On June 4, the Alberta government announced that it intends to dramatically change the laws on impaired driving in Alberta. If passed, the new laws would take effect towards the end of this year.
Many clients have been calling and wondering if the new law might affect their outstanding charges. It won’t. The new law will, however, have a dramatic effect on those stopped and investigated for impaired driving in the new year.
There is much in the proposed legislation to make a defence lawyer shiver. Make no mistake! The presumption of innocence is under attack, as are the right to counsel and the right to make full answer and defense.
Under the current legislation, an officer can randomly stop any vehicle he or she wishes as long as it is for the stated purpose of checking on driver sobriety or vehicle documents. Because of changes made to the Criminal Code on December 18, 2018, an officer can demand that the driver provide a sample into a screening device. This is called the mandatory alcohol screening test (MAS). The constitutionality of the mandatory alcohol screening legislation was just beginning to be litigated when COVID hit.
Back to the near future – under the new legislation, not only can the officer insist, upon pain of criminal prosecution, that the person comply with the MAS demand, whose constitutionality is very much in doubt, but, in addition, he or she will now be able to mete out all of the penalties and more that a person would have received had they been found guilty after a trial. What is missing, of course, is the trial – the ability to defend oneself in court.
The drivers stopped under the new law might, at first blush, think this is a good thing. After all, first-time impaired drivers would not face criminal prosecution if there were not bodily harm or death involved. However, all the stigma that attaches to a conviction are likely to arise in the future.
It is probable that border guards, insurance companies and employers will simply change the questions that they use to screen for individuals who pose a risk. Instead of being asked whether you have been convicted of a Criminal Code offense, you will be asked whether you have ever been suspended for an impaired driving-related offense. And just like that, you don’t get the job, your insurance rates go up, or you can’t travel.
It is precisely because of these kinds of consequences which attach to a criminal conviction that there are so many protections in place under the Canadian Charter of Rights and Freedoms as well as the Criminal Code. All of these are absent in this new administrative regime being proposed.
Yes, there is an appeal process. However, it is extremely limited from what our lawyers have been able to glean so far.
First, you will only have seven days to appeal. Currently, if someone is charged with impaired driving-related offenses, the person is given a 15 month automatic license suspension but there is a 30 day appeal period. This period has often been too short for our clients to meaningfully respond to the situation. Seven days is unnecessarily short.
Second, it is unclear as to whether or not a person can be represented by counsel. The current version of the Traffic Safety Act guarantees a person’s right to be represented by a lawyer on an appeal of an administrative suspension. That section has been taken out of the new legislation.
Third, the Transportation Safety Board, which built up years of expertise dealing with these administrative sanctions, is to be disbanded and replaced by one reviewing officer who is not allowed to cross-examine the applicant. So, if after hearing what the applicant has to say, the reviewing officer has a concern or a doubt or needs clarification, it appears they would have to sit mute, say nothing and conclude that the person has not made out their burden.
Even though all of the protections which are commensurate with charges under the Criminal Code would be gone in these situations, the coercive powers of the Criminal Code remain in full force and effect with respect to production orders and warrants.
The government claims that this new regime will result in fewer incidences of impaired driving but that is counterintuitive. Once people understand that it is no longer going to be considered a criminal offense to drive while impaired, it is difficult to see why people wouldn’t take the chance. In addition, the statistics that the government relies upon are flawed to say the least. Lorn Gunter wrote an excellent article on that point.
We have yet to see what grounds one can use in order to argue against the suspension. However, what we have seen so far should make all citizens very concerned for our future.