Roadside prohibition emails stay secret
Provincial government documents that fell into the hands of Vancouver lawyers putatively revealing the inner workings of the controversial Immediate Roadside Prohibition tribunal will remain secret.
The B.C. Court of Appeal said the 19 pages — primarily unvetted email exchanges between a Ministry of Justice lawyer and RoadSafetyBC staff, in part instructing adjudicators how to rule in IRP cases — were protected by solicitor-client privilege.
“I am disappointed with this outcome, and we are considering our options at this stage and considering the implications of the decision,” said Kyla Lee, of Acumen Law Corp.
“Myself and the other lawyers in our office remain committed to ensuring the process for disputing immediate roadside prohibitions is fair, open and transparent, and we will continue to do everything we can lawfully do to protect the rights of drivers in this province.”
Inadvertently released to her in November 2015 under a Freedom of Information request, Lee shared the documents with colleagues at the firm that has been at the vanguard of opposition to the IRP regime.
Told of the mistake in December, Lee refused to recognize that the unredacted material was private and insisted its release was a waiver of solicitor-client privilege. The government asked the B.C. Supreme Court to step in, accusing her of unprofessional conduct.
At the time, Acumen lawyer Paul Doroshenko called the material “a smoking gun. ... We’ve got the evidence now to show what has been going on. ... I think there should be an inquiry. ... They are telling the adjudicator what to do. It shows the government is influencing adjudication for political purposes.”
NDP leader John Horgan demanded in the legislature that Attorney-General Suzanne Anton, who has since been defeated in the recent election, immediately release the controversial material. She refused and dodged the issue, one of many to dog what was initially touted in 2010 as the toughest anti-drunk driving law in Canada.
Giving police new powers to suspend licences and seize vehicles, the legislation took most impaired driving cases out of the hands of judges and handed them to government adjudicators.
Although not penal in nature, the penalties are quite severe under the cheaper administrative process, and the government credits the law for significantly reducing traffic deaths.
B.C. Supreme Court Chief Justice Christopher Hinkson decided in April 2016 that most of the material Lee received should remain secret, but certain portions could be released. He found no fault with her conduct.
The government appealed, and the high bench said Thursday all of the material was protected.
“Extensive disclosure of documents has become a feature of modern litigation,” wrote Justice John Hunter, supported by colleagues Elizabeth Bennett and Anne MacKenzie.
“Occasionally, mistakes are made, and privileged information is unintentionally disclosed. The 19 pages inadvertently disclosed through the access to information process are all subject to solicitor-client privilege.”
Once the privilege was established, Hunter said, all communications within the solicitor-client framework were protected.
The entire email string was privileged, he stressed, and the inadvertent disclosure did not drop that shield.
Although he used only cryptic language, Hinkson expressed serious concern about the contents of the correspondence and what it suggested about the independence of adjudication proceedings.
Some portions, he said, “entered the impermissible area of recommending that a particular decision be made on the basis of reasons other than the merits.”
At another point, Hinkson noted the advice “went beyond the lawyer’s role as legal adviser by purporting to influence the responsible adjudicator’s decision-making or adjudicating role.”
Hunter agreed that advice given by lawyers on matters outside the solicitor-client relationship was not protected.
But in this case, he concluded, even limited disclosure “would inevitably reveal the legal advice” contained in the privileged communication.
“In my opinion, severance of this portion of the solicitor’s communication cannot be reconciled with the principle that all communications made within the framework of the solicitor-client relationship are protected.”
Hunter emphasized: “In any event, the chambers judge did not view the solicitor’s advice as going so far as to usurp the tribunal’s decision-making authority, and in my view there is nothing in the record that would support such a characterization.”
He ordered all of the material returned or destroyed and Acumen lawyers not to use any of the documents.