The province's move is a brazen denial of due process and access to justice
Access to justice is a critical issue.
So much so that Supreme Court Chief Justice Richard Wagner recently went on record as being “enormously preoccupied” with it. Concerned with the number of self-represented litigants before our countries highest court, Wagner expressed concern that our judicial system is simply not accessible to most Canadians.
But that does not seem to be stopping British Columbia’s Attorney General David Eby from introducing a new bill that could further erode motorists’ rights and their ability to access justice.
Bill 17 – otherwise known as the Miscellaneous Statues Amendment Act - was very quietly introduced in B.C.’s legislative assembly on Mar. 28, 2022. Although it sounds innocent enough, it is anything but.
If passed, the bill will vastly overhaul the dispute process for traffic tickets in British Columbia.
As it currently stands, a person who is issued with a traffic ticket has the right to dispute that ticket in person. The hearing takes place in a courtroom and the issuing officer is expected to attend.
Negotiations often take place outside the courtroom, and most matters are disposed of in a relatively expedient manner. If the matter goes to trial, however, the officer is normally expected to provide viva voce evidence and be subject to cross-examination. The disputant then has an opportunity to present their case. A judicial justice of the peace presides over the matter. After hearing the evidence is entered, and legal arguments are made, they will render a verdict. Disputants have the option of either representing themselves or having a lawyer represent them.
There is good reason for drivers to engage the dispute process in British Columbia. Aside from being entitled to the presumption of innocence, a finding of guilt can have severe repercussions beyond simply being required to pay the ticketed fine amount.
For starters, the province of B.C. has implemented a driver’s penalty point system. This provides the government wide discretion for both insurance rates and licensing status. Drivers who collect too many penalty points could see their licenses suspended and their insurance rates skyrocket. With ICBC’s monopoly on automotive insurance, drivers are left with no other options. This system is a large part of the reason why British Columbia touts itself on having some of the strictest driving laws in the country.
Given the context, it’s no wonder why we British Columbians’ take our traffic disputes so seriously. If bill 17 is passed, however, it could all change within the blink of an eye.
Amongst other things, the bill will move some traffic court proceedings out of our courtrooms and put them online. Which proceedings “some” refers to is unclear, however. The term remains ominously undefined. This ambiguity will ultimately grant the government wide discretion with respect to which matters will remain in-person – if any – and which will proceed virtually.
Although we have recently seen a massive push to modernize our justice system, we must also proceed with caution.
If two years of online hearings during the pandemic taught us anything, it’s that more technology does not necessarily equate to more efficiency. It’s also shown us that online hearings are generally not conducive to the trial process. Using an online platform to provide evidence and present exhibits can be impractical and inaccessible. Finally, it is important to consider the personal circumstances of the disputants themselves. Not everyone has access to the equipment or skillset needed to meaningfully engage in an online dispute process.
But modernization isn’t the only aim of bill 17. It also seeks to regulate how online traffic court conferences will take place. For example, it will give the government the ability to decide who may appear for the prosecution, who may preside over the conference itself and who may – or may not – appear for the defence.
This rises two concerns.
The first is that traffic matters may no longer be decided by a judicial justice. This bill would make it possible for the government to substitute an administrative adjudicator in their place. This may be a lay person, without any legal training whatsoever. It is a disturbing prospect, to say the least.
The second concern has to do with the government’s ability to prevent a category of persons from appearing on behalf of a disputant. This could be squarely targeted at eliminating lawyers from the dispute process. If lawyers are no longer able to represent their clients, they will have little choice but to represent themselves. This could seriously impact their rights.
The right to counsel is an important cornerstone of our judicial system. Lawyers help people navigate a sometimes complex and convoluted legal system. They act as an important barrier between the state and their clients. They protect against government over-reach. They serve an indispensable public role.
This is just as true in traffic court as it is anywhere else.
Bill 17 does not seem to appreciate that; nor does it appreciate the complexity of our justice system, the importance of due process or the gravity of access to justice issues.
Bill 17 simply does not bode well for the rights of British Columbians. Restricting in-person proceedings, eliminated judicial justices and prohibiting people from accessing legal counsel all adds up to the same thing – a brazen denial of due process and access to justice.