Shortcuts to justice naturally find appeal in a society where courts are congested, felons go free on technicalities and punishments frequently do not fit crimes. But it is surely more expedient than just to take actions that imply that if courts are overloaded, some of their functions should be taken away; or that if legislators disagree with sentences meted out by judges, the lawmakers should usurp from the judiciary the sentencing function. One could hardly be blamed for fearing that the ultimate result of such a trend might be to remove the responsibility for determining guilt or innocence from the courts altogether, and that such a step awaits only an occasion where the government is sufficiently displeased with a judicial decision.

Changes and improvements in law and law enforcement must be consistent with cherished principles of freedom and justice. They must incorporate the right of every individual to a fair judicial hearing when his or her freedom is at stake. It is true that, especially in the case of impaired driving, it is difficult for the average citizen to feel much concern about the denial of basic rights to people whose irresponsibility can, and often does, cause much suffering to others. But we are not just talking about drinking drivers here, since we will show how the same principle (or rather, abandonment of principle) is extends to a a wide range of minor violations. There is no reason to suppose that this circle of inclusion cannot be widened a great deal farther. What is there to stop police from on-the-spot convicting and sentencing all persons they suspect of committing crimes or misdemeanours?

History should have taught us by now that the fear of permitting basic rights and tested procedures to be set aside, even in circumstances which at the time appear to be entirely reasonable, is a fear which is well justified and one which should be heeded. Believing this, the British Columbia Civil Liberties Association urges the government to remove all judicial functions from administrative officers, and in particular repeal sections 203, 126(a) and 86(d) of the British Columbia Motor Vehicles Act(summarized below), and reevaluate the demerit point system and the Superintendent of Motor Vehicles’ powers in general.

1. Section 203 provides for 24 hour roadside suspensions to be imposed by police officers upon drivers suspected of impairment.
2. Section 86(d) provides for automatic drivers’ licence suspensions for motorists convicted of certain offences under the Criminal Code. This section, which was passed in early 1972, is intended to legitimize a previous practice of the British Columbia Motor Vehicle Branch that had been overruled by the courts.
3. Section 126(a) of the Act transfers sentencing powers for some non-criminal traffic offences from the courts to the Superintendent of Motor Vehicles.

Driving offences and administrative justice: The erosion of traditional safeguards in judicial decision-making under British Columbia’s Motor Vehicle Act and regulations

Part of Canadian heritage is the British system of justice, in which each individual has a right to a fair hearing before a judicial tribunal wherever his or her guilt or innocence is being determined, and whenever punishment is being apportioned. This principle is being eroded—unintentionally, perhaps, but nevertheless effectively—by a trend among legislators in Canada, and especially in British Columbia, toward transferring judicial functions from the courts to the administrative branch of government. In B.C., the most well-known examples of this trend are related to the operation of motor vehicles.

The British Columbia Civil Liberties Association takes exception to four specific measures, which were all introduced in the past few years:

1. Section 203 of the Motor Vehicle Act, which provides for 24 hour roadside suspensions to be imposed by police officers on drivers suspected of impairment;
2. Section 86(a) of the same Act, which provides for automatic drivers’ licence suspensions for motorists convicted of certain offences under the Criminal Code. Passed in early 1972, this section sought to legitimize a previous practice of the British Columbia Motor Vehicle Branch that had been overruled by the courts;
3. Section 126(a) of the Act, which transfers sentencing for some non-criminal traffic offences from the courts to the Superintendent of Motor Vehicles from the courts, and;
4. The so-called demerit system (Division 28 of the regulations pursuant to the Motor Vehicle Act) and the manner in which it is administered.

Sections 203, 86(d) and 126(a) should be repealed, and that the point system should be reexamined and revised, if not abandoned altogether. We urge this despite our complete sympathy with the apparent intent of these measures: road safety. Our quarrel is not with the objective, but with the manner the provincial government has chosen to achieve it. An unjust procedure does not become just simply because it has honourable objectives or even good results. Ends do not justify means. Rights cannot be denied to certain classes of suspected or convicted persons—no matter how heinous the crime involved, on the one hand (impaired driving), or how minor, on the other (traffic rule violations)—without the similar rights of all citizens being endangered. A society is only as free as each of its individual members.

The issue is quite clear cut. A police officer is not a judge. Yet when he or she decides whether or not to suspend a motorist’s driving licence for 24 hours, he or she is exercising a judicial function. Similarly, a civil servant is not a judge. But if an official of the Motor Vehicle Branch determines the penalty for an offence against the law, or adds to a penalty already deemed sufficient by a court, he or she is usurping a judicial function. Neither the police nor civil servants are qualified, entitled or expected to act as judges. Evidence cannot be called, witnesses heard or defences made on the side of a highway, or in the office of a civil servant, in the same way and with the same safeguards as in a court duly constituted for such purpose. It is a cherished and fundamental principle of British justice, and one that citizens fought dearly for centuries to obtain, that there should be an independent judiciary, divorced from other branches of government, and free from any possibility or suggestion of political pleasure. The determination of an individual’s guilt or innocence, and the apportioning of his or her punishment, should take place only through a fair hearing before a properly constituted tribunal of that judiciary.

