Taxi! The New Alberta "Drink But Don't Drive" Reality

As of July 1, 2012, Alberta became a safer place, or at least that is the impetus behind Premier Redford's new amendments to the Alberta Traffic Safety Act. As a reminder of the many pitfalls of the legislation and the impact the new regime will have on Albertans, I am republishing excerpts of my previous postings on the issue. It is worthwhile to be conversant with these changes now that Stampede and the never ending wash of "Beer and Beans" are upon us. 

Here is the list of blogs on the issue and the blogs follow:

October 27, 2011, A Lesson On How To Get Tough With Impaired Driving

October 28 Impaired Driving: A Little Diversion

November 24 The Optics of Tougher Impaired Driving Laws

November 27 The Social Costs of The New Alberta Regime

November 28 The Charter and The New Alberta Impaired Driving Laws

November 29 Administrative Tribunals and Duties of Fairness

December 1& 2 Alberta's Response To The Partial Unconstitutionality of the BC Impaired Driving Regime 

 

From October 27, 2011A Lesson On How To Get Tough With Impaired Driving:

"Two weeks ago, I invited a guest lecturer to speak to my criminal procedure and evidence class about defending impaired/over 80 offences. The lecturer, a lawyer, did an exceptional job of walking the students pictorially through a typical impaired/over 80 case by using photographs of the Alert or roadside screening device, of the "Breath Bus" or Checkstop bus, and of the breathalyzer machine (actually, the experts insist on referring to them as"instruments" per the Criminal Code).

It became very clear to the class that impaired/over 80 cases are complex, highly technical cases involving difficult evidentiary and legal issues such as expert evidence from the breathalyzer technicianCharter challenges, and the use of the legal presumptions under s. 258 of the Criminal Code

Another message was equally clear: do not drink and drive. Although drinking and driving cases are technical in nature and open to a myriad of legal arguments, if the Crown and police have all the legal requirements properly in place, a conviction will result. This was "scared straight" in legalese.

Now two weeks later there is much political talk of making the impaired driving laws tougher in Alberta. How tough? Well, BC tough. In tomorrow's blog, I will expand on what "getting BC tough" really means and the possible repercussions. But, in the end, will "getting tough" deter impaired drivers? Will the carnage on the highways, which we sadly read about on a weekly basis, lessen? Will these new laws make our roads safer?

It is difficult to determine if tougher laws do, in fact, deter and change behavior, despite Premier Clark's insistence that statistics prove her tougher laws work. I, for one, prefer the old fashioned route - education. My son and, recently, my daughter attended the P.A.R.T.Y or Prevent Alcohol and Risk-Related Trauma in Youth Program offered across Canada through the local health services. At this workshop, the 14 to 15 year olds meet people who have made the wrong choice to drink and drive. Although some are in wheel-chairs and some are not, they all are scarred, either physically or emotionally, by their actions. The students listen to their stories, they hear the terrible consequences of poor choices, and they decide not to make the same decision. To me, this is the best form of prevention."

From October 28 Impaired Driving: A Little Diversion:

"Yesterday, I blogged about the importance of education as the ultimate deterrence of impaired drivers. Today, as foreshadowed by yesterday's editorial cartoon in the Calgary Herald, I will comment on Premier Redford's interest in changing the Alberta Traffic Safety Act to impose tougher consequences on impaired drivers.

These changes are to reflect the recent amendments of Part 4 of the British Columbia Motor Vehicle Actwhich imposes, at the roadside, automatic driving prohibitions from 24 hours up to 90 days, depending on your BAC (blood alcohol concentration) as shown on an approved roadside screening device. But the repercussions do not stop there: the car may be impounded at the roadside, if the police officer feels it is "necessary" to prevent the offender from driving. Of course, why it would be deemed necessary, considering the police officer just took the offender's licence, is a different matter. Additionally, a monetary penalty will be assessed at the roadside and must be paid within thirty days.

In other words, a lot of quasi-judicial punishment is being meted out at the roadside on the basis of a police officer's opinion. The repercussions are even tougher should the driver receive a warn on the roadside screening device and even tougher still should the driver fail. All done at the roadside, without judicial intervention, without due process, and all mandated by provincial legislation

So what if it lacks due process, as long as it works and deters people from drinking and driving? Well, let's look at the actual affect this kind of legislation has on impaired driving.According to BC Premier Clark, the new legislation cut in half deaths caused by impaired drivers. Indeed, the legislation was first introduced by the BC Solicitor-General in April of 2010 on the basis that tougher measures were needed to combat the increasing numbers of impaired drivers. Although, I was unable to find any statistics or reports supporting Clark's bravado, I did find recent statistics debunking the Solicitor-General's comments. In the crime statistics released by Statistics Canada on July 21, 2011, the rate of impaired driving in Canada dropped 6% in 2010, consistent with a general decline of the offence since 1981. Furthermore, the rate decreased, from 2009 to 2010, by 8% in British Columbia and by a whopping 14% in Alberta.

