We are criminal lawyers so our job is to advocate for our clients. This we normally do in a quiet manner, working behind the scene to get the best results attainable for our clients while protecting their privacy. And we do our job very well. What is unusual for us is to advocate in the media or the public sphere concerning government policy. And of course, this became a large part of our firm’s work in the last 2 years.
If you have been following our blog, you know that we have concerns about the direction our province is going with respect to the legal protections provided by our courts. There is a movement to have matters dealt with by tribunals, rather than courts which can threaten or undermine transparency, fairness and oversight in certain situations. There is the IRP scheme which listed only specific defences, omitting innocence as a defence. Legal Aid has been embarrassingly underfunded for years.
The Government attempted to greatly reduce the number of sheriffs until they faced a backlash from the judiciary. And then we are still facing a significant shortage of judges. The Government has indicated a desire to avoid paying for new judges. We think this is a disservice to the people of British Columbia and a threat to our economy. BC is already broke, and a dysfunctional court system will not help matters with respect to commerce and our economy. No one wants to do business where the courts are too overstretched to resolve contract disputes. It seems to us that this is the direction we may be headed in BC.
In any event, after a great deal of debate in our office, all of the lawyers and staff agreed that it is important at this crucial time to step up and take on an additional new role as public advocates. Clearly we have a number of concerns, but we decided to focus on the area in which we have the greatest expertise, i.e. criminal law, drinking and driving and the IRP scheme.
The IRP scheme pushed us to take on a new role. We already had the roadside breathalyzers (ASDs) and we have been representing people with Administrative Driving Prohibitions (ADPs) for years, so it made sense.
In our first IRP review hearing, only a week or two after the scheme came out, we argued that the hearing should be adjourned to obtain the video and audio recording referred to in the police report. There was a conflict in the evidence that would show our client was innocent. There was a video and audio recording that was clearly relevant. So we asked that the matter be adjourned to obtain this material. The adjudicator told us that she would have to speak to her supervisor.
We then argued that it was inappropriate to have a supervisor making the decision, that we should be making our submissions to the decision maker and if this is indeed the case, we wished to speak to the supervisor. There was a silence. And then we were told that our application had was denied — that there would be no adjournment and and no attempt to get the evidence referred to in the police report. We appealed the matter, but due to Sivia we doubt that this case or many of the others will make it to the point of presenting arguments in Court.
But this raised red flags for us. We had an office meeting to discuss the implications of the decision. Each week we received decisions that were similarly strange. We then decided that the appropriate step was to collect the material that would allow us to explain most clearly that innocent people were getting stuck with IRPs.
Mainly because of privacy concerns, there are limits on the manner in which we could expose the system. We have talked to hundreds of people, many of whom have had a completely bizarre experience dealing with the bureaucracy. This, however, is hard to explain to anyone who has not gone through it. We decided therefore, to dig for more information on the devices and their use. And what we found surprised even us.
The essence of the problem was explained in some of the news stories (see here, here and here). We received a great deal of support for going public with our concerns. We exposed the tip of the iceberg, but it was enough to fuel the debate about the IRP scheme. We were also subject to derision, threats and caustic comments from people who were angry at us. We expected this. It fueled our resolve.
Bad laws are the worst sort of tyranny, there is a limit at which forbearance ceases to be a virtue, and there is nothing like the cold neutrality of an impartial judge. (see: Burke)
As Criminal Lawyers we decided to take on the bad law, which meant that the time of forbearance was over.
We believe in the law and the ability of our justice system to resolve disputes in a manner which, although imperfect, is reasonably fair. Our public advocacy in opposing the IRP scheme is to defend our justice system. We believe that this is our duty as lawyers.