The B.C. government recently introduced the Miscellaneous Statutes Amendment Act, which aims to overhaul traffic court.
On its face, the bill seems like a good thing: some traffic court disputes will be moved online.
Further, the bill creates an early resolution process, called a Resolution Conference, by which traffic court disputants may request a meeting to resolve their ticket.
The goal of moving traffic court disputes to an online process is laudable. After all, many people attend traffic court to plead guilty but ask for a fine reduction. An online process means cases like this can be handled more efficiently, while disputants do not have to take time away from work or family obligations.
Some people dispute their tickets in the hopes that an officer will not show up. While this happens rarely, it is still a problem. By moving traffic court matters online, it increases the likelihood that an officer will be able to attend even when on a call. The officer no longer has to commute to traffic court while on duty.
Further, many people dispute their tickets to “buy time” to get rid of the L or N licenses. Again, these matters can often be resolved quickly through an online process.
But the choice to appear online is not going to be one - if the bill passes - that a disputant gets to make. Rather, the government will be permitted to determine by regulation who can and who cannot appear online.
Resolution conferences are another example of an idea that seems good in theory. A pre-trial meeting with the officer, a judicial justice, and the disputant would help to streamline the in-court process by ensuring that only those matters that are destined for a trial are set down for a hearing.
But the method by which the government purports to achieve this is deeply flawed.
Rather than having a justice preside over a resolution conference, the bill would allow the government to appoint representatives - similar to adjudicators. These representatives will not have the same type of judicial independence that a Judicial Justice has when sitting in traffic court. Similarly, instead of having the police officer attend, regulations can be crafted to allow a “prosecutor” (not necessarily a lawyer or a police officer) to attend on their behalf.
That alone is troubling: how can a resolution properly be reached when the prosecutor is represented by someone who was not there and is acting on direction from some higher government official, not exercising their independent view of the situation and personal discretion?
The worst part yet? The government will also have the power to prohibit by regulation anyone from attending on behalf of the accused. While the legislation does not explicitly state this, it’s clear what is meant: you will not be able to choose to be represented by a lawyer.
After all, who else could they ban from attending a resolution conference? And yet the government wants an explicit power to ban someone.
Let’s be clear: lawyers are not the problem in traffic court. For the most part, lawyers keep cases in traffic court moving efficiently. Not only have lawyers resolved numerous cases that otherwise may have gone to trial by pointing out flaws in the evidence but most lawyers in traffic court are also always willing to lend some advice or information to disputants who are self-represented.
Look at how distracted driving cases have evolved over the last decade. Thanks to the work of lawyers, the law is now a lot more clear about what you can and cannot do with your phone.
Thanks to the work of lawyers, arguments about having a phone in a cupholder or having a phone on a lap take a lot less court time because the police and the Judicial Justices know what is prohibited and what is allowed.
Having a lawyer in traffic court can be a significant help. Not only can a lawyer work to resolve your case, but lawyers are also ethically obligated to limit their arguments and cross-examination to issues that are actually relevant and viable. Rather than a meandering cross-examination by a self-represented party on whether a car was blue or grey (a common feature of traffic court trials), lawyers know that a few pointed questions may be relevant to reliability but otherwise do not strike at the heart of the allegation and should be avoided.
Lawyers can also have candid and frank discussions about the case, the circumstances, and the evidence without the fear of having their statements and admissions used against their client. This is because a lawyer is not a compellable witness, while other people you speak to about your ticket may be.
There is little evidence I can see for the need to eliminate lawyers from the traffic court process.
What I do see is the likelihood that more cases where a guilty plea would not be warranted will result in circumstances where people either plead guilty or plead to a lesser offence, but still obtain fines and convictions on their driving records. Without adequate representation, decisions made by people to enter pleas may result in license suspicions and driving prohibitions, insurance rate increases, and penalty point premiums.
The only motivation that is clear to me is that the government sees drivers as walking cash machines. By creating a process whereby people are more likely to plead guilty because they do not have effective or qualified representation, the government can collect more money in fine revenue while protecting themselves from having to address appeals of traffic ticket decisions.
Now, the government’s legislation is time-limited. The process is automatically repealed after four years. It is being proposed as a pilot project. This gives me little comfort.
By calling it a “pilot project” the government then has the ability to collect and interpret data, which will then be used to sell a permanent elimination of your rights in traffic court to you. The data collected will inevitably be used to say that not only was it more efficient and less expensive to eliminate lawyers and legal rights from the process, but that people were happier with the outcomes.
What we should not expect to hear are the stories of all the people whose decisions in resolution conferences resulted in lengthy suspensions, employment consequences, increased insurance rates, and driver risk premiums. Because I guarantee you the government won’t be collecting that data.
Kyla Lee is a Vancouver criminal lawyer focusing primarily on DUI, impaired driving, and Immediate Roadside Prohibition cases.