Defence on the offence [Part 3 of Justice Denied series]

Only a sucker would pay their speeding ticket without a fight now.

That’s the street wisdom circulating on web discussion forums where motorcycle and car enthusiasts trade tips on how to beat their traffic violation tickets in B.C.’s congested courts.

They point to the case of Michael Podger.

The Kelowna heavy equipment salesman was ticketed by police in November 2007 for making an illegal lane change without signalling.

He disputed the ticket, but delays in the court system dragged the case until January of 2009, when Podger – representing himself – successfully persuaded a judge to toss out his ticket on the grounds that his right to justice within a reasonable time had been violated.

Since then others – often repeat speeders – have been boning up on constitutional law to challenge their own tickets.

If it takes longer than 10 months for their ticket dispute to be heard, they can make a strong case for a judicial stay of proceedings, citing Podger’s case and other rulings as precedent.

It’s not necessarily a slam dunk.

Challengers have to prove they were ready to proceed on each appearance date – in other words it was the system, not their own foot-dragging, to blame for the delay.

They also have to show they suffered prejudice from the delay. The judge in Podger’s case agreed he experienced stress and was deprived of three days of pay when he took time off work to prepare his case and attend court.

Podger was reluctant to be interviewed by Black Press, but said he’s used the delay argument several times to persuade authorities to cancel his traffic tickets.

He’s also coached more than a dozen other motorists on how to use the case law.

“Most of the time it gets stayed,” Podger said. “I’m the only one that’s had to go fight it that I know of.”

Surrey lawyer Daryl Brown, who gave him some advice, said Podger is far from the only driver beating tickets on the basis of unacceptable delays.

“More people are becoming aware of the ability to make these arguments,” he said.

“You’ve got guys who aren’t first-timers,” Brown added. “They’ve got a few tickets. And they’re looking at losing their licence if they get any more.”

•••

The jam up of traffic tickets is just one more symptom of a court system in crisis in B.C.

By 2010, an immense backlog of 58,000 disputed traffic tickets had built up.

The Provincial Court of British Columbia, in its Justice Delayed report, blamed staff cuts at the ticket-processing centre in downtown Vancouver for the clog, because there aren’t enough employees to input the data and schedule dispute hearings.

Officials at B.C.’s Ministry of Attorney General claim the problem is in decline, with the backlog easing to 52,000 tickets as of January 2011.

But ICBC statistics show the number of traffic tickets being disputed has steadily crept up – from about 11 per cent up until 2007 to 15 per cent in 2010.

More than 75,000 violations were disputed last year – 20 per cent more than five years earlier.

They add to the pressure on traffic courts, where Justices of the Peace (JPs) hear most challenges, and also to a lesser degree to the caseload of regular provincial court judges, who must hear any challenges based on delay because JPs can’t rule on constitutional matters.

“The ministry is aware of the backlog and is considering its options for ways to reduce it,” said attorney general ministry spokesperson Linda Mueller.

More staff to enter tickets and schedule hearings would help, she said, but staffing priority goes to the areas of greatest need – criminal cases and serious civil or family law cases.

ICBC officials note more than 60 per cent of tickets disputed are upheld in court, although that’s down from 68 per cent found guilty five years ago.

And when ticket challengers win, B.C. municipalities lose out.

Cities get $63 million a year in traffic fine revenues shared by the province to help with policing costs. Surrey alone receives $5.9 million annually.

•••

It’s not just traffic ticket dodgers who might otherwise take their lumps and pay up who are emboldened by delays in the system.

Accused criminals and the defence lawyers who represent them increasingly see a good chance to quash cases based on delay, particularly when they see their trial date set 16-plus months away and stacked with multiple other trials on the same day.

There’s less incentive to plead guilty – even when the case against the accused looks air-tight – or accept an early plea bargain offer from Crown unless it’s attractive.

The Justice Delayed report warned the growing case backlog and lengthening delays mean defence lawyers are more motivated to proceed to trial because of the potential for charges to get thrown out over delay and, if the case does go to trial, it becomes harder to prove older allegations as witnesses become harder to round up or their memories fade.

