Canadian Lawyer

12 M A Y 2 0 1 5 w w w . C A N A D I A N L a w y e r m a g . c o m \ AT L A N T I C \ C E N T R A L \ P R A I R I E S \ W E S T REGIONAL WRAP-UP P roposed changes to B.C.'s drunk driving Immediate Roadside Sus- pensions Program will shift the burden of proof onto the accused rather than force police to prove guilt, said Paul Doroshenko, the Vancouver criminal lawyer who has been behind the pointed end of numerous court chal- lenges launched to B.C.'s contentious program introduced five years ago. One of the amendments under Bill 15-2015 to the Motor Vehicle Act is in s. 215, which has been changed to read: "The burden of proof in a review of a driving prohibition under section 215.1 is on the person on whom the notice of driving pro- hibition has been served." The change reverses the normal pro- cedure where when police take an action, they have to support that charge. It places the onus on the individual making the request for a review of a suspension or fine to prove innocence. "They [police] don't have to prove anything," said Doroshenko. He said this review process would be heavily weighted towards police as there is no opportunity to cross-examine evidence by the police, yet the police have a com- plete regime in place for collecting, pro- cessing, and presenting information that the accused would find hard to replicate. "The ugly thing about it, in my perspec- tive, is that they have every advantage," he said. It is that unfair advantage Dorosh- enko plans to argue as a challenge before the courts when Bill 15-2015 amendments come into effect. In 2010, the B.C. government intro- duced the IRP program, which was aimed at immediately taking all drivers suspected of drinking off the roads. Even a breatha- lyzer reading well below the Criminal Code's impairment level could result in a suspension. The IRP program has been subject to judicial wrangles; including an unsuccessful attempt in 2014 to prove such penalties were beyond the B.C. govern- ment's scope. The B.C. Court of Appeal ruled the program's suspensions, fines, and seizures of vehicles were all within the province's right to impose administrative penalties and have police enforce them. Police in B.C. now have the option of issuing an IRP or charging an individual with impaired driving under the Criminal Code. W E S T has a Polish background and Bryk, who was born in Winnipeg, grew up speaking Ukrainian. While Bryk says he can speak and understand the language, he acknowledges, "if a conversation gets into more substance, I have to ask for translation." However, find- ing judges with a Slavic background was a huge plus in the eyes of Foreign Affairs' Shakov. "It's always a good start culturally and otherwise to have a judge who speaks the language," he says. The pair of judges made a number of trips to Ukraine talking to fellow judges around the country. Bryk says they adopted a "carefully tailored and respectful approach." It was essentially, "here is a system we have in Canada and it works there. Maybe you can adapt it to Ukrainian experience. . . .There was no force feeding. That would have been offensive to them." On the two most recent trips, a pair of lawyers who are both experts in JDR, Alan McIntyre from Regina and Tony Marques from Winnipeg, joined the party. They talked to the lawyers "we talk a different language from judges" says Marques. But the judges and lawyers also made joint presentations to the Ukrainians. The idea of judges taking an active part in criminal prosecu- tions is well known to Ukrainians. For years, the country used the traditional European inquisitorial model, in which judges par- ticipated in the questioning of witnesses and sometimes even the accused. But the idea of a judge taking an active part in helping to settle a civil dispute was brand new to the Ukrainians. Judges are not necessarily held in high regard in Ukraine. "I've heard about corruption," says Marques, "but the core group of judges [we dealt with] are of the highest integrity and ethics." Sha- kov is less guarded. He says "corruption is a real problem and there is a crisis in public confidence. If a decision is made it is viewed by the loser as corruption." However Shakov says that is why JDR appeals not only to the judges but also the lawyers and the public. It is seen as a real opportunity to achieve more transparent judgments, which will increase the level of professionalism among lawyers and diminish cynicism about the ethics of judges. In fact, Shakov says JDR is on the verge of becoming law in Ukraine. "Changes are now being submitted to legislators. It is moving at a very fast pace." That brings a great deal of satisfaction to the Canadians who have worked so hard to spread what they believe is a very good idea. "It's exciting," says Alan McIntyre, "you can see on a go-forward basis this could have a really big effect." Jokingly he adds, "one day they will put up bronze statues to us all!" — GEOFF ELLWAND writerlaw@gmail.com Delivering legal aid to Ukraine's justice system Continued from page 11 Roadside suspension amendments shifts burden of proof to accused

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