Justice McEwan, from BC Supreme Court in Spencer v. Superintendant of Motor Vehicles.

Cite to Spencer 2011 BCSC 1311.
[60] The statutory scheme raises many questions beyond those put in issue in this case. The unfairness inherent in the approach taken by the delegates in both Gilles and here certainly hints at larger questions about whether the delegates are equipped with the degree of training or independence necessary to conduct fair hearings, or to demonstrate that they do so. I think it highly anomalous that a person who challenges a speeding ticket may appear personally before an independent and legally trained judicial justice of the peace, while the often far more serious consequences of the “administrative prohibition” provisions of the Motor Vehicle Act are adjudicated in this stripped-down manner.

The compelling social objective of removing drinking drivers from the road cannot justify a process that is incapable of reliably differentiating between those who have and those who have not offended. This case and Gilles give rise to a concern that the scheme is seriously flawed. Whether or not that is, in fact, so, will have to await a day when these broader issues are more squarely before the court.
The process set out in the Motor Vehicle Act for administrative suspensions obviously limits due process. That does not mean, however, that within those limits the dictates of fairness are truncated. A tribunal handicapped by the fact that hearings are not in person, that evidence is not sworn, that there is no cross-examination, and that imposes no duty on the officer to provide all the relevant material (including recordings of the event), lacks most of the means by which courts or other tribunals ordinarily discern the truth. Some cases may be obvious enough that they can be determined by these limited means, but it stands to reason that as the process is stripped of fact-finding tools, the number of cases that cannot be decided – that is, where the burden of proof has not been carried – must go up, if the balance of probabilities is being properly applied.
[53] It is not at all clear that the adjudicator appreciated that the task was whether it was “more probable than not” that the petitioner had failed, without reasonable excuse, to comply with a demand. As drafted, the legislation appears to make the task an either/or proposition, and that is how the delegate described his (or her) task (see paragraphs 19 and 29 herein, above). It is evident that the possibility, inherent in such a limited fact-finding process, that it might not be possible to decide was not in the delegate’s contemplation.

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   james hammell permalink

   These IRP’s have to be abolished they don’t just infringe on our constitutional rights, they step on them and grind them into the gravel. There are too many variables that can affect the roadside screening devices, such as the mistakes made by the Port Moody police officer with regard to calibrating his device. The integrity of some police officers is also very suspect so the possibility of improprieties is also a concern. And to treat suspected first time offenders the same as chronic repeat offenders is criminal in itself. A diabetic pensioner on a fixed income with a 45 year clean driving record should not be subjected to the same penalties as a person with numerous tickets and dui related warnings without at the minimum of a right to be heard by a legally trained judicial justice of the peace.

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