Administrative Tribunals and Duties Of Fairness

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.

The Charter And The New Alberta Impaired Drivings Laws: Going Beyond Driving Is Privilege

Our discussion of the tabled Alberta impaired driving rules continues with a look at the legal arguments which may be available under the Charter. At first glance, it appears the case law shuts down any Charter argument based on a review of a myriad of cases, across the provinces, upholding similar legislation.

Even the Alberta Court of Appeal, in the 2003 Thomson case, comes down strongly in favour of this kind of provincial legislation. Thomson upholds the legislation, despite division of powers arguments and claims of Charter violations under s.7, s. 11(d), and s.13, on the basis the legislation is valid provincial legislation, which is purely administrative in nature and therefore imposes a civil sanction as opposed to a criminal penalty. Furthermore, driving, as a licensed regime, not essential to a person's liberty interest, is a privilege and not a right under s.7. Finally, there is great public interest in preventing "carnage on the highways" from drinking and driving.

Despite the above authorities, I would suggest there are still valid Charter claims, which can be brought before a Court depending on the facts of a particular case. As touched upon in yesterday's blog, the automatic, immediate, and indefinite suspension of a driver's license of an offender charged with impaired driving under the Criminal Code as a result of the new scheme, could result in heavy burdens on the administration of justice to have impaired/over 80 cases heard in a speedy manner.

Other provincial legislations place a time limit on these roadside provincial suspensions: typically the maximum suspension is 90 days. The Alberta legislation suspends the licence until the criminal matters are disposed, a time period dependent on the timeliness of the trial. Thus, an unreasonable delay argument under s.11(b) of the Charter may result in those cases where the criminal justice system is unable to provide a timely trial. It may be safely argued that considering the escalating time limited suspensions elsewhere, depending on if the matter is a first offence, a trial may be unreasonably delayed if not heard within 7 days, thirty days, sixty days, and in the most serious scenarios, ninety days. 

There are many factors a court must consider in deciding whether a trial has been unreasonably delayed due to the Charter. Certainly, pursuant to the Askov case, systemic delay is a primary consideration. Other factors include Crown delay in preparing the matter ready for trial and prejudice to the accused. A lengthy licence suspension, can be highly prejudicial to an accused who may require the licence for employment or who lives in a rural area, where public transit is unavailable. In certain circumstances, albeit fact dependent, a Charter delay claim may be successful. As suggested in the previous blog, such a claim could cause the government to prioritize impaired driving cases over more serious crimes, resulting in inappropriate allocation of public resources.

Another Charter argument, more difficult to argue, but again, depending on an appropriate fact situation, should be argued, is a violation of s. 7 rights. Although, the weight of the authorities appears to be against rearguing the issue, the Supreme Court of Canada, in recent cases such as in PHS Community, Gosselin, and Khadr, have expanded the definition of right to liberty under s.7.

Indeed, starting as early as a decade ago, in the 2000 Blencoe case, the SCC has, cautiously and incrementally, moved toward a much more expansive definition by not restricting the definition of liberty to "mere freedom from physical restraint." Liberty may be restricted when the government interferes in an individual's right to make "profoundly personal choices" which impact their independence, self-worth, and self-identity as a person.

As stated in Gosselin, such liberty interests are triggered by an individuals' interaction with the justice system in the broadest way, such as any "adjudicative context." This would include the administrative scheme under whose authority the licence is suspended.

It can, therefore, be argued that a driver's licence for an adult in today's world is a rite of passage from adolescence to adulthood and is integral to an individual's identity and self-worth. The independence a licence bestows upon an individual is not about mere movement from place to place, but includes highly personal choices of where one can move and at what time. Consider the great impact a loss of license has upon the cognitive disabled and the elderly and the argument becomes even more cogent.

The legislation is therefore vulnerable to Charter rights. Tomorrow, I will discuss other areas of legal concern, outside of the pure Charter arena.

