There has been a great deal of discussion about Alberta’s new proposed impaired driving law, and how it will save lives. The government points to the so-called success of the BC Immediate Roadside Prohibition scheme as a basis to conclude that imposing these measures to decriminalize drunk driving will lead to fewer impaired-driving deaths.
But the reality is that while it is arguable (though not proven) that more lives will be saved, the outcome will be that more lives will be ruined.
To find out how this law will ruin more lives than it saves, read on.
The first step is understanding how Alberta’s new impaired driving law works.
First, if you receive an Alberta roadside prohibition, you have only seven days from the date they were issued the roadside prohibition to dispute it. The prohibition continues uninterrupted after the dispute is filed. This presents a practical hurdle: how does a person who has no vehicle and who lives in a rural farmland area get down to file the application for review? This is a common situation in Alberta.
Oh, and then there’s your right to review the evidence. The law prohibits access to any records in relation to the prohibition unless you have paid the review fee and filed the application for review. This means that you cannot seek legal advice about whether there’s a chance of success before you file for review. Only after you’ve given more of your money to the government.
Now, if the evidence cannot be released to you in your case, then you can have your prohibition cancelled. But this is a discretionary decision made by an adjudicator rather than a mandatory outcome. And there is no statutory timeline for when they have to give you the evidence and records in the case. It could be the day before the hearing, if they choose.
By contrast, if you do not submit your evidence and arguments at least two days before your hearing date, the adjudicator is prohibited from considering them.
And that would be fine, except that you have to have your hearing within 21 days of the date you received the prohibition. Which means that if you get the prohibition and you don’t get your records for ten days after you received it, you only have nine days to respond to the evidence and build your case.
Your case, by the way, is limited. The government can put limits on the types and formats of content you are allowed to submit. They can limit the number of pages you are allowed to submit, and the length allowed for audio and video. Meaning you can be prohibited by law from putting all the evidence in your case before the adjudicator for determination.
Oh, and by the way, that limitation only applies to information submitted by you. The police officer cannot be limited in what they may submit by any of the laws.
How is this fair? The police officer gets to make as much of a case against you as possible, as late as they want, and you have only a limited time and limited ability to respond. Plus, cross-examination is strictly forbidden.
But it gets worse.
Under Alberta’s new impaired driving law, the adjudicator can go out and obtain any further evidence they want to obtain to reject your arguments. Again, there’s no limitation on when the evidence can be obtained by the adjudicator or how many pages it can be, and it does not have to be provided before the review. This means that a person facing an Alberta roadside prohibition for impaired driving is required to prove their innocence against the face of an unknown and unknowable case.
Totally fair, right?
After all, it saves lives. And we’re all about the bottom line in terms of lives saved. It doesn’t matter how many lives are ruined by an ill-conceived law that prohibits people from providing their innocence so long as fewer people die from allegedly impaired drivers who have the right to test and challenge their evidence in court.
Plus, there’s an incentive to accept the prohibition.
If you have a review and you do not pay your fines, and then you lose, you have to pay a late payment charge to the Crown. Yes, even though the validity of your prohibition is under review, you still are accruing interest on the fine amount. Meaning that if you lose, you are punished for taking your shot and trying to fight it.
Oh, and don’t think about paying that fine early to avoid the late payment charges. If you pay the fine, your review is automatically cancelled and you are deemed to accept the prohibition.
Now, if you get all the way to the decision and lose then you can only appeal by way of judicial review. And the judicial review must be filed within 30 days of when you received the decision. And even then, you are only allowed to have two remedies: to compel the decision-maker to do something they are obligated to do, or to quash the decision by granting a remedy known as “certiorari.”
And so many of the ways that a person might ordinarily challenge an unfair or unjust decision are prohibited by law.
Some might say the cost of impaired driving on death and destruction on the roadways is worth the intervention. I disagree. Many people believe that if you don’t want an impaired driving prohibition then don’t drink alcohol and drive.
But this neglects that this law actually incorporates some of the more insidious provisions of the Criminal Code that punish the factually innocent.
For example, people who consume alcohol within two hours after driving will now be subject to this law. Police can show up and test people who drove two hours earlier, and if they are over the limit, they are subject to this law. Oh, and if you are given a totally arbitrary demand to blow into a breathalyzer then you are also subject to this law. Even if you never consumed any alcohol, you are still obligated to blow.
This means that people who refuse to blow because they believe the mandatory breath test demand is unconstitutional and the request for a breath sample is unfounded are streamed through this process. Even if they never drank.
And failing to provide a sample is synonymous with refusing to blow. So those who have medical conditions and are unable to blow are still subject to the consequences of the law. Even if they have COPD.
Ditto for people who refuse to blow because it just generally is unsafe to do so in a pandemic.
The answer isn’t “don’t drink and drive and you’ll be fine.” The answer is for Albertans to oppose this law, and to do everything they can to fight its unfair and overbearing terms. Because otherwise, innocent people will lose their licenses, be forced to pay hefty fines, have their vehicles impounded, and be subject to monitoring by the state in Interlock programs after the prohibition has ended.
This is wrong. It needs to be stopped before innocent people have their lives ruined.
