by Kevin Martin
Calgary lawyer Jeffrey Rath is calling for the province to immediately stop police from issuing "unconstitutional" licence suspensions to impaired driving suspects.
In a letter sent to Premier Rachel Notley and Justice Minister Kathleen Ganley on Thursday, Rath said the province should be honouring an Alberta Court of Appeal decision ruling the practice illegal.
In May, the province's top court ruled that legislation introduced in 2011, which said licences for impaired driving suspects would be suspended from the moment they were charged until the case was resolved in court, was unconstitutional.
But the appeal court suspended their decision for a year to allow the province to come up with new legislation that doesn't offend the Charter.
As a result, the law that has been ruled unconstitutional remains valid until next May.
Rath, in his letter to Notley and Ganley, said despite that, the province should not be acting on a law that violates the Charter rights of Albertans.
"Clearly, the Court of Appeal of Alberta has expressed in the clearest language that your government presides over legislation that is completely antithetical to core constitutional principles that form the bedrock of our constitutional system," Rath wrote.
"Your government has an obligation to respect the Constitution of Canada and to not permit ongoing violations of constitutional law by police officers purporting to operate under a statute that has been found to be unconstitutional."
But Ganley defended the province's decision to continue to hand out administrative licence suspensions the moment drivers are charged and have those suspensions remain in effect until the court process is complete.
"The safety of Albertans in communities and on our roads is our top priority," Ganley said, in an emailed statement to Postmedia replying to Rath's concerns.
"We know deaths caused by impaired driving are senseless, tragic and completely preventable.
"We are currently working on changes to Alberta's impaired driving legislation in response to the issues the Alberta Court of Appeal outlined in (its) decision."
Ganley said the province decided in August that it wouldn't appeal the court's ruling.
"The court is allowing the current sanctions to remain in place until May 2018, which means police officers are still able to suspend licences in impaired driving situations until new legislation is introduced."
On Wednesday, Rath was able to convince a Court of Queen's Bench judge to temporarily lift the suspension handed to one of his clients while he considers an application.
Justice Patrick Sullivan is considering whether to order that the suspension given to Rath's client is improper in light of the Court of Appeal decision.
In a 2-1 split decision, the appeal court ruled the legislation violated Albertan's liberty rights and the right to be presumed innocent.
Justices Frans Slatter and Myra Bielby found linking the suspensions to an accused's criminal prosecution amounted to punishing someone before proving them guilty.
"The suspensions are designed to have a deterrent and punitive effect, and they are imposed immediately upon the mere charging of an offence, without regard to the presumption of innocence or the actual culpability of the driver," Slatter wrote for the majority.
"The administrative licence suspension regime offends the presumption of innocence in several ways," he said.
Slatter said the legislation encourages suspects with potential defences to plead guilty in order to get their licences back earlier.