The Social Costs of Alberta's New Impaired Driving Regime

Premier Redford, as promised, tabled Bill 26 the Traffic Safety Amendment Act, 2011 as the legislative response to government concerns with impaired driving in the Province. The Bill has already passed first and second readings in the legislature. No doubt, with the truncated legislative proceedings, the Bill will be passed into law before the end of the year. I have already, in previous blogs, discussed some issues with this new legislation and the concerns over the foundational reasons for the new amendments, particularly the statistical evidence used to support the new measures. Previous blogs have also mentioned the lack of due process and criminal law protections connected with the new law as it diverts offenders from the justice system in favour of an administratively expedient process controlled by the police and by the transportation ministry.

Another concern, is the immediate and mandatory suspension automatically imposed on the offender who is charged with an impaired/over 80 criminal code offence. Those individuals, by virtue of being charged criminally, are thereafter disqualified from driving a motor vehicle until their criminal case has been disposed in the criminal courts. This administrative driver's licence suspension therefore can continue for an undefined period and is dependent upon the timeliness of the matter being heard in the criminal courts. 

This is a concerning element as it places an unquantifiable burden upon the allocation of public resources in the criminal justice system. Not unlike the Askov case on Charter trial delay, the impact of this suspension, which is wholly dependent on the ability of the court system to hear impaired cases quickly, can potentially generate an impossible burden on the court system. Charter delay cases will once again rule the courts and be the ultimate adjudicator on who will be prosecuted and who will not. Stay applications will be the norm.

Quite possibly, due to the punitive dimensions of such an automatic disqualification, impaired driving trials will need to be heard within 30 days, thereby re-prioritizing cases in the system. The priorities will not be based on the seriousness of the issue but will be controlled by provincial administrative suspensions.

Whether or not this is an appropriate allocation of public resources will add an interesting twist to this new legislation. Whether or not the public will cheer this prioritizing of such cases over more serious cases, such as violent crimes, will be seen. It is clear however that this new amendment will have heavy social costs for all Albertan citizens.

Tomorrow, I will take a deeper look at the legal issues arising out of this proposal.

Holiday Gifts For The Lawyer On Your List

I am feeling in the holiday mood, despite the Black Friday antics in the USA. If you have a lawyer on your list or just someone special, here are a few suggestions:

1. Donate

Donations are my favourite way of saying "I love you!" and there are many places that need our financial support and help. You can donate as a "gift" to the organization or in honour of a loved one or even in memory of those whom you will miss over the holidays.

As a lawyer in Alberta, I like to donate to the Lawyers Assist program run by the Law Society of Alberta. This organization assists lawyers in need of help for a myriad of reasons such as substance abuse, depression, and the like. Another organization I support is the Legal Archives Society of Alberta. History is so important and is an ideal worth supporting. 

As a criminal lawyer, I support the John Howard Society. This worthy institution provides support for offenders and their families. For a female touch, the Elizabeth Fry Society also helps female offenders in need of guidance. The rehabilitative aspects of these organizations benefits all of society. 

As a lawyer who teaches human rights, I like to donate to Simon Weisenthal Centre, which promotes human rights and holocaust education. The Canadian Civil Liberties Association works hard at preserving and protecting our human rights and civil liberties. The number of cases in which they receive intervenor's status is astounding. A donation there is a big "thank you" to those who volunteer their time to ensure our freedoms are protected.

Personally, I also support the World Wildlife Fund and the Canadian Cancer Society. Buying one of those breast cancer wristbands, I spoke of in my "Keep A Breast" campaign blog would be another great gift. Finally, if you are a member of an ethnic group, as I am, donate to a worthy cause in your specific community. 

2. Gifts Which Say "I Believe In This Worthy Cause"

There are a number of gifts you can give a lawyer or really anyone who cares about an issue. Those breast cancer wristbands for instance. Another idea is a "banned books" bracelet from the American Library Association website. The bracelet, which also comes in a childrens' book version, is made of small stylized front covers of various banned books. My favourite banned book included in the item is "To Kill A Mockingbird," which I recently saw as a play and blogged about here.

If you want to get more radical, buy a T-shirt from Rosa Loves, a website dedicated to what we are dedicated to: they provide T-shirt messages with meaning and as a vehicle for raising awareness and funds. Once the goal has been met, the uniquely designed shirt is no longer available to give way for the next project. An example, is this cool T to raise money for Armonia, a Mexican organization which helps the rural community.

