Yesterday, I discussed the possible Charter implications of the proposed amendments to the Alberta Traffic Safety Act and the new rules regarding impaired driving licence suspensions. 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.