Court strikes down Alta. im­paired law

Sus­pend­ing li­cences vi­o­lates char­ter rights


Al­berta’s high­est court has struck down a sec­tion of the prov­ince’s Traf­fic Safety Act that al­lows author­i­ties to sus­pend the li­cences of sus­pected drunk driv­ers un­til their cases are re­solved in court.

The Al­berta Court of Ap­peal says tak­ing away the li­cences of driv­ers who haven’t been found guilty vi­o­lates their char­ter rights.

The court said in a split rul­ing re­leased Thurs­day that the law as it stands im­poses sanc­tions as soon as a crim­i­nal charge is laid “with­out re­gard to the pre­sump­tion of in­no­cence.”

Lawyer Nate Whitling had ar­gued in an ap­peal filed by four in­di­vid­u­als that a driver wait­ing to be tried on im­paired driv­ing charges has to do with­out a li­cence for many months be­cause of a back­log in the courts.

“It’s go­ing to last eight, nine, 10 months while you wait for your trial date,” he said af­ter the de­ci­sion. “That pres­sures an ac­cused per­son to plead guilty even if they’re in­no­cent. And the Court of Ap­peal was par­tic­u­larly con­cerned about that as­pect of the law.”

Whitling pointed to Al­berta’s own data to help make his case.

“The gov­ern­ment’s own sta­tis­tics that they re­lied on in en­act­ing this law rec­og­nized that about 22 per cent of the peo­ple who are ac­tu­ally charged with im­paired driv­ing are found not guilty.

“This law pres­sured those peo­ple to plead guilty as well, and that’s why it’s con­trary to the char­ter.”

The rul­ing puts ev­ery­thing on hold for a year, so noth­ing will change for now. It’s ex­pected the prov­ince will ei­ther ap­peal the rul­ing to the Supreme Court of Canada or re­write the law.

The ap­peal was filed against the Al­berta Trans­porta­tion Safety Board, the prov­ince’s at­tor­ney gen­eral and the reg­is­trar of Mo­tor Ve­hi­cle Ser­vices.

The ap­peal chal­lenged the con­sti­tu­tion­al­ity of the law’s manda­tory road­side sus­pen­sion of op­er­a­tor’s li­cences for any­one charged with an al­co­hol-re­lated driv­ing of­fence.

In the de­ci­sion, Jus­tice Frans Slat­ter said the vi­o­la­tion of an ac­cused driver’s fun­da­men­tal con­sti­tu­tional rights “is clear, broad and sig­nif­i­cantly dele­te­ri­ous.”

“The ad­min­is­tra­tive li­cence sus­pen­sion regime is ... over­broad. It is clear that the au­to­matic and univer­sal na­ture of the regime will de­prive the lib­erty of some driv­ers who are in­no­centin-fact, or who are not guilty.”

One of the three Ap­peal Court judges did not agree with the rul­ing.

“In my view, the lengthy li­cence sus­pen­sions that can re­sult ... may have se­ri­ous ef­fects on peo­ple’s life­style, but the ef­fects do not fall within the cat­e­gory of true pe­nal con­se­quences,” wrote Jus­tice Ma­rina Paperny in a dis­sent­ing opin­ion.

“I would dis­miss the ap­peal in its en­tirety.”

The Bri­tish Columbia gov­ern­ment also faced a chal­lenge to its drunk-driv­ing law af­ter it was brought in. It im­poses heavy fines, penal­ties and im­me­di­ate road­side sus­pen­sions.

But the Supreme Court of Canada handed down a pair of judg­ments in Oc­to­ber 2015 that up­held key por­tions of the law.

It ruled for one that the law as it stood in 2010 did not vi­o­late an in­di­vid­ual’s char­ter right to the pre­sump­tion of in­no­cence. How­ever, a ma­jor­ity of the court said the law vi­o­lated the char­ter pro­tec­tion against un­law­ful search and seizure.

By the time the Supreme Court made its rul­ing, B.C. had al­ready amended its law to ad­dress that point by al­low­ing driv­ers who failed a road­side breath test to ask for a sec­ond test and to ap­ply for a re­view of their driv­ing pro­hi­bi­tion.

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