The reality may be that tougher sanctions will not deter people and certainly will not stop innocent teenagers from dying in horrific circumstances. Instead, other ways, which have a proven track record at reducing the offence, such as the use of the ignition interlock program, should be considered. Additionally, enhanced funding and expansion of educational programs targeting the youthful driver should be employed.

Education does work to change attitudes. In the end, roadside justice is a mere diversion from the real issue and the real problem."

From November 24 The Optics of Tougher Impaired Driving Laws

"With the dual announcement this week from Alberta, where new legislation mirroring B.C.'s efforts in the area has been tabled in the Legislature, and from British Columbia, where impaired driving fatalities have decreased by 40% since the new legislation has been in force, a review is in order. I will discuss some of the legal difficulties with the legislation and some of the social difficulties of connecting the effects of the new legislation with an absolute decrease in impaired drivers.

Many of the legal criticisms focus on the lack of due process afforded individuals when they are stopped by police enforcing the new law. Sanctions may be imposed without recourse to the criminal justice system and the determination of penalty is not administered by a judicial authority but by the police. By giving the police the decision making power usually confined to judges, the procedure not only circumvents the justice system but circumvents the legal rights protections we all enjoy under the Charter, particularly the s. 11(d) right "to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal." As discussed in a previous blog, There Is No Road To Redemption, this type of crime prevention adheres more closely to the arcane "crime-control model" of Herbert Packer.

Another area of concern involves legal issues with the breathalyzer devices themselves and the inaccuracies connected to the machines. Thus, the lack of due process is compounded by the unreliability of the basis for the out-of-court sanction.

Still other legal critics accuse the police in British Columbia of selective enforcement: police are not enforcing the impaired driving sections found in the Criminal Code, opting instead to enforce the provincial legislation only. The result of such policy not only diverts from the justice system those offenders who would not normally be before the Court, as their blood alcohol concentration or BAC is below the legal limit, but also diverts those offenders who have a BAC above the legal limit and should face a criminal charge. In those circumstances, the criminal law, as properly wielded by the Federal Government under the Constitution Actand under the Federally enacted Criminal Code, is not being enforced.

On the other hand, there are benefits to the accused by this diversion from the criminal justice system. The offender is not subject to the risk of a criminal record if convicted. A criminal record not only carries substantial societal stigma but can result in a loss of employment and difficulties travelling across borders. 

Effectively then, the new legislation "decriminalizes" impaired driving without federal government input and without public input. 

How did this happen? The persuasive, yet misleading, use of statistical evidence may provide the answer as to why this legislation has been so readily accepted by the public and by the government. Returning to the B.C. experience, that law was first introduced in April 2010 as, according to the government, tougher measures were needed to combat the increase in impaired driving cases. This reasoning was, in fact, at odds with Statistics Canada's July 2011 report, which found an overall decrease of the rate of impaired driving throughout Canada with an 8% decrease in the rate of impaired driving in B.C. from 2009 to 2010. In Alberta the 2009 to 2010 rate decrease was 14%.

Despite these seemingly contradictory statistics, the recent announcement from B.C. suggests that alcohol related fatalities have decreased by 40%. In absolute terms, the statistic is astounding and very persuasive. In reality, however, this kind of statistical "evidence" of success must be approached with caution. As Mark Twain purportedly stated "There are three ways not to tell the truth: lies, damned lies, and statistics."

Although such a blanket dismissal of statistics is not warranted, it does give one pause for thought: statistics, as numbers, do not lie, but it is the interpretation of statistics, as offering support or dismissal of a claim or cause, which can be manipulated. Certainly, in the criminal justice arena, such statistical evidence is admitted with caution, particularly in the area of DNA evidence. As stated by Justice Finlayson in the 1998 Ontario Court of Appeal case inTerceira:

At the conclusion of the evidence, the trial judge in his instruction should advise the jury in the normal way as to the limits of the expert evidence and the use to which it can be put. Additionally, in the case of DNA evidence, he or she would be well advised to instruct the jury not to be overwhelmed by the aura of scientific infallibility associated with scientific evidence. The trial judge should tell them to use their common sense in their assessment of the all of the evidence on the DNA issue and determine if it is reliable and valid as a piece of circumstantial evidence.

