Drunk-driv­ing law is fur­ther ero­sion of our Char­ter rights

Calgary Herald - - OPINION - ROB BREAKENRID­GE Af­ter­noons with Rob Breakenrid­ge airs week­days 12:30-3:30 p.m. on 770 CHQR rob.breakenrid­ge@corusent.com Twit­ter: @Rob­break­en­ridge

Un­der our cur­rent cir­cum­stances, it’s easy to see the ap­peal of a pro­posal that saves Al­berta money and also helps clear some of the back­logs in our courts. How­ever, when it comes to a pro­posal that threat­ens some fairly ba­sic prin­ci­ples in our jus­tice sys­tem, we should hold it to a much higher stan­dard than that.

The Al­berta govern­ment last week tabled Bill 21, which makes some sig­nif­i­cant changes in how we deal with ac­cused drunk driv­ers. Rather than be charged crim­i­nally, first-time of­fend­ers will im­me­di­ately face a 30-day ve­hi­cle seizure, a three-month li­cence suspension, a $1,000 fine and a 12-month manda­tory ed­u­ca­tion pro­gram.

Now, that might seem like a rea­son­able set of con­se­quences for a first-time of­fender. But be­ing an “of­fender” im­plies guilt, and un­der our sys­tem an ac­cused is in­no­cent un­til proven guilty. Un­der this pro­posed regime, how­ever, the guilt is im­posed at the point where the crim­i­nal charge would nor­mally have been. We should be very ap­pre­hen­sive about such an ap­proach.

The Al­berta govern­ment is largely copy­ing this model from our neigh­bours to the west. In fact, Jus­tice Min­is­ter Doug Sch­weitzer claims this has saved lives in B.C., tout­ing a 54 per cent drop in al­co­hol-re­lated fa­tal­i­ties be­tween 2011 and 2018.

What a splen­did and con­ve­nient co­in­ci­dence that an ap­proach meant to save money and re­duce the bur­den on the courts also hap­pens to im­prove safety. This claim doesn’t negate the con­cerns over due process, but it’s a claim that de­serves greater scru­tiny.

First and fore­most is the fact that B.C.’S data on al­co­hol-re­lated fa­tal­i­ties is rather prob­lem­atic.

For ex­am­ple, the last at­tempt by the Traf­fic In­jury Re­search Foun­da­tion to study the prob­lem in Canada was stymied by the fact that “the B.C. Coroners Ser­vice has not pro­vided al­co­hol … test re­sults for in­di­vid­u­als in­volved in fa­tal crashes since 2010.” The last ma­jor re­port from the Cana­dian Coun­cil of Mo­tor Trans­port Ad­min­is­tra­tors came with the dis­claimer that “coroner data from Bri­tish Columbia were not avail­able.”

It should also be noted that im­paired driv­ing has been trend­ing down­ward over both the last two decades.

If we use the govern­ment’s choice of 2011 as a start­ing point, for ex­am­ple, we see dra­matic drops in both Man­i­toba and Que­bec in al­co­hol-re­lated fa­tal­i­ties (43 and 45 per cent, re­spec­tively, be­tween 2011 and 2015).

Clearly, there are many fac­tors that ex­plain the de­cline in var­i­ous prov­inces.

There­fore, we should not take it as an es­tab­lished fact that Bill 21 is go­ing to save lives. It may in­deed save the prov­ince money, but that’s a much flim­sier ba­sis for jus­ti­fy­ing this ero­sion of civil lib­er­ties.

Those who have these penal­ties im­posed upon them through the bill’s Im­me­di­ate Road­side Sanc­tions sys­tem do have some re­course. They have seven days to ap­peal to a panel of ad­ju­di­ca­tors to be known as “Saferoads AB.” This process is to take no more than 30 days.

Let’s be clear, though, this is not a court of law. This is an ap­proach tan­ta­mount to “guilty un­til proven in­no­cent.” It’s an un­fair shift­ing of the state’s bur­den of proof in crim­i­nal mat­ters.

Let’s also not for­get that we al­ready have the abil­ity for po­lice to ad­min­is­ter breath­a­lyzer tests to any mo­torist.

The re­quire­ment of rea­son­able sus­pi­cion of al­co­hol con­sump­tion was elim­i­nated by Ottawa a year and a half ago.

So now we have an ero­sion of Sec­tion 8 Char­ter rights (the right to be se­cure against un­rea­son­able search or seizure) po­ten­tially cou­pled with an ero­sion of Sec­tion 7 Char­ter rights (the right to know the case against you and to put for­ward a de­fence) and an ero­sion of Sec­tion 11 Char­ter rights (the right to be pre­sumed in­no­cent un­til proven guilty).

The govern­ment is right to be con­cerned about the prob­lem of im­paired driv­ing, but this is go­ing too far — es­pe­cially since the ev­i­dence of the public safety ben­e­fits of this new law is so shaky.

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