unreasonable to issue a prohibition on the level of proof offered by the officer.”
If you received an IRP and conducted a review, no doubt you have formed your own opinion of the process. There is little more to be added to what the Court already stated in Spencer and Wang, which is the decision from January 24, 2012.
Here are some interesting comments from the Wang decision:
[15] Because Mr. Wang has disputed his violation and ticket there will be a hearing. The nature of that process is that the police will be obliged to prove the violation on evidence before a legally trained judicial justice of the peace. Should Mr. Wang be convicted, his driving record will reflect one more breach of the Motor Vehicle Act, a matter which may then be of interest to the Superintendent. The particular circumstances that were proved would also be available to the Superintendent.
[29] Constable Lichtmann’s report does nothing more than recount hearsay complaints regarding a group of vehicles being driven irresponsibly. There is no specific information tying any vehicle of any specific description or licence number to any specific act of irresponsible driving. There is no evidence that Mr. Wang committed any infraction of any kind. At most there is a circumstantial case that he was part of a group of motorists about whom unidentified callers made generalized complaints. It is reasonable to infer that the group that Constable Lichtmann ultimately intercepted included the drivers the callers had observed. Constable Lichtmann did not personally observe any objectionable driving however, and the record before the Superintendent shows no evidence that could lead to any specific belief that Mr. Wang had done anything in particular, except that he was associated with the group. No amount of “training” can make evidence out of what is not evidence. The appellant does not assert an alternate set of facts, he simply says the officer acted in the absence of a factual foundation.
[30] On the record the officer did not have reasonable grounds to give Mr. Wang a violation ticket. Even if, having issued the ticket, he was entitled to wait to see if the violation was effectively acknowledged by the lapse of the 30 day time limit to dispute, once it was filed, it should have been clear that specific proof of a violation would be required.
[31] The Constable’s election to pre-empt due process by writing the letter he did to the Superintendent, and the Superintendent’s willingness to act on what was clearly an untenable foundation, is not assisted by the Superintendent’s claim that the officer’s training made the report reliable or that somehow a presumption of “regularity” can be called in aid of a record documenting no evidence that would found a reasonable belief in any specific act of objectionable driving.
[32] The Superintendent‘s submission that Mr. Wang’s failure to challenge the report such that its “official status … takes on even greater importance” or that the issue of the violation ticket “confirms the driving incident” is simply an attempt to bootstrap credibility onto an inadequate set of facts. It should have been obvious to a trained officer that more investigation would be required to have reasonable grounds that an offence had been committed by Mr. Wang, let alone to prove the offence to the requisite standard. Perhaps that investigation is being undertaken in relation to the dispute that Mr. Wang has filed. Should the violation be proven after a traffic court hearing the Superintendent will then be in a position to reconsider Mr. Wang’s record and any violation, under s. 93(1).
[33] The officer, in the first instance, and the Superintendent, in turn were, more than a little ahead of themselves here. The incidents members of the public observed were obviously disturbing. It is understandable that the officer and members of the public were unimpressed with the circumstances and the attitudes of those suspected of being involved. It is still the law, however, that we sanction people for what we can prove they have done, not for what we suspect they may have been a part of; nor do we substitute arbitrariness for due process because the public is in an “uproar”. We have due process to ensure this does not happen.
[34] It was arbitrary, and completely unreasonable to issue a prohibition on the level of proof offered by the officer.
[35] The appeal is therefore allowed and the Superintendent is ordered to terminate the prohibition imposed under s. 93 forthwith.