Ultimately, statistics cannot provide a definite or absolute connection between the new legislation and the decrease in alcohol-related fatalities. The decrease can be explained in many ways such as educational programs deterring people from drinking, increased law enforcement by police, a general declining trend as observed by Statistics Canada, or increased awareness/deterrence through those very government media announcements we have heard touting the new law and its benefits. A quick internet search reveals a long list of B.C. town news sites, big or small, and even a few MLA websites as well, reporting on the B.C. government's recent statistical news.

In the end, we need to be aware that what we see and hear may not be what we are actually getting. In this, as with so much public policy, perhaps only time will tell."

From November 27 The Social Costs of The New Alberta Regime:

"Premier Redford, as promised, tabled Bill 26 the Traffic Safety Amendment Act, 2011 as the legislative response to government concerns with impaired driving in the Province. The Bill has already passed first and second readings in the legislature. No doubt, with the truncated legislative proceedings, the Bill will be passed into law before the end of the year. I have already, in previous blogs, discussed some issues with this new legislation and the concerns over the foundational reasons for the new amendments, particularly the statistical evidence used to support the new measures. Previous blogs have also mentioned the lack of due process and criminal law protections connected with the new law as it diverts offenders from the justice system in favour of an administratively expedient process controlled by the police and by the transportation ministry.

Another concern, is the immediate and mandatory suspension automatically imposed on the offender who is charged with an impaired/over 80 criminal code offence. Those individuals, by virtue of being charged criminally, are thereafter disqualified from driving a motor vehicle until their criminal case has been disposed in the criminal courts. This administrative driver's licence suspension therefore can continue for an undefined period and is dependent upon the timeliness of the matter being heard in the criminal courts. 

This is a concerning element as it places an unquantifiable burden upon the allocation of public resources in the criminal justice system. Not unlike the Askov case on Charter trial delay, the impact of this suspension, which is wholly dependent on the ability of the court system to hear impaired cases quickly, can potentially generate an impossible burden on the court system. Charter delay cases will once again rule the courts and be the ultimate adjudicator on who will be prosecuted and who will not. Stay applications will be the norm.

Quite possibly, due to the punitive dimensions of such an automatic disqualification, impaired driving trials will need to be heard within 30 days, thereby re-prioritizing cases in the system. The priorities will not be based on the seriousness of the issue but will be controlled by provincial administrative suspensions.

Whether or not this is an appropriate allocation of public resources will add an interesting twist to this new legislation. Whether or not the public will cheer this prioritizing of such cases over more serious cases, such as violent crimes, will be seen. It is clear however that this new amendment will have heavy social costs for all Albertan citizens."

From November 28 The Charter and The New Alberta Impaired Driving Laws:

"Our discussion of the tabled Alberta impaired driving rules continues with a look at the legal arguments which may be available under the Charter. At first glance, it appears the case law shuts down any Charter argument based on a review of a myriad of cases, across the provinces, upholding similar legislation.

Even the Alberta Court of Appeal, in the 2003 Thomson case, comes down strongly in favour of this kind of provincial legislation. Thomson upholds the legislation, despite division of powers arguments and claims of Charter violations under s.7, s. 11(d), and s.13, on the basis the legislation is valid provincial legislation, which is purely administrative in nature and therefore imposes a civil sanction as opposed to a criminal penalty. Furthermore, driving, as a licensed regime, not essential to a person's liberty interest, is a privilege and not a right under s.7. Finally, there is great public interest in preventing "carnage on the highways" from drinking and driving.

Despite the above authorities, I would suggest there are still valid Charter claims, which can be brought before a Court depending on the facts of a particular case. As touched upon in yesterday's blog, the automatic, immediate, and indefinite suspension of a driver's license of an offender charged with impaired driving under the Criminal Code as a result of the new scheme, could result in heavy burdens on the administration of justice to have impaired/over 80 cases heard in a speedy manner.