“The best defence here is to set the thing for trial,” said Samiran Lakshman, president of the B.C. Crown Counsel Association. “Why would you plead guilty in that environment? That same type of analysis and advice is being provided across the province.”

Fewer cases being resolved early mean even more pressure is piled on a system already creaking under intense backlogs.

“It’s a bit of a catch-22 for the system,” Surrey defence lawyer Marvin Stern said.

“The system starts using its resources in hearing these delay applications.”

Stern said delays have worsened over the past year.

He sometimes shows up to court in Surrey to find his client is one of four trials slated to go ahead in the same courtroom that day.

Prosecutors then must decide which trial will proceed and adjourn the rest.

That can mean another trial date – sometimes the third one to be set – 20 months or more after charges were laid, a time period that provides strong grounds for dismissal.

To avoid that outcome, prosecutors may offer a better plea bargain.

Stern gives the example of someone charged with impaired driving and driving with a blood-alcohol level over 0.08 where another trial date adjournment will mean the case will almost certainly be tossed.

“They may accept a plea bargain to a charge under the Motor Vehicle Act of driving without due care and attention,” he said.

The driver pays a $368 fine and gets six penalty points but avoids a possible jail term, a criminal record, a one-year driving prohibition, mandatory safe driving course and required use of an ignition interlock system.

“It’s a huge advantage to the client,” Stern said. “When the courts are overbooked, Crown are more likely to do that.”

Paul Pearson, a criminal defence lawyer in Victoria and local spokesman for the Canadian Bar Association, said long delays harden the defence bargaining stance.

But he rejects suggestions defence lawyers and accused criminals are rubbing their hands in glee over court delays and how they can exploit long waits.

“Most people charged with criminal offences stress about that every single day,” Pearson said. “It’s by far the worst thing going on in their life. And they want an answer – yes or no, guilty or not guilty – sooner rather than later.”

Lawyers usually aren’t paid more money when they have to make many court appearances, he said, and they must be ready for trial on repeated occasions.

“The thousands of people waiting for their trials are agonizing, losing sleep, literally having nightmares every night about the process,” Pearson said.

“They don’t make the news. But they’re the ones that are actually paying the price for the delays in the justice system and the lack of judges.”

jnagel@surreyleader.com

TRAFFIC FINES

– Range from $81 for driving on a sidewalk to $598 for driving without insurance. Fines for excessive speeding run from $368 to $483 and police are also now issuing thousands of $167 tickets to distracted drivers who talk or text on cellphones.

Legal aid commissioner Leonard Doust and Legal Services Society chair Mayland McKimm.

Legal aid: What happened to justice for all?

By Sheila Reynolds

A middle-aged woman finds herself in the midst of a bitter fight for spousal support she never anticipated. She can’t afford a lawyer, and turns to legal aid for assistance.

A victim of abuse, her situation is complex, but not as difficult as the legal maze that has now consumed her life. She’s found that people she thought she could count on to help simply can’t, because of a lack of funding and resources.

“It’s systemic discrimination” against those unable to fund their own justice, she says, adding most in her situation simply abandon the process because it’s so damaging.

Between 2002 and 2005, government funding to Legal Services Society of B.C. (LSS) – the provider of legal aid – was cut by 40 per cent and 85 of the legal aid offices in B.C. were closed.

Between April 1, 2009 and March 26, 2010, the society saw funding cuts to family law, including dispute resolution and category one criminal law – offences such as breach of probation or failure to appear. Immigration and refugee law services were also cut.

Some services have since been restored. Five LSS regional offices, including the one in Surrey, were closed last spring but were replaced with local agents – private lawyers on contract with the society. And LAWLine, the LSS’s telephone legal advice service, was replaced with an expanded, province-wide call centre.

But many feel access to legal aid remains insufficient.

Statistics show that in Surrey alone, just over half of the applications for legal representation for family matters were approved in the past year, while about 60 per cent of immigration applications got the go-ahead. Legal aid for criminal and child protection issues fared better, but applications were still denied for nearly a quarter of the cases.

