[CCA-Dave]

FWIW, I am not a lawyer. I did challenge the province on a charter or rights and freedoms issue once, and that was a whole new learning experience. But it does make me think about the complete lack of recourse in the VI department...and I think that is what it boils down to.

I think, ultimately, someone is going to have to challenge the Province on their VI using the charter or rights and freedoms as the basis for complaint. I think it falls under section 11, which protects a person under criminal and penal matters, and section 7 which protects a person's legal rights. What it boils down to, is challenging the fact that we are supposed to be presumed innocent until proven guilty, and that the current VI process does not meet the expectations of Fundamental Justice. (In Canadian and New Zealand law, fundamental justice is the fairness underlying the administration of justice and its operation.) If you like, you can spend your morning reading items pertaining to the above, but the bottom line is a cursory glance and some personal experience makes me think it's a charter issue. If, for the sake of argument, we agree that it's a charter issue and this is probably the best/only way to make progress in the area, we have some challenges...

First off, the charter sections are written in regards to be charged with an offence. In the particular case of a VI, an individual isn't being necessarily being charged with any offence, which (from the perspective of an officer who's issuing an invalid VI) is the perfect way of 'getting away with it'. They haven't charged you with any particular offence, thus you have no way to challenge it. This is (for a lot of us) the main issue. So the first challenge is going to be forming an argument for the court that despite it not being an offence under legislation, it is essentially the same thing and should be treated as such.

The second problem is going to be with the idea of fundamental justice. From Wikipedia: A legislative or administrative framework that respects the principles of fundamental justice, as such, must be fundamentally fair to the person affected, but does not necessarily have to strike the "right balance" between individual and societal interests in general. The province will argue at this stage that the VI process is in the best interest of society, as it allows the police to remove dangerous vehicles from the road immediately without risking public safety. So, even though it is somewhat unfair to the potentially innocent individual, the societal interests outweigh the unfairness and ultimately the process is balanced as far as fundamental justice is concerned. To flip this to a different argument, we have a law that allows for your vehicle to be impounded immediately if you are caught speeding 40+ over the speed limit. Society as deemed this to be acceptable, even though the offender hasn't had an opportunity to prove their innocence. The law has been challenged (at least in Ontario) against the charter of rights and freedoms, but it was determined while the law technically violated section 11, the Fundamental Justice in section 7 allowed for it. No one thinks the law is unfair when some Ferrari's with N's are impounded for doing 190kph on the upper levels. But the moment someone's car is impounded for doing 41+ over the question of "was the radar calibrated/used properly/etc." comes into play.

So, I see three problems with getting the VI issue solved:

1) Actually getting a case in front of the province to challenge the province against the charter of rights and freedoms.
2) Make a compelling enough argument that a VI order falls under section 11.
3) Make a compelling argument that the balance for fundamental justice is not fair.

To be honest, I have no idea how you do this is. When I challenged the province, I actually challenged the length of time a speeding ticket took to get to the courts, thinking that it was one of the defences I would use for having the ticket thrown out. I showed up expecting traffic court and discovered that I was in real provincial court, with a real judge and an actual lawyer representing the province. It was quite the experience! Challenging the province against a charter infringement sets up one of two courses of action. If one individual is successful in having their VI order "thrown out", it sets a precedence for how the province must proceed in future...it can change laws. If the challenge is unsuccessful, it sets a precedence that the province is operating in the correct fashion and can continue to do so. So the first step is researching any and all challenges of similar types to see what sort of precedence has been set.

By now, if you've read this whole post, you can probably imagine this is going to require a lawyer, and some significant preparation time. The earliest you're going to get a court date is probably 14 months from your initial request...which is why we're stuck where we are. A) who's going to pay for the lawyer, vs just taking the fine and inspection fees? B) who has the time to deal with this a year + away? I'm seriously tempted to see if the Midget with no windshield (legal) could get a VI in Vancouver, so I could challenge this. But I'd have to do it without a lawyer, and l don't think losing on a technicality or because I missed a precedent setting case would help our situation at all.