“Inevitable” legal challenge coming for Alberta’s new licence suspension scheme

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Alberta Premier Rachel Notley. (Alberta Government Photo)


​This week, Alberta unveiled its proposal for fixing their administrative license suspension law. The Alberta law was declared unconstitutional earlier this year, and the province was given one year to write a new version. Yesterday, they introduced the new version.
 
Bill 29 creates a new regime to deal with the problem of alcohol and drug-impaired driving but, in my view, does not cure the constitutional defects inherent in the legislation.
The old version of Alberta’s impaired driving law required drivers to surrender their licenses indefinitely until the resolution of their criminal matters. It was a huge nightmare for the courts, as drivers who were facing impaired driving charges were significantly prejudiced if their criminal cases were adjourned or the trials did not complete in time. Meanwhile, the process to dispute the license suspension was cumbersome and involved attending multiple locations to just file the dispute and get the evidence.
 
The Alberta Court of Appeal ruled that the law was constitutionally invalid due to the fact that it hinged upon a criminal prosecution, and violated the right to be presumed innocent. The disposition of the criminal charge guaranteed termination of the license suspension.
 
The Court of Appeal said this about the law:

[102]      There are two things that can be said about the administrative licence suspension regime. The first is that it is clearly effective. Nothing could better achieve the three elements of effective deterrence (certainty, celerity, and severity) than the universal, immediate licence suspension of every driver who is charged, regardless of hardship, due process, or actual guilt.
 
[103]      The second thing that can be said about the regime is that it was designed without any consideration for constitutional values underlying the Canadian legal system. Nowhere in the Provincial Strategy is there any discussion or recognition of the effect that the administrative licence suspension regime might have on the rights of drivers. Examples of the insensitivity of the Provincial Strategy to core Charter values can be seen in the extracts reproduced supra, paras. 18-20, where it refers to these constitutional values as mischievous, technical and illegitimate strategies.

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Alberta Justice Minister Kathleen Ganley (right, in suit and glasses) at a press conference with law enforcement in May 2017. (Alberta Government Photo)

The new version is better, insofar as it no longer relies on the outcome of the criminal charge for termination of the suspension. However, the process is not divorced from the criminal charges altogether. Rather, the criminal investigation and taking of breath samples (or refusal to provide breath samples) in a criminal investigation still sets about the process.
 
The new version of the legislation imposes a 90-day immediate prohibition from driving. You may find that to be similar to our impaired driving legislation in British Columbia. Another striking similarity to the first, unconstitutional, version of the Immediate Roadside Prohibition legislation is the fact that upon conclusion of the 90-day prohibition, the individual is then required to install an Ignition Interlock device. However, unlike the BC legislation, the Interlock requirement is terminated if the person sacrifices their license for one year.
 
The problem that arises with the constitutionality of this scheme, however, is where it impacts the ability of drivers to engage the criminal justice system. In Alberta, drivers can plead guilty and apply for something called a “curative discharge.” By participating in the curative discharge program, a person can reinstate their license sooner than the one-year minimum, if they agree to install an ignition interlock device in their vehicle.
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Alberta drivers will be required to install an ignition interlock device after serving their 90-day prohibitions. Or they can sacrifice their licences for one year.


But how will this legislation impact drivers? If the province is effectively counting the 90 days and then the Interlock as fulfillment of the requirements of a curative discharge on sentencing, then there is a problem: the curative discharge is administered in all cases, by the Province, and the criminal power over sentencing has been usurped by the legislation. Alternatively, if the administrative provisions do not fulfill the obligations under the curative discharge program then they frustrate the ability of the court to apply the sentence. The person cannot participate in the curative discharge licensing scheme if they are already subject to these conditions.
 
Was the intention to eliminate the curative discharge? This seems to be the effect of the legislation. It’s an inherent structural problem.
 
But inherent structural problems may fall into a category that the Court considered as violating Section 7 of the Charter: inherently bad laws. The Alberta Court of Appeal said this:

[117]      Bedford at para. 96 held that s. 7 also addresses the problem of “inherently bad laws”, through the principles of fundamental justice. That includes those laws that impact the liberty interests of citizens and offend the basic values against arbitrariness, overbreadth, and gross disproportionality. These are distinct concepts but they can overlap: Bedford at paras. 106-7. The norms against arbitrariness and overbreadth protect against the evil that results where the deprivation of liberty is not connected to the purpose of the law. The third concept of “gross disproportionality” is directed against the situation where the deprivation of liberty is connected to the law’s objective, but the impact is so severe it offends fundamental norms: Bedford at paras. 108-9.

Is a law inherently bad because it impacts the liberty interests of citizens and is arbitrary by functioning to eliminate a viable sentencing option, available in the Province of Alberta? Is it arbitrary where its impact affects those who plead or are found guilty within the first fifteen months, but not those who plead or are found guilty in the months after that? In some respects this raises real concerns that the process will incentivize delaying trials, which will in turn offend against the culture of complacency the Supreme Court of Canada rallied against in the Jordan case
 
Time will tell. It is inevitable that there will be another constitutional challenge to this version of the impaired driving legislation, and the Alberta Court of Appeal may well be asked again to determine these issues.
 
In the meantime, it is the accused individuals in Alberta who will pay the price for a poorly drafted, structurally flawed, and ill-conceived law.

1 thought on ““Inevitable” legal challenge coming for Alberta’s new licence suspension scheme”

  1. I was unable to provide a breath sample after 10 tries because I was having a panic attack caused by three male police officers yelling at me… and have subsequently lost my licence for ” failing or refusing to provide a sample”
    How is this lawful or just??
    I tried and tried to blow but couldn’t blow long or hard enough to make it work and now I am losing income, and basically house bound because I live in a town with no transit system…. I feel as though my right to a trial was taken away and I am now being punished without being found guilty of anything… how is this lawful or just?

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