Appeal court smackdown puts Alberta's impaired driving laws in peril

by Paula Simons

We can't cure an ailing justice system by asking police to multitask as prosecutors and judges

The spring of 2011 was a harried time at Alberta Justice. The department was under pressure, not just to reduce the incidence of impaired driving, but to reduce the amount of time that impaired driving cases were taking to prosecute.

An internal government briefing paper, produced in March of that year, titled Provincial Strategy to Reduce Impaired Driving, complained bitterly that people who were arrested were dragging out their trials, wasting the time of police, prosecutors and judges by making constitutional appeals. "The status quo is not sustainable," cautioned the document, which was never circulated publicly.

On top of that, the paper suggested, drivers weren't sufficiently scared of being caught.

"Currently there is a pervasive belief that an offender can "get off" on "technicalities." The lag between crime and consequence contributes to the problem. This belief does have a degree of truth, however, as impaired driving is clearly the most technical and byzantine of all legal matters routinely considered by Canadian courts," the report continued.

Instead, Alberta Justice suggested "immediate feedback" to discipline drunk drivers.

So in November 2011, just one month after she became premier, Alison Redford introduced Bill 26, amending the provincial Traffic Safety Act with a raft of instant administrative penalties for people arrested on suspicion of impaired driving. Among them? The power to suspend the driver's licence of anyone charged with driving while impaired - even before their case went to trial.

Drunk drivers are a public menace, modern social pariahs, and properly so. Redford's showy crackdown was popular with plenty of people. But others questioned its constitutionality.

This week, almost five years after Bill 26 came into force, Alberta's Court of Appeal struck it down, saying it violates the Charter of Rights.

Writing for the majority in a 2-1 decision, Mr. Justice Frans Slatter pointed out that a driver who pleads guilty could soon get to drive again using an interlock system, the sort that requires a driver to provide a breath sample in order to start a car.

Yet someone who pleads not guilty and fights the charge, he wrote, could wait more than a year for a court date and trial - meaning their licence could be suspended for 12 months or more before they even have a chance to argue their innocence.

Slatter, in a rather creative reading of the Alberta Justice briefing document, effectively accused the government of concocting the law with the express intent of encouraging and coercing guilty pleas and discouraging full blown trials.

"The underlying philosophy is offensive to Canadian constitutional values," he wrote.

"The police have the right to charge people with criminal offences, but those accused are presumed innocent until they have been proven guilty, beyond a reasonable doubt, by a court of competent jurisdiction. Those who commit crimes can be punished, but they are not to be punished until after they have been found guilty."

Slatter was scathing about such "instant justice" - which he deemed "the insult of immediate 'punishment without proof of guilt' in violation of the driver's constitutional rights."

And he went even further, arguing the automatic driver's licence suspension was a "restraint on liberty" and a violation of the Charter's protections of "life, liberty and security of the person."

The court has given the province one year to fix the legislation.

Slatter's majority ruling is a blistering indictment of the current law, but it may well be vulnerable to appeal. As Madam Justice Marina Paperny argued in her dissent, Slatter went pretty far in equating the loss of a driver's licence to a loss of liberty. Driving, she wrote, is a privilege, not a constitutional right.

She also took issue with the amount of emphasis Slatter places on that March 2011 internal briefing document. Slatter effectively treated it as a smoking gun which proved the government's bad intentions. Paperny argued the document has never been published, was not for public consumption, and had been properly ignored by the original trial judge.

But even if the province could win on an appeal to the Supreme Court, how far should today's NDP government go in trying to defend this problematic Redford legacy?

There's no doubt our courts are backlogged and overwhelmed. It takes far too long to get court dates. But we can't dispense roadside justice as a work around. We can't cure an ailing justice system by expecting police to multitask as prosecutors and judges.

"Sentence first, verdict afterwards," is upside down law. Convicted impaired drivers, especially repeat offenders, should be punished, harshly. Their craven selfishness imperils us all. But let's convict them, first.