Other provincial legislations place a time limit on these roadside provincial suspensions: typically the maximum suspension is 90 days. The Alberta legislation suspends the licence until the criminal matters are disposed, a time period dependent on the timeliness of the trial. Thus, an unreasonable delay argument under s.11(b) of the Charter may result in those cases where the criminal justice system is unable to provide a timely trial. It may be safely argued that considering the escalating time limited suspensions elsewhere, depending on if the matter is a first offence, a trial may be unreasonably delayed if not heard within 7 days, thirty days, sixty days, and in the most serious scenarios, ninety days. 

There are many factors a court must consider in deciding whether a trial has been unreasonably delayed due to the Charter. Certainly, pursuant to the Askov case, systemic delay is a primary consideration. Other factors include Crown delay in preparing the matter ready for trial and prejudice to the accused. A lengthy licence suspension, can be highly prejudicial to an accused who may require the licence for employment or who lives in a rural area, where public transit is unavailable. In certain circumstances, albeit fact dependent, aCharter delay claim may be successful. As suggested in the previous blog, such a claim could cause the government to prioritize impaired driving cases over more serious crimes, resulting in inappropriate allocation of public resources.

Another Charter argument, more difficult to argue, but again, depending on an appropriate fact situation, should be argued, is a violation of s. 7 rights. Although, the weight of the authorities appears to be against rearguing the issue, the Supreme Court of Canada, in recent cases such as in PHS CommunityGosselin, and Khadr, have expanded the definition of right to liberty under s.7.

Indeed, starting as early as a decade ago, in the 2000 Blencoe case, the SCC has, cautiously and incrementally, moved toward a much more expansive definition by not restricting the definition of liberty to "mere freedom from physical restraint." Liberty may be restricted when the government interferes in an individual's right to make "profoundly personal choices" which impact their independence, self-worth, and self-identity as a person.

As stated in Gosselin, such liberty interests are triggered by an individuals' interaction with the justice system in the broadest way, such as any "adjudicative context." This would include the administrative scheme under whose authority the licence is suspended.

It can, therefore, be argued that a driver's licence for an adult in today's world is a rite of passage from adolescence to adulthood and is integral to an individual's identity and self-worth. The independence a licence bestows upon an individual is not about mere movement from place to place, but includes highly personal choices of where one can move and at what time. Consider the great impact a loss of license has upon the cognitive disabled and the elderly and the argument becomes even more cogent.

The legislation is therefore vulnerable to Charter rights."

November 29 Administrative Tribunals and Duties of Fairness:

"Another aspect of the new legislation is the ability to appeal the automatic and immediate licence suspension to the Alberta Transportation Safety Board. However, the only consideration on appeal is whether or not the appellant drove as alleged either impaired or with a BAC over 50 or 80. There is no discretion in the Board to quash the suspension or disqualification to drive other than proof the appellant did not drive impaired or over 50 or over 80. 

The Board is, of course, an administrative tribunal and not a criminal court.Therefore the same evidentiary and exclusionary rules do not apply per se. Furthermore, the Board, not being a court of competent jurisdiction cannot provide Charter remedies under s. 24(1) or s.24(2). However, the Board is subject to the rules of natural justice and is therefore bound by duties of fairness. As Madame Justice Paperny stated in the 2003 Thomson case:

In summary to comply with its duties of fairness, the Board must:

a) inform the appellant of the case against him or her,

b) permit the appellant a meaningful opportunity to answer the case against him or her,

c) give full and fair consideration to the issues,

d) consider the source of the evidence or information including whether it was gathered in a manner contrary to the Charter and Charter values,

e) consider relevant evidence and information, and as a corollary

f) not consider irrelevant or unreliable evidence or information, 

g) not act arbitrarily, for an improper purpose or with malice.

Where the Board fails to meet these duties, the decision will be subject to judicial review. 

Despite these duties, Justice Paperny acknowledges that it is possible for a Board to confirm a licence suspension after being satisfied the offence is made out and for a criminal court, at a later date, to acquit the accused of the crime. This result, according to Justice Paperny "is not incongruous, unreasonable or a legitimate basis for avoiding the Board...the loss of a driver's licence...is a civil consequence" distinct from criminal penalty.

The realities of the proscribed licence appeals mechanism may not be "incongruous" but will certainly add another dimension to an impaired driving case. Now an offender may be faced with two hearings on the same issue but because one hearing is in the civil context, there is no double jeopardy and no inconsistency.

There may be duties abounding in this regulatory scheme but no matter how presented, because the stakes are high, the duties will have to be fulfilled scrupulously and dutifully. If not, another hearing, in the form of a judicial review will add yet another dimension to what is already a dual procedure. The increased public cost of such a scheme may prove to be an additional burden on an already burdened justice system."

