Attorney General David Eby's changes to ICBC rates are receiving a great deal of media attention.

But one aspect has slipped below the radar screen of most journalists.

And that's the role that ICBC chair Joy MacPhail has twice played in financially penalizing newcomers to the province.

Yesterday, ICBC announced that new residents "represent a higher risk for the first few years of driving in a new jurisdiction due to changes in landscape and environmental factors".

As a result, they'll pay higher premiums in their first three years of driving in B.C.

ICBC is going to seek the approval of the regulator, the B.C. Utilities Commission, before these jacked-up fees can be introduced.

It's being justified because new residents no longer have to provide proof of their crash history but they will have to document when they received their first driver's licence.

The Crown insurer is marketing its changes as making ICBC rates more fair.

"The overall impact on new residents who remain crash-free can be more favourable than under the current model," ICBC maintains. "In fact, new residents who have 15 years of prior driving experience and no at-fault crashes would benefit by receiving lower premiums than under our current model. Under the proposed changes, new residents would receive up to 15 years of driving experience, up from the current eight years."

In the meantime, the Straight has asked ICBC for data to support its claim that new drivers represent a higher risk.

There is a constitutional issue that arises when a Crown corporation appears, on the surface, to be discriminating against people who've only recently moved to the province by imposing higher insurance rates.

ICBC is a B.C. government–owned entity. Because of this, it's subject to the Canadian Charter of Rights and Freedoms.

Under section 6 of the charter, every person who is a citizen or permanent resident of Canada can freely move to any province to pursue the gaining of a livelihood.

These rights are subject to the following limitations:

(a) any laws or practices of general application in force in a province other than those that discriminate among persons primarily on the basis of province of present or previous residence; and

(b) any laws providing for reasonable residency requirements as a qualification for the receipt of publicly provided social services.

Here's the legal issue: does imposing a surcharge for ICBC coverage on newcomers purely because they are newcomers violate section 6 of the charter?

Section 15 of the Canadian Charter of Rights and Freedoms states that everyone has the right to equal benefit of the law without discrimination based on national origin.

Normally, a provincial regulatory body like the BCUC doesn't address constitutional issues, but it might have to when this policy comes before it.

Joy MacPhail must remember the welfare fight

There are several intriguing wrinkles to this story.

Eby was executive director of the B.C. Civil Liberties Association and MacPhail owns OUTtv—two organizations that have a proud history of challenging discriminatory attitudes. 

Presumably, Eby is very knowledgeable about sections 6 and 15 of the charter.

Back in 1995, MacPhail was the NDP minister of social services. At that time, she declared that newcomers to the province, including refugee claimants, would not be eligible for social assistance unless they had lived in B.C. for three months.

MacPhail's residency-requirement policy drew the ire of then federal human resources development minister Lloyd Axworthy, constitutional lawyers, and antipoverty and refugee-aid groups.

In October 1996, B.C. Supreme Court Justice John Spencer ruled that this residency requirement was unconstitutional.

But the judge concluded that this approach could be imposed through legislation. The NDP government later enacted this through the B.C. Benefits Act.

A few months later, this rule was eliminated—less than a year after MacPhail ceased being social services minister. It followed a cost-sharing agreement with the federal government.

Ironically, the NDP minister responsible for ICBC, David Eby, is also the minister who will shepherd in a new B.C. Human Rights Commission.

If any newcomer to the province uses the services of the new B.C. Human Rights Commission to advance a human rights complaint against ICBC over its policy, it's conceivable that Eby could be called as a witness to justify financially penalizing newcomers.

People who recall MacPhail's attempt to financially penalize refugee claimants seeking welfare in the 1990s could also be called as witnesses.

Why would the chair of ICBC and the attorney general proceed with such a policy targeting newcomers in the absence of legislation?

Especially when another another policy targeting newcomers was struck down in the 1990s precisely because it wasn't embedded in legislation.

Perhaps in the future, a lawyer will ask Eby and McPhail—while they're under oath—if they did it because new immigrants can't vote until they obtain citizenship. Permanent residents must be present in the country for four years before taking the test.

Of course, if ICBC can provide data showing that new drivers present a much greater risk, then perhaps this new policy would survive a constitutional or human-rights challenge, as well as any criticism before the BCUC.

But in the absence of ICBC providing this data on its website in a transparent way, these remain relevant questions for the public, legal community, and particularly newcomers and their families to be asking.