It should be well understood by everyone living in a free society that one of the basic tenets of our system of justice is that a person cannot be penalized for an offence until she or he has been charged, tried and found guilty. Implicit in this procedure is the recognition that certain rights belong to the accused—the right to a defence, the right not to give evidence against oneself, and the right to be considered innocent until proven guilty. And even when guilt has been established, the pepalties can be determined only in accordance with known law, imposed by a court of justice, and not by administrative agents. The very essence of the adversary system is this: that the defendant is able to face his or her accusers and counter the charges that have been laid as forcefully as he or she can. However, even a superficial examination of the present curbside suspension law shows how, as with other similar laws, this elementary principle has been muddled and turned end over end. It is the police officer, not the judge, who determines guilt and imposes the penalty, and who does it, furthermore, without even laying a formal charge against the suspect.

Each of the four measures we are questioning has specific drawbacks from the civil libertarian standpoint. Twenty-four hour roadside suspension transforms the police officer into a kind of legal trinity—prosecutor, convicting jury and sentencing judge. The suspect, on the other hand, becomes a legal nonentity. The rights she or he would enjoy if formally charged, such as to consult legal counsel or to present evidence and call witnesses in his or her defence, vanish. The only choices open to the accused in this situation are either to submit or to or to ask for a breathalyser test and, if she or he chooses the latter, surrender the right to the presumption of innocence and sanctions the right of the police officer to usurp the deliberative and punitive functions traditionally reserved for the courts. (It is questionable whether the introduction of roadside suspensions actually has reduced the number of drinking drivers on the streets and highways of British Columbia—who knows how many motorists have decided to risk taking a few drinks in the expectation that, if apprehended, they would suffer only an overnight loss of licence instead of a criminal charge?)

The automatic drivers’ licence suspensions (30 days on a first conviction for impaired driving, refusing to take a breathalyzer test or showing a breathalyzer reading of .08 or higher; at least six months for a second conviction among these same three Criminal Code offences) are objectionable on several grounds. The very fact that they are automatic means there is no judicial determination involved (the Superintendent of Motor Vehicles has discretionary power to cancel, reduce or vary the second suspension, but only that part of it which may exceed the mandatory six months). The judge who convicted the motorist has heard both sides of the case and knows of any special circumstances involved. She or he has the power under the Code to impose a licence suspension of up to three years’ if appropriate; if the judge deems a suspension inappropriate, who is the Superintendent of Motor Vehicles to thwart this judgement? The Superintendent, even if given the discretion to reduce, cancel or vary a suspension in addition to his or her existing power to increase it, will not have had the benefit of all the facts and arguments placed before the judge. In effect, the motorist is sentenced twice. A question arises as to whether the automatic suspension actually subverts the decision of the court, as in cases where the judge has imposed a qualified licence suspension (e.g. right to drive restricted to normal working hours during the term of the suspension) but to balance this concession has imposed a heavier fine or jail term or a longer suspension than he or she would otherwise have done. It appears to us that the proper procedure for the Crown to follow, if it feels a sentence is not sufficiently severe, is to appeal the judge’s decision rather than ignore it. The Province’s interference in this area of sentencing may also be ultra vires in that the revised Criminal Code specifically permits judges to vary, or qualify, such licence suspensions, and the fact that this area is now occupied by the federal government leaves provincial legislators on shaky constitutional ground.

It may indeed be that the provincial government has, constitutionally, no business at all imposing its own penalties for offences committed under the federal Criminal Code. Further jurisdictional problems arise from subsection 5 of section 86(d), which enables similar offences committed in other parts of Canada or in the United States to be considered for the purposes of determining whether the six-month suspension (for the second drinking-driving conviction) should be imposed. (This same issue arises with respect to the demerit point system, and will be discussed in more detail in that connection.) Perhaps some federal-provincial consultation in this matter is required in order to make sure that all Canadians are treated equally in relation to offences against federal law.

Section 126(a), which permits the Superintendent, rather than the courts, to determine penalties for certain relatively minor traffic offences was apparently introduced in an effort to unclog courts which were becoming intolerably congested with such cases. A happier solution, from a civil libertarian point of view—though doubtless a much more financially costly one—would have been to expand the court facilities. Or even, we are about to utter the ultimate blasphemy in our over-governed country, to reduce the number of laws! The section does provide recourse to the ordinary courts in disputed cases, and certainly it is better that there should be such a provision than that there should be none. However, we still believe it would be far preferable for the entire procedure to remain under the jurisdiction of the courts from beginning to end.