3. Legal Stuff

There is a lot of legal "stuff" out there. If you are channeling former Secretary of State Madeleine Albright, then you will love the "great seal" pin from the Supreme Court Historical Society shop. Or if your taste runs more Canadian, try the cuff links from the Parliament of Canada gift shop. I prefer something to jazz up my dashboard and the bobble-head President Lincoln fits the bill from the Abraham Lincoln Presidential Library and Museum. Although, those Lincoln Logs bring back memories. As a fun piece of trivia, Lincoln Logs were designed by John Lloyd Wright, the son of the famous architect.

4. Retro Gifts

Any lawyer would like a gift that harkens to the nostalgic past. The Star Wars: The Blueprints book would make a nice gift in that memory lane category. This spoof of my son's first baby book Good Night iPad would also be a nifty choice but do not buy Robert Munsch's classic Love You Forever, unless you want a good cry. The best retro gift has to be The Beatles Yellow Submarine action figures. Admittedly, I have a few in my basement, including the Blue Meanie.

5. What I Would Like

A T-shirt from the Imaginary Foundation. I love this website, with its mixture of science, art, design, and everything cool, the Imaginary Foundation makes me feel creative. Just check out these T-shirts and you can see why. I just bought my son this Kaku shirt. I also want the National Film Board's production of Blackfly, based on a song by Wade Hemsworth. You can watch it here. Be prepared, it's addictive. I would also like the book recently published on JRR Tolkein's original illustrations. Finally, I would like everyone to watch or re-watch Lord Bertrand Russell's message of tolerance so we can truly have peace on earth this holiday season.

Proofiness: A Companion To Yesterday's Blog

Proofiness - yes, Stephen Colbert suggested the word when he coined the term "truthiness" meaning the intuition we have when we "just know" something is true as opposed to an objectively proven fact. See my earlier blog on Legal Intuition for more on intuition and fact-finding. But it is Charles Seife, a mathematician and journalist, who invented it. Yesterday, I issued a caution on the use of statistics as a basis for legislation, specifically, the new Alberta and, not so new, British Columbia impaired driving laws. I even invoked Mark Twain to provide the lesson: "There are three kinds of lies: lies, damned lies, and statistics." But today, the term "proofiness" will do.

In Seife's book Proofiness: The Dark Arts of Mathematical Deception, Seife makes a case for the "power in numbers" and the resultant misuse of such power by politicians, scientists, pollsters, advertisers, and the like. Numbers can be manipulated to support or dismiss claims. Numbers, themselves objective quantifiers, can be presented as "proof" to support subjective facts and transform the position into irrefutable truths. Anyone who works in an area where numbers matter must read this informative and disturbing book.

Another similar book is Trick or Treatment? Alternative Medicine On Trial by scientist Simon Singh and phyisician Dr. Edzard Ernst on the fallacy of many alternative remedies. The book resulted in a libel lawsuit against Simon Singh, who recently won on appeal. Singh is also an excellent science writer. I have read and highly recommend; The Big Bang,The Code Book, and Fermat's Last Theorem. But it is his Trick book which contributes to our statistical story. Singh discusses the "trickiness" of some alternative medical practitioners in their use of statistical evidence to show their treatments work. Like Seife, Singh cautions on the inferences to be drawn from statistics without full knowledge of the connections between the statistic and the inference. He gives a priceless example in his book on statistics of climate change and the number of pirates. Statistics can show that global warming diminishes with the number of pirates. Ergo, we need more pirates! Of course, the reasoning is wrong but yet the numbers don't lie. 

Finally, I leave you with a recent article I read from Scientific American on the population "clock" wherein the census takers warn the world of the next population milestone. Indeed, Kofi Annan in 1999 pinpointed the boy who was the "sixth billionth" person on Earth. This was proofiness at its best or should we say worst as there is no way to pinpoint with accuracy actual population. It is all estimate and guess. But it does provide a great marketing moment as the press and media disseminate the "truth." 

We have come, of course, full circle. Numbers don't lie but people do. So the next time you are faced with statistics and polls, just pull a Colbert and demand to see the proof.

As an aside, the Language Log has a great blog on a linguistic analysis of the word "proofiness" and the use of "iness" as a "Colbert suffix." Enjoy!