From December 1 Alberta's Response To The Partial Unconstitutionality of the BC Impaired Driving Regime and from the December 2 Follow Up Post:

"Yesterday, in Sivia v. British Columbia (Superintendent of Motor Vehicles)the British Columbia Supreme Court Justice Sigurdson struck down portions of the amendments to the B.C. Motor Vehicle Act. The amendments in question related to the "automatic roadside prohibition" or ARP, imposed when a B.C. driver was stopped by police under the suspicion of drinking and driving.

The legislation permitted ARP based on the "warn" or "fail" of a roadside testing device. A "warn," equivalent to a BAC (blood alcohol concentration) of between .05 and .08, would result in immediate suspension of the driver's licence, impoundment of the motor vehicle, and a fine. A "fail" would attract similar sanctions but also the criminal law regime under s.254 of the Criminal Code. 

Appeals of the ARP went to an administrative tribunal, under the auspices of the Ministry of Transportation. According to the legislation, the appeal process was limited to considering whether or not the appellant was the driver and whether or not he/she received a "warn" or "fail" on the roadside device. There was no ability to argue against the suspension outside of those very limited factual parameters.

Justice Sigurdson concluded that the legislation was not contrary to s.11(d), the presumption of innocence protection in the Charter, nor was it contrary to s.(10)b, right to counsel.Similarly, s. 7, right to liberty, arguments were dismissed in a very summarily fashion. However, Justice Sigurdson did find the ARP, as it related to roadside device "fails," to be an unreasonable search and seizure under s.8 of the Charter as the scheme authorizes a warrantless search without procedural legal safeguards, most notably, the lack of a meaningful appeal process at the administrative level. Justice Sigurdson acknowledged that the ARP was civil in nature and not criminal but even so required some level of due process when determining if an ARP was appropriate under the regime.

How does this case impact Alberta's proposed amendments to the Traffic Safety Act?  If youread the media articles, certainly the Alberta government is touting this decision as the "mother of all decisions," which effectively gives the Alberta regime the "seal of approval." Why the boast? Simply put, the Alberta amendments differ in the administrative appeal process and does have those safeguards which created the Charter difficulties in British Columbia. Do you think maybe the Alberta government was aware of this case before they created their amendments? 

Certainly, if the same arguments as in Sivia were brought in Alberta, there would, most likely, be no finding of unconstitutionality. However, that does not mean there are no arguments to be made. I refer to my previous posts on the issue, which suggest other arguments, not argued in Sivia, and which can be found here.

Indeed, Sivia may provide further support for some of the issues raised in previous posts. Although Justice Sigurdson found the ARP regime was regulatory and not criminal in prospect, such differences do not foreclose Charter scrutiny and possible unconstitutionality.

Further, as discussed in the Administrative Tribunals and Duties of Fairness posting, the transportation tribunals hearing the ARP appeals will be under the "fairness" microscope and will need to give each appeal full and fair consideration or be subject to judicial review. Such considerations would include whether or not the licence was suspended contrary to theCharter and/or Charter values, even though the tribunal itself has no true remedial powers under the Charter. This is a heavy burden indeed. Particularly as the members of the tribunal do not necessarily have any legal training. 

For further clarification, the proposed Alberta regime requires the administrative tribunal sitting on an appeal of an automatic roadside suspension, resulting from a "warn," to consider the certificate of annual maintenance of the approved screening device and the records of the last calibration of the device. On the basis of those documents, the police report, and any other relevant evidence, either sworn or unsworn, the tribunal must be satisfied that the driver consumed alcohol with a blood alcohol concentration equal to or over .05 at any time within 3 hours after having driven a motor vehicle, before confirming the licence suspension.

In the case of a "fail," where the BAC would be at or over .08, and would therefore trigger the Criminal Code process as well, the administrative appeal board would also consider any certificate of analysis pursuant to s.258 of the Criminal Code and any other relevant evidence. In other words, the appeal hearing would not be unlike trying the matter before the criminal courts except that the process is civil and the standard of proof is not beyond a reasonable doubt but a lower standard of balance of probabilities.

The B.C. regime differs significantly and there is no ability to argue that the approved roadside screening device is faulty. In B.C., there has been significant issues with the roadside devices used.

 In the end, the Alberta government's response appears to be slightly premature and overly confident. What is clear is this: the B.C. case will not end the legal concerns with this legislation."