The demerit point system poses many problems for the civil libertarian, most of which were dramatically pointed out in a November, 1972 decision by Provincial Judge Douglas Hume, who dismissed a speeding ticket against law student Nathan Gaoapathi. Evidently the point system, as presently constituted, needs a drastic overhaul, if not complete abolition. It is arbitrary, discriminatory and possibly unconstitutional, and it intrudes upon functions that are properly those of the courts. It fails to set down equal treatment for all accused. It makes people pay to leave judicial hearings and pay again to have points removed from their driving records. It grants far too much discretionary power to the Superintendent of Motor Vehicles, and does so without providing adequate judicial safeguards.

A disturbing practice that has developed in the administration of the demerit point system is that of counting convictions for offences outside British Columbia to determine the number of demerits applied to B.C. drivers’ records. In correspondence with this Association, the Superintendent of Motor Vehicles, R. A. Hadfield, indicated that subsection 1 of section 86 in the present Motor Vehicle Act is sufficiently wide in scope to give him power to employ this practice. While it is certainly true that section 86(1) is far ranging in the authority it gives the Superintendent (too much so in our view), there are both practical and principled objections to the practice of counting extra-provincial convictions. To begin with, it is discriminatory and haphazard, and thus unjust because not all convictions outside the province come to the attention of the B.C. Superintendent.

Thus some British Columbia motorists convicted outside of the province are penalized, while others are not. Furthermore, for the Superintendent’s staff merely to examine a notice from another jurisdiction to see if it is, as the Superintendent explained in a letter to us, “for an offence comparable to one contained in the Statutes of this Province”, is not the same as to determine in a judicial or quasi-judicial fashion the merits of a particular case. And, as in the case of the automatic suspensions under section 86(d), the motorist is sentenced twice for the same offence: once by the court outside the province, and then again by B.C.’ Superintendent. Another discriminatory aspect of the practice is that it is far more likely to affect certain groups of people who must drive outside B.C. more than other residents of the province. Such groups include commercial travellers, bus drivers, truckers and the like. These adversely affected groups, furthermore, suffer more than do members of the general motoring public if they accumulate many demerit points, since they must drive to keep their jobs. By similar reasoning, incidentally, the automatic licence suspensions under section 86(d) obviously affect professional drivers more severely than motorists in general, and can also be viewed as discriminatory in this sense. From a practical standpoint, it seems unreasonable to expect that motor vehicle laws and law enforcement in all other jurisdictions can be compared to those of British Columbia for purposes of disciplining B.C. drivers. Likewise, one is disinclined to believe that every jurisdiction throughout the world is promptly, fully and accurately reporting to Victoria every time it collects a speeding fine from a motorist with a British Columbia licence. What likely happens is that a B. C. motorist, charged with a traffic violation in a distant jurisdiction is unable to remain away from home long enough to contest the charge and though presumptively innocent, pays the stipulated fine in default in order to be free to continue their journey. Though, of course, the same type of incident could happen in British Columbia, it is clearly more likely to be the case where a conviction was recorded outside of B.C. And finally, we question the competence of the Province of British Columbia to legislate on matters occurring entirely outside its borders.

As we have already suggested, we believe the British Columbia Superintendent of Motor Vehicles’ power to cancel or suspend drivers’ licences is generally too broad, especially where it is used as a primarily punitive measure. The Superintendent has wide discretion in this area, not only through the demerit point system, but also through sections 78 and 86 of the Act. He or she does not need to hold any formal or public hearing. An appeal to a judge of the County Court is permitted under subsection 2 of section 86, but only on the limited question of whether there was a reasonable exercise of the Superintendent’s discretion under the Act. In any event, an appeal is of limited value when it concerns an arbitrary bureaucratic decision made without benefit of a judicial hearing and without representations having been made in the initial case on behalf of the individual affected. We do not question the Province’s right to determine who can drive in the province, but the manner in which such determinations are made. We urge that the Superintendent’s powers in this area be returned to the courts where they involve punishments for offences against the law, and that in other instances they be subject to judicial safeguards, including open hearings and the right to appeal.

In another matter related to motor vehicle operation, though not directly related to the problem of administrative justice, this Association wishes to record its displeasure at the decision to incorporate photography into British Columbia drivers’ licences. This practice is repugnant to many people and reminiscent of the police state with its mugged-and-printed, identity card-bearing subjects. We were even more dismayed to hear that the Motor Vehicle Branch intends to retain the negatives of the drivers’ licence photos and to keep a central file of them. We urge that no such central photo file of B.C. citizens be kept, and that the negatives and all prints be returned to drivers. The pictures are presumably for identification only, so there is no need for a central file. The photograph licences need be compared only with the visages of the persons producing them. It might well be better if the government stayed out of the photography business altogether, allowing the motorist to get his or her own picture taken and then to produce it at the time of the license application, when the picture would be laminated onto the document and returned to him or her. In this way there would be no risk of the government retaining a central photo file of citizens.