Veteran lawyer Leonard Doust says legal aid should be treated as an essential service.

Doust, leading the Public Commission on Legal Aid – an independent group representing six legal bodies – headed a recent inquiry into legal aid in B.C.

His resulting report, Foundations for Change, released in early March, summarizes that “the overwhelming majority of submissions spoke to the general failure of our legal aid system, the negative repercussions for needy individuals and families, and the consequent adverse impact on our communities and justice system.”

The report suggests federal and provincial funding cuts have left the system unable to meet basic needs and that it’s the working poor and marginalized people who suffer most.

“It is an absolutely essential social service,” Doust said. “Without it, people can be, and indeed they are… deprived of the other essential services in our province, particularly social welfare. It’s like the four-legged chair missing one leg: It falls.”

In addition to making legal aid an essential service, Doust laid out eight other recommendations, which included re-establishing regional aid offices, making more people eligible and giving legal aid workers better pay and support.

The legal aid system in B.C. has changed dramatically since its introduction in 1979. While the direction at that time was that legal aid representation had to be provided to those who couldn’t afford it for some areas of law, the rules were changed in 2001 and legal aid is no longer mandatory.

•••

For the most part, the Legal Services Society agrees with Doust’s findings, endorsing the notion that legal aid should be recognized as an essential public service and that significantly more funding is needed.

But the chair of the society also believes a fundamental shift is necessary in the way legal aid – and those using – is viewed.

Access to justice is often examined from the perspective of judges and lawyers, says Mayland McKimm, but when seen from the perspective of those caught up in the system – often against their will – the view is much different.

“It is essential that we look at the justice system from the bottom up, not the top down, in order to understand its relevance to the resolution of legal problems that people face in their lives,” the longtime family and criminal lawyer told members of the Law Society of B.C. in early March.

What judges and lawyers say is not necessarily what the average resident and those “ensnared” in the system want to hear, he said.

He said in consultations with more than 100 people, it was found many legal aid users had more immediate and basic hurdles to get past – child care, poverty and transportation issues – before they could begin to worry about getting a lawyer.

For many, especially in remote communities, the biggest barrier to justice is just being able to get to the courthouse.

“What does it matter if there are more lawyers, or that they all agree to slash their fees, if a single mother looking for child support has no one to look after her kids while she’s in court?” he asked, suggesting improving accessibility – like having more flexible court schedules or daycares in the courthouse – would go a long way to improving the legal aid system.

A second significant component to access to justice, said McKimm, is helping people understand how the legal system can assist them and making them less afraid of the process in general.

This, he said, could perhaps be achieved by integrating legal services with trusted social services – instead of sending people to lawyers.

“We were told more than once that arming the travelling community health nurse, the local social worker, or an aboriginal elder with information about child protection law or welfare rights – and a list of who to contact for help – was more important than having a lawyer available,” said McKimm.

Financially, he said, LSS is working on reducing the cost of large criminal cases so that more resources are available for access to justice initiatives.

“If we can lessen the resources – financial and judicial – that the guns-and-gangs cases eat up, there may well be more resources available for access to justice initiatives and legal aid,” said McKimm.

“At the end of the day, what people really want from their justice system is resolution of their problems so they can get on with their lives.”

Legal aid, but at what cost?

Leonard Doust’s call to action last month for increased legal aid services may be applauded by some, but not the Canadian Taxpayers Federation.

Gregory Thomas, spokesperson for the federation, said citizens shouldn’t be on the hook for the $47 million in recommendations suggested by the Commission on Legal Aid.

“Taxpayers don’t trust defence lawyers to do the right thing with their legal aid money,” Thomas said. “Look at the B.C. Rail trial – the two defendants pleaded guilty, but not before seven years of legal wrangling that earned their defence lawyers $6 million.”

Thomas also quoted the Pickton trial – where the serial murderer’s defence lawyers billed taxpayers $11.7 million.

“If defence lawyers ran legal aid, we would need to close every school and hospital in the country, because there would be no money left for anything else,” he said.

sreynolds@surreyleader.com Twitter: @sheilaleader