Let’s take sober approach to dealing with drunk driving charges

Given the ongoing delays in Alberta provincial courts, coupled with the high cost of prosecuting impaired driving cases, it’s not surprising the government is looking at other options.

An accused still deserves his day in court, though. Not every accused person is guilty, and so whatever shortcuts we’re tempted to pursue in the name of saving time and money need to ensure that both the presumption of innocence and the right to a trial are protected.

The government recently passed Bill 29, which — among other things — adjusts the roadside suspension protocol for drivers who are charged with an offence. The old law mandated an indefinite suspension that lasted until the case was resolved, but that was found to be unconstitutional.

The new law spells out a 90-day suspension, but that’s still a penalty being imposed on someone who has not yet been convicted of a crime.

Further changes are coming this spring, and the government says all options are on the table. The CBC recently reported the province plans on giving police officers greater discretion when it comes to laying criminal charges against accused impaired drivers, or dealing with them administratively. For most firsttime offenders, it would likely be the latter approach.

This approach would closely mirror B.C.’s in many ways, and the combination of more fines and fewer cases in court must seem awfully appealing to a cashstrapped government.

However, there are reasons to be concerned about this approach. Vancouver-based criminal defence attorney Paul Doroshenko told me last week that one big concern with giving police this discretion is the likelihood of an arbitrary approach to policing. An uneven and unfair approach to law enforcement is something to avoid.

Moreover, though, we need to recognize that breathalyzers are not infallible. We’ve had to learn this the hard way over the years. In early 2016, here in Alberta, for example, several impaired driving cases collapsed because of disclosure issues around the maintenance of breathalyzer records.

Shortly after B.C. moved to its administrative approach, more than 2,000 breathalyzers had to be recalled because of problems with the devices. That ultimately led to the provincial government offering refunds to the hundreds of motorists who received those roadside suspensions.

As Doroshenko told me, a big factor in the court delays we’ve been seeing was the federal change in 2008 that put the emphasis on an accused to prove that the breathalyzer was faulty or improperly maintained. That’s what’s led to these disclosure requests.

So under Alberta’s new approach, how will we know if there are issues with the breathalyzer, since that’s what forms the basis of the imposition of administrative penalties? Perhaps some who find themselves in that position will be relieved to avoid criminal charges, but are we also creating obstacles for those who believe they are innocent and wish to challenge the evidence against them?

There’s a reason some impaired driving cases can become complex, and it’s not just a defence tactic. There are legitimate charter issues that arise, and a move to keep cases from going to court in the first place doesn’t make all of those issues disappear.

As Toronto lawyer Edward Prutschi wrote recently for Postmedia, “… much of the due process an accused would be entitled to in a criminal court vanishes in this forum. The police officer at the roadside becomes judge, jury and executioner, leaving anyone who wants to challenge the crippling fines and licence suspensions with fewer options.”

By all means, let’s come down hard on those found to be guilty of drinking over the legal limit. It’s an irresponsible and dangerous act and society needs to send a strong message condemning it, and a strong deterrent to discourage it in the first place.

But that doesn’t have to mean legal shortcuts that erode the rights of the accused. Hopefully, the NDP will try and find the right balance.